(ii) The psychiatrists' evidence
35 Dr Jurek saw Mr Magnus on 30 June 1996. She obtained a history of the events of 24 April 1994, and of its aftermath so far as Mr Magnus as concerned, which was broadly consistent with Mr Magnus' evidence. She also took some family history.
36 Dr Jurek found Mr Magnus "was not deeply depressed, suicidal or psychotic" but she thought he suffered post traumatic stress disorder, "although he appears to be gradually recovering". Dr Jurek said:
"He may have been sensitised to the development of this condition by the sudden death of his father at a young age. In addition, the history of the miscarried twins in the pregnancy preceding his own and the false expectation of a twin pregnancy in his wife's first pregnancy may have contributed to the notion that his son was both dead and alive.
As a result of the above traumatic situation, Mr Magnus has suffered a number of physical and psychological symptoms. These include initial shock, confusion and denial of the situation, anxiety and substance abuse, disturbed sleep with repetitive dreams and nightmares, diminished appetite and weight loss, social withdrawal and lack of motivation to engage in sports and interests. His short term memory and concentration are impaired with an effect on his work load. His avoidance of air travel and fear of flying have limited some of his work opportunities in country areas. He will not fly to country, interstate and overseas locations.
I would recommend a period of psychiatric treatment to help him integrate this traumatic experience better. Such treatment should be undertaken at a weekly frequency for a period of about six to twelve months. This may be costed at the current Australian Medical Association rate of $190.00 per 45 minute session. The prognosis with appropriate treatment is favourable."
37 In cross-examination Dr Jurek said she did not think Mr Magnus was still suffering post traumatic stress disorder, when she saw him on 30 July 1996; but he remained susceptible to a recurrence. She was firm in her opinion that he had previously suffered from this disorder. Dr Jurek said that, in forming that opinion, she had particularly been influenced by Mr Magnus' abuse of alcohol. However, she also placed weight on Mr Magnus' behaviour in returning to the crash scene and other aspects of his history.
38 The first psychiatric examination of Mr Magnus carried out on behalf of a respondent, was by Dr Eli Revai on 6 April 1999. Counsel for the applicant - not counsel for any respondent - tendered a report of that date addressed to the solicitors for South Pacific and Group Air. That report contained an extensive history and account of symptoms that were consistent with Mr Magnus' evidence. Dr Revai expressed the following opinion:
"Mr Kenneth Magnus is a forty-eight year old barrister at law, now a police prosecutor, who witnessed a DC-3 carrying his son and the Scots College Pipe Band crash into Botany Bay. Fortunately no one was injured but since that time, Mr Magnus has been preoccupied with the events of the crash. It appears to me that after the incident, he may have developed some dissociative phenomena, for example, the feeling that he had to constantly touch his son to confirm that he was not dead. On the negative side, Mr Magnus began drinking to excess which would have heightened any psychological symptoms that he had an could have also accounted for the decrease in his concentration and as a consequence, his memory. This could have also played a part in the development of Mr Magnus' sleep disorder.
Unfortunately, other than for self-medicating with a depressant, i.e. alcohol, he has not had any treatment for his symptoms. Fortunately, he was able to continue working and denied that his work performance was inferior to that of before the crash, even though Mr Magnus told me that he had difficulty remembering events.
As regards the psychiatric diagnosis, it appears that Mr Magnus has developed an anxiety disorder as a consequence of what he witnessed that day at Sydney Airport and has not done himself any service by drinking to excess. Unfortunately, he is resistant to any medical treatment, which I believe could have foreshortened the chronicity of his symptoms. Unfortunately, due to the medico-legal aspect of the matter, whenever Mr Magnus is reminded of a court hearing or has contact from his legal advisers, this brings back that day in 1994. I believe that Mr Magnus should be seeing a psychiatrist and should be on some antidepressant medication. I do not believe that he will require this treatment long term. I would think that a few consultations would be sufficient."
Dr Revai was not cross-examined.
39 Dr Maxine Walden, a psychiatrist, saw Mr Magnus, at the request of the solicitors for CASA, on 20 October 1999. She also took a history from him that was consistent with his evidence in this case. She noted current complaints of anger when he has to think about the crash or the court case and sleep interruptions. Dr Walden said Mr Magnus reported "that he sometimes felt depressed when matters relating to the incident came up, but did not describe any pervasive mood disturbance". He believed "his concentration was somewhat reduced and cited the example of having to read briefs 2 to 3 times in order to assimilate the material sometimes".
40 Dr Walden offered this opinion:
"I consider that Mr Magnus was upset about the incident involving his son, but do not consider that he developed a recognisable psychiatric illness as a result of it. I note the report of Dr Mary Jurek diagnosing a Post-traumatic Stress Disorder and an episode of substance abuse. With respect, I do not agree with either of these diagnoses.
With regards to Post-traumatic Stress Disorder, while Mr Magnus does describe some recurrent, distressing dreams of the event, he does not describe the persistent avoidance of stimuli associated with the trauma. In fact, he describes exactly the opposite, recurrently seeking information that reminded him of the incident and feeling somewhat calmer in doing this.
He describes some difficulty concentrating and some disturbance in his sleep, which are associated with Post-traumatic Stress Disorder but are by no means exclusive to it. Not only do these symptoms occur in a wide variety of psychiatric disorders, they also occur as part of a normal human emotional reaction. Finally, his disturbance after the incident did not cause clinically significant distress or impairment in important areas of his functioning.
With regards to a diagnosis of substance abuse, Mr Magnus describes consuming alcohol greater than the safe recommended levels, consuming around 1 to 1˝ bottles of wine over two separate 6-month periods. However, substance abuse is not defined on the basis of consumption alone and requires a maladaptive pattern of substance use with recurrent and significant adverse consequences related to it. Mr Magnus does not fulfil the DSM-IV Criteria for Alcohol Abuse. He did not fail to fulfil major role obligations at work, school or home, did not continue to use in situations in which it was physically hazardous, did not have recurrent substance related legal problems and did not continue to use despite persistent or recurrent social or interpersonal problems caused or exacerbated by the substance. His alcohol consumption was excessive for a period of time, but did not meet the DSM-IV Criteria for Substance Abuse.
Currently, Mr Magnus describes being angry and preoccupied transiently with the incident when there is a matter relating to the court case. I consider this to be within the realms of a normal emotional reaction and do not consider that it indicates psychiatric illness.
In summary, I do not consider that Ms Magnus [sic] suffered or continues to suffer from a diagnosable recognised psychiatric disorder as a result of the crash of the aircraft."
41 Mr Magnus saw Dr Rod Milton, another psychiatrist, at the request of South Pacific and Group Air. Dr Milton also took a history consistent with the evidence of Mr Magnus. He had the reports of both Dr Jurek and Dr Walden.
42 Under the heading "Opinion", Dr Milton referred to the World Health Organisation's Glossary of Mental Disorders, now apparently called ICD-10, which is currently used in Europe. Dr Milton did not suggest he had used this publication in forming his opinion.
43 Dr Milton also referred to a publication of the American Psychiatric Association, Diagnostic and Statistical Manual, now in its fourth edition ("DSM-IV"). He said successive editions had changed to such an extent that there was controversy about the validity of the work; in particular about the definition of some disorders and whether they ought to be included in the work. He said:
"What began as an attempt to categorise mental illness in a simple practical fashion in 1967 became increasingly complex over time, and progressively subject to political issues within and without psychiatry, without necessarily being more accurate or reliable. Indeed, the reverse might apply in that as the number of categories of disease increases, the classifications increasingly include many behaviours that were once regarded as aspects of everyday life, character or morality, e.g. alcohol abuse, so that these are now included as diseases."
44 Dr Milton went on to refer to "increasing concern in the community about awards accorded in courts for damages, allegedly for injuries or health problems, often without foundation". He cited two books that allegedly express this concern, and what he claimed to have been erroneous awards in respect of birth defects. He terminated two pages of discussion on this point by saying:
"It is clear, therefore, that there are serious doubts about a tendency to interpret as disease emotions and behaviour that would in the past have been regarded as normal distress. Thus, it might not be sufficient for a court to award damages merely on the basis of a diagnosis based on the Diagnostic and Statistical Manual, but to consider each case individually and to determine whether psychiatrists were realistic in regarding the person's reaction as constituting disease."
45 Turning at last to Mr Magnus's case, Dr Milton said:
"Mr Magnus had a frightening experience. He felt agitated and distressed, but was able to act appropriately at the time and afterwards. He felt vulnerable and he dwelt on the matter for months. He dreamed about it, drank more than he should have done, and he lost weight, which he later regained. He socialised less, and at times had a few problems with work, but nonetheless continued to work as an effective legal practitioner. His distress eventually settled. His response to the incident did not, in my view, constitute psychiatric disease.
Dr Jurek diagnosed a post-traumatic stress disorder and substance abuse (alcohol). Even if one accepts the Diagnostic and Statistical Manual as a valid index of psychiatric disease and the conditions listed in it as meriting compensation, the date supplied in Dr Jurek's report do not establish that Mr Magnus suffers or suffered the diseases stated.
Persons with post-traumatic stress disorder are said to avoid anything to do with the traumatic event. To return to the scene of the event, to collect photographs associated with it, and to read the official report of the event, indicate that 'avoidance behaviour', as described in the DSM-4, did not occur.
Dr Jurek diagnosed substance abuse. In order to qualify for this 'diagnosis' according to the Diagnostic and Statistical Manual, the person must have had a maladaptive pattern of substance abuse leading to clinically significant impairment or distress over a twelve-month period. The impairment can result in failure to fulfil major role obligations at work, or home, or caring properly for children. Mr Magnus did not meet these criteria.
As I understand it, compensation is not awarded merely for distress. I can appreciate and sympathise with Mr Magnus's feelings of outrage that his son's life was put at risk by inadequate engine servicing, inaccurate loading calculations, poor flying, and insufficient supervision by a government authority. I can appreciate his anger at the military authorities for not supplying a regular, properly serviced military aeroplane but submitting the flight for private contract. Commercial issues should take second place to public safety but that is not always the case, and to think one's son was exposed to the risk of death or injury by that is very distressing. Such a feeling of outrage is normal and does not constitute psychiatric disease. Mr Magnus was appropriately troubled by what happened, but did not become ill. Currently he is emotionally distressed because of the litigation process."
46 Counsel for both sets of respondents read an affidavit of another psychiatrist, Dr John Ellard, dated 16 February 2000, to which was annexed a letter of 21 January 2000. Dr Ellard had earlier reported to the solicitors for CASA on some of the group members. On 21 January 2000 he felt moved to write to the solicitors referring to the difficulty in distinguishing between a "normal response" and an "illness". Dr Ellard said:
"Generally there is no problem but the fact is that there is no satisfactory definition of a disease and no satisfactory definition of health.
Psychiatry shares the general problem. All would agree that schizophrenia and bipolar disorder are reasonably regarded as diseases even though there is not always manifest disability. For example, there are a few people with firmly encapsulated delusions which do not affect their life at all. On the other hand, bereavement can produce much distress and suffering but is regarded as normal.
The general issue of the limits of normality has been much written about in both the medical and the psychiatric field. There were two articles in the latest edition of the American Journal of Psychiatry for example. Even though the theoretical problem remains, generally clinical judgment and common sense will suffice to make a distinction.
The relevant issue here is the boundary between normal anxiety and phobic anxiety."
47 Dr Ellard enclosed some extracts from DSM-IV, one of which, he said, "shows that those compiling DSM-IV were well aware of this difficulty and that placing people into formal categories may not always be either logical or helpful, particularly in forensic settings". He said there was an issue about "the boundary between normal anxiety and phobic anxiety, the latter being a 'disorder'." Dr Ellard asserted that "[a]ny reasonable person involved in an aircraft crash would be apprehensive about boarding aeroplanes in the future"; plainly, he did not think this constituted a phobia or other psychiatric disorder. His letter did not say what, in his opinion, would constitute such a condition.