Metcalfe v Commonwealth of Australia [2008] VSCA 23

Metcalfe v Commonwealth of Australia [2008] VSCA 23 - VSCA 2008 case summary — Zoe

[5]

2 The appellant contended before us that his Honour erred in a number of respects in the findings that he made and that, consequently, his assessment of damages is wrong and should be set aside. We will analyse later the appellant's specific claims as to his Honour's alleged errors, but it is appropriate first to set out briefly the circumstances relating to the accident. As we have said, on 10 February 1964 a collision occurred between the Melbourne and the Voyager that resulted in the loss of 82 lives. At the time, the appellant was stationed on the Melbourne and held the position of Acting Stores Petty Officer. He had joined the Royal Australian Navy ('the Navy') in 1958, when he was aged 24 years, enlisting for an initial term of nine years. The appellant was taking a shower when the collision occurred. He said that he felt six to eight bumps, then heard the Captain announce, 'Oh, my God, we've hit the Voyager', followed by the call to emergency stations. Given his position on the ship, the appellant was required to distribute the keys to all the locked compartments on the Melbourne, a role that was vital for the assessment of damage. In order to get to his emergency station, he passed through an open weather deck. There, he saw the stern section of the Voyager, which was only a couple of metres away, drifting past. He witnessed sailors jumping from the Voyager in a panicked attempt to reach the Melbourne despite warnings not to jump because it was too dangerous. The appellant looked over the side of the ship and saw a sailor in the water who was covered in fuel oil and calling for help. Although he threw a buoy to him, he did not stop long enough to see if he caught it because, he said, he would have been in trouble for not reporting immediately to his emergency station. When he reached it, the appellant learnt that the front section of the Voyager had sunk and surmised that there had been a substantial loss of life given that most of the crew quarters were located there. He was concerned for two friends on the Voyager and was also worried that fire might cause the Melbourne to explode, although not long thereafter he was told that there was no such danger, given that no relevant damage was sustained by his ship. Thereafter, he was assigned to assist the survivors, many of whom were covered in oil and had burns. He said that he felt helpless.

[10]

7 In March 1998, the appellant applied for, and was duly granted, a DVA disability pension at the rate of 40 per cent. The claim for the pension was made on the basis that he suffered a sensori-neural deafness that was said to have been referrable to his naval services. In 1999 the appellant applied for an increase in the disability pension, relying upon asbestosis, skin cancer, varicose veins, bowel disease, Paget's Disease and depression. He contended that those conditions were related to his naval service in Malaysia and Vietnam to which reference has been made. As a consequence, in May 1999 he was examined for DVA by Dr Likely, a psychiatrist. The doctor reported that the appellant had suffered depression since 1985 but did not diagnose PTSD attributable to the collision (or at all) notwithstanding that, as will be explained later, he made a specific effort to determine if the appellant did suffer from it. His Honour noted in his reasons that, in cross-examination, the appellant agreed that he had told, or may have told, Dr Likely that he had experienced irritability and sleep disturbance since 1985 and that he attributed the 1989 breakdown to the signals incident. He also agreed that he had told Dr Likely that he did not find the collision horrifying and that it did not induce in him feelings of fear or feelings of helplessness. He told the doctor that personnel from the Melbourne were putting in claims that should be knocked back and that it was the crew of the Voyager who had borne the brunt of the disaster. The appellant also acknowledged in his evidence that he told Dr Likely that he did not feel the incident had caused him long-term psychological consequences and that he did not tell the doctor that he was experiencing flash-backs or distressing dreams; nor was he seeing images or having thoughts about the incident or reacting to reminders of the incident. In his cross-examination, he agreed that nothing had prevented him from discussing the enormous problems which he was then having with his treating psychiatrist (Dr Richards) whom he saw after he suffered the nervous breakdown.

[37]

30 In the present case, the appellant was entitled to recover damages for diminution of earning capacity in respect of the period after he left the Navy, provided he demonstrated the relevant causal nexus, more particularly, that there was a causal link between his injury arising out of the collision and his financial loss.[8] In our view, there is nothing in his Honour's reasons that suggests that he did not address the question of the appellant's claimed loss of earning capacity but only considered whether he was entitled to be compensated for loss of earnings, as was asserted for the appellant. That his Honour was concerned to determine whether the appellant was entitled to compensation for diminution in earning capacity that relevantly arose out of the collision is made evident by the following. First, in dealing with this aspect of the appellant's case, his Honour would have been aware of, and would therefore have dealt with, the appellant's Particulars of Special Damage that are dated 25 January 2005. They seek to quantify the appellant's claimed financial loss flowing from loss of economic capacity. Thus, the 'loss of earnings and entitlements' that are there set out are premised on the appellant remaining in the Navy until the retirement age of 55 years, or alternatively when he completed 20 years' service, and then continuing to work in civilian capacity until the age of 65. The notional earnings are calculated in the Particulars by reference to four different actuarial scenarios, varying essentially by reference to when the appellant would have retired from the Navy and the rank he would have achieved at that point. So far as is relevant, the Particulars then deduct the appellant's actual earnings to produce a claimed net financial loss that was no doubt claimed to have arisen as a result of loss of earning capacity. Secondly, his Honour's conclusion that the appellant was not entitled to be compensated for economic loss was based on his earlier finding that there was no causal connection between the appellant's compensable injury arising from the accident and his decision to leave the Navy and his depressive illness. That makes it apparent, we think, that his Honour considered that a necessary condition precedent to entitlement to damages for loss of earning capacity has not been made out. Furthermore, it seems to us that, in concluding that the appellant was not entitled to be compensated for 'economic loss', his Honour used that term advisedly, as embracing earning capacity, the loss of which forms a well recognised head of damages for economic loss that is awarded in addition to general damages.[9]

[46]

**33 It is obvious enough that, as a matter of logic, merely because the appellant was suffering from PTSD at the time he decided to leave the Navy does not mean that its symptoms were a material influence on this decision. And unlike the situation in, for example, Medlin, where the plaintiff gave evidence that his injuries prevented him from carrying out his work to what he considered was the requisite standard and thus influenced his decision to resign, there was no evidence from the appellant that the PTSD symptoms materially influenced his decision to leave the Navy. Similarly, the fact that the appellant would have re-enlisted in the Navy but for the collision and that he would have reached the rank of Warrant Officer had he remained in the Navy do not, without more, establish the required nexus. The appellant's explanation for leaving the service was that the collision caused him to lose faith in the Navy, more particularly, in its ability to provide a 'safe' situation on ships. Without more, such an apprehension is not a manifestation of PTSD and the same can be said for his claimed fear that he had of going back to the sea. We put to one side for the moment that those claims are inconsistent with his Honour's finding that the appellant's service in the Navy after the collision continued satisfactorily until his discharge. A person may have a rational concern that the Navy can no longer organise its services such as to prevent naval disasters of the kind that occurred here without it being the product of mental illness. The same applies, we think, about a fear of going to sea in naval ships. The situation is no different from one where similar apprehensions are experienced by, say, a tram driver who was involved, whilst driving a tram, in a collision between his tram and a truck and who sustained some physical, but not mental, injury. By themselves such concerns are not necessarily the product of medical illness. And in the present case there was no evidence that linked the appellant's PTSD symptoms with the apprehensions that he said caused him to leave the Navy.

[49]

35 It was nevertheless argued for the appellant, as we understand it, that even if his Honour was not bound by his above four findings to conclude that the appellant's decision to leave the Navy was causally related to his compensable psychiatric injury his conclusion in that regard was against the weight of the evidence and was, therefore, not open to be made. In that regard, the appellant's counsel pointed to his Honour's four findings to which we have referred, the appellant's stated reason for leaving the service which has also been mentioned, and his PTSD symptoms while at Moreton in late 1964, more particularly, flashbacks during the day, nightmares at night and his drinking to ease these symptoms and enable him to sleep. Counsel also referred to the appellant's evidence that, whilst on the Derwent, he had flashbacks or dreams three or four times a week and, although shortly before the collision he felt he was doing well in the Navy from the point of view of his career, this feeling changed straight after the collision and he stopped pursuing promotions that were offered. In that context, reference was also made to the appellant's evidence that after the collision he had a fear of being on big ships. Reliance was also placed on the evidence of the appellant's friend and naval contemporary, Anthony Walker, who explained that by gaining promotion to the next rank the appellant would have to serve on big ships such as the HMAS Melbourne, the inference being that the appellant did not seek such promotion because of his fear of serving on such ships. Thus, it was said, the evidence as a whole plainly established that the effect of the collision has been to cause the appellant to develop symptoms of PTSD and, as a matter of 'commonsense and experience', the collision and the appellant's symptoms should be seen as having been a cause of his decision not to re-enlist. But, as we have explained, although his Honour found that the appellant was, at the relevant time, suffering from PTSD symptoms, it does not follow that they were causally linked with his decision to leave the Navy. Importantly, as we have said, there was no evidence that this was the case. In the circumstances, we think it was well open to his Honour to reject the appellant's claim that his decision not to re-enlist was relevantly caused by his psychiatric illness.

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Judgment (67 paragraphs)

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Cases Cited (3)