"41 The second matter relied on by the defendant namely, that the plaintiff exaggerated in an affidavit sworn in March 1999, in support of an application for an extension of time within which to commence proceedings related principally on [scil to] the use of the word 'panic' that is to be found in such affidavit. At the outset of the cross examination the plaintiff was asked if there was anything that he would like to draw attention to as inaccurate. It was the plaintiff who drew attention to the word 'panic', saying 'I would today amend it to very, very hurriedly' in relation to his manner of movement. The same word occurred in another context, namely in relation to what had happened. The plaintiff indicated that someone said the ship 'had hit a plane, but there was still panic and uncertainty'. This clearly relates to the general atmosphere at the time, rather than to the response of the plaintiff. However, engrafted on to that statement was a question: 'You weren't panicked at any time were you?' To which the plaintiff replied: 'Very, very, very uneasy, sir'. He also said that the word 'panic' was 'a little bit strong', indeed an exaggeration.
42 I observed the plaintiff closely during his cross-examination. I formed the view that he tried to the best of his ability to describe his responses, and those of his shipmates, in the aftermath of the collision. He was not a man of many words, somewhat wooden and stoic in his approach and I formed the view that a few of the more colourful phrases on [scil in] his affidavit were not characteristic of him.
43 To the same effect was the cross examination directed towards a statement in the affidavit that the plaintiff 'was still in a state of shock and disbelief' at some stage after the collision. It was suggested to him that: 'It is an exaggeration isn't it to say you were in complete disbelief and terror?' The plaintiff denied this. What is more the plaintiff's affidavit does not say that he was 'in a state of shock and terror'. It does say that he was 'in a state of shock and disbelief'. This is a perfectly understandable response. Because personnel are trained to deal with emergency situations does not mean that they may not be shocked when such situations occur. A major collision between two naval vessels is likely to be a source of disbelief and shock for even well trained personnel. Furthermore one would expect that where there was lack of knowledge about the safety of Melbourne, a person on Melbourne may fear for his life. It has never been suggested in the course of the case that even strong, trained, disciplined men may not feel fear when confronted with what might be a life-threatening event. In this context it is relevant to note that the plaintiff said: 'We were pretty scared'.
44 A close reading of the passages in the transcript relied on by the defendant under this heading do not substantiate the submission made by the defendant that the plaintiff was 'a man willing to advance a spurious basis to provide a path of retreat', nor do they undermine the general credibility of the plaintiff. I have come to this conclusion notwithstanding that the solicitor for the plaintiff did not give evidence. In this regard however it should be remembered that the questions relied on were directed to credit, not to an issue in the case."
91 The defendant submitted that its case at trial focused on inconsistencies in the plaintiff's position and his credit. It centred on two main themes; first, that despite seeing general practitioners regularly over a period in excess of thirty years, no suggestion of PTSD emerged before the plaintiff answered the solicitor's advertisement in 1995 and secondly, that no complaint of the core symptom, his alleged nightmares, was made before 1998 notwithstanding his time in the sleep disorders clinic in 1995 and regular visits to doctors for minor complaints.
92 The importance of a history of specific nightmares is demonstrated by Dr Champion, the defendant's expert, who gave this evidence in chief:
"Q. And if the existence of nightmares was important, or may be important for diagnosis, particularly with PTSD, then absent a recounting of it by the patient you would expect questions about it and I'm just trying to find out why, if you got a negative answer, wouldn't there be in the history no nightmares, no intrusive thoughts? A. Well, I think the answer to that is not everybody records negatives, and I think the answer also is somewhere in the diagnosis that Dr Wu arrived at, had he got a history of specific nightmares or intrusive recall, he would undoubtedly have made a diagnosis of PTSD.
Q. If he asked about them. You see, he is dead and we don't know. A. The prime diagnosis a person would look for in assessing somebody who had been through Mr Stankowski's experience, the number one diagnosis that you would consider is, did this person have post-traumatic stress disorder, and there are other subsections you would look for as well afterwards, probably, possibly. But that is certainly, the major inquiry would have been along those lines."
93 The questionnaire, exhibit D, from the solicitors James Taylor & Co, completed by the plaintiff and bearing the solicitors' date stamp of 27 October 1995, includes in para 15
"Describe in your own words the physical and psychiatric injury suffered by you due to the collision: (e.g. psychiatric injuries; anxiety, neurosis, depression etc):
NIGHTMARES "
94 In the personal information form which the plaintiff completed for Dr Wu on 2 February 1996 he wrote under the request "Please describe (if any) long term psychological and medical problems:":
" I DON'T KNOW IF I HAVE ANY PROBLEMS; I HOPE NOT, I DON'T KNOW HOW TO LOOK FOR THE[M] OR EVEN RECOGNISE THEM IF I DID HAVE THEM ."
95 Mrs Stankowski gave evidence. She met the plaintiff in December 1970 and had been married to him for thirty-one years. Asked about the plaintiff's sleeping habits in the period after he left the Navy until he undertook the PTSD course, she said, in a passage already quoted, that the plaintiff used to sleep reasonably except that he would wake up on occasion with a gasp and go and look out the window and walk around. When Mrs Stankowski asked him what was causing this he would just say a nightmare and would not say any more about it.
96 Mrs Stankowski was cross-examined about the plaintiff's drinking and smoking habits. She was asked to confirm that he went to a sleep disorders clinic to be investigated in the mid-1990s and that they diagnosed him with obstructive sleep apnoea. "That is a phrase you have heard many times, I suppose, since that date?" She answered "I have. He had the nightmares for many years before that sort of thing started happening." She repeated this answer by saying: "He had the nightmares for many years before he put on weight or started having trouble with the sleep apnoea." A little later she gave this evidence:
"Q. See, just come now to this question of nightmares. You say that what you know about the matter is what you have been told by him, of course; is that correct? A. Yes.
Q. You say that what you know of the matter is that on occasion he is woken with a start or a gasp - not a start, with a gasp you said? A. Yes.
Q. And on inquiry from you, he just says, nightmare and that's the end of it; is that it? A. That's correct.
Q. Is that something that has happened many , many times, is it? A. Over the years, yes.
Q. Many times? A. Yes, it has. Many times.
Q. Dating back to when, would you say? All the way back to the time you first met him? A. From when we started actually living together which wasn't until seven months after we were married.
Q. You see, that must have been a bit unsettling for you, was it? A. It was.
Q. Did you wonder whether or not he ought to seek medical assistance in this regard? A. No, I didn't."
97 Reference was made by the cross-examiner to his attendance at the Reynella Medical Centre after 1979 with a variety of routine medical problems ranging from earaches to damaged toes, just routine medical matters. Mrs Stankowski was asked:
Q. Did you ever suggest to him that it might be sensible for him to mention this constant problem of nightmares? A. No, I didn't."
98 As I have already recorded, O'Keefe J said that Mrs Stankowski "presented as a responsible, sensible, truthful person". Consistently with her evidence, it was open to O'Keefe J to conclude that the plaintiff had experienced nightmares long before 1995. It was not suggested directly to Mrs Stankowski that her evidence about this was a concoction presumably made up in consultation with the plaintiff. As already noted, the failure, despite what appeared in 1995 in response to the solicitor's enquiry, to report the nightmares to any medical person until 1998 or 1999 did not surprise Dr Holwill. According to him, it was typical when assessing "these people" that they have never told anyone about their symptoms, including their wives.
99 O'Keefe J was satisfied that following the collision the plaintiff had what are commonly called flashbacks or ruminations in respect of the events surrounding the collision and its aftermath. These were sometimes stronger than at other times but were frequent and recurrent. They were also distressing for him. In addition, at least from 1966 he had distressing dreams that involved images that could psychologically be related to the events of 10 February 1964. These were frequent, recurrent and had continued with varying intensity up to the time of the trial. His Honour did not in particular deal with the suggested significance of the plaintiff not, apparently, reporting his nightmares to Dr Wu even though he had reported it previously to his solicitor. But the trial Judge dealt with the matter in general terms as follows:
"49 The suggestion that the plaintiff did not assert recurrent nightmares is not correct either. The plaintiff said that he had his first nightmare while he was at Manus Island. It was 'very nasty'. He also said at the same time 'I had more but that was the one that I recall that shook me the most'. Later in the course of his examination in chief he was asked if he had any nightmares after leaving Manus Island, to which he replied: 'I have had them periodically ever since'. He said that in a particular month he 'might have two or three bad ones (nightmares)', and then a gap. The fact that he had nightmares is confirmed by Mrs Stankowski, although her evidence is that he was not forthcoming to her about their content. In my opinion this is understandable in view of the type of person he is. It is also understandable that for quite some time he did not make complaint to others about what he was experiencing.
50 The plaintiff is a man who has spent most of his life working in a male milieu. He was in the Navy for many years. He has worked at Moomba for very many years. The work on which he has been engaged is hard work. The plaintiff has clearly chosen such work and the milieux in which it is performed. He is a powerfully built man, who gives the impression of taking considerable pride in his masculinity. In colloquial language he could properly be described as 'macho'. Like 'Balmain boys', such men do not cry; nor do they admit to weakness, or what they regard as weakness. Such men would not, in my opinion, be expected to admit publicly to recurrent nightmares. The plaintiff's limited response to his wife to whom it was apparent that he was having a nightmare and which he admitted to her, is indicative of this.
51 In its written submissions the defendant was critical of the fact that the content of the nightmares suffered by him was not recorded. This was the criticism made of the plaintiff's General Practitioner. It is also a criticism made in relation to the PTSD course. The defendant, whilst conceding that the plaintiff reported 'terrifying nightmares' was critical that their content was not disclosed. A like criticism was made in relation to Dr Holwill to whom it is said that no account of the content of the nightmares was given. I do not think that a criticism of this kind is realistic or significant, unless the content of the questions asked of the plaintiff and the answers given by him are known. Furthermore, it is a criticism that was made even after the plaintiff had been diagnosed as suffering from PTSD at the PTSD clinic at the relevant Repatriation General Hospital.
52 The foregoing in my opinion provide an adequate explanation, an explanation that I accept, as to why the plaintiff did not complain of nightmares for some time, even after they first occurred. Although the defendant submits that the plaintiff's first reference to nightmares is to be attributed to the plaintiff's desire to obtain monetary compensation, I do not think this is correct. Standing alone such reference is also consistent with the plaintiff having progressed to a stage that he could no longer put up with the concatenation of symptoms from which he was suffering, one of which was the nightmares that he was experiencing. In this context it should be noted in passing that when the plaintiff sought treatment for his PTSD through a Commonwealth agency, his symptoms improved.
53 It is well known that war service, or what are perceived to be life-threatening events, can and do produce adverse psychological effects. Many war veterans took a long time to admit to such things as fear, flash-backs, intrusive thoughts, nightmares and other psychological sequelae of their experiences. Such matters are common knowledge, such as a jury would take notice of, applying their common sense and experience. Is a judge in any different position?
54 When each of the matters raised by the defendant in its written submissions under the heading of 'Credit' is analysed, and when they are all taken in concert they do not, in my opinion, destroy or significantly impugn the credit of the plaintiff. In my opinion he presented as a credible witness. He conceded a number of matters adverse to his own interest and I accept him, in essence, as a witness of truth who in material respects was accurate, but who, by virtue of effluxion of time and other circumstances had some lapses of memory in respects which do not materially impact on my factual findings.
55 I do not think that Mrs Stankowski exaggerated. I do not think that she tried to make a better case for her husband than the facts support. She was a calm, considered lady who was in responsible employment. She was impressive in the witness box. I accept her as an essentially truthful and accurate witness."
100 Particular criticism was directed at O'Keefe J's comments in para 50 of his reasons for judgment. But his Honour's observations, no doubt drawn from his own experience, can for this purpose be put aside. The failure to report the nightmares the plaintiff had experienced was explained by the medical evidence which it was open to O'Keefe J to accept and which was never challenged.
101 As O'Keefe J pointed out, the defendant's medical evidence from Dr Roldan and Dr Champion proceeded on the basis that the plaintiff was untruthful and had embarked on a deliberate course of deception for the purposes of obtaining monetary compensation. As O'Keefe J explained in para 78 of his judgment, which I have quoted, the effect of the cross-examination of Dr Roldan was that Dr Roldan concluded that the plaintiff did not meet the criteria in DSM IV because Dr Roldan did not accept what the plaintiff said. In paras 80 through to 82, which I have quoted, O'Keefe J dealt with the evidence of Dr Champion who had only seen the plaintiff on one occasion. Like Dr Roldan, Dr Champion did not accept the history the plaintiff gave him. As a consequence he did not believe that the plaintiff had suffered PTSD as a result of his experiences in the Melbourne/Voyager collision. In O'Keefe J's opinion, if the history given by the plaintiff as set out in Dr Champion's report was accepted, the plaintiff did suffer PTSD. That history accorded with the findings that O'Keefe J made.
102 Part of the defendant's submission to O'Keefe J, which is pressed on appeal, is expressed by saying that the plaintiff's symptoms did not permit a diagnosis of PTSD according to the DSM IV criteria. The evidence was said to contradict a diagnosis of PTSD. Reliance was place upon significant discrepancies between the plaintiff's history to his doctors and his oral evidence. Counsel for the defendant no doubt put to the plaintiff's doctors every element of history and inconsistency likely to affect the diagnosis they had made. The diagnosis remained as found and accepted by O'Keefe J. As his Honour said, in the passage that I have quoted, Dr Holwill was cross-examined for almost a complete day but the cross-examination did not cause him to recant or deflect from the opinion that he had expressed. In the case of Professor McFarlane the cross-examination extended over two full days and various possible scenarios were put to him. The delay in the emergence of nightmares was dealt with as were the plaintiff's drinking problems. His Honour said, as I have quoted it, that it was fair to say that virtually nothing that could have been put to Professor McFarlane was not put to him. He adhered to his opinion and his Honour accepted that opinion. It is not for this Court to gainsay his Honour's acceptance of the opinions of Dr Holwill and Professor McFarlane by attempting, as the defendant seems to suggest, a diagnosis of its own.
103 To discredit the plaintiff's case the defendant relied upon assertions that the plaintiff's evidence was affected by discussion between family members and that the circumstance of the brother's obtaining service benefits for PTSD played a part. The defendant also relied upon what was said to be exaggeration and variance in the plaintiff's account of what he saw after the collision. Dr Wu recorded part of the plaintiff's history to him as:
"On the next day, there were ships everywhere fishing out bodies and they spent the day working as fast as they could go."
104 O'Keefe J said: