Brian Finlay Hill v The Commonwealth of Australia

Supreme Court of NSW|2003-11-11|Before: Cripps AJ

Background 14 The plaintiff was born on 8 September 1938. He enlisted in the navy on 13 February 1958 and as at 7 August 1964 (six months after the collision) he had achieved the rank of Leading Airman. He was discharged from the navy in December 1964. 15 At the time of the collision on 10 February 1964 he was married and had one child James born in May 1962. Later he and his wife had a second child Stuart who was born in 1968.

16 It is common ground that the plaintiff had employment from December 1964 when he left the navy until 2000. What is in dispute is the reliability of the his narrative concerning his work capacity and his claimed inability to maintain constant employment. 17 It is the plaintiff's case that he was very much unaware that he had suffered from post traumatic stress disorder (or, for that matter, any other psychiatric disorder) as a result of the collision until well into the nineties. Although he was aware that he was suffering the symptoms referred to above which include insomnia, claustrophobia, nightmares, flashbacks etc he was unaware that these disorders were relevantly connected with the collision. 18 The plaintiff's case is that he has suffered a psychiatric illness (or illnesses) consequent upon the collision derive from the reports of psychiatrists retained by him and who saw him between 1997 and 2003 and they, of course, relied on the correctness of the history assumed by them.

19 The naval medical records (which I will refer to in more detail later) refer to examinations when the plaintiff was in Balmoral Naval Hospital in September to October 1964 and prior to his discharge for what was described as "an anxiety state". These records on their face evidence no connection between what the plaintiff was suffering from and the collision. Nor do they make any reference to the psychological or psychiatric symptoms assumed by psychiatrists later retained on behalf of the plaintiff. If the records are correct the plaintiff's psychological or psychiatric symptoms were the result of him contracting VD in Hong Kong prior to the collision. The hospital records concerning the plaintiff's suicide attempt and other records relating to the medical procedures and operations throughout the plaintiff's life and up until 1997 do not support his claim. By way of illustration the records of the plaintiff's general practitioner, Dr Moss little to support him. 20 The plaintiff has alleged, in effect, that ever since the collision he suffered from the distressing symptoms he has told his psychiatrists about and which are relied on by them. He has alleged that in order to alleviate his symptoms he resorted to excessive alcohol consumption immediately after the collision and which led to him becoming an alcoholic. Yet very few of the symptoms presented to the psychiatrist and given in evidence before me appear in any of the medical records prior to 1997 and when they do, for example, insomnia they are attributed to causes other than the collision. On behalf of the plaintiff it is argued by those retained on his behalf that this is explicable by reference to the nature of the condition of post traumatic stress disorder itself. For example it is said that it can result in what has been described as 'psychogenic amnesia'. Sufferers put matters to the background of their mind to preclude recall and that explains why the plaintiff could not recall the details of what happened on the night of the collision. It is also maintained that the condition of post traumatic stress disorder causes sufferers to resort to 'avoidance behaviour' whereby the sufferer avoids activities such as, in the plaintiff's case, violent movies or being at sea. It is also submitted that, although the symptoms of the disorder may result in a person functioning at work at a lower level than would otherwise have been the case, excessive working habits are not inconsistent with post traumatic stress disorder because that condition may cause a person to become an excessive worker in order to drive away unpleasant and intrusive thoughts. 21 It was agreed by the psychiatrists that, in the last analysis, the diagnosis of a mental illness depended upon the accuracy of the history given. The psychiatrists called on behalf of the plaintiff accepted the history given prior to making their diagnosis. Once that diagnosis was made they sought to explain away historical inconsistencies and inaccuracies as being a consequence of the condition. But at the end of the day I have to be satisfied on the balance of probabilities concerning the accuracy of the history given and upon which the diagnosis of mental illness is made. 22 As I have said the plaintiff's primary case is that he suffered post traumatic stress disorder. This led him immediately after the collision to drink heavily to "self medicate" with the result that he has become an alcoholic. It would appear to be submitted on his behalf that his consumption of alcohol has resulted in him functioning less efficiently in the work force, resulting in loss of earning capacity, broken marriages and three suicide attempts.

23 Alternatively, it is alleged that even if he did not suffer from the condition of post traumatic stress disorder or any other anxiety disorder of the type referred to in his claim, he has made out a case that by reason of the collision he has become an alcoholic and that even if he did not suffer from one or other of the other conditions referred to above, he is entitled to be compensated for the consequences of his alcoholism. 24 It would seem that at the present time and for some time the plaintiff would meet the description of an alcoholic. But precisely when he became an alcoholic, i.e. addicted to alcohol and thereby losing the capacity to refrain from drinking, is unclear. The plaintiff claims that he began drinking excessively immediately after the collision. He has said that immediately before the collision he was a moderate drinker but that after the collision he began drinking fourteen or fifteen stubbies of beer a day, together with wine and spirits and that this had continued since 1964 until the present day. He said that alcoholism led to friction with his wife (who unfortunately died in a car accident in 1969) and caused the marital break-up of two subsequent marriages, and problems associated with a person with whom he lived and three suicide attempts. 25 At the outset I record that I am not satisfied the plaintiff has established any psychiatric illness consequent upon the collision, which caused him to leave the navy and that sometime later resulted in him becoming an alcoholic. Moreover I do not regard alcoholism as being a psychiatric condition of the same kind as post traumatic stress disorder. But if the plaintiff has become an alcoholic (which I think he has) that condition must have been preceded by a decision by him to drink to excess. I find that the plaintiff's narrative history and upon which the diagnosis of a psychiatric injury was made is unreliable. I have not overlooked the circumstance that the plaintiff has called witnesses to support his version of events. For example he called his former brother in law Mr Thorne to attest to the plaintiff's drinking habits in 1964 and before and after the collision. Not surprisingly and bearing in mind that Mr Thorne was only recently asked to recall events and circumstances almost forty years ago are inconsistencies in his evidence. It would seem, however, that to the extent that Mr Thorne was able to speak concerning the plaintiff it would have been for a period of a couple of months after the collision because thereafter the plaintiff and his wife and small child left his father in law's house in Nowra and moved to Sydney. Nor have I overlooked the evidence of the plaintiff's former wife or the evidence of a business associate Mr Williams who referred to the plaintiff's drinking in the seventies and eighties. I shall refer to their evidence in due course. 26 As I have said, until the middle 1990's none of the medical records connect in any way the plaintiff's disabilities or illnesses to the collision. As I have said, the plaintiff underwent a number of surgical procedures from the late 1970's through the 1980's. None of these were connected to his psychiatric condition. The plaintiff was operated on by Dr Yeo during this period on a number of occasions. He later sued Dr Yeo for medical negligence alleging, amongst other things, that the negligent treatment resulted in him suffering from depression. None of the medical records (including those relating to his suicide attempts) support the plaintiff's claim that up until the mid 1990's he constantly had symptoms which he now says have bedevilled him since shortly after the collision - nightmares, claustrophobia, flashbacks, intrusive thoughts etc. 27 The plaintiff was cross-examined concerning the symptoms, which he said had been experienced by him since 1964 and about his failure to raise the symptoms with anybody prior to the middle of 1990's. In the course of being asked questions directed to inconsistencies between the history given in the witness box and the history recorded in the medical records he frequently resorted to answers to the effect that he could not recall what he had previously said. There were a number of occasions when he took a long time to answer a relatively simple question and then said that he could not recall whether what was being put to him was true or not. I formed the clear impression that the plaintiff recognised that the answers he must inevitably have given would, if he were to be frank, have been inconvenient to the case he was endeavouring to make and he sought to avoid this by saying he could not recall. For example the plaintiff claimed that he avoided any connection with the armed services after he left the navy but could not explain why, as he said in evidence, he contacted a former naval friend who been on the Melbourne and which later led to him approaching his solicitor. He also gave evidence that he avoided being at sea and suffered claustrophobia when below decks - it was this claustrophobia, he claimed, which caused him to go AWL in 1964 when he was assigned to the HMAS Duchess. Yet he could not satisfactorily explain why it was that he travelled to Fiji by sea for a holiday. 28 Although the plaintiff gave evidence to the effect that he was drinking huge amounts of alcohol each day the history given to his doctors and that appearing in medical records was that he drank only four or five beers a day. I accept that he may have toned down his alcohol consumption when asked questions about it particularly when he might not have thought he needed to be accurate. However I cannot overlook the circumstance that in 1996 when he was referred to Dr Wu by his solicitor for the purpose of a possible diagnosis of post traumatic stress disorder he maintained that his beer consumption was about four or five midis a day. This achieved some significance because the plaintiff has maintained that one reason why he felt unable to discuss his symptoms (including his heavy addiction to alcohol) was that he was, in effect, cracking hardy (a state of mind according to psychiatric experts called on his behalf not inconsistent with the diagnosis of post traumatic stress disorder). 29 In May 1996 he saw Dr Wu to determine whether he had post traumatic stress disorder. Before me he elaborated at length about the amount of alcohol he had regularly consumed since 1994. However, he told Dr Wu that he drank only four of five beers a day. Moreover in answer to a question asked of him by Dr Wu he said he had not had nightmares. In evidence before me he gave a history of constant nightmares. 30 When seeking leave to commence proceedings out of time, the plaintiff made no reference in his affidavit to the fact that he had seen Dr Wu for the purpose of determining whether he could maintain a case for post traumatic stress disorder. Dr Wu has since died. The report sent to the defendant's solicitor has been subject to a claim for legal professional privilege. 31 It was submitted by the defendant that conformably with the decision in Jones v Dunkel (1959) 101 CLR 298 I should infer that the report of Dr Wu would not have assisted the plaintiff. As I said at the time I would be prepared to assume that Dr Wu report would not have advanced the plaintiff's case but that did not mean, of course, I should conclude that its absence made the case for the defendant. But I do know from the evidence that was tendered that the plaintiff told Dr Wu he did not have an alcohol problem and he did not suffer from nightmares. 32 In his affidavit supporting an application to extend the period of time within which to sue the Commonwealth, the plaintiff said he was working on the Melbourne close to the point where the Melbourne collided with the Voyager, i.e. at the bow of the ship. However it emerged in evidence that he was working (or at least was on duty) at K deck, which was under the superstructure of the Melbourne. Much was made of this by counsel for the Commonwealth and it was put to the plaintiff that he claimed he was forward on the Melbourne because being in that position advanced his claim that he feared he was in imminent danger and that when he swore that affidavit he knew he was not speaking the truth. I should record that were this the only criticism of the plaintiff's evidence I would not have attached any weight of moment to it but it does point to the unreliability of the plaintiff's narrative. 33 The plaintiff said he heard and felt a large bump. He ran topside and saw only the stern half of the Voyager with a man walking along it. He said he was aware of people in the water. His evidence appears hazy about what he saw or did not see but I infer he must have been aware that a major tragedy had taken place and almost certainly that lives had been lost in view of the fact that the Voyager was cut in half and the bow half had sunk. The bow half of the Voyager was where the crew relaxed after being on duty and the collision and the collision at approximately 8 pm. 34 In evidence the plaintiff has said he saw a skull on the deck of the Melbourne inside a naval hat. This, as events turned out, achieved some relevance in the proceedings because some importance was attached to it by Professor McFarlane. The plaintiff did not mention it to the second and third psychiatrists who examined him for the purpose of expressing opinions about whether he had post traumatic stress disorder or any other psychiatric illness as a result of the collision. As I have said the report of Dr Wu the first psychiatrist to examine him is not in evidence and was the subject of a claim by the plaintiff for legal professional privilege. A Mr O'Dwyer gave evidence that in fact he was at the bow of the Melbourne when he saw grey brain matter on the deck, which he wrapped in some tissue and handed to the first aid officer who came onto the flight deck. I do not know whether the plaintiff saw what Mr O'Dwyer did or simply heard about it. I would think that, sooner or later, almost everyone on the Melbourne would have heard about what Mr O'Dwyer found on the deck. The plaintiff was, as events turned out, nowhere near where Mr O'Dwyer found the brain matter. The plaintiff has described what he saw as a skull in a cap. Whether the plaintiff now believes that is what he saw I cannot say. However I am not satisfied that the plaintiff in fact saw a skull on the deck of the Melbourne. 35 The naval records were tendered in evidence. The plaintiff was confronted with the circumstance that he had given a history of pre-collision (and indeed pre-enlistment) anxiety and that the naval records are not consistent with his evidence. The plaintiff said that he was assigned from HMAS Albatross to the HMAS Duchess. He said that he thought the HMAS Duchess was a sister ship to the HMAS Voyager. When he went onboard he was so overcome by claustrophobia and the reminder of the tragedy that had taken place some months earlier, he could not remain on the ship. He said the left the ship and went AWL. He claims he did not know what happened but he later found himself in Balmoral Naval Hospital in Sydney after being absent without leave and visiting a naval chaplain in Sydney. The records do not support the plaintiff's claim that he had gone AWL before being admitted into Balmoral, although they do record that when he was in Balmoral he threatened to "shoot through".

36 The records disclose that prior to the collision the plaintiff had attended sick-bay complaining of, amongst other things, recurrent urethral discharge and he was believed to be suffering from a mild anxiety state. In late 1964 he presented with a history that all his problems (which included vomiting and diarrhoea etc) had developed since "his indiscretion two years ago in the Far East". The naval doctors thought he had become obsessional about the matter. He was diagnosed with pityriasis verscicolor and nervous dyspepsia and diarrhoea. It was thought he had a phobia about VD. 37 The naval records disclose that towards the end of 1964 the plaintiff was complaining that he was persecuted by other ratings and that he was being "tagged" as a "queer" and that he felt "cut off". It is recorded that "if a diagnosis is required anxiety state, though not perhaps strictly accurate, should be given, as the alternative diagnosis of schizo-affective (?) psychosis cannot be confirmed at this stage … wants to get out". 38 It is to be noted that the history given to the hospital doctors (other than the plaintiff's statement that he "wants to get out") is at odds with the history presented by the plaintiff in this court. He claimed in evidence that since the collision he was suffering from nightmares, flashbacks, insomnia and that he was drinking excessive amounts of alcohol, all of which he attributed to the collision at the time. None of this is mentioned beyond the passing statement attributed to him that, in the past, he became "a bit depressed" "for a couple of days" as "a result of some mates being killed". He was discharged from the navy with the disability described as "anxiety state".

39 On their face in the naval records attribute to the plaintiff a statement that his then problems were linked to pre-collision events. As I have said, it is not unimportant to note that not one symptom that he now claims he experienced and which lead psychiatrists retained by him to the diagnosis of post traumatic stress disorder was recorded other than being depressed for "a couple of days". And none of the symptoms he did have (other than being depressed for "a couple of days") were attributable to the collision. The plaintiff in an endeavour to minimise the interpretation of the naval records adverse to his case has said that he was in effect forced to give an untrue pre-service history of anxiety. He said the doctors at the hospital told him he could either return to the Duchess, go to the naval prison at Holsworthy, or admit an untrue history of anxiety and be discharged from the navy. He said he took the last option. I record that I do not believe the plaintiff. My conclusion derives in part from the circumstance that, as will be seen, there were other occasions in evidence when the plaintiff was, to put the matter fairly neutrally, somewhat careless with the truth and that he had an appreciation of how he might reconstruct past events to meet the requirements of a case he was presenting. It is also in part because I do not accept that the naval medical officers would have engaged in such deceitful and improper conduct. Even if it be assumed that they had decided that perhaps the plaintiff was not suited for the navy they could have acceded to the plaintiff's request that he leave the navy by describing his condition as "anxiety state" without the need to compel the plaintiff to make up a pre-service history of anxiety. 40 After leaving the navy, the plaintiff gave evidence, in considerable detail, concerning the type of employment he engaged in and the amount of money he earned. His evidence was not supported by any records up until the early 1990's and on the face of it that, it might be thought, was not surprising. However, the plaintiff endeavoured to present a picture of intermittent employment, which he said was a consequence of his irritability and his inability to get on with people due to his excessive drinking. He maintained, in effect, that he either did not get employment following an interview, or he was discharged from employment shortly after. He had a number of jobs between 1965 and 1969. He said he left for causes associated with claustrophobia or irritability. I have no confidence in the correctness of his history. So far as his employment or work capacity is concerned after 1970, it now emerges that he was quite successful as a real estate salesman. He worked for firms in the Penrith area in that capacity. His work included not only being employed, or self-employed, as a real estate salesman, but also conducting the business referred to as "Palms Galore". The plaintiff claimed that "Palms Galore" collapsed due to the psychiatric symptoms from which he was suffering. But again the evidence suggests (as the plaintiff in effect conceded) that the business closed down because of the forced sale of the property on which it was located for the purpose of meeting obligations he had to his ex-wife. 41 But perhaps of more significance is the circumstance that although not mentioned at all in his evidence-in-chief or in the particulars given concerning how he exploited his working capacity after leaving the navy, it emerged that the plaintiff engaged extensively in land speculation and development during the seventies and eighties. The matter was not explored in any great detail but it emerged that there were at least eighteen transactions involving the purchase and sale of land. In some of them the plaintiff either alone or in conjunction with his spouse or his children acquired properties, obtained development consent, developed the land and then sold. In others he bought land, rented property and sold. As I have said, these transactions were not explored in any detail. The defendant was content to rely on the circumstance that it was for the plaintiff (as I think it was) to have made full and frank disclosure of his previous earning capacity and the plaintiff deliberately did not do so. I do not accept as satisfactory the explanation made on his behalf that he did not think the details of the transactions were important because he did not make much money out of them and a statement by his former wife in evidence, to the effect that he had a tendency to acquire properties and then sell them too soon, thus making very little money out of the transactions because of the costs associated with the buying and selling for example, stamp duty and legal fees. The records were tendered in evidence. I confirm I have not been through them because neither party referred to them in the course of address. The defendant for its part tendered them to demonstrate there was a large area concerning the plaintiff's work capacity about which the plaintiff had been less than frank. The plaintiff for his part tended to brush them off by reference to the evidence referred to above. 42 The defendant has also referred to the conduct of the plaintiff between 1995 and 1999 which, it submits, belies the case he is endeavouring to make. He attended upon his solicitor in 1995 after contact with a previous shipmate to the effect that he may indeed have had some case to receive compensation for a psychiatric condition consequent upon the collision. The plaintiff has alleged that he "lacked confidence" to discuss with his GP the many distressing symptoms which had plagued him since 1964. He also claimed in evidence that he lacked confidence to disclose these matters to his GP for at least two years after being advised to do so by his solicitor. I do not accept his explanation. Moreover, it emerged in cross-examination as I have said in fact the plaintiff had been to see Dr Wu in May 1996 at the request of his solicitor and for the purpose of seeing whether or not Dr Wu could support a claim for post traumatic stress disorder. This was not disclosed in his application for leave to commence proceedings out of time. In fact the plaintiff, did not raise the matter with his GP until September 1997 when he asked for a referral to Dr Ahmed (one of the three psychiatrists called in evidence to support his case). Thereafter he waited another two years before seeking a referral to Dr Keshava. 43 The plaintiff's has said that up until 1995 he found he was unable to bring himself to disclose to others all those symptoms that he said had been bedevilling him since 1994 and which were to the forefront of his mind from 1995 when he went to see his solicitor, Mr Taylor, to see whether he was eligible for compensation for post traumatic stress disorder. I do not accept that from that time onwards he felt that he lacked the confidence to discuss his symptoms. He did not lack for confidence to discuss them in detail in the witness box because, I assume, he knew he had to discuss them if he wished to make out his case. Equally, in my opinion, it is stretching credulity to think that he would not have discussed these symptoms with his own GP after he had been to see his solicitor from whom he had received, I infer, a possible diagnosis of post traumatic stress disorder (albeit by a lawyer) which would have accounted for symptoms he claimed he had suffered for more than thirty years. I have already referred to the circumstance that he saw Dr Wu in 1996 and made no complaints to him about excessive drinking and denied he had had nightmares. 44 In evidence the plaintiff has said that he suffered from claustrophobia, insomnia, flashbacks, nightmares, intrusive thoughts etc from the time of the collision until the present time and that he drank up to fifteen middies of beer a day together with wine and spirits to drive away the intrusive thoughts ever since the collision. He said he suffered an episode of claustrophobic when he was assigned to the HMAS Duchess. I have already referred to the evidence that he had taken a trip to Fiji by sea and his unsatisfactory response, which was to the effect that he went by sea because that's what his wife wanted and that he spent almost the entire time above deck and at the bar. That is to say that he may have spent considerable time at the bar I am not persuaded that was because of feelings of claustrophobia. 45 It appears to be the plaintiff's essential case that most of his problems derived from his excessive consumption of alcohol. His primary case, as I have said, is that this is a "co-morbid" (to use the expression of Professor McFarlane) condition associated with post traumatic stress disorder. His secondary case is that even if he did not suffer from post traumatic stress disorder he became an alcoholic because he "self-medicated" after the collision which resulted in his addiction to alcohol. 46 There is no evidence of excessive alcohol consumption in the naval records and it would seem to me if the plaintiff was drinking to the extent he claimed he was drinking in 1964, he would scarcely have functioned at all much less be promoted as in fact he was. All the other medical records, including the records of admission to Jamison Private Hospital, Nepean Private Hospital, the report of Dr Yeo who operated on the plaintiff, the history given to Dr Wu, and the clinical notes of Dr Moss do not match the evidence given by the plaintiff. The evidence of his former wife Christine Harvey and the evidence of Mr Williams is to the effect that during the 1970's and 1980's the plaintiff functioned well as a real estate salesman and land developer although I accept that he may have drunk more than he told the doctors. But the evidence from Mr Williams and Ms Harvey is to the effect that he did not drink during working hours in the 1970's and 1980's (the period during which they had him under observation) and, as I have said he functioned successfully as a real estate salesman. The inference I would draw from all the evidence is that the plaintiff probably drank more during the 1970's and 1980's than he told doctors and than appears in the hospital records. I do not, however, accept that his drinking had reached the stage where he had become so addicted to alcohol that he could not stop drinking and that he woke up many times in the middle of the night and had to drink to get back to sleep (this is not confirmed by Ms Harvey with whom he was living for many years. She spoke of him having some nightmares when she would wake him up after which he "just went back to sleep"). 47 The medical evidence is that the plaintiff is now an alcoholic. I can make no finding as to when the plaintiff became addicted to alcohol in the sense that he ceased to have any real capacity to decide whether to drink or not to drink. However, I record that I am not satisfied that his consumption of alcohol since 1964 and, in particular in the 1970's and 1980's was as great as he has claimed. The fact that he was able to work as well as he did work while drinking would suggest to me that his consumption of alcohol was relevantly a voluntary decision on his part and not the consequence of an inability to resist alcohol. 48 I should also mention that to the extent that it is alleged that he became an alcoholic (as opposed to that being a consequence of post traumatic stress disorder) that I would not regard alcoholism as a type of damage similar to post traumatic stress disorder, notwithstanding that according to Professor McFarlane there is evidence of some "co-morbidity" between post traumatic stress disorder and alcoholism. If alcoholism is indeed an identifiable medical illness when it reaches the point when an alcoholic ceases to have any control over whether he or she drinks I would not, regard that as a reasonably foreseeable consequence although, I accept, that it was reasonably foreseeable that a person in the position of the plaintiff might suffer post traumatic stress disorder as a result of the carelessness. As I have said, however, I do not accept that that condition has been established. 49 The plaintiff gave an account of his sleeping after the collision. "Q. Since the collision have you had any sleep problems? A. Practically the whole time, yes. Q. When did they commence? A. Pretty well immediately afterwards (the collision)." 50 In due course he elaborated in detail on nightmares since the collision. He said a recurring theme was that he was trapped on the Melbourne and that he was running along passageways and can't find my way out. He also said that there was one particular recurring dream that he was talking to shipmates in the front end of the Voyager who were in their uniform, "but they are only skeletons you know. It's just weird but it's one that comes back occasionally". When asked to describe how they lasted over forty years he said, "Well for many years they were consistent. Probably up until recently I still get them but whether they are once a month or once every couple of weeks it varies." 51 He said that he normally only got about four hours sleep a night since the collision. This evidence is not supported by anybody else nor indeed is his complaint that he could not get back to sleep after nightmares. The plaintiff may now have reached the stage when he gets up in the middle of the night and has a couple of scotches before going back to bed but I do not accept that this was happening during the 1970's and 1980's. 52 It is not unimportant to have regard to consultations he had with his GP (which started in about 1988) over a period of ten years before he started consulting experts as to whether he suffered from post traumatic stress disorder. Although there were occasions when he talked about lack of sleep it was usually with no particular event in mind. An attempt was made by Mr Thomson on behalf of the plaintiff, to persuade me that a layman reading Dr Moss' notes would conclude that Dr Moss may have had suspicions that the plaintiff was drinking excessively. As I have said Dr Moss was not called and I was not asked to draw any adverse inference from that circumstance. In his notes Dr Moss refers to liver function tests being outside the range of normal and, it was submitted, that that should corroborate the plaintiff's version concerning his drinking habits. It is to be recalled that it was the defendant's case that whether or not the plaintiff had a severe drinking problem at the present time he did not have it during the 1970's and 1980's. Mr Thompson's submission that a layman might think the cryptic references in Dr Moss's reports in the early 1990's suggesting the doctor may have been suspicious of excessive alcohol consumption is really no more than speculation. Moreover I do not accept Mr Thomson's submission that the plaintiff's witnesses who talked about the plaintiff's heavy drinking, namely Mr Williams and Ms Harvey, were not really challenged. That was not so. In fact, Ms Harvey (his former wife) and Mr Williams spoke of the plaintiff's consumption of alcohol in the 1970's and 1980's. He was referred to as being a "keen drinker" but neither said he was drinking while he was at work and both said that he was a good worker. I have already explained why I do not regard Mr Thorne's evidence as being reliable bearing in mind that he was asked to recall events that took place nearly forty years ago. The plaintiff called his two children, James and Stuart, but neither was able really to express a reliable opinion concerning the plaintiff's drinking - not at least until well into the 1970's. They did refer to the plaintiff being a heavy drinker but as I have said I am not satisfied that at that stage his drinking was relevantly involuntary. 53 I accept the submission by the defendant, that the plaintiff appeared to be unable to distinguish between nightmares and flashbacks, a distinction that is understood by the psychiatrist and relevant to the diagnosis of post traumatic stress disorder. 54 When it was put to him that Dr Wu asked him whether he had nightmares and he said "I don't recall". "Q. And I suggest that in answer to that question you told him that you did not have nightmares" A. I don't recall. Q. Do you recall seeing Dr Wu? A. Yes, vaguely, yes."

Later he was asked why he didn't discuss his problems with Dr Moss for almost fifteen months after he saw Dr Wu he said "No explanation, no idea".

55 There is very little evidence, prior to seeing the psychiatrist, of impaired memory although the plaintiff did mention to Dr Moss in January 1990 that his memory loss "was getting worse over a few months". He gave evidence of severe memory loss for some time. However, he gave evidence in the witness box concerning his employment since 1965 and was able to give chapter and verse of every job he claimed he had had, the remuneration he received and the circumstances surrounding occasions when he said he had not been employed and on other occasions when he said he was dismissed. I have already criticised the plaintiff for omitting significant aspects of his work capacity history, but I do not think that was the consequence of a faulty memory. The plaintiff attempted to shield behind an inability to recall matters, which were inconvenient to the case he was attempting to make. 56 Another aspect of the plaintiff's case which casts doubt on the reliability of the history he has presented in court concerns the evidence he gave about the serious attempt he made on his life in January 2002 when he shot himself in the head but survived. 57 In evidence before me the plaintiff attributed his state of mind, which led to his attempted suicide in January 2002 to attendances on the doctors nominated by the defendant. That was also the history he gave to psychiatrists retained on his behalf. It emerged in cross-examination that just prior to his attempted suicide the plaintiff had gone to Queensland to discuss a property settlement with the woman with whom he had lived between 1999 and 2001 Helena Gannon. Ms Gannon was living in a house at Palm Beach, Queensland jointly owned by her and the plaintiff. Ms Gannon would not agree to the terms proposed by the plaintiff. The plaintiff said he started drinking early and later attempted suicide. It was put to him at the Tweed Heads Hospital where he was admitted after the attempt on his life he said he had been involved in a "domestic". Accepting that on admission to hospital the plaintiff's condition was such perhaps that not a great deal of notice should be taken of the circumstances he believed led to his suicide attempt. However in April 2003 the plaintiff was admitted to the Nepean Hospital where he gave a history of events in his life including the attempted suicide in 2002. It was put to him: "Q: I suggest to you on 16 April you told the psychiatric registrar at the hospital that you had made a suicide attempt at the Gold Coast in the face of an unfair property settlement position that your ex-partner had taken. A: No, I can't recall saying that. Q: On 15 April, I am sorry, the day before, you told a member of the staff, a doctor that the last relationship you had lasted for two years and ended in 2001. Was that correct? A: Yes Q: You had gone back to Queensland in January 2002 in an attempt to negotiate an equitable property settlement. A: That's correct Q: Was that why you went back to negotiate an equitable property settlement? A: Yep. Q: You told that doctor that is on 15 April that the woman wanted more than her share. A: I possibly did. Yes Q: And that you got drunk and shot yourself. A: I don't recall saying that but it doesn't matter that I don't recall. It's there." 58 It was also put to him that after leaving the Tweed Heads Hospital he told Dr O'Dwyer at the Princess Alexander Hospital in Brisbane that he had shot himself intentionally and that was "an act precipitated by relationship break-up". In evidence the plaintiff said "a combination of things. I was off my hinges when I went up to Queensland after the end of the year with Dr Roldan and one thing led to another. I had a blue with her. She refused to discuss any settlement. I thought the whole thing was futile. I pulled the pin". 59 Of some significance when assessing the reliability of the plaintiff's narrative is the circumstance that a year after his serious suicide attempt he attributed the cause not to interviews he had with doctors retained by the defendant but to the failure to reach a satisfactory resolution of the property dispute he was having with Ms Gannon. 60 The evidence has established that from 1978 through to 1988 the plaintiff underwent a series of operations performed by Dr Yeo. He presented in 1978 with epigastric pain and vomiting blood. Diagnosis of possible peptic ulcer was made. I do not propose to go through the whole of the plaintiff's hospital procedures. It is sufficient to note that between 1984 and 1989 he underwent an endoscopy, laparotomy, liver biopsy, removal of a gall bladder and a cholecystectomy. He also had a vagotomy (shortening of the bowel). He complained that the procedures undertaken by Dr Yeo did not relieve his symptoms and in 1998 he was referred to Dr Skyring by his GP Dr Moss to whom he gave a history that since his vagotomy operation he had been troubled with persistent nausea severe dumping precipitated particularly by carbohydrate, profuse sweating, lethargy and a need to lie down. He told Dr Skyring that the surgery undertaken by him had "ruined his life and broken his marriage". Shortly after this he commenced proceedings against Dr Yeo seeking damages for alleged professional negligence. He did not proceed with his action. In 1992 he was diagnosed with bladder or prostate cancer. 61 Three psychiatrists examined the plaintiff and two diagnosed post traumatic stress disorder. The third diagnosed general anxiety disorder. The diagnosis of post traumatic stress disorder (or general anxiety disorder) depended, as all psychiatrists agreed, on the reliability of the history given to them. I now turn to the evidence of the psychiatrists supporting the plaintiff's claim and to explanations given by them (particularly Professor McFarlane) when it is shown that the history assumed by the doctor is not proven and or is demonstrated to be untrue. 62 Doctor Ahmed saw the plaintiff in October 1997 and prepared and submitted a report dated 12 February 1998. He also furnished a report dated 20 May 2003. Dr Ahmed defined post traumatic stress disorder as follows: "Post Traumatic Stress Disorder had been defined by DSM IV (Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition published by American Psychiatric Association), as follows: "Anxiety produced by extraordinary major life stress. Event is relieved in dreams and waking thoughts. Diagnostic criteria for post traumatic stress disorder. A. The person has experienced an event that is outside the range of usual human experience that would be markedly distressing to almost anyone (e.g. serious threat to one's life or physical integrity; serious threat to harm one's children, spouse or other close relatives and close friends, sudden destruction of one's home or community; or seeing another person who has recently been, or is being, seriously injured or killed as a result of an accident or physical violence). B. The traumatic event is persistently re-experienced in at least one of the following ways; 1. Recurrent and intrusive distressing recollections of event (in young children, repetitive play in which themes or aspects of the trauma are expressed).

Recurrent distressing dreams of the event. 3. Sudden acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusion, hallucinations and dissociative (flashback) episodes, even that occur upon awakening or when intoxicated. 4. Intense psychological distress at exposure to events that symbolise or resemble an aspect of the traumatic event, including anniversaries of the trauma. C. Persistent avoidance of stimuli associated with the trauma or numbing or general responsiveness (not present before the trauma), as indicated by at least three of the following:- 1. Efforts to avoid thoughts of feelings associated with the trauma. 2. Efforts to avoid activities or situations that arouse recollections of the trauma. 3. Inability to recall an important aspect of the trauma (psychogenic amnesia) for markedly diminished interest in significant activities (in young children, loss of recently acquired developmental skills such as toilet training or language skills). 5. Feeling of attachment or estrangement from others. 6. Restricted range of effect (e.g. unable to have loving feelings). 7. Sense of foreshortened future (e.g. does not expect to have a career, marriage, children or a long life). D. Persistent symptoms of increased arousal (not present before the trauma, as indicated by at least two of the following.

Exaggerated startled response. 6. Physiological reactivity upon exposure to events that symbolise or resemble an aspect of the event (e.g. a woman who has been raped in an elevator breaks out in a sweat when entering any elevator). E. The duration of the disturbance (symptoms in B, C & D of at least one monthly)"." 63 In Dr Ahmed's first report he relied on the accuracy of the plaintiff's history to express his opinion that the plaintiff suffered from chronic post traumatic stress disorder for "at least ten years following the collision". The plaintiff told him that the shock of the impact "left him a wreck for the rest of his life". He said that after the collision he was transferred to the HMAS Duchess for four weeks (which on any view of the matter is not true). He said he absconded from the ship for three weeks and then turned himself in. 64 He referred to his admission at Balmoral Hospital when he claimed to be suffering from "anxiety state". He was treated and discharged from the navy. He gave a history that after his discharge from the navy he started to drink heavily. He said in evidence he started drinking heavily immediately after the collision. He experienced "constant nightmares, flashbacks, intrusive thoughts, anxiety, insomnia, poor concentration, claustrophobia and fear of impending disaster". He said these symptoms lasted for about nine years and later gradually faded with occasional recurrences. He said his consumption of alcohol "skyrocketed" after his discharge from the navy and that included fifteen midis of beer together with vodka and other spirits. The plaintiff said that he believed his alcoholism was responsible for the break-up of his two marriages, the first of which lasted for six years and the second for only six months. He said his alcoholism was also responsible for his unsteady work record. When asked to describe his previous medical history he said he had treatment for cancer of the bladder five years earlier and that at the time of Dr Ahmed's examination his bladder was reported to be normal. It was on this history that Dr Ahmed opined post traumatic stress disorder. At that time Dr Ahmed did not have access to his naval record. 65 Later Dr Ahmed was furnished with an affidavit from the plaintiff and provided with copies of Dr Keshava's report. Dr Ahmed assumed, apparently, the correctness of the history given in the plaintiff's affidavit and the records furnished by Dr Keshava. Upon this he opined that the last suicide attempt following the plaintiff's examination by a psychiatrist and a psychologist nominated by the defendant "exacerbated his symptoms with devastating effect". He thought the plaintiff was "seriously suicidal". 66 I have referred to the fact that Dr Ahmed received no history when he first saw him concerning the plaintiff's previous physical medical history beyond the reference to cancer of the bladder. The treatment and operations undertaken by Dr Yeo and which culminated in an allegation by the plaintiff that Dr Yeo was negligent and had left him seriously disabled were not mentioned. As I have earlier said, I am satisfied (and I do not think a contrary case was put) that the "other medical history" which was omitted by the plaintiff had any connection with the collision but, of course, it was highly relevant as to what bearing it had on the plaintiff's life which he claims to have been wholly wrecked by the collision. It would appear that some treatment was given by Dr Ahmed, but not a great deal. Doctor Ahmed thought that the plaintiff had gone AWL but then later said he couldn't remember. He said he assumed that the plaintiff had entered Balmoral Naval Hospital suffering from an anxiety state consequent upon the collision. That is not what the naval records reveal. 67 Although he said he treated the plaintiff, he said he didn't see him after 17 October 1997 until 15 April 2003. He agreed that his diagnosis of the plaintiff's condition rested "entirely on the plaintiff's account of himself" being correct - he assumed the plaintiff experienced all the symptoms he said he experienced since 1964 and, as well, his attribution of those symptoms to the collision as, for example, what he was dreaming about, what his flashbacks were about etc. 68 He was at pains to ensure that questions were not asked which suggested the answers to the plaintiff as, for example, 'Are you having nightmares?'. Surprisingly, he was unable to answer the question as to whether he had asked the plaintiff what happened on the night of the collision from the plaintiff's perspective and in particular, the finding of a body part on the deck. 69 The plaintiff also saw Dr Keshava. The plaintiff said that he asked to be seen by Dr Keshava after receiving advice from the Vietnam Veteran's Association. On 8 February 2000. Dr Keshava reported to the plaintiff's solicitor. The plaintiff told Dr Keshava that he had not had a decent night's sleep since the Voyager accident and that he often woke up frightened and sweaty and dreamt of being trapped and had flashbacks and heard "people screaming as they were drowning". He spoke of the plaintiff's excessive alcohol consumption immediately after the collision (which he accepted as accurate) and the problems the plaintiff had with chronic peptic ulcers, a vagotomy and a partial gastrectomy. The plaintiff summarised his work history to Dr Keshava that he changed jobs frequently and had difficulty working in offices and enclosed spaces. He said he worked as a truck driver for a few years and he mentioned that he had an insurance agency, which only lasted three years. He said he tried "real estate for a few years before starting a nursery and a landscape supply business". This was, in my opinion, a distortion of the plaintiff's work history as disclosed in evidence before me. However Doctor Keshava accepted, as he was required to do, that the statements of the plaintiff were correct and that these included short-term memory impairment. Interestingly enough Dr Keshava did not diagnose post traumatic stress disorder. He diagnosed general anxiety disorder (chronic) with depression and alcohol dependence. On 17 October 2000 he expressed the opinion that his chronic anxiety state "stemmed from his exposure to the traumatic events of the collision". It was not explained what that connection was. 70 In Dr Keshava's final report he referred to what the plaintiff said was a distressing interview he had had with the psychiatrist Dr Phillips and psychologist Dr Roldan examining him on behalf of the defendant which led to his suicide attempt in 2002. Beyond assuming that the suicide attempt was relevantly connected with the Voyager collision, the correctness of the assumption was not probed further by Dr Keshava. 71 Dr Ahmed does not seem to have given much attention to what treatment the plaintiff should have had and what the prognosis for him was. Dr Keshava has continued to treat him. Both accepted a history from the plaintiff, which is at variance with the history given to me. It may be that if the history given to Dr Ahmed and Dr Keshava is to be accepted, a case is made out that the plaintiff suffered from post traumatic stress disorder consequent upon the collision. But that, of course, is not the history that I have found. I do not accept that the plaintiff had years of appalling insomnia, gross abuse of alcohol and an inability to function at work. 72 Neither Dr Keshava nor Dr Ahmed persuade me that the plaintiff has suffered post traumatic stress disorder, or that his alcohol abuse which I am prepared to assume to have now reached the stage of addiction, was relevantly a consequence of a mental illness or relevantly a foreseeable consequence of the collision. As will be seen the Commonwealth Department of Veteran Affairs accepted reports of Dr Keshava and Dr Ahmed's that the plaintiff suffered post traumatic stress disorder as a result of the collision and that that post traumatic stress disorder caused the plaintiff to attempt to commit suicide in January 2002. It is to be remembered that in his earlier reports and in evidence before me diagnosed general anxiety disorder and not post traumatic stress disorder. I will return to this matter when considering submissions by plaintiff's counsel concerning the Commonwealth Department of Veteran Affairs acceptance of the claim made by the plaintiff. 73 In 2003 the plaintiff was referred to Professor McFarlane for an expert opinion. Professor McFarlane presented a lengthy CV evidencing his experience in psychiatric studies including the condition of post traumatic stress disorder. He presented reports dated 28 April 2003, 26 May 2003, 18 August 2003 and 29 September 2003. 74 Professor McFarlane had access to other reports of psychiatrists and, as well to the records of Dr Moss and the discharge summaries from various hospitals, together with the naval medical files referred to above. 75 Professor McFarlane accepted the correctness of the history that the naval officer interviewing him in 1964 gave him a choice of going back to the HMAS Duchess, being charged with a naval offence and admitted to Holsworthy Prison or agreeing that he had an anxiety attack prior to joining the navy. He recorded a history of "blanks" the plaintiff had when he heard the "pipe to collision stations". The plaintiff gave Professor McFarlane a sketchy account of the events of the night of the collision, which was thought to be the consequence of "an abbreviated memory". He gave a history to Professor McFarlane of greatly increased alcohol consumption following the collision and a history of attempting to work after discharge from the navy. He said that his abuse of alcohol, claustrophobic feelings and irritability led him either to not getting jobs or being discharged from employment he did get. He gave a history that he had become involved in real estate where he "worked on and off until the 1990's". He gave a history of "intermittent nightmares and the need to drink to relieve insomnia". He also gave a history of claustrophobia and recurring dreams and of being unable to leave the Voyager. He told Professor McFarlane more about his physical problems than he had told other doctors - or, at least, Professor McFarlane knew of them. However, the plaintiff said that he denied his venereal disease, referred to earlier in the naval records, was ever a particular worry or concern to him. Professor McFarlane acknowledged that there were symptoms that were not recounted to him and that had been recounted to other people. Nevertheless he opined that the plaintiff suffered from "post traumatic stress disorder, major depressive disorder, alcohol abuse and dependence and related anxiety symptoms". Whether he suffered from any other specific identifiable psychiatric disorders Professor McFarlane could not determine.

76 Professor McFarlane thought the disaster would have caused the plaintiff to experience a sense of fear - a reference, as I would understand it, to a triggering event referred to in the Diagnostic Criteria for Post Traumatic Stress Disorder - segment A. Although the defendant has submitted that the evidence before the Court does not allow such a finding, I record I reject that submission. The evidence is that the Melbourne cut the Voyager in half and that eighty two people died and it was not put to the plaintiff that throughout he remained below deck. Relying on the history the plaintiff gave him Professor McFarlane thought the plaintiff had evidenced a clear pattern of thoughts and feelings associated with the collision event being, I infer, the group B, C and D symptoms. The plaintiff could not remember a great deal about what took place on the night of the collision. Professor McFarlane thought this could be explained by his "psychogenic amnesia". He believed it was difficult to identify what were described as the "Group D Symptoms" because of the impact of alcohol abuse on the plaintiff's ability to sleep, the efficacy of his memory and as a cause of his irritability. He thought that being excessively anxious for a cause not associated with the collision (being a reference to the diagnosis of "anxiety" in the Naval medical records deriving from his venereal disease (which, be it noted the plaintiff denied)) rendered him more vulnerable than otherwise to the onset of post traumatic stress disorder. He appeared critical of the Medical Board ostensibly for not investigating the effect of the disaster, but on what basis was not explored in the proceedings. 77 In my opinion, Professor McFarlane's opinion viz that the plaintiff suffered from post traumatic stress disorder or some other recognised psychiatric illness caused by the events in February 1964 amount to speculation only. I accept a psychiatrist in Professor McFarlane's position is bound to accept history given to him for the purpose of diagnosis. But for the plaintiff to successively sheet home liability to the defendant he must establish on the balance of probabilities a cause and effect connection between his condition post 1964 and the collision event of 1964. That is to say the Court must have confidence in the correctness of the history where, as in the present case, the history was put in issue. Professor McFarlane has opined what might have happened in 1964 had the then Naval psychiatrist probed the effect of the collision on what the plaintiff then claimed were his problems and he referred to the possibility that people on the Melbourne may have felt themselves subject to "stigmatisation". In his reports he referred to the circumstance that alcohol was recognised as being sometimes "co-morbid" with post traumatic stress disorder and that people suffering from post traumatic stress disorder may self medicate to control stress. He referred to the plaintiff's irritable bowel syndrome and opined, but perhaps with less confidence than in other areas, that it could be a psycho-physiological consequence of post traumatic stress disorder. As I have said I do not understand the plaintiff to be claiming in these proceedings that the investigations and surgical procedures in the 1980's were the consequence of the collision although it was said that diarrhoea associated with his abdominal condition might have been worsened by anxiety. Finally Professor McFarlane referred to the plaintiff's work as a "method of distraction" and thought that the plaintiff should remain under psychiatric supervision for the rest of his life and that he should be treated for alcohol abuse. 78 According to Professor McFarlane clinicians often misdiagnose medical conditions and this might have happened in 1964 by the naval psychiatrist. 79 A great deal of history relied upon by Professor McFarlane has not been established to my satisfaction on the balance of probabilities. Post traumatic stress disorder is not a common condition. It has not been suggested, for example, that every or even most survivors of the collision suffered from post traumatic stress disorder. It is, of course, possible that sailors on the Melbourne may have been held by some other members of the service to be responsible for the deaths of sailors on the Voyager and that that explanation might have accounted for the hostility the plaintiff said was exhibited to him when he claimed he was being "tagged" as a "queer" - but even if that were so it would not lead to a diagnosis in 1964 of post traumatic stress disorder. So far as the naval medical records are concerned Professor McFarlane appears to take the view that had the plaintiff been correctly treated his anxiety state might have been established to be the result of the collision. As I have said he also thought that the plaintiff's anxiety state made him more vulnerable than otherwise to the possibility of developing post traumatic stress disorder by reason of the collision. 80 When Professor McFarlane was asked to assume that, for example, there had been no history of nightmares (and it is to be recalled that he denied them when questioned by Dr Wu in May 1996) his response was that one could not be sure whether the symptoms were present or not because many symptoms go unreported. When asked to assume that the plaintiff made no reference to the collision in the course of his psychiatric examinations in 1964 Professor McFarlane responded that perhaps there had been an inadequate diagnosis and that, in any event, if he suffered from an anxiety state consequent upon VD that made him more vulnerable to post traumatic stress disorder. 81 However, at the end of the day I have to be satisfied of the correctness of the plaintiff's history. The circumstance that the psychiatrists might have recognised the connection between the collision and the plaintiff's anxiety state and concluded it was a consequence of the collision and not his earlier VD is simply speculation. 82 Professor McFarlane agreed that the plaintiff's presentation "raises a series of challenges in terms of dissecting the nature of his symptoms and the factors that have influenced his later suicide attempts and current symptomatology". 83 He acknowledged there were difficulties in making a diagnosis relying on facts over a thirty nine year period and he recognised that litigants consulting with psychiatrists on the subject of post traumatic stress disorder could lead to problems with subsequent histories given to later psychiatrists - a reference, of course, to the potential for litigants to learn the symptoms. 84 Professor McFarlane did not get the same history as Dr Ahmed and Dr Keshava but he did get a history of dreams, flashbacks in the early 1970's, broken sleep, heavy drinking etc. He conceded, as did other psychiatrists, that the accuracy and veracity of the history given was an important factor in making the diagnosis. He would not agree it was the only factor. I think by this he was opining that there were occasions when even though the assumed history was inaccurate that did not preclude a cause and effect conclusion. 85 With the greatest respect to Professor McFarlane he appeared to assume the plaintiff suffered from the condition of post traumatic stress disorder as a result of the collision and he then sought to explain inaccuracies or inconsistencies in the history the plaintiff gave to the Court as not being inconsistent with the plaintiff's assumed condition. That is not, in my opinion, an approach the Court can take or adopt. 86 I have to determine whether, on the balance of probabilities, the plaintiff has established that as a result of the collision he suffered post traumatic stress disorder. I cannot speculate about the matter. 87 If ever there is a case where it is important to have a reliable history it must be where a claim is being made for a condition such as post traumatic stress disorder (or, for that matter, any other psychiatric injury) that depends for acceptance on the reliability of the history of subjective symptoms. 88 For reasons which I have given, I find the history upon which the diagnosis of mental illness consequent upon the collision to be unreliable and, accordingly, I am not satisfied on the balance of probabilities that the plaintiff suffered any psychiatric illness as a result of the collision. 89 For reasons which I have given I find the history upon which the diagnosis of mental illness consequent upon the collision to be unreliable and accordingly I am not satisfied on the balance of probabilities that the plaintiff suffered any psychiatric illness as a result of the collision. 90 Because I have come to the above conclusion it is unnecessary for me to refer to the expert witnesses retained by the defendant. Unfortunately Professor McFarlane and Dr Roldan tended to adopt something of an advocacy role in the reports which were submitted and I must record I did not find this particularly helpful. It is probably inevitable in a case such as this that experts will become advocates for their side of the record and the approach taken by experts may be the consequence of the task they are asked to undertake by the lawyers retaining them. Nonetheless at the end of the day where facts are relied on in support of an expert opinion those facts must be independently proved to the satisfaction of the Court - see Makita (Australia) Pty Limited v Sprowles 52 NSWLR 705 and Ramsay v Watson (1961) 108 CLR 642. In the present case the plaintiff's case came down to whether or not his description of his symptoms (including, of course, the intensity and severity of them) has been established with the consequence that a reliable diagnosis of post traumatic stress disorder (or some other foreseeable mental illness) can be made. And I regret to say I do not think that the plaintiff has made out his case. 91 I have already referred to the circumstance that the plaintiff alleges that even if a condition of post traumatic stress disorder (or other general anxiety disorder) is not made out he is entitled to be compensated because as a result of the collision he became an alcoholic. I do not think his alcoholism (which was recognised by psychiatrists on both sides as being present when he saw them between thirty five to thirty nine years after the collision) was relevantly a foreseeable consequence of the collision (unlike, for example, the possibility of post traumatic stress disorder which was a foreseeable consequence). Even if it could be said that his alcoholism was caused by or connected to the events of February 1964, his alcoholism was the result of a series of voluntary decisions on his part to drink to excess which ultimately resulted in him becoming an alcoholic. 92 But leaving to one side the question of foreseeability, I do not think any connection has been established between the plaintiff's alcoholism as diagnosed in the late 1990's and the collision in 1964. As I have earlier said if the plaintiff has reached the stage where his dependence on alcohol has become a psychiatric condition I am not persuaded that that had any connection with the collision bearing in mind the plaintiff's work history, earlier medical histories (including that given to Dr Wu) and generally the unreliability of the plaintiff's evidence. 93 In the course of the proceedings the plaintiff tendered two determinations by the Commonwealth Department of Veteran Affairs (DVA). The first was the determination dated 26 January 2001 which Mr Shore described as a Delegate-Safety Rehabilitation and Compensation Act 1988 in which it was said: "I refer to your claim for compensation for post traumatic Stress Disorder condition. On the basis of the available evidence, I determine you have suffered a contraction of the disease due to the nature of your military service, namely post traumatic stress disorder. I further determine that for the purpose of the Act the date of injuries the 10/2/1964 as this is the date of injury for the claimed condition. Although the Commonwealth has admitted liability for your condition, payment of money to a client is not automatic…". 94 A second determination made on 24 June 2002 by Zoran Mijanovic, described as being a "Delegate SRCA (Safety Rehabilitation and Compensation Act 1988)" made the following determination: "I refer to your accepted quote for compensation for post traumatic stress disorder. On the basis of further evidence I determine you have suffered an injury arising out of, or in the course of, your military service and that liability be extended to include gunshot wounds to the face resulting in mandibular and maxillary fractures and multiple facial laceration. This decision is based on the report from Dr Raymond Goh, plastic surgeon, Dr Elliot Watson, psychiatry registrar and Dr B S Keshava, consultant psychiatrist". 95 On 16 March 2001 the Department of Defence wrote to DVA, signed by "Cherry Waddell HR5 for ADF Health Records" to DVA a letter in response to a letter from DVA signed by Leslie M Pollard, Delegate SRCA the following: "Post traumatic stress disorder. I have read Mr Hill's medical file and found that he was incapacitated for work due to his medical condition (as above) for a total of forty six days (fourty six days) (sic). Balmoral Hospital 7/9/1964 - 30/9/1964 (then follows further details until the 26 October 1964)". 96 On behalf of the plaintiff it is submitted that the two determinations dated 26 January 2001 and 24 June 2002 amount to admissions of the defendant that the plaintiff suffered from post traumatic stress disorder which was caused by the collision. Furthermore, it is alleged that the letter dated 16 March 2001, referred to above, was an admission by the defendant that the condition for which the plaintiff was treated in the Balmoral Naval Hospital towards the end of 1964 was post traumatic stress disorder. 97 The defendant has submitted that the communications to the plaintiff and the internal communication from the Department of Defence to DVA (Department of Veteran Affairs) do not, in law, constitute an admission binding on the Commonwealth and refered to two cases in support of its submission: Pastras v The Commonwealth 9 FLR 152 and Huysse v Snowy Mountains Hydro-Electric Authority (1975) 1 NSW LR 401. 98 Before turning to the submissions, I should record that the communications referred to above were tendered in evidence. If the defendant's present submission is accepted, they should not have been admitted although I do not understand the plaintiff to argue that for that reason the defendant is precluded from submitting that neither the determinations nor payments of compensation are capable in law of amounting to an admission or that the internal communication from the Department of Defence to the Department of Veteran Affairs did not constitute an admission. 99 The defendant tendered the medical records relied on by the DVA when making the two determinations. They were the reports of Dr Ahmed dated 12 February 1998 and the reports of Dr Keshava dated November 1998 and the report dated 26 November 1998 (which is the same as Dr Keshava's report dated 8 February 2000) and his report dated 31 May 2002 (which is the same as his report tendered in evidence and dated 9 December 2002). 100 Neither party has submitted that the relevant legislation regulating discretionary decisions of delegates under the Safety Rehabilitation and Compensation Act 1988 is the same as the legislation that was the subject of decisions by the Victorian Supreme Court (Pastras) and the New South Wales Court of Appeal (Huysse) in 1966 and 1975 respectively. 101 In Pastras v the Commonwealth Lush J held that determinations that the plaintiff had suffered an injury, that the injury suffered was a lumbar disc lesion and that since April 1962 the plaintiff was totally incapacitated did not amount to estoppel by conduct and was no evidence of admission by conduct. However, Lush J held that payment made under a determination may be an admission as to the correctness of the determination provided the defendant Commonwealth had not exercised any right of appeal or review. Pastras was a jury action and Lush J said that he would tell the jury that the determinations were "no more than another item of evidence and it will in the end be for them to decide what weight they attach to it".

102 In Huysse the Court was concerned, inter alia, with the admissibility of a determination under the Commonwealth Employees Compensation Act 1930-1971 and the later determination under the Compensation (Commonwealth Employees Act) 1971. After rejecting a technical argument to the effect that it was the Commonwealth that made the admission and not the Authority, the Court dealt with the submission by the plaintiff that the determinations and payments made pursuant thereto were, on the authority of Pastras, an admission by the Commonwealth. Hutley JA declined to follow the reasoning of Lush JA viz that determination followed by payments pursuant thereto amounted to an admission. His Honour held they were not. His Honour's conclusion was adopted by Samuels JA. Mahoney JA did not specifically refuse to follow Pastras. However, he inclined to the view that no admission could be inferred. 103 His Honour also said (and of relevance to this case): "The fact that determinations were made as set forth in the relevant documents does not establish more than that the plaintiff convinced either medical practitioners or the Commissioner of his delegate, of the relevant facts. Having regard, inter alia, to the fact that a substantial issue in the case was the plaintiff's credibility on this point generally, I do not think that the finding of such an admission would have been likely to have carried substantial weight with the fact finding tribunal, the jury". 104 As I have said, it is clear that the material presented to the Delegates for determinations made by them included the opinions of Dr Ahmed and Dr Keshava contained in reports, which have been presented in evidence in these proceedings. The opinion of both doctors, depend upon acceptance by them of the history given by the plaintiff. It is clear from the relevant files that the delegates simply accepted the opinions of Dr Ahmed, who thought the plaintiff was suffering from post traumatic stress disorder as a result of the collision and Dr Keshava who thought the plaintiff was suffering from an anxiety disorder as a result of the collision which he later thought to be post traumatic stress disorder. In these proceedings the correctness of the plaintiff's history has been investigated and found wanting. For this reason I do not think the determinations and subsequent payments pursuant thereto have advanced the plaintiff's case even if it could be said they constitute admissions. A fortiori the internal communication between the Department of Defence and the Department of Veteran Affairs is of no evidentiary moment. 105 In my opinion there must be a verdict for the defendant.

Last Modified: 11/19/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Brian Finlay Hill v The Commonwealth of Australia [2003] NSWSC 1025 HEARING DATE(S) : 29-30/09/03,1-3/10/03,7/10/03,8/10/03, 10/10/03,14-16/10/03 JUDGMENT DATE : 11 November 2003

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Cases Cited (4)

Cited By (3)