Blaxter v The Commonwealth

Supreme Court of NSW|2005-09-20|Before: Hidden J

Background and early naval career 3 The plaintiff was born on 24 July 1940. He was twenty-three at the time of the incident and is now sixty-five. He was raised at Eden on the south coast of New South Wales, and in evidence described a normal family upbringing. His father was the proprietor of a general store. He was educated to the age of sixteen, when he left school and worked with his father in the store. He did well at school, had a good relationship with his peers and participated in a variety of sports. 4 He joined the Navy in early 1958, at the age of seventeen. By 1964, the year in which the collision occurred, he had progressed to the rank of leading seaman and had undertaken courses qualifying him as a radar operator and a navigator's yeoman. He had begun the course for progression to petty officer. He had signed on for nine years, but he said in evidence that he had enjoyed his experience of the Navy, had intended to make it his career and had wished to remain in it as long as possible. His aim was to attain the rank of chief petty officer. 5 Three men who had served with him in the Navy in those early years gave evidence: Herman Van der Hoek, John Sykes and Wayne Miller. Mr Van der Hoek confirmed that he had seen the Navy as his life, and Mr Sykes and Mr Miller attested to his competence in the field of radar and navigation. 6 At the end of 1964 he married a young lady with whom he had had a romantic association for some years. The relationship broke down, in circumstances which it will be necessary to consider, and they parted towards the end of 1969. He remarried in 1974 and that relationship has endured. There are no children of either union. Both women gave evidence. 7 All the evidence points to his having been a happy young man, with a positive outlook, prior to the collision. His former wife, now Mrs Hazel Saunders, described him in evidence as "an absolute gentleman", who was "very loving" and "very kind". She also confirmed that he saw the Navy as his career for life. Her sister, now Mrs Helen Herbert, said that he was "very happy go lucky" and that he "loved life". To her perception, his relationship with Mrs Saunders was "wonderful". Mr Van der Hoek described him as "one of the nicest, even tempered guys that I knew," and Mr Sykes and Mr Miller commented upon his pleasant, relaxed personality. 8 A matter which will need to be considered is his consumption of alcohol, particularly after the collision. His own evidence was that before the collision he had been a moderate drinker who, like many young men, occasionally drank too much. The evidence of Mrs Saunders, Mr Van der Hoek and Mr Sykes was that he had been a light, social drinker. Mr Van der Hoek said that he was sometimes "tipsy", but "never drunk". Mr Miller had no recollection of drinking with him. Obviously, Mrs Saunders was not able to observe his drinking habits when he was away on duty, and his naval companions were not always serving with him on the same vessel or at the same establishment. Nevertheless, what emerges from the evidence is that his alcohol consumption was no more than average and that, certainly, he did not have a drinking problem.

The effects of the collision 9 The plaintiff was given leave after the Melbourne returned to Sydney. He stayed at a flat at Summer Hill where Mrs Saunders was then living with her sister. Both those ladies gave evidence that, on the night that he arrived, he spoke of what had happened. As he did so, he was crying and he tore a handkerchief into shreds. He and Mr Sykes, who had also been aboard the Melbourne, went to a nearby hotel and got very drunk. Mrs Saunders was still up when he returned to the flat, and she said that she had never before seen him in that condition. They went to bed, but during the night she awoke to find him apparently having a nightmare. He was sitting upright in the bed and screaming, "His arms, his arms! His legs, his legs!" Mrs Herbert heard him from the next room, where she was sleeping. 10 The plaintiff himself described a recurrent nightmare in which he was being pursued in a passageway of a ship, which became narrower as he ran. He said that he had never had a nightmare of that kind before the collision and that he had generally been a good sleeper. After the collision, quite apart from the nightmares, he tended to wake in the small hours and had trouble getting back to sleep. Mrs Saunders said that he did not have any sleep problems before the collision. She said that the nightmare which she had described occurred every night for several months after the collision. Thereafter, she said, as his drinking continued, "the nightmares and sleeping patterns sort of settled down." The frequency of the nightmares decreased until "there was none". 11 However, the evidence of both the plaintiff and Mrs Saunders is that his drinking increased, as he put it, "drastically." Obviously, there were times when he was on duty when he had no access to alcohol, but he said that he drank large quantities of beer "at every opportunity that I got." Mrs Saunders saw the aftermath of the collision as the start of "his heavy drinking problems", saying that he was "always full." She said of him, "Where he was a gorgeous handsome man that I met, he had turned into a man that just went to drink." 12 There was also a marked change in his personality. Mrs Saunders said that he was not the same person, that he was "very sad" and that he had "lost all enthusiasm." Mr Sykes said that, after the collision, "he seemed to be a lot more argumentative and harder to get on with" and that he "seemed to be in a world of his own". 13 Notwithstanding these developments, the plaintiff and Mrs Saunders married in December 1964. She said that she married him "because I wanted to get him on a better pathway in life than where he was after the accident". Unfortunately, the situation did not improve. She said that he certainly was not a happy person, that when he was ashore he avoided coming home and, when he did, he had clearly been drinking. They delayed their honeymoon until he left the Navy in 1967, when they travelled to New Zealand. She described the honeymoon as "a disaster". He was "okay" during the day, but at night he would stay up and drink rather than joining her in bed. 14 It is clear that the marriage was not viable. The plaintiff said that he was drinking heavily and was "continually neglecting her". Mrs Saunders' evidence was to the same effect. Of the marriage generally, she said that "he was there but it wasn't happy". She added that "he didn't want to come to bed". She left him for a period in 1968 but went back to him. However, she terminated the relationship in 1969 because, as she put it, "I had no marriage". They were later divorced. 15 In assessing the evidence of Mrs Saunders, it is fair to observe that the plaintiff was away at sea for substantial periods of time in 1964 and 1965. It was only after that time, when he was posted ashore in Sydney, that she lived with him continuously. However, in December 1966 she moved to his home town of Eden and lived with his family until he left the Navy in March of the following year, when he joined her there. 16 In the early 1970s he lived for a time with Mrs Herbert, who was then herself married. She described him during that period as "a total absolute misery". She said that during dinner he would sit at the table "just crying for no reason at all" and would repair to his room. She said, frankly, that she was pleased when he finally left. In assessing the significance of that evidence for present purposes, it is fair to bear in mind that this was only a year or so after his relationship with her sister had broken down. 17 As I have said, he married his present wife, Mrs Janice Blaxter, in 1974. She was herself divorced and had two teenage sons from her previous marriage. This marriage proved to be both enduring and rewarding. He said in evidence that they were "very compatible" and "very much in love". They lived at Mount Druitt and Penrith until 1991, when they moved to Iluka on the north coast of New South Wales. 18 Mrs Blaxter herself described him as an attentive and caring husband, who had been a responsible provider and had effectively adopted her children as his own. However, she also described him as very quiet and reserved, and as one who mixed with others only reluctantly. As a result, their social life was limited. She assessed his self-esteem as "very low", saying that he "puts himself down a lot". 19 He also remained a heavy drinker, although he said that his drinking moderated somewhat after the move to Iluka. This was confirmed by Mrs Blaxter, who said that every day he drank "a fair bit" of beer. She said that it did not "affect him like it would some people" (presumably because he had developed a considerable tolerance over the years) and that it would make his mood "a little lighter". It was her observation that he continued to drink heavily after the move to Iluka. He drank home brewed beer and some kind of whisky, which, apparently, he also made himself. He would start drinking in the late afternoon, and after dinner he would sit in a lounge chair and sleep for several hours. Generally, his consumption of alcohol concerned her. 20 In 1997 he went to Brisbane to attend a reunion with some of his former naval companions. Among them was Mr Miller, who had not seen him since the 1960s. Mr Miller described him on that occasion as "very quiet, withdrawn" and "not the sort of bloke I expected to see". He added that he was "scoffing the grog like it was going out of fashion". Mr Van der Hoek gave evidence of a reunion in 1998, which might have been a reference to the same occasion. He also had not seen the plaintiff since the 1960's. He observed him to be "very down" and to drink a lot, although he added that they all drank to excess that night. 21 The plaintiff said that he continued to experience the nightmare which he had described, and this also was confirmed by Mrs Blaxter. She said that he was a very restless sleeper, and that she would be awoken by his throwing himself about and moaning and groaning. To her he described a nightmare in which he was "in a tunnel or a narrow corridor" and was "being pursued by something". This, she said, had first occurred very early in the relationship and had not changed over the ensuing years. 22 I have referred to the evidence of his speaking of the collision, in great distress, when he first saw Mrs Saunders and Mrs Herbert after the event. Thereafter, he said, he rarely spoke about it to anybody (apart from the professional consultations which ultimately led to the present proceedings, to which I shall refer later). Yet again, this was confirmed by both Mrs Saunders and his present wife. Mrs Saunders said that, when she asked him about his nightmares, he "closed off" from her and would not discuss them. She could recall one other occasion when they were reading newspaper articles about the collision and he said no more than, "That's yours truly there." Otherwise, she said that he never wanted to discuss it and kept it to himself. Mrs Blaxter also could recall one occasion on which he spoke of it, when there was a television programme about it in which the Melbourne was depicted. He said that he had been on that vessel, but otherwise had "not very much" to say. 23 Some of his behaviour over the years since the collision suggested a high level of anxiety, such as he had not experienced before it. He said that, generally, "things have got to be right and in order so that I do not have the fear of anything happening because it is not in order." He cited as an example his need to check the family car after it had been serviced. He said that he always had to check "a couple of times" that the house was locked before he and his wife went out. Mrs Blaxter said that, if they left the house to go on holiday, he had "a ritual" of checking about three times that all doors and windows were locked, such that sometimes "we leave the home three times." 24 In the early 1990's, after the move to Iluka, he joined the Coastguard as an onshore radio operator. On one occasion a yacht had to be rescued in very rough weather and he was anxious throughout the operation, fearing that he would not be able to make decisions "when the pressure was really on." He resigned as a radio operator after that incident. 25 Mrs Blaxter said that he was reluctant to fly, as he did not like being in the confined space of an aircraft and feared that it would crash. At Iluka he bought an aluminium dinghy, but he only used it "a handful of times" and eventually sold it. He said that it "revived some memories that I had in other small boats and I didn't enjoy it …" Mrs Blaxter said that he used the boat "probably four or five times at the most", and that he didn't like the smell of the motor because "it reminded him of the cutter." 26 They had been to sea on holiday, including several trips to Heron Island on a catamaran and a ferry trip to Tasmania. He said that he was "anxious" during those trips. Mrs Blaxter said that, when they boarded the ferry for Tasmania, he checked the lifeboats and the exits to ensure that the vessel was safe. He was also prepared to pay a significantly higher fare to ensure that they had an external cabin with a porthole, above the waterline. The significance of that emerges from some evidence given by Mrs Herbert, who said that he had told her that on the Melbourne he would sleep "on top of the ship in the safety boats because he was too frightened to go downstairs." She was not sure whether he said that that was when the Melbourne was sailing back to port after the collision or when he later returned to continue his service on that vessel.

Leaving the Navy 27 As I have said, the plaintiff left the Navy in 1967, when his nine-year term came to an end. He did not undertake any examinations towards further promotion. He described himself as "just filling in time" until the expiration of his term, but nevertheless his conduct record remained good. 28 It is necessary at this point to refer to an incident in the immediate aftermath of the collision. In the morning after the accident and the rescue operation, there was a "pipe" for the drivers of the cutters to attend the hanger on the Melbourne. The plaintiff and his fellow drivers did so, expecting to be complimented for their efforts. Instead, a naval doctor "harangued" them, demanding to know who among the rescued men had been given morphine. The plaintiff responded that there had been a sick bay attendant on his cutter who had given morphine to any men who were obviously in pain but, given the difficult conditions in which they were working, he had no idea how many men had been given the drug or in what dosages. He also laughed aloud at the doctor's demand, considering it ridiculous in the circumstances. 29 He was charged with insubordination, although that charge was later dismissed by the captain. Nevertheless, the incident left him totally disillusioned, and he said that from that day on he was "finished with the Navy." He appears also to have felt that the inquiry into the collision was something of a witch-hunt, in which his captain had been "crucified." To this evidence it will be necessary to return. 30 In mid 1965, during the Vietnam War, he served aboard the Melbourne for about a month in South Vietnamese waters. They were escorting a troop carrier, HMAS Sydney. They were not involved in any combat but for four days the vessel was placed on "defensive alert." He said that for most of the time they were in the area they were confined to the ship "in action stations" and that, aware that they were going into a war zone, he was "fearful of another accident." Generally, he said that it was a worrying time and that he was glad to get home. He felt that the experience increased his drinking. It will be necessary to return to this evidence also. 31 He said that within a couple of months of the collision he decided that his naval career was over. Apart from the disillusionment to which I have referred, he found that he was fearful of going back to sea. He feared the confined spaces of the Melbourne, apparently embodied in his nightmares, and he found that he had "lost all faith and trust in my officers." Every time the Melbourne sailed, he said, he became "very anxious and agitated." He had lost any desire to progress in the service.

Employment after the Navy 32 As I have said, the plaintiff returned to Eden after he left the Navy. There he worked again in his father's store. He left Eden after the breakdown of his marriage. In the early 1970's, while he was living with Mrs Herbert, he obtained employment with a roofing company run by her brother-in-law. The work was physically demanding and required alertness, but he enjoyed it and, apparently, was a reliable employee. He held that job for about four years. However, there were occasionally accidents, including a serious one when a fellow employee fell from a tower inside a building, and he decided to resign because of those events and because, as he put it, "I wasn't all that happy up on high buildings". 33 34 He then obtained employment with a boat building company called Cresta Cruisers Pty Ltd, where he remained for about three years. The company made fibreglass vessels and he worked as a laminator, finisher and assembler. Again, he enjoyed the work, some of which required some skill, he got on well with other employees and had a good attendance record. 35 In the late 1970's he left that job to take up a position as an electrician's labourer at Toohey's Brewery, where he remained until 1991. The work involved labouring tasks, such as carrying ladders, washing electric motors and cleaning workshops, and it did not involve any technical skill. Nevertheless, he enjoyed it also and, yet again, he maintained a good attendance record and was seen as a valued employee. His evidence was that he resigned from that job because it was a very noisy work place and, due to his general state of anxiety, he felt that he was losing concentration. In addition, he had come to dislike the "hustle and bustle" of Sydney and wanted to move to a quieter country location. 36 Hence the move to Iluka. There he did a couple of short-term jobs of no significance, but undertook no further employment. His work generally had been that of a labourer, which Mrs Blaxter did not like. She said that she believed he could do better than that because of his achievements in his early naval career, and also because she observed him to be "very clever with figures". She said that at one stage he was presented with the opportunity of an electrical apprenticeship at Toohey's, which she would have liked him to take up, but he had said that he did not "need that stress."

The plaintiff's credibility 37 The defendant challenged the credibility of the plaintiff's account of the effects upon him of the collision by reference to applications he made in the late 1990's to the Department of Veterans' Affairs for a disability pension. His early naval career had led to a hearing loss (a condition which is no part of the present claim). Some time in the mid 1990's he discussed the problem with a man he met who had once served in the Navy, and that man suggested that he make a claim upon the Department. He made an application in August 1995, which was refused on the basis that the disability was not related to "operational war service". In March 1996 he applied for a review of that decision, noting that it appeared to have overlooked his period of service in Vietnamese waters in 1965. That led to his securing a part pension. The significance of that course of events, it was argued on behalf of the defendant, is that he had learnt that a claim of that kind could not succeed unless it was related to war service. 38 His dealings with the Department brought him into contact with Mr Sheldon Mahr, a member of the Vietnam Veterans' Federation in Lismore. In mid 1997 he was discussing his drinking and sleeping problems with a former naval companion, who recommended that he see the Veterans' Federation about those problems also. Mr Mahr referred him to a general practitioner in Ballina who, in turn, referred him to Dr Ian Hayes, a psychiatrist in Lismore. To that doctor he gave a history of drinking and other psychological symptoms dating from the collision (although he also referred to his Vietnam experience). 39 However, about a month before that consultation he signed an application for a further disability pension, made out by Mr Mahr, claiming that he suffered post traumatic stress disorder, "depression anxiety state" and substance abuse as a result of "war caused stress" arising from his Vietnam service in 1965. He signed related documents, also made out by Mr Mahr, which attributed his increased drinking and smoking to that period of service. However, that application was refused because a report of Dr Hayes supplied to the Department attributed his problems to the collision. That led to his signing in February 1998 an application for a review of the decision, again made out by Mr Mahr, claiming that pre-existing post traumatic stress disorder and substance abuse had been exacerbated by his Vietnam service. 40 What became of that application is not clear on the evidence. However, he reported to Dr Hayes in November 1997 that he was pleased to have a "gold card" and to be receiving a regular pension. The doctor offered to review him in the following year, but he did not take up that offer and had no further contact with him. He had never sought any kind of treatment prior to his consultations with the general practitioner and Dr Hayes, and sought none thereafter. In October 1997 he was referred by his present solicitor to Professor Peter Yellowlees, psychiatrist, for a report for the purposes of these proceedings. To that psychiatrist he attributed his problems to the collision and its immediate aftermath. 41 There is no need to elaborate upon this course of events. Senior counsel for the defendant argued that it demonstrates that the plaintiff is a man with no respect for the truth, who was prepared to say whatever he thought was necessary for the purpose of obtaining financial benefits. His approach, it was argued, has been consistently opportunistic. He was content to ascribe his symptoms to his Vietnam service for the purpose of obtaining a war related disability pension, and then to ascribe them to the collision for the purpose of the present proceedings. Counsel noted that he had never sought treatment, and consulted doctors only for the purpose of pursuing financial benefits of one kind or another. 42 There is no doubt that this evidence is damaging to the plaintiff's credibility and, if it were not for the other evidence in the case, could well have jeopardised the present claim. He should not be permitted to take refuge in the proposition, which I consider highly likely, that the formulation of his disability pension claims was the work of a resourceful Mr Mahr. He must accept responsibility for the documents to which he put his name. 43 However, his account of the effects upon him of the collision finds significant support in the other evidence: that of Mrs Saunders, Mrs Blaxter, Mrs Herbert, Mr Van der Hoek, Mr Sykes and Mr Miller. There was no challenge to the credibility of those witnesses: nor could there have been. The value of the evidence of Mrs Herbert and of his three naval companions is necessarily limited by their more or less sporadic contact with him. The same cannot be said of the evidence of Mrs Saunders and Mrs Blaxter. Both women impressed me as witnesses whose testimony was patently honest and, despite the emotional nature of their relationship with him, remarkably objective. 44 That being so, on the whole of the evidence, I accept that there was a marked change in his mood and outlook as a result of the collision and that it set in train a pattern of excessive drinking. It was that pattern of drinking, with the associated neglect of his wife, which led to the breakdown of his first marriage. Although his drinking later moderated, he has continued to use alcohol to excess throughout his present marriage. 45 I accept that he has had nightmares with a recurrent theme of being trapped below the decks of a vessel. Although the incidence of those nightmares reduced after the first three months, it is apparent from the evidence of Mrs Blaxter that they have continued to some extent. I accept that he has been reluctant to talk about the collision, that he was and remains anxious being aboard a vessel, and that he has otherwise demonstrated anxiety by the obsessive behaviour which I have recounted. 46 It is necessary to examine the psychiatric significance of these matters and the extent which they can fairly be attributed to the collision. That he has never sought treatment might be explained by the fact that a man of his generation and background would be unlikely to consult a doctor about what he perceived to be emotional or behavioural problems, but this was not explored in his evidence. Given my findings, it is of no moment. His reasons for leaving the Navy and his subsequent employment, bearing upon the claim for economic loss, require separate consideration.

The psychiatric evidence 47 Before me, tendered in the plaintiff's case, are psychiatric reports by Dr Hayes, Professor Yellowlees and Associate Professor Alexander McFarlane. Dr Hayes and Associate Professor McFarlane gave evidence. In the defendant's case I received psychiatric reports of Dr J Sydney Smith and Dr Jonathan Phillips, both of whom gave evidence. I also received a brief report of Dr Stewart Hase, psychologist, prepared in relation to the 1997 pension claim, and a typewritten statement of the plaintiff prepared for submission to another psychiatrist, Dr Bell. Both those documents were received only for the history which they disclosed. 48 Of the five experts whose opinions were relied upon, differences of opinion between them in their reports were to a significant extent the product of incomplete or inconsistent histories supplied to them by the plaintiff. A fair measure of consensus emerged between the four psychiatrists who gave evidence when, in the course of their oral evidence, they were taken to the testimony of Mrs Saunders, Mrs Blaxter and the other witnesses and asked to assume the facts as I have found them. They dealt with the issues of post traumatic stress disorder (PTSD), generalised anxiety disorder, and alcohol abuse or dependence, all of these being recognised psychiatric disorders. 49 There is evidence, documentary and oral, of the nature of these disorders and, in particular, of the distinction between PTSD and generalised anxiety disorder. I find it unnecessary to analyse that evidence because, in my view, the extent of the plaintiff's psychological injury emerges sufficiently from the facts as I have found them. None of the psychiatrists who gave evidence questioned his alcohol abuse or dependence (the distinction between those two concepts not being material for present purposes). It is true, as senior counsel for the defendant pointed out, that his drinking does not appear to have impaired in any significant way his continued service in the Navy or his subsequent employment. In the Navy his record remained good and he continued to carry out his tasks competently. As I have recorded above, in civilian life he was consistently an able and reliable employee. 50 However, there can be no doubt about the impairment of his personal life. As I have said, I am satisfied that his excessive drinking was the primary cause of the breakdown of his first marriage. While it has since moderated, it is a matter of concern in his present marriage. It is a long standing problem which, I am satisfied, can be traced to the collision. That said, some allowance must be made for his own concession in evidence that it was exacerbated to some extent by his Vietnam experience, although that matter was not investigated by the psychiatrists. 51 In supplementary submissions, senior counsel for the defendant referred me to Cole v South Tweed Heads Rugby League Football Club Limited (2004) 217 CLR 469 and, in particular, to the observations of Gleeson CJ at [13], [14] and [18] about the personal responsibility which adults should normally accept for their own drinking. He referred also to the observations of Ipp AJA in the Court of Appeal in that same case, reported in (2002) 55 NSWLR 113 at [156]ff. In addition, he relied upon some observations about that matter in three cases which themselves arose from the Melbourne/Voyager collision: Commonwealth of Australia v Ryan [2002] NSWCA 372 per Hodgson JA at [82] - [83], the judgment of Studdert J in McLean v Commonwealth of Australia (unreported, 28 February 1997), and the judgment of Cripps AJ in Hill v The Commonwealth [2003] NSWSC 1025 at [25]. It is sufficient to say that all those cases are distinguishable on their facts. I am satisfied that the plaintiff's alcohol abuse was, and remains, beyond his control. I might add that the issue of personal responsibility was not raised with him in cross-examination, the thrust of the questioning being the origin and extent of his drinking and the measure of his impairment. 52 The psychiatrists agreed that alcohol abuse often goes hand in hand with PTSD and generalised anxiety disorder. Associate Professor McFarlane concluded that the plaintiff appears to have "satisfied the diagnostic criteria of PTSD" at various times, noting that the symptoms of the condition can fluctuate. He found that he consistently satisfied the criteria for generalised anxiety disorder, a condition which often co-exists with PTSD. The other three psychiatrists variously saw in the history provided to them, including aspects of the evidence before me, symptoms of one or other of those conditions. These were the nightmares, which clearly relate to the notion of being trapped in a vessel and have their origin in the collision, the continuing anxiety in its various forms which I have described, the plaintiff's reluctance to talk about the collision, and his relative social isolation. I am satisfied that all these symptoms are attributable to the collision. 53 Again, the relevant impairment is to be found in his personal life, as opposed to his last years in the Navy and his civilian employment. He gave evidence that his hearing problem became serious, characterised by the unpleasant experience of tinnitus, and it must be accepted that this may have contributed to his social isolation. This was a matter raised in cross-examination of the psychiatrists but, again, not one which they had investigated. PTSD is a more acute condition than generalised anxiety disorder, and I can see the force of Associate Professor McFarlane's opinion about the incidence of both of them in the plaintiff. Nevertheless, I find it unnecessary to determine which of those labels is best assigned to his problems at different times. It is sufficient to say that I am satisfied that the collision caused him a serious psychological injury, which has abated over the years but has left him with the ongoing problems described by himself and his present wife.

General damages 54 I must assess damages upon the basis of my findings that the collision caused the plaintiff great distress and had very serious effects upon his life over the next few years, culminating in the breakdown of his marriage. It has led to the continuing problems to which I have referred, in particular, nightmares, pervasive anxiety and excessive drinking. He has endured those problems for many years and it is likely that they will be with him for the rest of his life. 55 He is entitled to substantial general damages. I would award $160,000. As most of those damages are referable to the past, I would award interest at 2% on 70% of that sum.

Economic loss 56 The plaintiff, however, faces greater difficulties in establishing his claim for economic loss. This is a claim for loss of income while he remained in the Navy, of a pension which he would have received if he had served for twenty years, and loss of earnings in civilian life due to his psychological injury. 57 The claims for loss of income while in the Navy and of the prospect of a naval pension turn upon the question whether it was the psychological injury which caused him to leave the Navy and to progress no further in his last years of service. This is a matter to which I have given anxious consideration, as it is a substantial claim, but I have reached the conclusion that it is not made out. I trust that I do it no injustice by dealing with it relatively briefly. 58 I received in the defence case a report of Lieutenant Commander Hartcher dealing with the proportion of recruits to the Navy at the relevant time who went on to achieve service of twenty years or more. However, as senior counsel for the defendant pointed out, this claim does not turn on that report. The difficulty which the plaintiff faces is that the evidence as a whole falls short of establishing that he left the Navy because of his psychological injury. I have earlier referred to his disillusionment following his treatment by the naval doctor and the charge of insubordination laid against him on the morning after the collision, leading to his decision that he was finished with the Navy. That was his evidence in this Court, and it was also a sentiment he expressed to psychiatrists to whom he was referred for his claim for a disability pension in 1997 and for the purpose of the present proceedings. 59 To Dr Hayes he reported his disappointment at the reaction of his superiors to his experience and to the fact that he had not received any thanks for his rescue efforts. The doctor observed that he "seemed to lose confidence in the Navy as an organisation". In a report to the Department of Veterans' Affairs Dr Hayes wrote that, after his rescue efforts, "he was disciplined for insubordination, and was eager to leave the Navy". It seems that he made a similar complaint to the psychologist, Dr Stewart Hase. He told Professor Yellowlees that "following the way that he was treated after the accident he gave up all hope of staying in the Navy or improving himself. He simply decided to finish his time and keep his head down as much as possible". He also complained to that doctor about the inquiry into the collision and what he perceived to be the unfair treatment of his captain. Finally, he told Associate Professor McFarlane that his treatment on the morning after the collision had "knocked him for six" and "added to his disbelief about the whole system". To none of these experts did he say that his decision to see out his term and leave the Navy was the result of the psychological sequelae of the collision itself. 60 No doubt, as he said in evidence, he was anxious about going back to sea on a naval vessel after the collision. It would be surprising if he were not. Nevertheless, he did not seek a premature discharge and he saw out the remaining three years of his term. In all the circumstances, adopting the approach to causation espoused in March v Stramare (1990-91) 171 CLR 506, his failure to progress in the Navy and his leaving at the end of his nine year term cannot fairly be attributed to the psychological effects of the collision. 61 It follows that the claims for loss of income while in the Navy and of a naval pension must fail. However, the claim for loss of earnings in civilian life troubles me. It was put by reference to his projected earnings if he had remained and progressed in the Navy. In the light of my finding, it cannot succeed on that basis. However, the question remains whether his psychological injury impeded his opportunity for civilian employment, so as to reduce his earning capacity. It does not appear to me that that discrete issue was addressed in final submissions. Notwithstanding my delay in delivering this judgment, I feel that the plaintiff's legal representatives should have the opportunity to address the issue. The defendant, of course, should have the opportunity not only to respond to any further submissions on behalf of the plaintiff but also to object to that course being taken. I shall list the matter for mention in the near future to deal with any such objection and, if appropriate, to set a timetable for further submissions. 62 In due course, and subject to that outstanding matter, I request the parties to bring in short minutes to give effect to my findings and, if necessary, I shall hear argument on costs. Counsel should feel free to inform me if I have made any technical error or have failed to deal with any relevant matter. **********

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CITATION : Blaxter v The Commonwealth [2005] NSWSC 941

Cole v South Tweed Heads Rugby League Football Club Limited (2004) 217 CLR 469 Commonwealth of Australia v Ryan [2002] NSWCA 372 CASES CITED : Hill v The Commonwealth [2003] NSWSC 1025 March v Stramare (1990-91) 171CLR 506

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