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[2008] VSCA 23
Court of Appeal (Vic)
2008-02-28
WARREN CJ, CHERNOV AND NETTLE JJA
Original judgment source is linked above.
TORT - Collision between HMAS Melbourne and HMAS Voyager in 1964 - Post traumatic stress disorder resulting from collision - Whether finding that post traumatic stress disorder ceased in 1973 open - Damages - Loss of earning capacity - Whether only loss of earnings considered - Adequacy of general damages.
1 The appellant, Ronald Thomas Metcalfe, appeals against the judgment and orders of a judge of the Trial Division made on 24 March 2006 whereby his Honour awarded him damages in the amount of $60,000 in respect of the psychiatric injury that he suffered, more particularly, post traumatic stress disorder ('PTSD') arising from the collision of HMAS Melbourne with HMAS Voyager on 10 February 1964 that occurred as a result of the respondent's admitted negligence. His Honour considered that this disorder was only operative until 1973. The judge said that the appellant suffered a modest level of distress from his symptoms which arose soon after the collision. His Honour considered that they were likely to have been at their worst in late 1965 and early 1966 and that the appellant's PTSD progressively declined after 1967 to a point where it had resolved by 1973. Otherwise, the learned trial judge said, the appellant had proved no other injury. His Honour also concluded that the appellant had not made out a case for compensation for economic loss.
Circumstances of the collision and its aftermath
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.
**3 The evidence at trial showed that, until the time of the collision, the appellant had been progressing steadily in his career with the Navy. He was born on 2 April 1934, so that he was aged 70 years at trial. He left school at the age of 13, having been educated to grade 6 level. He fulfilled his dream of joining the Navy by enlisting in 1958 for a period of nine years. He did well in all aspects of his basic training, following which he was posted to a shore station in NSW. In 1959, he married and had a daughter in 1960, and a second in 1961. He was first posted to the Melbourne in August 1960 and again in January 1962 as a Leading Stores Assistant and he remained there up until the time of the collision. Immediately prior to this, in January 1964, he had been promoted to Acting Stores Petty Officer. In this position, he had approximately six subordinates and was responsible for reference books and radio and electrical stores. He gave evidence that he was enjoying his work immensely at this time. In general terms, the trial judge accepted that the appellant's progress in the Navy was speedy and that he advanced through the ranks 'in the shortest time possible'.
4 Following the collision, the appellant remained posted to the Melbourne until late 1964 and was then transferred to a shore base in Brisbane, on the HMAS Moreton. When advised, in about December 1965, that he was to be posted back to the Melbourne, he took the matter up with the Naval Officer in Charge, Queensland, and requested to be posted to a small ship. He said that he could not have stepped on the Melbourne. In the event, he was assigned to the HMAS Sydney, another large ship, and he said that he did not cope well. A short time later, in February 1966, he managed to arrange a transfer to a smaller ship, the HMAS Derwent. He served on the Derwent for the next 14 months, which included a 9 month tour of Borneo, Malaysia and Vietnam. He described his situation on the Derwent as 'quite comfortable'. However, whilst in Borneo, when the vessel was undertaking shore bombardments, an incident occurred that resulted in charges being laid against the appellant. It seems that some 'signals' that should have been shredded were instead thrown overboard by one of the appellant's subordinates and, although the charges against him were eventually dismissed, the appellant gave evidence that he thought it unfair that the Captain had initially sought to punish him and not the subordinate.
5 The appellant spent his last month in the Navy at the shore base, HMAS Kabbel. He was discharged on 22 May 1967, after he decided not to re-enlist, although he joined the naval reserve in August 1967 and remained a member until August 1972. Shortly prior to his discharge, he was medically examined and the records of the examination show that his mental state was regarded as normal. Thereafter, he had a number of different jobs and in April 1973 he was self-employed as a carpenter. In July 1974 he was employed by the Commonwealth, first as a claims assessor and later, between 1982 and February 1990, he was manager of the Transport and Storage Group. He left the employ of the Commonwealth in early 1990 after accepting a severance package. Between June and November of that year he worked as a casual storeman in Marine Operations and retired from full employment in late 1990.**
**6 His Honour summarised the appellant's medical and related history after he left the Navy in 1967 as follows. In late 1989, whilst employed as a manager of the Transport and Storage Group, the appellant suffered a nervous breakdown and was off work for a number of weeks. It seems that the breakdown was preceded by the following incident which occurred at the workplace. During the appellant's absence from work due to a knee operation, the temporary manager offered a casual employee a permanent position. Upon the appellant's return to work, and seemingly acting on instructions, he sought to put the man off. This led to a dispute that involved the union and the man accusing the appellant of 'organising everything to put him off'. Unsurprisingly, these events resulted in considerable unpleasantness for the appellant at the workplace. In support of a claim on his employer for compensation arising out of the breakdown, the appellant wrote two letters to the Department of Veteran Affairs ('DVA') in which he blamed the illness on the stress of his job and, in particular, the above incident. But as his Honour noted in his reasons, the appellant gave a different account to his general practitioner of the reason for the breakdown, in the sense that he then claimed that the incident did not affect the state of his mind. As will be seen, the appellant's explanation to the DVA for his breakdown also differed markedly from that asserted by him to Dr Likely. At trial, the appellant claimed that his depression (and the breakdown) were the consequences of the PTSD that he suffered as a result of the collision.
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.
8 Dr Likely's report to the DVA, following his examination of the appellant in May 1999, showed that he considered that the appellant had provided a history of mental health disturbance since about 1985 that involved prolonged periods of depression, accompanied by irritability, sleep disturbance, variable appetite, inertia, lack of motivation, inability to feel pleasure and social withdrawal. The appellant had told the doctor that his symptoms had culminated in the April 1989 breakdown, since which time he had continued to be depressed. The report also showed that Dr Likely specifically questioned the appellant about symptoms pertinent to a diagnosis of PTSD but the appellant reported no such symptoms.
9 In the result, on 24 June 1999, DVA increased the appellant's disability pension to a 50 per cent rate, accepting that there was a relationship between his naval service and the skin cancer and asbestosis. But it did not accept that there was a relevant relationship between his depression and naval service.
10 Matters relevantly changed after the appellant first consulted his present solicitors. In late 2001 or early 2002 his brother, who was the Secretary of an RSL branch, with the consent of the appellant, filled out a form that had been compiled in blank by the solicitors and sent it to them. As a result, they referred the appellant to Mr Zemaitis, a psychologist who, in January 2002, diagnosed him as suffering from PTSD. The appellant was then referred back to Dr Likely who, in February 2002, revised his earlier diagnosis and diagnosed him as suffering from a late-onset PTSD. During the 2002 consultation, the appellant told Dr Likely that he began to be troubled by his experiences in connection with the collision from the latter part of 2001 and that his mental state had deteriorated 'a terrible lot' from 1999. He also said that things had deteriorated after his re-reading in late 2001 of a newspaper article concerning the collision. The appellant's solicitors had, prior to this consultation, written to Dr Likely effectively suggesting to him the psychiatric and other injuries that the appellant may have suffered as a result of the accident. Although, as his Honour found, this did not influence Dr Likely in his conclusions, the letter showed that the appellant was likely to have had his mind directed to the type of symptoms that could show a link between the collision and psychiatric illness.
11 As has been noted, in early 2002 Dr Likely's opinion was that the appellant suffered from a major depressive illness. It had manifested itself, he said, in gross form in April 1989, although some symptoms of the illness had been present from about 1985. Since the major breakdown, the illness had continued to have a variable impact upon the appellant. From the late 1990s, said Dr Likely, additional symptoms had developed that represented late-onset PTSD attributable to the collision. The condition had been precipitated by the appellant ruminating upon the collision following rejection of part of his 1999 claim for an increased disability pension. Dr Likely said that in the past the appellant had used denial as a coping mechanism. In cross-examination, he agreed that it was possible that the 1989 breakdown, as the appellant first asserted, had been caused by immediate work stress.
12 In December 2004 Professor McFarlane, a psychiatrist, diagnosed PTSD in the appellant, and in January 2005, Dr Bell, who is also a psychiatrist and who examined the appellant for the respondent, made a diagnosis of anxiety and depression. Each of Mr Zemaitis, Dr Likely and Professor McFarlane considered that there was a relationship between the diagnosis of PTSD and the collision. They also discerned a relationship between the PTSD and appellant's depressive illness. Dr Bell, on the other hand, perceived no relationship between the anxiety and depression that he had diagnosed and the collision.**
**13 The appellant said in his evidence that the commanding officer had issued an order forbidding the crew of the Melbourne from discussing the collision with others. As a consequence, he claimed, he told family members and others who asked him about the event that he was 'not allowed to speak about it, and ... also did not want to speak about it'. To the extent that the appellant claimed that he had not spoken about the collision for a very long time thereafter because he had been ordered not to do so, his Honour concluded that the evidence did not bear out the claim that such an order was ever given. That conclusion, we think, is unassailable.
14 According to the appellant, his service on the Melbourne following the collision was nerve-wracking and he was glad to get off the ship. The appellant said that, whilst based on shore at HMAS Moreton in late 1964, he suffered flash-backs almost every night, and sometimes during the day, and that he 'put [himself] into ... work to try and hide'. Moreover, he said, whilst he did not drink alcohol before the collision, he became a relatively heavy drinker thereafter and would often come home drunk.
15 The appellant also claimed that, after he left the Navy, he continued to experience flash-backs, and that he was sleeping badly, was irritable and was drinking more and did not talk about the collision. He also said that after leaving the Navy he continued to be rude and abusive to his wife without any apparent reason and generally did not get on with people. In his reasons, his Honour noted the evidence of the appellant's wife concerning the changes, after the collision, in his mental health and his attitude to her, their family and friends, more particularly, his increasing restlessness, drinking and deteriorating sleeping pattern that included nightmares. She said that after his breakdown in 1989 he had become very withdrawn, anti-social and argumentative. His Honour noted that Mrs Metcalfe was not seriously cross-examined. Evidence of a similar nature was also given by some of the appellant's friends and family members.**
16 As will become apparent, an important issue at trial was the appellant's reason for leaving the Navy in 1967. In this respect, his Honour noted in his reasons that, when questioned about the matter, the appellant said that by the latter part of 1965 'he did not trust the Navy and he feared going back to sea'. He had told a superior, between 1965 and 1967, that the true reason for not wanting to re-enlist was that he 'did not trust the Navy'. The learned judge accepted that the appellant would probably have re-enlisted in 1967 had it not been for the collision. But the judge did not accept that a cause of his leaving the Navy was a compensable psychiatric injury. His Honour concluded that the appellant probably left the Navy because of the simple fact that the collision had occurred. Another probable consideration, said his Honour, was the way in which his commanding officer had handled the signals incident.
His Honour's evaluation of medical and related evidence
**17 In his careful analysis of the medical evidence, his Honour noted that the appellant had attended Dr Likely on a number of occasions between February 2002 and the trial, but on none of them did he give Dr Likely a history wholly conforming with the evidence that he gave at trial about onset of anxiety symptoms soon after the collision and their persistence thereafter. As has been noted, notwithstanding his direct questioning of the appellant in 1999 in order to elicit symptoms of PTSD, Dr Likely concluded that the appellant suffered from a recurrent depressive illness (and not PTSD). His opinion in 2002, however, noted his Honour, was that the appellant also suffered a late-onset PTSD attributable to the collision, precipitated by the appellant ruminating upon rejection of his claim for an increased disability pension, as has been noted. But there was no mention by Dr Likely at that stage of a link between PTSD and the major depressive illness. His Honour noted, however, that when Dr Likely was provided at trial with details of the appellant's evidence, he expressed what seemed to the judge to have been different conclusions again, namely, that the appellant had suffered some symptoms of PTSD since soon after the accident and that the assumed PTSD had causally contributed to the onset of the depressive illness. His Honour considered that 'there were a major series of shifts in the doctor's opinion ... [that] reflected his interpretation of differing histories'.
18 His Honour also concluded that the evidence of Mr Zemaitis was not wholly satisfactory. He said that, although it was founded upon a history which bore some relationship to the evidence which the appellant gave. But the witness had not obtained anything like the full story from him. Moreover, his Honour noted, until the day on which he gave evidence, Mr Zemaitis had not considered the question of a relationship between the collision and the breakdown in 1989.
19 As to Professor McFarlane, his Honour considered that there were a number of problems with his evidence that arose mainly because his assessment of the appellant was made so late and because the material upon which he formed his opinion was less than complete.
20 As to the other principal psychiatric witness, Dr Bell, who interviewed the appellant on 7 January 2005, his Honour concluded, after a close examination of his evidence, that although there was force to aspects of the challenge to his evidence there was 'validity of a good deal of [his] opinion. The doctor was confronted with a confused picture; and I think that he attempted to explain it in a rational way. ... He provided a reasoned explanation of his thesis that the [appellant] unintentionally adopted, at a late stage, a history which gave continuity to PTSD'.
21 We note for completeness that none of his Honour's conclusions as to the efficacy of the medical evidence was the subject of grounds of appeal that were pressed before us.**
His Honour's analysis and conclusion as to the extent of PTSD
**22 There was similarly no challenge to his Honour's conclusion that the appellant was an unreliable witness notwithstanding that, as his Honour accepted, he attempted to give reliable evidence. In that context, his Honour considered that the answer to the question whether the appellant suffered any, and if so what, compensable injury arising out of the collision lay in 'a rigorous examination of all the evidence ... bearing in mind that the [appellant] carries the burden of persuasion'. Having undertaken such an analysis, his Honour concluded, as we have said, that the appellant established 'that he suffered a psychiatric injury which had its onset soon after the collision, and which persisted for a period of years thereafter; but that he proved no other injury ...'. Nevertheless, his Honour said, despite the appellant suffering the onset of PTSD not long after the collision, his service life continued satisfactorily until his discharge. The judge noted that during this period the appellant was, from time to time, subjected to stressful situations, in particular, serving in a war zone which involved active and defensive operations at different times. Those circumstances, said his Honour, bore upon the likely extent of the symptoms and disability attributable to PTSD.
23 It seems to us that an item of evidence that his Honour considered to be of some significance in this respect consisted of the records of Dr Joe Leong, who was the appellant's treating general practitioner since mid 1970 and whom he frequently consulted between then and 1990 on a range of medical and related problems. Those records, his Honour noted, do not record 'any complaints or signs consistent with mental illness, especially PTSD', notwithstanding that it was apparent that the appellant was not inhibited from discussing with Dr Leong confidential matters as to his state of health and otherwise. His Honour rejected the claim that 'the doctor did not see ... something that was there to be seen'.
24 Thus, his Honour concluded on the evidence that no causal link was established between the PTSD from which the appellant suffered for a time after the collision and the major depression which had its gross onset in April 1989. Neither was any causal link established, said the judge, between such PTSD and the continuing course of the appellant's depressive illness after 1989. In that context, his Honour noted that at the time of his acute illness in 1989 the appellant ascribed his problem to a particular work stress. The fact that the appellant suffered relapses in his depression in the years after 1989, and some overall deterioration in his condition, said his Honour, was in keeping with the natural history of depression and did not bespeak an underlying PTSD. Moreover, his subsequent medical problems, said his Honour, were apt to trigger relapses in, or lead to worsening of, the chronic level of depression and to provoke symptoms of anxiety. The learned judge also noted that, in the face of the appellant's claim that he did not speak or disclose his mental problems arising out of the collision because he felt that a stigma attached to mental illness and receiving treatment for it, the reality was that he sought treatment in this respect from a psychiatrist (Dr Richards) in 1989 and made a disability claim in part reliant upon mental illness in 1999. Moreover, in 1999 he sought to attach his depression to particular incidents of naval service. We mention also that his Honour considered that the appellant substantially overstated his use of alcohol.**
25 In the course of assessing the appellant's entitlement to compensation for pain and suffering and loss of enjoyment of life attributable to PTSD, his Honour noted, as we have mentioned, that the symptoms of that illness declined progressively after 1967 and were spent by the time he commenced in self-employment in 1973, being a period, as his Honour said, that the appellant described as 'probably the happiest time [he] had experienced since the collision'. As has been noted, his Honour concluded that the appellant suffered a modest level of distress arising from the symptoms and assessed his general damages at $60,000. And, given that his Honour considered that neither the appellant's reasons for leaving the Navy nor his depressive illness had causal connection with his PTSD, it is unsurprising that the learned trial judge concluded that the appellant was not entitled to compensation for economic loss.[1]
Claimed failure to consider loss of earning capacity
**26 The appellant's counsel put forward a number of submissions that were directed at demonstrating that his Honour erred in concluding that the appellant was not entitled to damages for economic loss arising out of the injuries he sustained as a consequence of the collision. It was first said that his Honour failed altogether to deal with the question whether the appellant suffered a loss of earning capacity by reason of the respondent's negligence. Rather, it was said, his Honour was concerned only with determining whether the appellant suffered a loss of earnings. And the two inquiries, the appellant argued, called for different considerations. Hence, it was claimed, as we understand it, his Honour's failure to analyse whether the appellant suffered a diminution in his earning capacity arising out of the collision meant that the decision on the question of special damages is vitiated. Be that as it may, we consider that the claim has no merit for the following reasons.
27 Subject to statutory provisions to the contrary, an injured plaintiff may be compensated for loss of earning capacity, not for loss of earnings. Thus in Medlin v State Government Insurance Commission[2] ('Medlin'), Deane, Dawson, Toohey and Gaudron JJ said that the law in Australia is that 'an injured plaintiff recovers damages for loss or impairment of earning capacity as distinct from direct recovery of past or future lost earnings'. But such damages are only recoverable if, or to the extent that, there has been resulting financial loss; in other words, if 'the diminution of ... earning capacity is or may be productive of financial loss'.[3] And as McHugh J explained in Medlin, the requirement that financial loss be established before a plaintiff can recover such damages means that the question whether a loss of earning capacity has resulted in financial loss often necessitates the inquiry into loss of earnings. Thus, said his Honour, notwithstanding that a plaintiff is compensated for loss of earning capacity and not for loss of earnings, '[i]n practice, there is usually little difference in result irrespective of whether the damages are assessed by reference to loss of earning capacity or by reference to loss of earnings'.[4] Nevertheless, loss of earning capacity cannot be equated with loss of earnings. McHugh J was careful to emphasise the distinction; specifically that 'the loss of earning capacity principle more accurately compensates a plaintiff for the effect of an accident on the plaintiff's ability to earn income'.[5] His Honour continued:[6]**
Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value. When loss of earnings rather than loss of capacity to earn is the criterion, the natural tendency is to compare the plaintiff's pre-accident and post-accident earnings. This sometimes means that no attention is paid to that part of the plaintiff's capacity to earn that was not exploited before the accident. Further, there is a tendency to assume that if pre-accident and post-accident incomes are comparable, no loss has occurred.
**28 In Medlin the plaintiff had retired from university employment four and a half years before reaching the prescribed retirement age. He claimed that the injuries which he sustained by reason of the defendant's negligent driving made it impossible for him to discharge his employment duties to the standard he considered to be appropriate. The court concluded that if the effects of the injuries were a causative influence on the plaintiff's decision to retire prematurely he was entitled to damages for loss of earning capacity notwithstanding that he could have remained in his employment for the period in question. Whether the causal nexus existed, said the majority, was to be established as a fact by the application of common sense and experience.[7]
29 McHugh J pointed out that the court below erroneously concentrated on whether the plaintiff could have stayed in his occupation in which case, the court had said, he would not have suffered a loss of earnings. Such an analysis, said his Honour, amounted to an impermissible equating of the concepts of loss of economic capacity with loss of earnings. What the court should have done was to seek to determine if, as a result of the accident, the plaintiff suffered a diminution in earning capacity. It was also recognised in Medlin that the plaintiff was, in any event, entitled to compensation for loss of earning capacity in respect of his working life after his retirement from the university, provided he established that there was a causal link between that loss and the injuries sustained as a result of the accident.
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]
31 Thus, as we have said, we consider that there is no merit in counsel's claim that his Honour mistakenly dealt with the question whether the appellant suffered loss of earnings as a result of his injuries but failed to address his real claim in this respect, namely, that he was entitled to damages for loss of earning capacity by reason of his injuries.**
Whether judge's finding necessitate conclusion that leaving Navy related to PTSD
32 The appellant further argued that, given his Honour's following findings he was bound to conclude that the appellant's decision to leave the Navy was causally related to his PTSD symptoms and that his failure to do so constituted error.
(a) The appellant developed PTSD by reason of the collision and this continued until 1973.
(b) Had the appellant remained in naval service, unaffected in any way by the collision, he would have been promoted to Warrant Officer soon after the rank was introduced in 1972.
(c) Had it not been for the collision the appellant would have re-listed in the Navy in 1967.
(d) The appellant left the Navy in 1967 because he had lost faith in its process by reason of the collision, and because he feared going back to sea.
We note for completeness that, in respect of the matter in para (d), it is apparent from his reasons, as the appellant's counsel agreed, that his Honour did not make a finding that the appellant left the Navy because he feared going back to sea. It is true that the appellant gave evidence to that effect, but his Honour did not make such a finding; he merely recited this evidence in his reasons.[10] But even if his Honour had made a finding along those lines, we consider that this and the other findings are not inconsistent with the impugned conclusion that there was a lack of causal nexus between the appellant's compensable injury and his decision to leave the Navy.
**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.
34 Consequently, we would reject the appellant's claim that given his Honour's findings to which he has referred, it was not open to the judge to reach the impugned conclusion.**
Whether finding as to cause of leaving Navy not open on evidence
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.
**36 We note for completeness that the appellant argued that, even if he left the Navy for reasons unrelated to his PTSD, he was nevertheless entitled to lump sum compensation for diminution in his earning capacity arising from PTSD that continued to 1973 in accordance with the principles recently restated in Lymbery v Commonwealth of Australia.[11] As already explained, that an injured plaintiff is entitled to compensation for diminished earning capacity arising from injury caused by the defendant's negligence, notwithstanding that the plaintiff left the employ for reasons not relevantly related to those injuries, was made plain in Medlin, provided there is a relevant nexus between the diminution in that capacity and the injuries. But no such claim was made for the appellant below. His case at trial, from beginning to end, as is made plain in his Particulars of Special Damage to which reference has been made, was that his reasons for leaving the Navy were causally related to his psychiatric injury and, hence, his diminution in earning capacity was to be calculated on that basis. Given that the claim that is now being considered was not put below, we consider that, consistently with the principles stated by Gleeson CJ, McHugh and Gummow JJ in Whisprun Pty Ltd v Dixon,[12] it would be inimical to the due administration of justice to allow the appellant to raise this point for the first time on appeal particularly given that it is not possible to say that, at trial, the claim would not have been sought to have been met at least by cross-examination. Moreover, if the point were to succeed, the matter would almost certainly have to be remitted for further hearing, particularly since his Honour's findings pertaining to PTSD were limited to the period up to 1973. Thus, as we have said, we consider that the appellant should not be permitted to pursue this claim on appeal.
37 In any event, we think that, on the present material, the claim must fail given that his Honour considered that, post 1973, the relevant symptoms such as anxiety, sleeplessness, drinking and the like were attributable to the appellant's depression and subsequent illnesses. The symptoms that the appellant experienced after 1973, such as possible flashbacks, were considered by his Honour to be non-clinical or otherwise not compensable.**
Claim of entitlement to damages even if PTSD ceased in 1973
38 For reasons given in relation to the claim that has just been analysed, we consider that the appellant should not be permitted to pursue on appeal his new argument that, even if the PTSD symptoms ceased in 1973, they detrimentally affected his quality of life and earning capacity beyond that time thereby entitling him to compensation. His Honour was not asked to determine such a claim and, perhaps more relevantly for present purposes, the respondent was not given the opportunity of meeting such a claim by cross-examination or otherwise. It is apparent from what we have said earlier that, in any event, on the material before us, the claim is unsustainable.
Claim that finding that PTSD ceased in 1973 is unsustainable on evidence
**39 It was also argued for the appellant that his Honour's finding that his PTSD symptoms ceased by 1973 was against the evidence and the weight of it. In that respect, the appellant pointed particularly to the evidence that, on the way home from his compassionate leave (after the collision), he avoided discussing the collision with his brother whilst in a transit lounge and that during that leave he had to move out of his parents' house to avoid discussing the collision with friends. The appellant also referred to his experiences while at Moreton and on the Derwent, to which reference has been made, and to his evidence that the PTSD symptoms, such as flashbacks and dreams, were still present in 1974 and 1982, as they were after his 1989 breakdown right through to the trial. Counsel also pointed to the appellant's evidence that in 2001 he had to avoid talking about his newspaper clippings of the collision with his daughter and grandchildren. It was pointed out that the appellant was not cross-examined about these matters. Reference was also made by the appellant to the evidence of other lay witnesses that was generally in line with that of the appellant on these matters.
40 We consider, however, that there are real difficulties in accepting the appellant's claim that his Honour's impugned decision is against the weight of the evidence. In our view, the contrary is the case for the following reasons. First, much of the above evidence relied on by the appellant concerns the period prior to 1973. Secondly, it does not meet his Honour's well-founded conclusion that the appellant was an unreliable witness. It also overlooks the glaring inconsistencies in the appellant's evidence such as the fact that there was no reporting by him prior to 2001 of PTSD symptoms to persons such as Drs Likely and Richards and, in particular, to his treating general practitioner of 20 years' standing, Dr Leong. It is also relevant to note in this context that, at the conclusion of his thorough analysis of the appellant in 1999, Dr Likely concluded that there were no observable symptoms of PTSD. As has been mentioned, even in 2001 the appellant claimed to Dr Likely that his symptoms arose in 1985 and not at the time of the collision, a claim which he asserted at trial. The appellant's submission that his Honour's findings are against the weight of the evidence also overlooks the breakdown the appellant experienced in 1989 that he attributed to his service on the Derwent and the subsequent illnesses, all of which were attributable, at least substantially, to the mental problems experienced by him thereafter. It must be remembered that the appellant gave evidence over a number of days and was cross-examined at some length. The trial judge was very experienced in assessing the reliability of controversial evidence and, although the case did not directly turn on the demeanour of witnesses, it did require his Honour to 'feel' the atmosphere of the trial for the purpose of drawing inferences in conclusion on matters in controversy. This Court obviously does not enjoy that advantage.
41 In a sense it is unsurprising that his Honour concluded that the appellant had achieved satisfactory progress in his work until 1989, given that he got on with life, as he himself accepted, and in light of the material such as the glowing reference from Dan Quayle from the United States, and that of his Regional Manager that spoke of the appellant's work capacity and dedication in favourable terms. In short, his Honour's conclusion was consistent with contemporaneous material that showed that the appellant was 'getting on' with life post the collision until his nervous breakdown in 1989 that he then said was attributable solely to his work place. Thereafter, until his present solicitors' involvement, there was no mention by him, as we have said, of his PTSD related symptoms to any of those to whom one would have expected him to tell about such matters.
42 We would therefore reject the appellant's claim that his Honour's conclusion about his post 1973 position was against the weight of the evidence.**
Claim that the amount of general damages is plainly inadequate
43 It was finally contended for the appellant that, even if his Honour was correct in his decision in all other respects, his award of $60,000 was manifestly inadequate. It was said that, in the circumstances, a proper assessment would have been well over $125,000 given that the PTSD symptoms, which his Honour accepted were suffered by the appellant, continued to have a detrimental impact on him after 1973. In our view, however, the argument is based on the same false premise as is the appellant's argument that, because of his pre 1973 PTSD symptoms, the appellant suffered loss of earning capacity past that date. The argument also overlooks the judge's finding that such detrimental symptoms as the appellant suffered post 1973 were not compensable injuries attributable to the collision. The assessment of damages is in each case a matter of the judge considering the whole of the evidence and determining a figure. In our view, the analysis and conclusion of his Honour was appropriate and does not reflect any misconception or error. We consider that the amount of $60,000 was within the range of damages that was reasonably open to his Honour.
44 For these reasons, we would dismiss the appeal.
[3] Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (Dixon CJ, Kitto and Taylor JJ), 347; Medlin [1995] HCA 5; (1995) 182 CLR 1, 3, 5 (Deane, Dawson, Toohey and Gaudron JJ).
[4] Medlin [1995] HCA 5; (1995) 182 CLR 1, 16 (McHugh J).
[7] Ibid 6 (Deane, Dawson, Toohey and Gaudron JJ).
[11] [2007] NSWSC 183 [168].
[12] [2003] HCA 48; (2003) 77 ALJR 1598, 1608.
Metcalfe
Commonwealth of Australia [2008] VSCA 23
(1995) 182 CLR 1
(1961) 106 CLR 340
(2003) 77 ALJR 1598