Brittain v Commonwealth of Australia

Brittain v Commonwealth of Australia - [2005] NSWSC 641 - NSWSC 2005 case summary — Zoe

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JUDGMENT 1 BELL J: The plaintiff was a naval rating on board HMAS Melbourne on 10 February 1964 when it collided with the destroyer, HMAS Voyager, resulting in the loss of the Voyager and of eighty-two lives. At the time of the collision the plaintiff was below decks in the laundry of the Melbourne. 2 The plaintiff commenced proceedings against the Commonwealth of Australia by statement of claim filed on 29 November 1995 alleging that the collision was caused by the negligence of the officers and crew of the Voyager and/or the officers and crew of the Melbourne and that as a result he had suffered a psychiatric injury. His injury was particularised as an acute post-traumatic stress disorder (PTSD), alcohol abuse, anxiousness and depression. It is the plaintiff's case that as the result of the psychiatric injuries caused by the collision he has been diminished in his occupational and social functioning and that his capacity to earn income has been impaired. He contends that had he not suffered the psychiatric injury he would have completed twenty years' service in the Navy and retired having attained the rank of chief petty officer with a naval pension. 3 The proceedings are a retrial on all issues, save breach of duty of care, as directed by the Court of Appeal: Brittain v The Commonwealth of Australia [2004] NSWCA 83. 4 At issue is the question of whether the plaintiff has established that he suffered any psychiatric injury as the result of his experience of the collision. Expert evidence that he suffers from Post-traumatic stress disorder was led on his behalf from his treating psychiatrist, Dr Holwill, and from Professor Raphael. Professor McFarlane also gave evidence in his case, which was supportive of the diagnosis made by Dr Holwill and Professor Raphael, albeit in Professor McFarlane's opinion the plaintiff does not qualify for the diagnosis of PTSD at the present. The plaintiff's background 5 The plaintiff was born in Hobart in June 1945. His early life and school years were happy. He enjoyed a good relationship with his parents. He was one of six children. He attended the Bowen Road Primary School where he was a successful pupil. Thereafter he attended the Hobart Technical High School, leaving at the age of fifteen after obtaining his school score A certificate. He enjoyed sport at school and played soccer and hockey. He was the captain of the B grade hockey team. 6 At around the age of twelve the plaintiff joined the Australia Sea Cadet Corps. At the time it was his ambition to join the Royal Australian Navy. He was the youngest cadet to attain the rank of petty officer in the Cadet Corps. He won a trophy for keenness and personal efficiency. 7 The plaintiff applied to join the Navy as an apprentice in 1961. He said that he had not been accepted because he had not met the height requirement. Naval records suggest that his application was unsuccessful for reasons unrelated to his height. Nonetheless, it was the plaintiff's perception that his height had been an obstacle to his entry and before re-applying he did stretching exercises in an effort to make himself taller. 8 The plaintiff's second application to join the Navy was successful. He commenced his initial training at HMAS Cerberus in June 1963. After the first three months recruits were posted to sea for a period of twelve-month's sea training. Recruits from the plaintiff's intake were posted to either the Melbourne or the Voyager. 9 The plaintiff joined the Navy for a term of nine years. He understood that at the conclusion of that term it would be open to him to sign up for a further nine or twelve year term. He said that he had planned to remain in the Navy for at least twenty years in order to qualify for the pension. The plaintiff enjoyed naval life during his initial training. At the completion of it he was posted to the Melbourne. He was a member of the laundry party.

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23 Mrs Brittain was very unhappy during the time the couple spent in Western Australia. After a time she decided to leave the plaintiff. She returned to the east coast bringing the baby with her. The two older children remained with the plaintiff. He was not able to cope and for a short time he placed them in an orphanage. After a matter of weeks he collected the children and returned to Melbourne where he was reunited with his wife and baby. The trip to Western Australia lasted around four months or so. 24 It did not take the plaintiff long to obtain employment in Melbourne as a car salesman. He worked on a base salary of $60 per week, earning commission of $10 or $12 per car sold. In a good week he might have sold four cars. He was employed as a car salesman between 1970 and 1972. After this he moved into real estate sales. He worked for a man named McKenzie Smith for about a year. His remuneration was wholly commission on sales. He said that he probably earned around the same amount as he had earned selling cars, but he considered that there had been the potential to earn more money in real estate. The plaintiff continued to work in sales during the 1970s. There was little evidence about this period of his working life. 25 In the early 1980s the plaintiff moved from real estate sales to finance broking for documentary film projects. This was at a time when substantial income tax deductions were available to investors in Australian films. The plaintiff raised finance for a number of documentary films by marketing the prospectus for the projects to accountants and stockbrokers with a view to having them encourage their clients to invest. He continued in this business for a number of years until a change in legislation reduced the amount of the discount such that it no longer operated as an incentive to investment. 26 Between 1989 and 1991 the plaintiff was involved with a company, Aus Vine, which managed vineyards in the Coonawarra, Padthaway and Pemberton. He marketed the Aus Vine prospectus for a grape-growing venture, which ultimately proved to be unsuccessful. 27 Around 1991 the plaintiff was approached by Brian Jennings, an accountant with whom he had a professional association, in connection with a proposal to obtain a timber concession in Bolivia. The two became directors of a company, International Resources Pty Limited, which was set up to pursue the Bolivian timber concession. It was envisaged that the plaintiff's role would be to attract investment funds for the venture. The scheme was not successful and the plaintiff did not raise substantial investment funding for it. This was no reflection on the scheme, or on the plaintiff's ability, but was acknowledged by both of them to be a product of a worldwide economic downturn at the time.

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63 John Quirke, was in the same recruit intake as the plaintiff and Woodward. The three of them were part of a small group. He recalled that the plaintiff and Woodward had been on fairly close terms. Woodward was always referred to by his nickname Woody. Mr Quirke was also on board the Melbourne at the time of the collision. Later that night he saw the plaintiff in the hangar with some of the survivors. The plaintiff was looking for Woodward and he was upset and agitated. Photographs of the plaintiff and Woodward are in evidence. I accept that they were good friends. I do not find it improbable that young sailors might be on close terms, but only know one another by their nicknames. I am satisfied that the plaintiff was concerned about Woodward's fate that night and that learning of his death caused him a good deal of distress. The plaintiff's attitude to the Navy 64 It is the plaintiff's case that he was a keen young sailor who was likely to have pursued his career in the Navy had he not suffered psychiatric injury. His decision to engineer his discharge was said to be caused by his fear of going to sea, which stemmed from his undiagnosed psychiatric condition. In the defendant's submission contemporaneous records point to the plaintiff's conduct as the product of his disenchantment with the realities of naval life, his desire to be his own boss and his wish to be with his girlfriend, Pamela, who was living in Tasmania. 65 Naval records include the assessments of the plaintiff carried out by naval psychologists at the time he first applied to join on 1 May 1961 and at the time of his successful application in 1963. In May 1961, when he was aged not quite sixteen years, the plaintiff was described as being "very keen - instructors here speak highly of him." His educational history was recorded, including that he had attended high school to Fourth Year. He was best in trades subjects and worst at maths. He passed metalwork, woodwork, technical drawing, English and social science and he failed maths and science. The author went on to note: "Mad keen on the Navy - ASCC [Australian Sea Cadet Corps] is just about his whole life. Very disappointed to learn he was doubtful for NAA - is not volunteering rapidly for JR. Performing at about his intellectual level but maths and science are dead spots. This kid had me grinding my teeth during tests and when the class were waiting for interviews. He kept up attention seeking questions and became a bit rowdy. On hearing the whole story most of it can be put down to anxiety (very goal oriented in this situation) and his ASCC experience which put him a social step ahead of the other lads. Would recommend for JR as a sea. He will have to chew it over. Not worth sending to the NAA Board even." 66 On 17 July 1963 the plaintiff was again assessed by a naval psychologist. He was recorded as presenting as emotionally immature. The author noted, "could perhaps make good material but there are reservations at this stage because of lack of [indecipherable] but it is felt he is worth the risk."

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98 The plaintiff's father, Albert Brittain, described the plaintiff as having been an intelligent, bubbly, fun-loving son before he joined the Navy. He had been an excellent student at school and he had not been the cause of any disciplinary problems at home. Mr Brittain would not allow alcohol in the family home and the plaintiff did not drink alcohol before he joined the Navy. 99 Mr Brittain said that the plaintiff had undergone a complete change in personality after the collision. He had become aggressive and argumentative. Mr Brittain considered that the plaintiff drinks to excess; four to six stubbies of beer a night - on occasions he might drink as many as ten or twelve stubbies. 100 Little weight can be placed on Mr Brittain's opinion that the plaintiff underwent a change in personality characterised in part by excessive drinking from 1964. The fact is that the plaintiff was a somewhat immature teenager when he left home and joined the Navy. The circumstance that he did not drink much alcohol as a youth to my mind does not cast light on whether his subsequent drinking history arises as the result of psychiatric injury suffered by reason of the collision or for reasons unrelated to it. He had only been in the Navy for six months at the time of the collision and some of this time was spent at sea where his access to alcohol was restricted. Mr Brittain's opportunity to observe his son's pattern of drinking in the years 1964 to 2000 was limited. Over these years he saw him two or three times a year. For the past five years, following the death of his wife, Mr Brittain has spent more time with the plaintiff. 101 Two former seamen from the plaintiff's intake at Cerberus gave evidence. John Quirke recalled that prior to the collision the plaintiff had been outgoing with a good sense of humour. His alcohol consumption at that time had been, "nothing out of the ordinary". He was asked if he recalled anything about the plaintiff's alcohol consumption following the collision. He replied that, "we may have over indulged to a certain extent initially". Mr Quirke left the Navy in April 1964. He did not see the plaintiff again for around thirty-five years.

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(v) He did not demonstrate an exaggerated startle response. Criterion E: Duration of disturbance. These problems have been present intermittently, but influencing the patient's functioning overall since the time of the Melbourne/Voyager disaster as he reports it. Criterion F: The patient experiences clinically significant distress and impairment of function. The condition is chronic. 122 Professor Raphael diagnosed the plaintiff as suffering from PTSD. She considered it likely that the plaintiff had met the diagnostic criteria for depressive and anxiety disorders in the past, albeit he did not meet the criteria for either of those conditions as at May 2002. 123 In reporting her conclusions Professor Raphael said this: "Mr Brittain's personal history reveals no evidence of psychiatric disorder prior to the collision and in fact gives every evidence of successful development during his adolescent years and no major difficulties. He appeared strongly and positively committed to a career in the Navy. His experiences on the night of the collision and his strong identification with his mates on the Voyager constituted a major traumatic experience, as did the aftermath. His life showed major change following this with development of antisocial behaviours, heavy drinking, disturbed sleep and a wish to "get out". His marital problems, multiple jobs and "loner" behaviour fit with the profile of ongoing psychological disturbance and disruption of function, and the ongoing symptomatology of his traumatisation. It is my opinion on the basis of the history provided by Mr Brittain, and my assessment of him, that he is suffering from post-traumatic stress disorder of moderate severity. It is my opinion that this resulted from his experience in the Melbourne/Voyager collision." 124 In a supplementary report dated 18 February 2003 Professor Raphael commented on some additional information that had been drawn to her attention. She observed that information provided by the plaintiff's father (that as a young man he had been well and not shown evidence of psychiatric problems) supported her view that the problems that arose were likely to have been related to the psychological trauma associated with the experience of the collision. She also considered material from the plaintiff's naval service record reporting apparently psychological and behavioural problems subsequent to the collision were such that it was highly likely that these difficulties were associated with the traumatic experience and were further evidence supporting the development of post-traumatic psychiatric morbidity, including PTSD.

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125 In her third report, dated 1 October 2004, Professor Raphael recorded her assessment of the plaintiff based on a further interview conducted on 24 August 2004. She reported that the plaintiff had problems with participation over the years, both with the family and other groups, but that he felt better with his family at the time of the report, more considerate, and that he had a relatively small group of supportive people with whom he worked. Professor Raphael noted that the plaintiff continued to report some distressing dreams, although they were not frequent at the time of the third report. He considered that he had been helped by his talks with Dr Holwill and by Zoloft. He was not at that time experiencing flashbacks. At the date of this report Professor Raphael considered that the plaintiff did not demonstrate detachment from others. 126 Professor Raphael expressed the opinion in her third report that: "Mr Brittain suffers chronic post-traumatic stress disorder and substance abuse disorder. It is my opinion in terms of my clinical assessment of him on this and previous occasions that his condition is ongoing and significantly impacts on his functioning and quality of life. He is having treatment for this which has improved his symptoms to a degree, but it is still an ongoing condition and one which may worsen as he ages, as well as in relation to the stresses associated with his physical health problems. It is my opinion in terms of this clinical assessment that I have carried out, that Mr Brittain's condition was caused by his traumatic experience in the collision of the Melbourne with the Voyager, and the subsequent failure of the system to provide appropriate assessment or treatment for problems which arose. It is in my opinion that his life experience and opportunities, as well as his quality of life have been significantly lessened as a consequence. It is my opinion that the substance use disorders initially commenced as heavy drinking which is highly likely to have been an attempt by Mr Brittain to self-medicate his psychological distress, irritability, anxiety and sleep difficulties which were symptoms of his psychological traumatisation after the incident." 127 Professor McFarlane gave evidence in the plaintiff's case. He is the Professor of Psychiatry at the University of Adelaide and has specialised throughout his career on the impact of traumatic events on individuals and PTSD. He has published extensively in peer-reviewed publications on the condition of PTSD. He has maintained a clinical practice in addition to his academic work. Professor McFarlane is a member of the Australian Defence Force Reserve and in this capacity he serves as the adviser in psychiatry to the Defence Force's Director of Health Services. He is the Director of the Adelaide Centre of Military Veterans' Health, which is responsible for the conduct of health research for the Australian Defence Force. He is the chairman of a scientific advisory committee that has been appointed by the Department of Veterans' Affairs to investigate the impact of the Vietnam service on the children of Vietnam veterans.

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128 As I have noted, Professor McFarlane interviewed the plaintiff in January 2003. Following this, in a report dated 28 January 2003, Professor McFarlane concluded: "On the basis of the history obtained, it is my view that Mr Brittain continued to suffer some symptoms of a post-traumatic stress disorder, but did not currently satisfy the diagnostic criteria. In expressing my opinion, I am limited by the fact that I have not seen a number of the relevant documents, particularly referred to in Dr Champion's first report concerning the disciplinary actions brought against him in the Navy. His current situation is dominated by anxiety symptoms, specifically relating to his impending legal action. This litigation setting does not appear to have led to a specific exacerbation of his post-traumatic symptoms. The symptoms which he clearly described in the past were nightmares relating to the HMAS Melbourne/Voyager disaster and also distressing recollections of the event. His first interview with Dr Champion indicates his psychological distress associated with the recollection of the experience. It appears that with the treatment provided that this distress has decreased significantly. He demonstrated no such emotional disequilibrium at the time of his interview with me. … Mr Brittain currently has few intrusive symptoms. He similarly, has few avoidance phenomenon and these appear to be intermittent, in contrast to his attempts to avoid recollections about the disaster. In recent years an example was his initial ability to tolerate part of the film The Titanic, but then needing to leave. He has ongoing startle response. It is difficult to judge the degree of his sleep disturbance in latter years because of his nocturnal frequency due to his enlarged prostate. However, it does appear to be an issue. He does not appear to have any particular symptoms of hyper vigilance. He stated his concentration was problematical. His irritability is an ongoing issue. However, he did not appear to be particularly socially withdrawn and had a continued sense of pleasure. He did not appear to have any emotional numbing. Against this background, my report appears to differ from that of Professor Beverly Raphael's in terms of the severity and clinical significance of some of his symptoms. Similarly, the report of Dr Holwill provided a similar history, particularly of the issues of insomnia, nightmares, chronic mild depression and avoidance of thoughts and feelings of the event. Given that I did not examine him at this time, I believe that my report is consistent with that of Dr Holwill and Dr Raphael." 129 The principal challenge that the defendant makes to the acceptance of the opinions of Dr Holwill, Professor Raphael and Professor McFarlane is that they necessarily depend upon the accuracy of the plaintiff's history and report of symptoms. Both are in issue. 130 Dr Holwill and Professor Raphael both consider that the plaintiff's history of sleep difficulty in the period since the collision supports the diagnosis of PTSD. Dr Holwill obtained a history of sleep disturbance with initial, middle and late insomnia every night. He noted that this had been contributed to by prostate difficulties. Dr Holwill did not obtain a more detailed account of the onset of the insomnia.

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