Brittain v The Commonwealth of Australia

LOWER COURT Supreme Court JURISDICTION : LOWER COURT SC 21248/95 FILE NUMBER(S) : LOWER COURT Mathews AJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40273/03 SC 21248/95

HANDLEY JA TOBIAS JA McCOLL JA

25 MARCH 2004 ANTHONY WINSTON BRITTAIN v THE COMMONWEALTH OF AUSTRALIA CATCHWORDS APPEAL and NEW TRIAL - issues of liability and damages linked - new trial limited to damages not appropriate

DAMAGES - causation - contributory cause sufficient FACTS

The appellant was a seaman on board HMAS Melbourne on the night of 10 February 1964 when it sank HMAS Voyager. He was not physically injured but claimed that he suffered from post traumatic stress disorder ("PTSD") and he sued the Commonwealth for damages in 1995. The limitation period was later extended. The Commonwealth admitted a breach of its duty of care to the plaintiff but liability and damages were otherwise in issue. The action was heard with a jury which found a verdict for the plaintiff for $25,028. The largest component in the plaintiff's claim was for loss of a service pension worth $801,902 which he alleged he otherwise could and would have earned by serving in the Navy for 20 years.

By October 1964 the plaintiff had become disillusioned with the Navy and wished to leave the service. Shortly afterwards he began to absent himself without leave and was deprived of liberty for disciplinary offences until he was administratively discharged in January 1966.

An important issue in the case was whether or not this conduct had been caused by his PTSD. The plaintiff sought a direction from the trial judge in accordance with Medlin v State Government Insurance Commission (1995) 182 CLR 1 that damages could be awarded for the loss of the service pension if his PTSD, otherwise established, was a contributory cause of his decision to leave the Navy. The trial judge refused to give that direction. On appeal HELD: (1) The plaintiff was entitled to a direction in accordance with Medlin v State Government Insurance Commission (1995) 182 CLR 1; (2) There was evidence on which the jury could find that the plaintiff had suffered PTSD as a result of the events of 10 February 1964; (3) The plaintiff was therefore entitled to a new trial; (4) Since the question of injury was in issue and the jury had to decide whether or not the plaintiff was suffering from PTSD the issues of liability and damages were inextricably mixed and the Court should not order a new trial limited to damages: Pateman v Higgin (1957) 97 CLR 521 distinguished; Quinn v Rocla Concrete Pipes Ltd (1986) 6 NSWLR 586, 602 applied; (5) The Court should order a new trial on all issues other than breach by the Commonwealth of its duty of care to the plaintiff. ORDERS

2. Verdict, judgment and orders consequential thereon set aside.

4. Order a new trial of the action with a jury on all issues other than breach of the Commonwealth's duty of care to the plaintiff.

5. Liberty to either party to apply to Handley JA on 14 days notice for orders under the SCR Pt 51 r 23(5).
6. The appellant to file and serve written submissions on the appropriate order for the costs of the first trial within 10 days, and the Commonwealth to file and serve its written submissions on that question within a further 10 days.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40273/03 SC 21248/95

HANDLEY JA TOBIAS JA McCOLL JA

25 MARCH 2004 ANTHONY WINSTON BRITTAIN v THE COMMONWEALTH OF AUSTRALIA Judgment 1 HANDLEY JA: The appellant was an ordinary seaman on board HMAS Melbourne on the night of 10 February 1964 (that night) when it collided with and sank HMAS Voyager. In November 1995 he sued the Commonwealth in the Supreme Court to recover damages for post traumatic stress disorder ("PTSD") allegedly suffered as a result of his experiences that night. An extension of the limitation period was granted by Master Malpass on 27 July 2000. 2 The action was tried by Mathews AJ and a jury over 13 days in February and March 2003. The Commonwealth admitted negligence but otherwise both liability and damages were in issue. On 13 March the jury returned a verdict for the plaintiff for $25,028 and on 31 March the Judge made orders dealing with interest and costs. 3 The plaintiff appealed seeking a new trial on the ground of misdirection or nondirection. He also claimed that the jury's verdict on damages was perverse but this challenge was abandoned by Mr Douglas QC during the hearing. The plaintiff claimed that any new trial should be limited to damages. 4 The Commonwealth cross-appealed claiming that there was no evidence on which the jury could find that the plaintiff had suffered PTSD. In the alternative it claimed that the jury's finding that he suffered PTSD was perverse and it sought a new trial on all issues other than negligence. 5 In August 1963 at the age of 18 the plaintiff enlisted in the Navy for nine years. He had been in the Sea Cadets for four years at high school and had progressed to the rank of petty officer. He had also received a trophy for his keenness and efficiency. He said he wanted to make the Navy his career and was so keen to join that he applied three times before he was accepted, after being rejected as too short and for poor maths. 6 The plaintiff's claim that is directly relevant in these proceedings was that, but for his PTSD he would have remained in the Navy until 1983 and qualified for a service pension worth, on the evidence, $801,902 (2/355) (the pension claim). Instead approximately 8 months after that night, to all intents and purposes, he abandoned his chosen career and embarked on a course of conduct designed to secure his discharge. 7 The plaintiff was deprived of liberty for disciplinary offences for a total of 162 days in October 1964 (7 days), May 1965 (10 days), August 1965 (60 days), and November 1965 (85 days). He served his two longest sentences in Holdsworthy Military Prison and was administratively discharged from the service on 19 January 1966 (2/338). 8 The Commonwealth's defence on the pension claim was based on a note by Mr W N Morrison, a senior naval psychologist, of his interview with the plaintiff on 8 October 1964 and his letter to the Captain of HMAS Melbourne on 14 October. The interview arose from the plaintiff's application for a transfer of category. Mr Morrison's note, so far as relevant, stated: "He is not sure that he wants to stay in - says he feels like being his own boss for 4 or 5 years. Immature, lacks a goal, says he thinks he just blundered into the Navy - it seemed a logical follow on from Sea Cadet training." 9 His letter stated: "Despite his four years Sea Cadet training, during which he rose to the rank of Petty Officer, Brittain considers that he made a mistake in joining the permanent Service. States that he would like to be his own boss for the next 4 or 5 years … An attempt was made to counsel him regarding the advantages of giving Naval Service a further trial before concluding that it did not suit him … Much of this lad's problem stems from his immaturity and he could develop a more positive attitude once he commences specialist training." 10 The plaintiff did not recall the interview. However he agreed that by that time he was disillusioned (1/312), wanted to get out (314) and did not want to go back to sea at all (315). Shortly afterwards he began to breach naval discipline and first went absent without leave on 16 October. 11 Mr Morrison could add little to his written record and letter. He did say that if there had been any emotional disturbance evident during his interview with the plaintiff he would have conducted "some further tests" and that if "significant symptoms" had been apparent he would have arranged a referral to a specialist clinical psychologist (black 2/704). Earlier when the plaintiff was cross-examined about this interview he was asked whether it did not provide him with an opportunity to say that he was not happy in the Navy. He said that he had always been a pretty proud person and was probably embarrassed to say anything (black 1/322-3). 12 Prior to calling evidence Mr Branson QC opened the Commonwealth's case to the jury. He identified three important matters for their consideration. The first was whether the plaintiff's experiences on the night of 10 February 1964 had caused PTSD. The second concerned why it was and the circumstances in which the plaintiff left the Navy. Mr Branson said that the defendant contended that by October 1964 the plaintiff had worked out that he did not want to be in the Navy and set about getting himself out. He said: "at some point in time he had become totally disillusioned. It is for you to work out why that was … He spent from October to … late in 1965 doing whatever it was he could to get discharged. The big issue for you to determine will be: Why did all of this happen?" (2/698). 13 In his closing address Mr Branson reminded the jury of the issues and said that "a significant issue is the reasons why and the circumstances in which Mr Brittain came to leave the RAN … when one considers all of the evidence … you would be satisfied that the real reason why Mr Brittain left the Navy was not connected with his experiences onboard the aircraft carrier that night" (804) (emphasis supplied). 14 He referred to Mr Morrison's evidence and added: "If he, as the senior Navy psychologist at the time had thought that Mr Brittain was suffering from some emotional disturbance then he would have done something about it". (818) 15 In conclusion he told the jury that they would have to ask themselves, among other questions, "what caused him to leave the Navy" (824). 16 Mr Melick SC, in his final address on behalf of the plaintiff told the jury: "We have to persuade you … that Mr Brittain has suffered psychiatric injury as a result of the collision … [and] that was the pre-eminent reason for leaving the Navy which of course then meant that he has not received naval pension to which he would have otherwise been entitled had he remained for 20 years" (824-5) (emphasis supplied). 17 When he came to deal with Mr Morrison's evidence he said: "Yes, the dream had been shattered, but shattered by what? It had been shattered by the collision when some of his mates were killed, when he lost trust in those above him in the Navy and after which he embarked upon a program of getting himself out of the Navy … There is no suggestion and no evidence of any other event to change this young man's mind about this career he'd longed for for so long … There is no evidence available to suggest any other event that caused him to become disillusioned with the Navy or to shatter this man's dreams" (830-1) 18 It will be seen that both counsel tended to elide the issues in their final address passing over the need for the plaintiff's PTSD, rather than the collision itself, to be the "real" or "pre-eminent" cause of his decision to get out of the Navy, but nothing presently turns on this. 19 The Judge heard submissions on legal matters to be covered in her summing up. During this discussion Mr Melick said (854) that he did not want the jury retiring thinking they had to be satisfied on the balance of probability that the only reason the plaintiff got out of the Navy was his psychiatric illness. They only had to be satisfied that it was a material cause. In response to a question from her Honour Mr Branson said that those directions "sound to be appropriate" subject to another matter which is not presently relevant (854-5). 20 The pension claim depended on two issues. The first was whether, but for his injury, he would have remained in the Navy until he completed 20 years service. This was a past hypothetical event and the jury had to assess the chance or degree of probability that this would have occurred in accordance with the principles in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, 350. There was no challenge to her Honour's directions on this issue. 21 The second issue was whether the plaintiff left the Navy as a result of his PTSD. His leaving the service was a historical fact which was not in dispute but the plaintiff had to prove, as a fact, its causal link with his PTSD. 22 Her Honour dealt with this issue when she reminded the jury of the evidence given by Mr Morrison. She said (911): "… as you know, a material part of the plaintiff's case is that a material reason for his wanting to leave the Navy was his disillusionment … arising out of the collision. So the defendant relies on that as showing well, there are other reasons why he wanted to leave the Navy. He was simply regretting it and he wanted, as he told Mr Morrison, to be his own boss" (emphasis supplied). 23 The following morning Mr Butcher, junior counsel for the plaintiff raised this direction with her Honour in the absence of the jury and said (915): "We would seek that your Honour indicate to the jury that causation is established if the plaintiff proves that certain events made a material contribution to, or were a material cause of the subsequent events … the major content that we would be concerned about would be the plaintiff's decision to leave the Navy … We would seek a direction that if the plaintiff [has] shown that his accident related problems … - made a material contribution to that, … causation is established because it was a material cause." 24 During the discussion with counsel that followed her Honour said (916): "… it seems to me that the real issue is whether he suffered post-traumatic stress disorder as a result of the events of 10 February … If he did, then I would have thought … that this was effectively the reason why he left the Navy. Therefore this is a step in the way rather than part of causation itself." 25 Mr Branson submitted that it was a factual issue which was "not concerned with the legal concept of causation" (917). During further argument he said that "causation only goes to elements of the completion of the cause of action" (918). After further argument the following discussion took place between her Honour and Mr Butcher (918-9): "HER HONOUR: … I think the material contribution goes to causation as part of the element[s] of [the tort of] negligence and this isn't part of the element[s] of negligence, it is simply a factual step in the plaintiff's case, but the causation aspect goes back before this. BUTCHER: Your Honour I haven't brought text to argue with your Honour. I simply submit that my understanding was that the material contribution applied to damages as well, but - - HER HONOUR: You see that becomes a factual assessment for the jury and indeed it is a Malec v Hutton issue that they can find it a 60 per cent possibility and give him 60 per cent … So I think that Mr Branson is right, that it is not a causation issue and therefore I shouldn't say anything along those lines." 26 Mr Douglas submitted that the plaintiff was entitled to the direction that Mr Butcher had sought, in accordance with the principles in Medlin v State Government Insurance Commission (1995) 182 CLR 1. The jury must have found that the plaintiff had suffered PTSD caused by the events that night. They then had to consider whether his PTSD had caused the loss of the pension. A plaintiff must prove his damages and this requires proof that they were caused by the tort. Although this was a factual issue it did not, for that reason, cease to be a causation issue. 27 Mr Douglas's submission is squarely supported by Medlin which decided that a contributory cause was sufficient for proof of loss or damage (ibid 9). A university professor, who had been injured in a car accident, decided, without pressure from his university, to retire some years before his normal retiring age. This, like the plaintiff's decision to get out of the Navy, was a historical event which was not in dispute but its causation was in dispute. The joint judgment stated (ibid 6-7): "… the question whether the requisite causal connection exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of commonsense and experience. And that remains so in case such as the present where the question of the existence of the requisite causal connection is complicated by the intervention of some act or decision of the plaintiff … which constitutes a more immediate cause of the loss or damage … The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and defendant and as a matter of common sense and experience, properly to be seen as having caused the relevant loss or damage … An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision … two or more distinct causes, without any one of which the particular damage would not have been sustained, can each satisfy the law of negligence's commonsense test of causation. This can be most obviously so in a case where a 'subsidiary' cause operates both directly as a cause of the particular damage and indirectly as a contributing component of a 'pre-eminent cause'." 28 McHugh J said in his concurring judgment (20): "If the effects of the plaintiff's injury were, on a commonsense approach, a material cause of his decision to retire early, even if not the pre-eminent cause, then the plaintiff's financial loss has resulted from his loss of earning capacity and was connected to the defendant's negligence." 29 The plaintiff therefore was entitled to a Medlin direction which was not given and the jury were left without essential guidance in deciding the pension claim. Her Honour told the jury that the plaintiff's case was that "a material reason" for him wishing to get out of the Navy was his disillusionment arising out of the collision. She also told them that on the defendant's case "there were other reasons" why he wanted to leave. "He was simply regretting it and wanted to be his own boss" [para 22]. Her reference to "a material reason" accorded with Medlin but her reference to the defendant's argument that there were other reasons suggested that if there were the pension claim should fail. She went on to say that the defendant's case was that the plaintiff "was simply regretting it". This would have suggested to the jury that the defendant's case was that this was the only cause of the plaintiff wishing to get out of the Navy. If the jury had found that this was the case, or more strictly had not been satisfied that it was not the case, the plaintiff would not have been assisted by a Medlin direction. However in view of previous reference to "other reasons" a Medlin direction was essential. 30 The principle which this Court must apply in deciding whether a misdirection or nondirection has occasioned a substantial wrong or miscarriage within the meaning of SCR Pt 51 r 23(1) is that stated in General Motors-Holden's Pty Ltd v Moularas (1964) 111 CLR 234, 259 per Windeyer J: "An erroneous direction of law, if on a material matter and capable of affecting the result of a trial, will, generally speaking, be a ground for a new trial as of right." 31 The implicit direction [para 22] that a material reason would be sufficient was correct although her Honour should have told the jury that it was not enough for them to find a link between the collision and the decision to leave the Navy, they had to find a link between the plaintiff's PTSD and that decision. Disillusionment with the Navy which was not due to a recognised psychiatric illness was not enough. 32 In view of her Honour's reference to "other reasons" a further clear direction in accordance with Medlin was required but not given. This omission was clearly on a material matter that was capable of affecting the result of the trial. It is not necessary for present purposes to decide whether the appellant's case in this respect should be characterised as based on a misdirection or merely a nondirection. The error in the summing up under consideration in Moularas was the failure of the trial judge to give the jury a direction that in assessing the plaintiff's future economic loss they should allow a discount for the usual contingencies and hazards of life. The Court treated this as a misdirection. In any event under SCR Pt 51 r 23(1) nothing turns on the distinction. I would therefore allow the appeal and, subject to the Commonwealth's no evidence point I would order a new trial.

Cross-appeal 33 The issue raised by the cross-appeal which now falls for consideration is whether there was any evidence to support the jury's finding that the plaintiff suffered PTSD as a result of his experiences that night. This point was not taken at the trial but it is well established that such points can be taken for the first time on appeal: Hampton Court Ltd v Crooks (1957) 97 CLR 367. 34 The plaintiff had to establish that as a result of his experiences he had suffered a recognisable psychiatric injury. And for this purpose what might fairly be regarded as a normal emotional reaction such as grief, sorrow, anxiety or stress is not enough. The psychiatric injury need not occur immediately and it is sufficient if it develops progressively later. 35 Mr Branson relied on the plaintiff's inability to recall the events of that night in any detail. He also relied on one of the criteria in the 4th ed of "Diagnostic and Statistical Manual of Mental Disorders" as they affected a diagnosis of PTSD. This document, as such, was not in evidence but parts of it were before the jury in the evidence of the psychiatrists. Mr Branson's point was that criteria A(2) requires that the victim's response to the traumatic events be one of "intense fear, helplessness or horror". There was no mention of such reactions in the plaintiff's own evidence nor did he describe such reactions in the histories he gave to the psychiatrists. 36 However there was evidence of these matters. Dr Holwill, the plaintiff's treating psychiatrist, gave evidence of the history he had received from the plaintiff (2/482-3), and his account of his own symptoms (483-4, 492, 520). The doctor said that on the basis of this information he had made a diagnosis of PTSD (489). He said that the events that night involving the plaintiff "would be horrifying", and they satisfied the criterion requiring exposure to extreme traumatic events. As a result of the history he obtained he concluded that the plaintiff had immediately become quite distressed and had experienced significant psychiatric symptoms (553-4). He confirmed this evidence in re-examination (567). 37 Professor Raphael referred to the history she obtained from the plaintiff (630-2, 647) and said that she had diagnosed PTSD (634, 636). She said that the plaintiff's description of the events that night showed that he then demonstrated feelings of helplessness and horror (652-3). 38 The jury were not bound to accept this evidence and there was other evidence which would have supported a different finding. Nevertheless there was abundant evidence to support their inferred finding that the plaintiff had suffered from PTSD and the evaluation of that evidence was a jury question. The cross-appeal on this issue therefore fails.

Scope of the new trial 39 Since the Commonwealth is not entitled to judgment in the action and the plaintiff is entitled to a new trial it is necessary to deal with the plaintiff's argument that the new trial should be one limited to damages. Mr Douglas argued that the jury must have found that the plaintiff had suffered PTSD, they had been correctly directed on that issue, and there was evidence to support their finding. On the other hand their low verdict on damages was he submitted explained by the misdirection on that issue but there was no reason for concluding that this had affected their verdict on liability or that the jury had failed to properly discharge their function on that issue. He relied on the well known decision in Pateman v Higgin (1957) 97 CLR 521. 40 The explanation for the low verdict may have been a finding that the plaintiff had only suffered PTSD for a limited, closed period, or had only ever suffered PTSD in a mild form. The jury may also have found that the plaintiff left the Navy for reasons which had nothing to do with his PTSD. 41 This is not a case, such as Pateman v Higgin, where the issues of liability and damages are quire separate. In that case the plaintiff suffered obvious injuries and there could be no doubt that he had a cause of action if negligence was established. In the present case the existence of an injury is in dispute because the plaintiff did not suffer physical injuries, and the Commonwealth denies that he suffered PTSD. 42 A jury could not assess damages for the plaintiff's PTSD without deciding how long he had suffered from that disorder and what its severity was from time to time. These issues cannot fairly or sensibly be separated from the question whether he suffered from PTSD at all. 43 The relevant principles as they apply in a case such as this are those stated in Quinn v Rocla Concrete Pipes Ltd (1986) 6 NSWLR 586, 602 where McHugh J said: "The general rule is that an order for a new trial should be on all issues: Pateman v Higgin (1957) 97 CLR 521, 527. A new trial on one issue is the exception. When the issues of liability and damages are completely separate as they frequently are in personal injury cases, it is often proper to order a new trial limited to damages. Indeed new trials in personal injury actions limited to damages are now commonplace. But the large number of such cases should not cause us to lose sight of the fundamental rule that a new trial should usually be on all issues" (emphasis supplied). 44 The present case is one where the issues of liability and damages are not completely separate. In fact they are inextricably intertwined because the injury which was said to complete the plaintiff's cause of action was his PTSD. In these circumstances the new trial should be on all issues other than breach of the duty of care. This conclusion makes it strictly unnecessary to determine whether the jury's implicit finding that the plaintiff had suffered from PTSD was perverse so as to entitle the Commonwealth to a new trial on that issue. I record however that the cross-appeal would have failed on that issue, because this is relevant on costs.

Interest 45 The Commonwealth cross-appealed against the judge's order for interest. The order for a general new trial sets aside the jury's verdict and the order for interest will fall with it. However the same questions may arise at the new trial if the jury returns a verdict for the plaintiff and in those circumstances this Court should provide some guidance. 46 The jury must have rejected the plaintiff's claims for economic loss and their verdict was therefore substantially if not wholly for general damages. As such the award should have attracted interest in accordance with the principles in MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657. 47 There was no power to award interest in personal injury cases prior to the commencement of the Supreme Court Act 1970 on 1 July 1972. In Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322 this Court held that the substantive nature of an award of interest and the ordinary principles of fairness would generally limit the exercise of the statutory discretion to award pre-judgment interest under s 94 to the period after the Act commenced.

Costs 48 The Commonwealth made a Calderbank offer of $150,000 plus costs on 17 February 2003 shortly before the trial which started on 24 February. The offer was expressed to be inclusive of applicable repayments and the parties understood this to mean that the plaintiff would have to meet any repayments from that figure. 49 Her Honour held that SCR Pt 52A r 33 did not deprive the plaintiff of any entitlement to costs because in 1995 the proceedings, based as they were on an accident on the high seas outside territorial limits, could not have been brought in the District Court. The District Court acquired jurisdiction in such cases on 1 February 1999 but the Commonwealth successfully resisted an application that the proceedings be remitted to that Court. Her Honour's decision on r 33 was clearly correct. 50 In view of the Calderbank offer her Honour ordered the Commonwealth to pay the plaintiff's costs up to 17 February and the plaintiff to pay half of the Commonwealth's costs thereafter. I can see no reason why this Court would have interfered with that order if the verdict had stood. 51 The cross-appeal therefore failed on all issues other than interest. The Commonwealth's limited success on that issue should not save it from an order for the costs of the cross-appeal. 52 The parties requested an opportunity to make submissions on the appropriate order for the costs of the first trial after they had had an opportunity to consider the reasons of this Court.

2. Verdict, judgment and orders consequential thereon set aside.

4. Order a new trial of the action with a jury on all issues other than breach of the Commonwealth's duty of care to the plaintiff.

5. Liberty to either party to apply to Handley JA on 14 days notice for orders under the SCR Pt 51 r 23(5).

6. The appellant to file and serve written submissions on the appropriate order for the costs of the first trial within 10 days, and the Commonwealth to file and serve its written submissions on that question within a further 10 days. 54 TOBIAS JA: I agree with Handley JA. 55 McCOLL JA: I agree with Handley JA. **********

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