PRELIMINARY FINDINGS:
148 Before coming to a consideration of the Plaintiff's claim for damages, it is appropriate to make some preliminary findings.
· The evidence is, I think, overwhelming that the Plaintiff suffered PTSD of a mild to moderate intensity and of chronic duration as a consequence of the events to which he was exposed on the night of 10 February 1964, and that there is a direct causal link between this PTSD and the Defendant's admitted breach of duty of care.
· Since the collision, the Plaintiff has quite frequently experienced a sudden or startled awakening from sleep, has found himself in a sweat, and has immediately recalled the events of the collision, including his feeling of helplessness. These occurrences are symptomatic of PTSD.
· In accordance with the opinion of Professor Goulston, there is a causal relationship between the collision and symptoms of gastric reflux resulting in the ulceration of his oesophagus. I accept his evidence that he did not suffer gastric reflux before the collision, notwithstanding the possible inconsistency between this finding and the history recorded by Dr Alcorn.
· Although I believe that the Plaintiff's evidence that he was not a cigarette smoker at all before the collision was mistaken, I accept that before the collision he was a light or social smoker but became a significantly heavier smoker afterwards, before ceasing altogether about 1985. On the balance of probabilities, I accept a causal link between the collision and an increased level of smoking with the consequences identified by Professor Goulston.
· That no causal link was established between the collision and sleep apnoea and I note that no claim in that connection was pressed.
· That he suffered eczema or skin rashes to such a significant degree that medical attention was required before the collision. The collision may have exacerbated the problem but I am not prepared to regard that as more than a possibility. I note that there was no report from a dermatologist in evidence and that, according to Dr Alcorn, the condition improved when he travelled north.
· In my view, the evidence does not warrant a finding that he suffered nightmares in any accepted sense attributable to the collision. It may be that nightmares precipitated his startled awakenings but he did not mention their content to any doctor and his evidence on the subject was quite vague. He seemed to use the expressions "nightmares" and "flashbacks" interchangeably. The latter seems to me to encompasses what he experienced.
· I am not satisfied the Plaintiff established that his alcohol intake significantly increased as a result of the collision. He admitted that he was a "binge drinker" before the collision and that he subsequently moderated his drinking habits as a consequence of experiencing gastric reflux.
· The Plaintiff's personality changed quite considerably after the collision altering him from an outgoing gregarious man to an introverted, withdrawn, somewhat morose one.
· Although the Plaintiff throughout his working career, both in the Navy and afterwards, performed the duties assigned to him very capably and conscientiously, once he achieved a high level of responsibility, he tended to lack a degree of confidence in his own abilities which was causally related to the collision.
· There was an incident in Vung Tau Harbour about 1969 when the Plaintiff, in trying circumstances, had what might be described as a "panic attack" and as a consequence went up on deck. The incident did not loom sufficiently in his mind for him to mention it to Dr Gelb or to Mr Binfield. Nor did he mention it at the time as a factor in him deciding to leave the Navy. It was not established, in my opinion, that it involved him deserting his post or any other dereliction of duty, moreover, it occurred about 2 years before he actually left the Navy. I do not regard it as constituting a significant factor in his decision to leave the Navy.
DEFENCES:
149 The Defendant, inter alia, pleaded as separate defences, "Remoteness", "Contributory Negligence", and "Failure to Mitigate". To the extent that "Remoteness" and "Contributory Negligence" were appropriate or required to be pleaded, as defences the matters particularised can be dealt with under the rubric of "Failure to Mitigate". That was particularised as follows:
"Further or in the alternative, in answer to the whole of the Statement of Claim, the Defendant says that if the Plaintiff did suffer any injury, loss and/or damage, which is not admitted, the Plaintiff had a duty to mitigate his loss and to take all reasonable steps to minimise the effects of those injuries, but did not do so and/or has unreasonably aggravated the same.
Particulars
a Smoking and continuing to smoke cigarettes when he knew or ought to have known it was dangerous to his health;
b Failing to heed warnings that smoking cigarettes can cause ill health;
c Failing to cease smoking;
d Consuming alcohol in excessive quantities;
e Consuming alcohol and continuing to consume alcohol when he knew or ought to have known it was injurious to his health;
f Failing to heed warnings that consuming alcohol could cause ill health;
g Failing to cease consuming alcohol;
h Failing to seek treatment, or any appropriate treatment, when he knew, or ought to have known, that such treatment was required;
i Failing to notify, or report to, the Defendant that he was suffering from any injury, loss, disability or damage.
150 The Defendant adduced little evidence in support of its allegation of Failure to Mitigate and, in relation to cigarette smoking, the Plaintiff was not cross-examined about his knowledge of the dangers. Given that the court is concerned with the period between 1964 and 1985, I am not persuaded that the evidence warrants a finding of Failure to Mitigate in respect of such part of the Plaintiff's claim as may be related to cigarette smoking.
151 I have already held that, in my opinion, no causation was established between the collision and any increase in the Plaintiff 's consumption of alcohol.
152 As to the Plaintiff's failure to seek appropriate treatment, this, as it seems to me, can only relate to the Plaintiff's psychological injuries. I accept as reasonable his explanation for not seeking medical attention whilst still in the Navy. No explanation was proffered for his failure thereafter and, until quite recently, to seek medical attention. According to the evidence, the treatment provided by Dr Gibson has been beneficial and it is reasonable to infer that such treatment, if provided much earlier, would have been more beneficial. I think there was a Failure to Mitigate, which would warrant a deduction of the order of 10% from the general damages to which the Plaintiff is otherwise entitled.
GENERAL DAMAGES:
153 As I have indicated, the Plaintiff has established psychiatric injury in the form of PTSD, which has persisted for more than 40 years. He is to be compensated for the manifestations of that disability, which I have sought to identify, namely a significantly changed personality, frequent "flashbacks", symptoms of gastric reflux and loss of confidence in his abilities when given high responsibility.. His claim must be assessed in light of the other unrelated medical problems which have beset him, as listed by Dr Alcorn. In that connection, what the High Court said in Malec v J C Hutton Pty Ltd (1990) 64 ALJR 316 is relevant. I also take into account the prospect that psychiatric or psychological treatment, which the Plaintiff says he will undertake when financially able to do so, may improve his condition and my finding that his degree of disability would probably have been reduced had he sought timely medical intervention soon after he left the Navy.
154 Doing the best I can, I assess damages for non-economic loss according to common law principles at $90,000
PAST AND FUTURE MEDICAL EXPENSES:
155 Past medical expenses were agreed at $7,724 and that sum, in my opinion, should be allowed.
156 The sum of $32,230.22 was claimed as an agreed amount in respect of future medication and medical expenses although causation was disputed. I have had some difficulty in reconciling the figures set forth on the Plaintiff's schedule of damages, but there should be, in any event, some reduction in light of my finding that the Plaintiff's skin problems are not be attributable to the collision. I allow $31,230 under the head of future medical expenses.
DIMINISHED EARNING CAPACITY:
157 The Plaintiff claimed damages for diminished earning capacity upon the hypothesis that his retirement from the Navy, his resignation from Amoco, and his resignation from BP were all causally connected to the collision.
158 The problem is not dissimilar to that discussed by the High Court in Medlin v State Government Insurance Commission (1995) 69 ALJR 118. In that case a university professor was injured in a motor vehicle accident when aged 56. He was due to retire at age 65 but retired when aged 60.
159 In relation to such retirement, the trial judge (Debelle J) found:
"The pre-eminent reason for the plaintiff's retirement was his desire to devote as much time as possible to research and creative philosophy untroubled by the requirements of university life, particularly his teaching and administrative duties. However, another reason for his retirement was his belief that, as he was not performing at the level he thought desirable, he should resign. But this was not the main reason for his retirement.