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[2005] VSC 200
Supreme Court of Victoria
2005-06-22
Ashley, J
Original judgment source is linked above.
Torts - collision between HMAS Melbourne and HMAS Voyager in 1964 - whether injuries sustained - post traumatic stress disorder - nature of that condition - quantum of damages.
Limitation of Actions - whether s. 5(1A), Limitation of Actions Act 1958 applicable - whether post traumatic stress disorder a "disease or disorder contracted by" the victim.
Limitation of Actions - plea action statute-barred by s. 5(1)(a), Limitations of Actions Act 1958 - pleas in reply that the defendant was estopped from relying on that provision, or else that right to rely upon it had been waived - estoppel unsound in principle and not supported by the evidence - no waiver.
1 Lindsay John Stafford was born on 17 November 1929 and died on 7 October 2004. He commenced a proceeding by Writ filed 28 March 2000 against the Commonwealth of Australia. His claim was for damages for psychiatric injuries which he allegedly sustained in consequence of the collision between HMAS Melbourne and HMAS Voyager on the evening of 10 February 1964. At the time of the collision, Mr Stafford was a Chief Naval Shipwright on board Melbourne.
2 By his Further Amended Statement of Claim ("the Statement of Claim"), Mr Stafford (conveniently "the plaintiff", the proceeding being continued by his executor pursuant to s. 29 of the Administration and Probate Act 1958) particularised his injuries as follows:
"Causing, aggravating, accelerating, exacerbating and or resulting in the future deterioration of the following:
(b) Stress, anxiety, nervousness and psychological reaction resulting in alcohol addiction.
3 Despite the breadth (and sometimes repetition) of those Particulars, the plaintiff's case at trial focussed upon the allegation that he had suffered post traumatic stress disorder ("PTSD"), and that alcohol addiction was a related consequence of that condition. The plaintiff did not pursue a claim that the collision had been a cause of him developing acid reflux and indigestion; nor did he pursue a claim that his injuries included, discrete from PTSD, either depression or an anxiety disorder. Finally, whilst the Particulars were cast in terms of
"causing, aggravating, accelerating and or resulting in the future deterioration"
of various conditions, the plaintiff's case, unequivocally, was that the collision was a cause of him developing PTSD and its related sequelae.
4 Further by his Statement of Claim the plaintiff alleged[1] that:
"9. The injuries referred to in paragraph 6 hereof are a disease or disorder contracted by the deceased within the meaning of s. 5(1A) of the Limitation of Actions Act 1958 and the deceased first knew that he suffered such injuries and that they were caused by and resulted from the incident referred to in paragraph 3 hereof in or about 2000."
5 By its Amended Defence the defendant admitted that its negligent acts and omissions were responsible for the collision. It denied that the collision was a cause of the plaintiff sustaining any of the injuries which he alleged. It did not admit that the plaintiff's plea that each of his alleged injuries was a disease or disorder contracted by the plaintiff within s. 5(1A) of the Limitation of Actions Act 1958 ("the Limitation Act"); or, if any of them were such a disease or disorder, that the plaintiff first knew he had suffered such injuries and that they were caused by the collision in or about 2000.
6 The defendant further pleaded that the plaintiff's action was statute-barred by virtue of s. 5(1)(a) of the Limitation Act.
7 By his Reply the plaintiff pleaded that the defendant was estopped from relying upon s. 5(1)(a) of the Limitation Act; or else had waived right of reliance. The circumstances pleaded in support of the estoppel and alternatively waiver need not be mentioned now.
8 The upshot of the pleadings, bearing in mind the way in which the trial was conducted, was this: the defendant admitted that it had owed the plaintiff a duty of care to act reasonably to prevent the plaintiff suffering injury, including psychiatric injury. It admitted breach of duty. It denied that the plaintiff had suffered any psychiatric injury. It denied the plaintiff's allegation that injuries sustained fell within s. 5(1A) of the Limitation Act. Rather, it pleaded, any injuries sustained were governed by the operation of s. 5(1)(a) of the Limitation Act, and were statute-barred. To this last plea, the plaintiff responded that the defendant was estopped from relying on s. 5(1)(a); or else had waived reliance.
9 From an evidentiary point of view, the key questions in dispute were thus:
10 The last-mentioned issue implies, as was the case, upon an assumption that the plaintiff had suffered some or all of the injuries which he alleged, that unless s. 5(1A) applied in respect of such injuries, the same were inevitably statute-barred except if the defendant was precluded from reliance on s.5(1)(a).
11 From the standpoint of legal theory, the matters in debate were:
12 Pausing for a moment, this should be noted. At trial's end the defendant maintained denial that PTSD should be characterised as a "disease". But it accepted that the condition should properly be described as a "disorder". According to the defendant's submission there were two reasons why, nonetheless, s. 5(1A) did not assist the plaintiff. First, PTSD was not a disorder "contracted by" the plaintiff as that concept had been explained by Eames JA for the majority in Clark v Stingel[3]. Second, the plaintiff first knew that he had suffered the injury, and that it was caused by the defendant's default, more than 6 years before the proceeding was brought.
13 The plaintiff was born in Tasmania in November 1929. He was the second- youngest of seven children. Four of his siblings, in due course, joined the Services.
14 The plaintiff left school in November 1943 and began a cabinet-maker apprenticeship. As a matter of choice he would have enlisted in the Navy before completing his apprenticeship; but, in what he eventually recognised was a wise decision, his employer prevented him doing so.
15 In the event, the plaintiff completed his apprenticeship and worked as a tradesman for a year before enlisting in the Navy on 13 February 1951, aged 21. As a qualified tradesman he received accelerated promotion after initial training. Initially he was classified as a "joiner". When the "shipwright" classification was introduced, he went into that stream. His promotions were in the minimum time. By February 1963 he had risen to the rank of Acting Chief Naval Shipwright. The position, equivalent to Acting Chief Petty Officer, was confirmed on 8 February 1964 - that is, two days before the collision.
16 The plaintiff married on 30 July 1955. His wife had herself been in the Navy. In accordance with the requirements of the day, it was necessary for her to leave the Service when she and the plaintiff married.
17 There were two children of the marriage - Annette, born 16 May 1956; and Craig, born 27 August 1958.
18 The plaintiff's initial enlistment with the Navy was for a six year period. As from 13 February 1957, he re-enlisted for a further six year period. Effective 2 November 1961, he enlisted for a little over four years. Effective 13 February 1966, he re-enlisted for a five year period. In total, then, his enlistments were for periods totalling 20 years. After 20 years' service a serviceman gained a pension entitlement.
19 The plaintiff was posted to Melbourne from 28 December 1962. Before that his postings had been as follows:
20 Each of those postings, save for Anzac, was shore-based. Melville was a station in the Northern Territory, Penguin was in New South Wales, Tarangau was a base on Manus Island, Nirimba was in New South Wales, and Albatross was the Naval Air Station at Nowra in New South Wales.
21 On Melbourne, the plaintiff had the supervision of a considerable number of men - usually 6 - 8 shipwrights and 12-15 apprentices, the latter group being subject to regular change.
22 Following the collision, the plaintiff remained posted to Melbourne until 8 December 1964. He was then posted to HMAS Leeuwin, a shore-based station at Perth. There he remained until 11 January 1968, when he was posted to HMAS Sydney. He remained in that posting until 5 January 1970, when he was again posted to Leeuwin. There he remained until his discharge on 12 February 1971.
23 In the period that he was posted to Sydney, that vessel undertook six trips to Vietnam, acting as a troop and materials carrier. Four of the trips were in 1968, two in 1969.
24 The plaintiff and his family lived in Perth during the periods that he was posted to Leeuwin. His family remained in Perth when he was posted to Sydney. The family continued to live in Western Australia after his discharge. All its members continued to do so up to the time when the plaintiff died.
25 The plaintiff's Certificate of Service[4] included reports made by Divisional Officers in the period 2 December 1954 - 23 December 1964. Reports made up to the time of the collision were glowing in their praise of the plaintiff.[5] There was no hint that the plaintiff was hard on his men, or was disrespectful of his superiors; rather the contrary.[6] The final report in the series, dated 23 December 1964, was somewhat different in content. Made by then Shipwright Sub-Lieutenant McCracken, the report said this:
"Has performed duties as Chief satisfactorily and has supervised staff very well. Appears to resent suggestions regarding changes on routines involving staff and work to be carried out. Consider he will appreciate this advice as he progresses."
The defendant called McCracken at trial. He and the plaintiff gave oral evidence pertaining to that entry; of which evidence, more later.
26 The plaintiff's Certificate of Service also included assessments of his character and efficiency from time to time; and whether he was recommended for advancement. Assessments made between 1953 and 1970 rated Mr Stafford's character as very good and his efficiency as superior. When qualified for advancement, in each instance he was recommended for the same. I add that when the plaintiff left the Service, his Certificate of Discharge described his conduct as "very good".
27 I should next mention the plaintiff's medical record whilst in service with the Navy. He was assessed at time of entry[7]. His answers to a questionnaire show that he denied having ever suffered from "Nervous Trouble, Nervous Breakdown, Fits, Sleepwalking or Nightmare". He was certified fit for entry.
28 Next, on re-engagement in 1957 the plaintiff was medically assessed.[8] "Mental capacity" and "emotional stability" were marked on a pro-forma report as normal.
29 The record shows that the plaintiff suffered traumatic injury to his left eye in May 1960; and that, with treatment, the injury resolved.
30 A medical examination was conducted in late 1960, in connection with the plaintiff's further re-enlistment.
31 Another medical examination was conducted on 5 April 1965 as a precursor to the plaintiff's 1966 re-enlistment. At the time of this examination the plaintiff was stationed at Leeuwin. Again, "emotional stability" and "mental capacity" were marked as normal.
32 On 17 November 1970 the plaintiff underwent medical assessment prior to discharge. As part of his self-assessment[9] he stated that he did not suffer from disabilities at present; and that he did not claim to be suffering from any disabilities which he considered to be due to or aggravated by service. He provided a note of disabilities suffered during service. That note was evidently incomplete. The medical examination record completed on 17 November 1970 again marked "emotional stability" and "mental capacity" as normal.
33 Very little evidence was led as the means whereby either "emotional stability" or "mental capacity" was assessed on any of the occasions to which I have referred; or indeed, exactly what those terms described or encompassed.
34 The plaintiff was cross-examined about the various entries. I will refer to the detail of the cross-examination later. It is enough to note presently that the import of the entries and the effect of the plaintiff's viva voce evidence relating thereto were live issues at trial.
35 During 1964, the plaintiff attended naval medical officers on three occasions:
36 The plaintiff attended naval medical officers on a number of occasions between 1965 and 1970. Presenting complaints were of problems with vision, the upper respiratory tract, the pharynx, the left shoulder, the right ankle and the low back. Attendances, overall, were infrequent.
37 There is nothing to suggest that the plaintiff made any complaint of symptoms which would have been immediately identifiable by the doctor as symptoms of psychiatric injury at the time of his attendances on naval doctors in 1964 and thereafter. Neither, by the same token, do the records suggest that on any such occasion he was asked any question as might have disclosed the presence of such symptoms.
38 I have said that the plaintiff was discharged from service on 12 February 1971. The reason why he sought to be discharged was an issue at trial. What is not in issue is that:
39 As post scripts, the plaintiff and his wife had not in fact owned a home before 1971, they did purchase a home thereafter making use in part of the commuted portion of the plaintiff's pension entitlement, and there was no evidence what questions or examination led to the doctor's pertinent observations.
40 After his discharge in 2 February 1971, the plaintiff had a few relatively short-lived jobs in the period up to March 1973. Then he commenced work as a maintenance officer with MacRobertson Miller Airlines ("MMA")[14] which then operated an extensive regional service throughout West Australia. He remained in that employment until he was terminated on 8 July 1990. Over the years, he worked in very large part in Perth. He made a very few trips to the North-West. Essentially, he worked alone.
41 On 27 July 1989, the plaintiff suffered a fractured left ankle in compensable circumstances. He went on to workers' compensation. He made unsuccessful attempts to resume work in the period leading up to his termination in July 1990. Weekly compensation, it was common ground, was paid until about April 1991, in a total amount of $30,957. Thereafter the plaintiff was paid a lump sum of $15,000 plus agreed costs (together with a right to retain workers' compensation that had been paid) in settlement of a common law claim which he had instituted.[15] It was not in debate at trial, I add, that the 1989 accident left the plaintiff with a permanent disability of his left leg.
42 The plaintiff was a member of a Superannuation Plan when employed by MMA. The evidence did not show the total amount of the plaintiff's contributions over the 15-odd years that he was a member of the plan. It appears, though his counsel ultimately argued to the contrary, that when the plaintiff's employment was terminated he received both a so-called Resignation Benefit of about $53,000 and a Total and Permanent Disablement Benefit of about $81,000.
43 I turn from the plaintiff's ankle injury to other medical conditions which emerged over the last 15 years of his life. First, in 1990 he underwent surgery to his nose in connection with sleep apnoea. Second, at a time which the evidence left uncertain, he suffered a detached retina. Investigations in that connection revealed that he was also suffering from chronic lymphocyte leukaemia. There was no evidence, I think, that the latter had any incapacitating effect upon him at that time or in the period up to 1995. Third, it was in 1995 that he was diagnosed as suffering from carcinoma of the colon; and was found to be suffering from tumours of the bladder.
44 The plaintiff underwent bowel surgery on two occasions in 1995; and radiotherapy for the bladder tumours. For one reason or another he was left with chronic diarrhoea which inhibited his day to day life. He also became impotent.
45 In the years thereafter, the plaintiff suffered many partial bowel obstructions which required hospitalisation. Those incidents were not his only medical problems. In September 2000 he underwent aortic valve replacement; and at some later time he had a pacemaker fitted because of cardiac arrhythmia. Further, in February 2001 an MRI showed possible meningeal consequences of the plaintiff's leukaemia - though this diagnosis was later revised. Again, in late 2002 he underwent surgery for a recurrence of his bladder cancer. Finally, in August 2004 the plaintiff underwent laparotomy. The plan was to remove cancerous areas of the bladder, and possibly the bowel. But surgery was abandoned, and the plaintiff, at the time when examined de bene esse on parts of four days in September 2004,[16] was on a regime of extensive medication, including slow release painkillers. It seems also to have been the case that at that time his urine was being drained by catheter.[17]
46 The video tapes of the plaintiff's de bene esse examination went into evidence. They provide some direct evidence of Mr Stafford's physical state at the time. Considered in the context of his disclosed medical history, evidence given by his wife and daughter, and the fact that he died within three weeks of the last day of his examination, the video tapes strongly suggest that when giving evidence the plaintiff was an extremely unwell man.
47 The plaintiff began to receive a Veterans' Affairs Pension on or about 5 April 1991. He continued to receive such a pension up until 1995. Then he began to receive a Disability Pension. It continued until his death.
48 In 1998 the plaintiff sought an increase in his Disability Pension in respect of previously accepted disabilities; and he claimed a disability pension in connection with a disability which had not then been accepted as service-related[18]. His claim for a pension increase was in respect of malignant neoplasm of the colon. His claim in respect of a new condition was for "impotency". He made no claim for any psychological condition.
49 The plaintiff made assertions by statutory declaration dated 28 January 1998 in support of those claims. So, he said that he was tense and anxious most of the time because of concern for his future. He worried for himself and his wife. He therefore found that he slept very poorly, and was thus very irritable during the day. His inability to relax caused much conflict and tension in his marriage; as did his impotence. He had withdrawn from his wife and family and they from him. He had withdrawn from social activities outside his family. His social life was becoming more limited. He had lost contact with many of his friends. He could no longer enjoy golf because of anxiety about getting to a toilet in time. He had been forced to retire from the workforce due to [his] ill-health.
50 I have described what the plaintiff in fact asserted in 1998. There was no controversy here, in that the plaintiff did make those assertions. There was, however, substantial debate at trial as to what, if anything, was to be drawn from what the plaintiff had said. According to the defendant, the plaintiff made reliable admissions against interest. According to the plaintiff's case, what the plaintiff had asserted was at odds with the true situation. His psychological problems had long predated his 1989 injury and his subsequent ill-health. Attributing all those problems to aspects of that ill-health had been an innocently erroneous attribution.
Was the Collision a Cause of the Plaintiff Suffering PTSD?
51 The material which enables determination of the question whether the plaintiff established that the collision was a cause of him suffering PTSD consists in part of the non-contentious material already outlined, and in part the following:
52 In addition, the defendant relied upon statements said to have been made by the plaintiff in his consultations with Dr Milton and Professor Bryant as admissions against interest; and each party relied, in connection with the present question, upon some of the evidence given by medical experts who had not examined the plaintiff:
53 I should mention that the defendant also called a third psychiatrist who had not examined the plaintiff - Dr David Bell. That doctor gave some evidence bearing upon the present issue. Counsel for the defendant, however, did not refer to Dr Bell's evidence at all in his final submissions.
54 Some matters of common ground, and a few conclusions may be quickly stated.
55 First, PTSD is a diagnosis made by reference most often to criteria set out in the Diagnostic and Statistical Manual of Mental Disorders which is published by the American Psychiatric Association. It is now in its fourth edition, its title being shortened to "DSM-IV".[19]
56 Second, in 1964 the operative edition of the manual was DSM-I, which had been published in 1952. It was followed by the publication of DSM-II in about 1966, DSM-III in 1980, DSM-IIIR in 1987 and DSM-IV in 1994. DSM-III was the first edition to identify PTSD by reference to criteria generally akin to those now in use. By contrast, DSM-I identified what is now called PTSD as a "gross stress reaction", as one of the neuroses. As at 1964, I add, the term "traumatic neurosis" [20] was known.
57 Third, the diagnosis depends upon the presence of circumstances which satisfy six criteria lettered A-F. Criterion B is satisfied if only one of five circumstances is present, and was described in evidence as being permissive. So, Professor Shalev gave evidence that satisfaction of criterion B does not enable differentiation between patients who do and do not suffer from PTSD. That is to be contrasted, he said, with criterion C, which is the hardest to satisfy. If criterion C is satisfied, the Professor was saying, it strongly points to a diagnosis of PTSD.[21]
58 Fourth, the criteria are respectively to the following effect (I do not reproduce them word for word as in the Manual).
(1) The person experienced, witnessed or was confronted with an event or events which involve actual or threatened death or serious injury; or a threat to the physical integrity of himself or herself or others.
(2) The person's response involved intense fear, helplessness or horror.
(1) Recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions.
(3) Acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations and dissociative flashback episodes, including those that occur on awakening or when intoxicated).
(4) Intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event.
(5) physiological re-activity on exposure to internal or external cues which symbolise or resemble an aspect of the traumatic experience.
(1) Efforts to avoid thoughts, feelings or conversations associated with the trauma.
(2) Efforts to avoid activities, places or people that arouse recollections of the trauma.
(3) Inability to recall an important aspect of the trauma.
(4) Markedly diminished interest or participation in significant activities.
(5) Feeling of detachment or estrangement from others.
59 Fifth, psychological tests may be performed which are designed specifically to assist a conclusion whether circumstances recounted by a patient satisfy the pertinent criteria. Nonetheless, diagnosis depends at least very considerably upon the reliability of symptoms recounted by a patient, although the skilled medical professional will be alert to consider whether the patient's history fits together.
60 Sixth, there is a particular problem when a patient presents long after an event which would prima facie satisfy the requirements of criterion A of DSM-IV, that patient providing a history of symptoms compatible with the presence of PTSD in the intervening period. Memory is fallible. There is a risk of innocent but false attribution of symptoms to that criterion A event. On the other hand, in some cases - there was argument how many - persons who suffer from PTSD do not discern that their symptoms represent illness, or reject the idea that they are psychologically unwell. So it is that a prolonged period may pass whilst symptoms of PTSD remain present but medically unexplored. So also, the evidence suggested, in some cases the presence of symptoms may be recognised, but attributed to a cause other than the critical traumatic event.
61 Seventh, the problems to which I have just referred do not lead to a conclusion, contrary to absolutist arguments particularly advanced by Drs Milton and Bell - arguments which I reject - that the history provided by a patient or by his or her family should be put aside, for diagnostic purposes, if it is not supported by "objective" facts. That is not to say, of course, that such facts should not be carefully considered when evaluating what is to be made of the history provided by a patient and his or her family; though again, whether a particular circumstance should or should not be considered an objective fact will not always be a matter which is free of argument.
62 I go to the body of evidence which is yet to be considered.
63 The plaintiff gave evidence which embraced a considerable number of issues that were alive at trial, and as well issues about which there was no controversy. The former class included evidence about -
• His family and social relationships before and after the collision.
• The circumstances of the collision from his perspective.
• A direction or instruction of which he became aware before disembarking in Sydney.
• Symptoms experienced subsequent to the collision.
• The impact upon him of the ankle injury which he suffered in 1989, and of subsequent serious illnesses.
• When he first knew that he was suffering from PTSD.
64 His evidence was given, as I have earlier said, over parts of 4 days in September 2004; and it is evident from studying the videotapes of his examination, taken in conjunction with his death soon thereafter and with evidence given by his wife and daughter, that he was a very ill man at the time. That complicates consideration of the reliability of his evidence, a consideration already made difficult by the span of years addressed by such evidence.
65 Given those matters, this may be said: whilst it is always possible to accept some part and reject another part of a witness's evidence - and, indeed, as these reasons will show, that is what I do in respect of the plaintiff's evidence - consideration of a witness's evidence overall is likely to yield an impression whether the witness is overstating or understating his or her position, whether he or she readily assimilates questions asked, and whether he or she readily verbalizes emotions. In the present case, I gained the clear impression that the plaintiff did not overstate his evidence. Indeed, he made many concessions, some of which were not required. I also gained the clear impression that he was not a man who easily articulated his emotions. He gave the impression, to the contrary, that it was difficult for him to explain the impact of the collision upon him, both in the hours that followed its occurrence and in the long term. It is unnecessary, presently, to consider whether such difficulty represented an avoidance mechanism at work.
66 Although complete separation of issues is unachievable, and despite what I have said about evaluating a witness's evidence in the broad, it is convenient to break up aspects of the plaintiff's evidence pertinent to the question whether the collision was a cause of him suffering PTSD.
67 Mr Stafford gave evidence about his training and his experience as a shipwright in the period up to the time of the collision. It is not in debate that he was an enthusiastic and proficient seaman, and that he advanced in the minimum time to the rank of Chief Naval Shipwright, which was equivalent to Chief Petty Officer. Neither is it in debate that before the collision he was a keen and competent sportsman.
Family and social relationships before the collision
68 Apart from the evidence in this connection which I have set out in the section of these Reasons headed "Non-Contentious Material", the plaintiff gave this evidence:
69 He played and enjoyed sport throughout his younger life. This continued when he joined the Navy. At the time of enlistment he was, he believed, in very good health; and so he remained until the collision.
70 During service, and before the collision he socialised with friends and neighbours. There were picnics and parties. Basically his social life was within the naval community.
71 His marriage, before the collision, was quite good. He got on "very good" with his children. He did things with them such as swimming, picnics, going to parks, cycling.
72 Before the collision he took a moderate amount of alcohol - maybe three to four glasses of full strength beer each night.
73 Before the collision he had no sleep problems. He did not suffer from hot and cold sweats in association with sleeping.
74 Cross examined, the plaintiff agreed that discipline had been bred into him from an early age; and that he was (and by inference always had been) intolerant of undisciplined people.
75 In all, the plaintiff's evidence about his pre-collision behaviour, interests, family and social life was essentially unchallenged. It was corroborated in certain respects by the evidence of his wife, daughter, Robbins and Lincoln. Nothing in McCracken's evidence spoke to the contrary. I see no reason why it should not be accepted.
76 The gist of the plaintiff's evidence in chief concerning the collision and its immediate aftermath was as follows: He was in a mess room when "(a)ll of a sudden there was this big shudder, like a roll."[23] Then there was an announcement: "Collision, Collision" and he knew what had happened.
77 His job was damage control. He headed forward and saw damage in the 3 Alpha area. The main toilet block for the ship's company was in that area. He observed the broken remains of the toilets "and looked straight through into the ocean."[24]
78 When he observed the scene his reaction was "horror, shock, the damage was done and possible repercussions of that."[25] At that stage he had no idea whether there had been loss of the life on Melbourne. He was horrified about the possibility of what could have happened to any men on the toilets. He was terrified, shocked about what it could have been like for anyone caught in that position - whether members of the crew of Voyager or Melbourne (he made reference to members of either crew who were unaccounted for).[26]
79 Next, he sent shipwrights to various parts of the ship to check for damage and any leaks. Shipwrights were sent as far below as the double keel of the vessel. They worked back from the so-called collision bulkhead. Eventually reports came back that were for the most part favourable.
80 In the course of the evening he learned that Voyager had come across Melbourne's bow and had been cut in half. That affected his level of apprehension or concern because he believed his younger brother could have been a crewman on the Voyager, and he knew other Voyager crewmen. Only later that night did he learn from a Voyager survivor that his brother had not been on board at the time. That gave him profound relief.
81 From the outset there was a source of worry: "How could this possibly happen in this modern day and age."[27] He turned his mind to what would have happened had the circumstances of the collision been different, Voyager striking Melbourne amidships. The consequences of such a collision went through his mind.
82 That night the plaintiff was in charge of about 6 shipwrights and 14 or 15 apprentices. He was worried for the apprentices - that they might do something irresponsible and be drowned or get hurt.
83 At one stage "they" were contemplating sending a boat across to the stern section of Voyager. "They" required two shipwrights to go. He allocated two men. But they never went, because for some reason the order was cancelled.
84 Asked whether he had any "images" "about those men", he replied "Yes, I could say it did, yes." He referred to "the injuries and damage they could have suffered."[28] He tried to push the images out of his mind.
85 He did see the stern section of Voyager. He thought that it was before he was told, in effect, that his brother was safe. He had some thoughts concerning his brother and others.
86 Returning to the narrative in sequence, after reports had come in preparations were made for shoring the bulkheads, and then for putting the shoring in place. When the job was finished he was confident that it would do the job. But he remained concerned during the return journey to port, and a watch was set up to make continuous observations.
87 He thought he had seen the after section of Voyager sink; but since he had been told that he had not seen it. He did not know "if that was just hearsay."[29] The fact that it had gone down caused him to feel horrified, apparently about the prospect that more lives had been lost. At that time he did not know where his brother was.
88 One of Voyager's survivors was a shipwright named Webb. Whilst on Melbourne he continued to wear his life jacket and would not go below decks.
89 Cross-examined about the collision and the hours that followed, the plaintiff agreed that as a trained man he knew what he was doing. He agreed also that inspections did not suggest that Melbourne was in imminent danger of sinking, that the shoring was done to his satisfaction, that he had confidence the ship would return to port safely, and that he had, he thought, a small amount of sleep on the return journey.
90 Further cross-examined, the plaintiff agreed - he had never suggested the contrary in his evidence in chief - that he had not taken part in, or seen anything of the rescue operation, nor rendered treatment to Voyager survivors.
91 He agreed that he had not been immediately exposed to crewmen on Voyager being killed or injured, and that he had not seen men in the water, or dead or injured persons on board Melbourne.
92 The plaintiff also agreed that he knew no one had been in the 3 Alpha area when the collision occurred, and that his sense of horror and terror had been as to what might have happened.[30] The question when he acquired that knowledge was not explored. Robbins gave evidence which suggested strongly that the plaintiff did not have such knowledge in the hours which followed the collision.
93 The plaintiff agreed, again, that his terror about what might have happened had Voyager struck Melbourne amidships addressed a situation which had not occurred.
94 Put to him that at no time did he personally feel that his own life was threatened, he replied: "I was too worried about other people's lives."[31]
95 Pausing for a moment, I see no reason to reject the plaintiff's account of his involvement in the aftermath of the collision. In some respects his evidence minimised his role. Compare Robbins' evidence. McCracken's evidence tended to downplay the nuts and bolts work that the plaintiff did. Such evidence conflicted to an extent with the evidence of the plaintiff and Robbins; but I do not consider that anything turns on it.
96 Further, I see no reason not to accept the plaintiff's evidence about the matters which he said concerned him. Robbins' evidence was persuasive that the plaintiff was worried about tasks which he assigned to his shipwrights. Robbins' evidence underlined there being some reason for apprehension about the soundness of the collision bulkhead despite the efficiency of the shoring. True it is that the plaintiff did not take part in the rescue operations, but he ascertained what had happened, saw the stern section only of Voyager afloat, believed for some hours that his brother had been aboard Voyager, and must certainly have understood the probability of casualties - possibly including his brother - in the circumstances which had occurred. His observations of the way in which the survivor Webb behaved were apt to emphasise the horror of the incident, and his own helplessness. I do not consider that the effect of the evidence is that the plaintiff knew at the outset that no crewman had been in the 3 Alpha area at the time of the collision - that is, that any concerns he had about that matter were founded on a situation which he always knew had not been in fact the case. Again, whilst his evidence and that given by Robbins did not relevantly coincide, I do not reject the plaintiff's evidence that - in the unprecedented situation which obtained - someone directed or proposed that a boat partly manned by shipwrights be sent over to the stern section of Voyager. There is no reason to doubt that the plaintiff, as a well-trained and efficient man, did his job well. But that does not gainsay the plaintiff's account of what he saw and did, or his evidence of his reaction to the circumstances of which he became aware. Nor does the fact that, as I accept, the plaintiff pondered about the risks of some situations which had not occurred mean that he was not troubled by events which had occurred and did occur and of which he knew.
Work, family and social relationships after the collision. Symptoms allegedly experienced
97 The gist of the plaintiff's evidence in chief was as follows:
He had experienced a recurring memory about Jimmy Webb, the Voyager survivor who would not go below decks whilst on Melbourne. "Every time you saw him you thought about those things." But he had seldom seen Webb after the Melbourne docked, and he could not say he'd had "any of these memories at all since then".[33]
Since the collision he had made a practice of avoiding naval ships and establishments.
Virtually straight after the collision he first felt depressed. It had eased off in the interim between the collision and the present time.
He probably suffered from "a little anxiety". There was no set pattern to it. He could not really think what made him nervous.[35]
He had begun to feel stressed almost straight after the collision. He thought it had eased. He put no timeframe to such improvement.
• Agreed that his personality was such that he would always follow through on what he thought was right - an instance being the circumstances in which he ended his schooling.
• Agreed that his periods of enlistment were such as would have enabled him to leave the Navy after 20 years' service, having then earned a pension entitlement. But did not agree that he necessarily had intended to seek a discharge after 20 years; and asserted that his discharge was related to the collision.
• Wrongly, I consider, gave evidence that an incident in which his son broke into a school, he thereafter taking his son to the police, occurred about 18 months before his discharge. There was such an incident, and the plaintiff did arrange for the police to caution his son. But the incident occurred many years before the plaintiff's discharge, according to evidence given by Mrs Stafford which I accept.
• Wrongly, as I conclude, gave evidence that his wife complained about him being away so much and that she could not control their son, in which circumstances he put the family first and sought a discharge. According to the evidence of Mrs Stafford, problems with their son largely post-dated her husband's discharge; and she did not urge him to leave the Navy - rather the converse. Broadly similar evidence was given by Mrs Wright. The evidence of Mrs Stafford and her daughter seems more likely correct, bearing in mind also that the plaintiff had been shore-based in Perth, living with his family, for the 12 months preceding his discharge. Indeed, in the seven years between the collision and his discharge he was ship-based for less than 3 years, 10 months of which was in 1964 (for part of which time the Melbourne was in dock, undergoing repairs).
• Gave an explanation for McCracken's entry of 23 December 1964 which varied from that given by the latter. McCracken's version fits what he wrote better than does the plaintiff's account, and to that extent I accept McCracken's evidence. But the plaintiff gave a credible account of what must have been - accepting McCracken's evidence thus far - a second dispute between the two men. In the interests of fairness I put the plaintiff's version to McCracken. In substance, he denied that an incident such as the plaintiff recounted had occurred. The probabilities, given the detail of the plaintiff's evidence, favour a contrary conclusion. I note, in passing, that defendant's counsel did not cross examine the plaintiff either to suggest that his version was not the explanation for McCracken's entry, or that the incident described had not taken place.
• Agreed that in normal circumstances a (naval) doctor was readily available. In that context, having agreed that he consulted a doctor three times in 1974, said that he could not really explain why he had not consulted a doctor about depression or anxiety that year.
• "Assumed" that he would have been asked questions about his emotional stability and mental capacity at re-enlistment examination in April 1965;[45] and agreed that he "would have told" the examining doctor at his discharge examination in November 1970 if he was "feeling emotionally unstable or... had a problem with mental capacity".[46] Further, taken to his personal statement dated 27 January 1971[47], agreed that he had said he slept well, and that he assumed it was true.[48]
• Agreed that "it could possibly be correct" that he could not really describe the images in his mind "because, really [he was not] a witness to anything horrible or terrifying that actually happened".[49]
• Agreed that on the wall of his home there was a photo of Melbourne and his navy medal, to remind him of the ships he had been on.
• Agreed that he had been boating with a neighbour and son-in-law - that is, since leaving the Navy - and had enjoyed it.
• Agreed that he had attended a particular general practitioner periodically from about 1988, and other doctors before that; and that discussion with his general practitioner about his alcohol consumption had apparently been stimulated by the diagnosis of leukaemia in the early 1990s. He had been advised, he said, to cut down consumption, but he did not completely follow that direction.
• As to his level of alcohol consumption, said that "possibly" he was drinking two bottles of beer a day in 1990.
• Said that he could not recall whether, in 2001, he was not having flashbacks, not having nightmares, and was not preoccupied with the collision.
• Denied that the multiple health problems he had experienced since 1989 were the reason "why [his] life [had] become dislocated and [he suffered] anxiety and depression".[50]
• Agreed that he had never made a Disability Pension claim for psychiatric or psychological problems; but agreed also that in his 1998 claim for a pension increase he had attributed a considerable number of the symptoms pertinent to his present claim to his worrying about his colon cancer and impotence, and further agreed that his attributions were "true".[51]
99 I have commented about the unreliability of certain concessions made by the plaintiff in cross-examination. Other concessions - for example, what he "assumed" he had said to the examining medical officer in 1965, and what he "would have told" the examining officer in 1970 - were no more than conjecture. Again, having regard to the type of man I judge the plaintiff to have been, and in light of the type of symptoms which he allegedly experienced in 1964, I attach no significance to his concession that he "couldn't really explain" why he did not consult a doctor about depression or anxiety that year. So also, although it was a matter which Professor Bryant considered significant, in light of evidence which I later accept as to the nature of "cues", I do not conclude that the plaintiff's enjoyment of taking to sea in a fishing boat was inconsistent with him suffering PTSD in consequence of the collision between an aircraft carrier and a destroyer.
101 Having regard to the matters just raised, as well as to the plaintiff's evidence in chief and my earlier observations about his apparent state of health when giving evidence, I consider that in this case it is particularly necessary to closely study the whole body of pertinent evidence in order to reach conclusions whether the plaintiff did experience some and what symptoms from the time of or from soon after the collision, and whether his work, family and social relationships thereafter altered. I go to other pertinent lay evidence.
102 The plaintiff's wife gave evidence that she knew her husband for four years before their marriage in 1955. In that period, and until the collision, he was outgoing and full of fun. He did not seem to drink much, though on occasion she had seen him merry. They had an active social life. The plaintiff would play with the children, they took the children on picnics and so on. Their method of dealing with the children, if something went wrong, was to talk about it - not resort to corporal punishment.
103 According to the witness, at first when her husband returned home after the collision she thought he was all right. But he was quiet, would not talk about the collision when she asked him, would not have anything to do with the children, and would tell them to go away. His refusal to talk about the collision persisted in the years that followed.
104 Mrs Stafford gave much other evidence of changes which she noticed in her husband's behaviour and manner from a time soon after the collision - changes which persisted; and of her reaction, in some instances, to those changes. So, she gave evidence that:
• Her husband's attitude to their children changed. He became harsh with them, and resorted to corporal punishment using a leather strap. Use of corporal punishment went on for years, and was a source of argument between she and her husband. Because of her husband's intolerance of the children, she tried to get them to bed before her husband arrived home.[52]
• Her husband began to drink a lot more from soon after the collision. This pattern of considerable use of alcohol persisted throughout his life. It was a source of arguments between them.
• Her husband's sleep pattern became disrupted, when previously he had gone straight to sleep. He was alright for the first few nights after he came home following the collision. But then he started having nightmares. He would wake up at night. He would get up and wander the house. He sleep-walked a few times.[53] Quite often he would moan and groan and say "Watch out. Mind the water"[54]. This went on and on. In the first four to five years after the collision the plaintiff had nightmares - sometimes twice a week, sometimes not, at other times it would be two to three times per week. After seven or eight years it slowed down. She would shake him and wake him and ask what was wrong. He would say that there was nothing wrong.[55]
• Her life, specifically whilst her husband remained in the naval service, was like being on egg shells. Nothing she said or did was right.[56] Her husband was irritable and bad tempered. That continued until his death. Within the first 10 years or so after the collision, she threatened to leave him once or twice. "But in those days you stayed."[57]
• The plaintiff generally refused to mix with people, though occasionally they went out. There was some improvement after he returned to civilian life.[58]
• Quite often, before the collision, her husband would take the children down to see ships come in. One day they had gone to sea in a ship. But after the collision he would not go down to Fremantle to see the ships.[59]
105 Mrs Stafford was cross examined with a view, inter alia, of identifying alternative sources of stress in her husband's life: problems with their son, the circumstances of her husband leaving the Navy, the onset of serious illnesses in the last decade of his life following on after the ankle injury in 1989.
106 It is apparent that there were problems with the son, occasionally before but more frequently after the plaintiff's discharge in 1971. I am confident that the plaintiff was intolerant of his son's antisocial behaviour; though whether or not the plaintiff's behaviour towards his son was a cause of such behaviour is another matter.
107 Next, I accept Mrs Stafford's evidence that her husband made his own decision to leave the Navy, and that it was not a decision which she sought. In consequence, I do not conclude that any resentment at being forced out of the Navy by his wife's insistence provides an explanation for the plaintiff's changed behaviour, if change there was.
108 Next, it is apparent that from 1989 onwards the plaintiff suffered first an injury and then a succession of illnesses, the latter of which particularly inhibited his activities and otherwise impacted upon the quality of his life. Mrs Stafford gave evidence that her husband was accepting of the injury and those illnesses.[60]
109 Pressed with the suggestion that her husband had suffered significant emotional problems attributable to those conditions, Mrs Stafford responded by asserting, in effect, a belief that they could have been caused by the stress that he had been under, and so could be attributed to the collision.[61] Counsel for the defendant criticised Mrs Stafford's objectivity in his final address. He submitted, in effect, that her mindset had been to lay everything at the foot of the collision. I do not accept that submission, which is not to say that Mrs Stafford's avowed belief about the aetiology of the late-occurring illnesses represented the fact. To my mind her evidence was generally credible. Moreover, much of it was given support by the evidence of her daughter and of other witnesses including Robbins, Lincoln and Solomon.
110 I accept the likelihood that the 1989 injury and particularly the later-occurring illnesses did subject the plaintiff to significant stress and were such as might induce or worsen certain psychiatric or psychological conditions. But I do not consider that Mrs Stafford's evidence about observed changes in her husband's behaviour following the collision should be readily rejected. That is so even giving due weight to the fallibility of memory after a long time elapse.
111 Annette Wright is the daughter of the plaintiff. Born in May 1956, she was aged not quite eight years at the time of the collision. She continued to live with her parents until she was aged 28. She became employed by MMA, like her father. She joined the company in September 1973, working in the finance section. Her father was then based close-by and they would often share transport.
112 In 1984 the plaintiff's work-base moved out to Perth Airport. In the same year the witness obtained a new job as a flight attendant, also working from the airport. The witness continued in that job until 2001, when Ansett collapsed. From 1984, it appears, she saw less of her father travelling to and from work.
113 Mrs Wright was, I consider, a first-rate witness. She demonstrated an excellent memory. The more her memory was challenged, the better it was shown to be. In my opinion she was a thoroughly reliable witness albeit that she was still very young at the time of the collision.
114 Mrs Wright gave evidence that her first substantial memory of her father was in the period that he was stationed on Manus Island. It was a happy time. There always seemed to be family activities. Her father was happy and loving towards she and her brother.
115 Then, when her father was stationed at Albatross, the family lived not far from the gate of the base. She and her brother would wait at the gate for their father. When he came home they would play in the yard. There were picnics, car rallies and visiting. She could not remember ever being hit by one of her parents either at Manus Island or Jervis Bay.[62]
116 She said that, in 1963, and up to the beginning of 1964,
"Our life with our parents was very good, really happy. It was always boisterous and fun."[63]
117 She and her brother, she said, were treated alike. They were quite respectful of their parents.
118 Before the collision, she said in cross examination, she knew on what ship her father was serving. "We always got to see the ships."[64]
119 Mrs Wright described her father's behaviour and manner subsequent to the collision in this series of questions and answers:
"After the collision, immediately after the collision I remember we were - he wasn't very talkative. He didn't want to socialise with us. I remember Mum was always telling us to be quiet and, you know, to sort of not get in Dad's way. He seemed to be very kind of moody and distant and we, as children, didn't really understand the full impact of what had occurred. But it was just very, a totally different household, like not noisy, any fun, and not fun.
Did that change over the years? - I believe it probably got worse, if nothing else. He, my Dad became quite sort of grumpy. His moods would change at the drop of a hat, very moody. He no longer was affectionate to us. He was more standoffish, like, you never felt that you could get a cuddle or be close. He was sort of quite grumpy at us. He would get angry very quickly. He would sort of yell when we didn't understand why he was yelling, we never really thought we did anything wrong; and I think it got worse over the years.
And did you notice anything in relation to the way Craig and your father were getting on? - The same as myself and my father. I suppose if we did naughty things, maybe Craig got a little bit more, more harsh - not harsher, but a little bit more told off than I did. But we both got told off and we both used to get belted."[65]
"We used to get it across the bottom, and the back of the legs.
Yes. And how frequently would that happen? - Fairly frequently; not every day, or anything like that, but usually at least once a week or, you know, sort of a couple of times a week.
At the time, did you feel that it was fairly administered? - Not always, no. I don't believe we did things that deserved it. I don't believe that we were any different from any other children. We just seemed to get belted if we, if his mood changed, if he just went from being normal to angry. "[66]
"As I grew up, when we moved back to Perth, yes, he used to drink. He used to sit and drink big brown bottles - you know the beer that used to come in the big brown bottles, he used to drink those. It seemed like he drank a lot of them on - he would sit and drink. We weren't allowed to talk when it was news time, we weren't allowed to talk at the table. He would sit and drink until the dinner was ready, or he would sometimes come home and we had already had dinner and been shoved out of the way.
You say you were 'shoved out the way'; did that happen frequently? - Mum used to - yes, Mum used to try and get us bathed and ready for bed, if not in bed before Dad would come home, or at least in our rooms quietly reading."[67]
120 Mrs Wright gave evidence that in the last few years before she left home at age 28 (that is, in about 1984) her father was still moody, still drinking. Her brother had moved out. Her father would pick on her mother. He would get quite angry.
"Usually, he would sort of be alright, and then all of a sudden he was angry. It was not really anything that manifested itself. He seemed to have this sort of line that all of a sudden he crossed over, and he was from one to the other."[68]
121 Trevor Robbins is a retired man who served in the Navy between January 1960 and January 1980 in the shipwright field. He gave evidence, which I consider was generally credible, concerning the plaintiff. His evidence addressed the plaintiff's personality and behaviour whilst in the Service and thereafter. I do not consider that the witness' evidence was impeached because, as emerged in cross-examination , he had himself been a claimant[69] or because his brother in law is a current claimant.[70]
122 The gist of the relevant part of the witness's evidence was as follows:
• He first met the plaintiff in 1962. The latter was then instructing at Nirimba. It was his impression that the plaintiff was very knowledgeable, very easy to speak to, extremely confident, and fair and reasonable in his dealings with people.
• He joined Melbourne in January 1964 as a shipwright. The plaintiff was his superior, and in charge of about 20 men. It was a close-knit group. The plaintiff impressed as being knowledgeable and fair but firm. He was easy to deal with. He would share a joke, but made it clear that he would not tolerate too much mischief. He impressed as a leader. The witness would have followed him anywhere.
• On the night of the collision, three times the plaintiff expressed concern about having to put him (or in one case prospectively put him) into potentially hazardous situations.
• He remained posted to Melbourne during and after the period - that is, up until December 1964 - that the plaintiff remained so posted. He noticed "some considerable changes" in the plaintiff, who seemed "to develop a very short fuse", would be very intolerant, less capable of discussing things.[71]
• He came across the plaintiff quite a few times up to about 1967 or 1968. On each occasion the plaintiff did not seem very happy.
• In the mid-1980s, travelling on MMA aircraft, he met the plaintiff on a few occasions; and once he came across the plaintiff in a hotel at Derby. On this last occasion the plaintiff, when he first saw him, was affected by alcohol and drinking alone. The plaintiff continued to drink in company with him, and was still drinking when he went to bed.
• Cross examined, he said that before the collision he would describe the plaintiff as strict but fair. After the collision he would say that the plaintiff was unreasonable.
123 Thomas Lincoln is a retired Navy man. He commenced service in 1951 and, as I understand it, served for 30 years. After his later civilian career ended in 1999, he took up work, which he apparently continues, as a pensions officer with the Department of Veterans' Affairs and as a welfare advocate with the RSL.
124 Lincoln gave evidence of having met the plaintiff in various circumstances between 1952 and very recent time. The gist of his evidence[72] was as follows:
125 In all, Lincoln gave credible evidence about his contact with the plaintiff. He did not serve with the plaintiff before 1966, and so his "before and after" evidence was more limited than that given by Robbins; but it was consistent, so far as it went, with the evidence of Mrs Stafford and Mrs Wright. I do not consider that it was overstated. So, for example, the witness made a reasonable concession about his own difficulties sleeping when on Sydney. It does not follow from such evidence, I add, that the sleeping difficulties of the two men were the same. Lincoln's evidence suggested not merely that the plaintiff had difficulty sleeping, but that his sleep was disturbed.
126 Leslie Passmore was employed by MMA between 1966 and 1991. Until 1984 or thereabouts he was employed as a clerk or credit manager in the finance department. Then he became an Inspector of Traffic and Services, a title which later changed to that of Project Officer. His superior, the Project Manager, was Barry Solomon. The plaintiff was one of the maintenance officers in the field, and reported to the witness on a mostly informal basis.
127 The plaintiff, as maintenance officer, did most of the work around Perth. Another maintenance officer attended to the North-West work. Occasionally the plaintiff did a trip to the North-West.
128 The plaintiff, according to the witness, was a very good tradesman. He mostly worked alone. He had no supervisory role. He liked to do a job his way, which was usually the right way.
129 He, the witness, found the plaintiff to be a nice chap. He had no reason to think that the plaintiff drank too much, though he did not have a regular social relationship with the plaintiff.[75] The plaintiff appeared not to drink to excess and to enjoy himself on a trip by MMA employees to Bali in 1976.
130 Cross examined, the witness gave an account of the amount of beer that was consumed during the Bali stay. It cast light on his perception of what should be accounted inconsequential drinking, a perception which stretched the conception of what should be considered inconsequential.[76]
131 Further cross-examined, the witness said that he could not really recall the plaintiff having told him that he had been in the Navy. He knew nothing (in the period of the plaintiff's employment) of the plaintiff having been in charge of a considerable number of people.
132 The plaintiff, said the witness, showed no inclination of wanting to do anything but hands-on work.
133 In answer to my questions, the witness agreed that between 1973 and 1989 the plaintiff had worked alone in a job which carried no prospect of advancement within MMA. There was no opportunity for the plaintiff to advance to a position where he would be supervising any men, let alone 20 men.
134 Passmore's evidence, in my opinion, generally advanced the plaintiff's case. The picture which he created was of a man who performed hands-on work, to his own rigorous standard, working by himself and without prospect of advancement - let alone achieving a supervisory role - over a long period of time. That is compatible, I consider, with a pattern of social isolation different aspects of which were described by the plaintiff's wife and by Mrs Wright, Robbins and Lincoln. Further, whilst the men were no more than work-connected acquaintances, they worked in the same organisation for 16 years, and had some contact even before the witness became the plaintiff's superior. Yet the witness, it seems, never learned that the plaintiff had been in the Navy. Bearing in mind the fact that the plaintiff had served 20 years in the Navy, and that he had been involved in the Navy's pre-eminent peacetime disaster, the fact that Passmore did not even learn that the plaintiff had been a naval man suggests that the plaintiff was reluctant to speak about his Navy past.
135 Barry Solomon was employed by MMA between 1952 and 1991. The plaintiff was a member of his maintenance team.
136 According to the witness, the plaintiff was a very capable person. He liked to work on his own where possible. He did not like moving out of Perth, and did little work in the North-West. He was inclined to be a bit short at times, particularly if interrupted in what he was doing. His trade ability was excellent, but he lacked skills beyond that.
137 Cross-examined, the witness agreed that the plaintiff seemed to seldom mix with workmates after work. He exhibited no capacity to work in a supervisory or leadership role. He lacked the range of skills necessary for a salaried position at MMA. He did not attend annual ex-employee reunions which were held after the 1991 retrenchments.
138 In my opinion, what may be said of Passmore's evidence may be said of Solomon's evidence more definitely still. His evidence emphasized the plaintiff's isolation, both in his work and socially (so far as his workmates were concerned) between 1973 and 1989. It should be accepted that the plaintiff did not have the skills necessary for a supervisory role at MMA. But what he had done was to place himself in a job, and remain in a job, where the supervisory skills which he had undoubtedly demonstrated in the past could never be put to use.
139 Laurie McCracken was, as I have said earlier, the Shipwright Sub-Lieutenant on board Melbourne on 10 February 1964. He served in the Navy between 1947 and 1977. The period in which he had a professional association with the plaintiff began in November 1963, when he was posted to Melbourne. It ended in December 1964 when the plaintiff was posted to Leeuwin.
140 According to the witness, as the plaintiff's immediate superior they would speak in the morning. He would give the plaintiff priorities. The plaintiff would then organise the work of the crew. Before the collision the plaintiff's work was "high class, very competent". His character and demeanour were "very, very good."[77] The witness had not seen the plaintiff drink to excess before the collision .
141 The witness described the sequence of events on the night of 10 February 1964. On his account he was very much in charge. He was the first of the shipwright detachment to arrive at the damaged forward section. He gave orders for the installation of emergency lighting. He observed the areas of damage and tested to ascertain the extent of damage. He asked the plaintiff and his team to organise shores. Having reported to the Captain, he returned to the damaged area and marked where the shores were to be put. The plaintiff was there, but the witness had to see that the shoring was all solid. When the shoring was done, he organised a rotating watch. He, the witness, remained in the immediate area throughout the journey back to Sydney. He gave no order to the plaintiff to organise shipwrights to go over to the stern section of Voyager. The Captain would have told him had he given the plaintiff such an order.
142 Following the collision, and until the ship docked, the plaintiff was competent, on the ball. He saw no difference in the plaintiff's demeanour.
143 In the next two to three weeks, the witness said, he saw the plaintiff each day. The latter carried out his duties normally, and to the witness's entire satisfaction.
144 When the ship returned to sea, months later, the plaintiff performed his work as before. The shipwright crew carried on their normal duties. The plaintiff appeared to be popular with the men before and after the collision. The plaintiff never came on board, after the collision, the worse for wear because of alcohol. At their morning meetings the plaintiff did not appear to be affected by alcohol or its aftermath.
145 Cross-examined, the witness agreed, in substance, that a divisional officer's report is important as a permanent record of a serviceman's assessment by his superior. Initially he denied ever making a bad remark about the plaintiff. When the report of 23 December 1964 to which I have earlier referred was put to the witness, he initially disputed that it was intended to be a negative remark.[78] In time he conceded that it was critical of the plaintiff, but would not accept that it reflected on the plaintiff's ability to readily accept command.[79] He said that the report arose out of a particular instance in which the plaintiff had not obeyed a command, and in which he had resented being told by the witness to now obey the command.[80] He agreed that the incident was not the plaintiff's normal way of going about things.[81]
146 Further cross-examined, the witness denied that there was, in his perception, a risk that the shoring would fail on the return journey. He agreed, however, that the ship proceeded at only about four knots, a decision having been made not to sail to port sternwards.
147 A good deal of McCracken's viva voce evidence was, I consider, beside the point. By that I mean that there was no debate that the plaintiff performed his duties other than very competently before, on the night of, and in the months following the collision. Nor was it part of the plaintiff's case to say that he was ever alcohol-affected when on duty. Further again, criterion A of DSM-IV necessitates consideration of the incidents of a traumatic event in part by reference to the perception of a particular individual. Such perception will not necessarily be revealed by the adequacy of response of a trained man to an emergency for which he is trained to respond. Evidence adduced through, for example, Professor McFarlane and Professor Shalev shows that trained men who have presumably responded well during emergencies nonetheless suffer PTSD.
148 McCracken did, however, give some evidence which assisted the defendant: first, that, in effect, the plaintiff's demeanour was the same before and after the collision; and, second, that the plaintiff appeared to be popular with his men before and after that time. Such evidence was in my opinion compromised by two considerations. First, McCracken's report of 23 December 1964 at the least revealed conduct by the plaintiff which was very much at odds with his reported previous respect for authority. It was an incident - assuming it was one only - which McCracken considered merited a formal adverse entry in the plaintiff's record. Second, I think that a member of the shipwright crew - in this instance Robbins - would be better placed than an officer to pass upon relations between members of that crew and their senior NCO.
149 Brian Swan was a naval man from age 15. He retired as a Captain. He met the plaintiff, but had nothing really to do with him, at Nirimba in 1956. He served with the plaintiff on Sydney in the period from January 1968 to December 1969. He was Shipwright Lieutenant, the plaintiff's superior. In the period in question he put the plaintiff in charge of apprentices. Sometimes as many as 50 were on board. The witness considered the plaintiff to have the necessary maturity and experience. He considered that the plaintiff was "very level-headed, nice".[82] He thought that the plaintiff got on with the apprentices very well. He had no sense of over-discipline. The plaintiff did his job most competently. His assessment of apprentices, the witness thought, was very fair. He was not aware of the plaintiff having any health problems. He thought that he and the plaintiff had discussed one aspect of the collision about once. He never saw the plaintiff intoxicated.
150 Cross examined, the witness agreed that there was one instance where he and the plaintiff disagreed over a particular training matter. The plaintiff had gone to his boss. He, the witness, had realised that the plaintiff was correct, and he had backed off.
151 Further cross examined, the witness said that in his Navy career in excess of 1000 Chief Petty Officers had served under him and that he had first been asked to recall his appraisal of the plaintiff about four to six weeks before giving evidence.
152 The aspect of Swan's evidence which most assisted the defendant was his assessment of the relationship between the plaintiff and the apprentices. There was also his evidence that he had not seen the plaintiff affected by alcohol.
153 But the witness' evidence was not one way. Cross examination revealed the occurrence of a dispute between the men, a dispute which did not end between them, but which involved the plaintiff going over Swan's head to a superior officer. Such action seems inconsistent with the respect for authority which the plaintiff apparently demonstrated before the collision. It bespoke, I think, a certain intolerance which would doubtfully be explained by the plaintiff being older and more experienced than his officer superior.
154 Another matter telling somewhat in favour of the plaintiff's case is, I consider, the fact that the two men scarcely spoke about the collision. It could be expected that Swan knew where the plaintiff had been posted in February 1964. Even if he had asked no questions of the plaintiff, it seems odd that, if he had been willing to talk about the matter, the plaintiff would have said almost nothing about the collision to an immediate superior with whom he was in daily contact.
155 Otherwise I have reached these conclusions: First, Swan's evidence was not infected by ill-will towards the plaintiff by reason of the dispute between them which the plaintiff took to a superior. Second, such evidence was probably broadly reliable despite the elapse of years. Third, the witness's evidence was limited in its scope. It did not address the period before the collision; and it addressed matters from the perspective of officer and NCO, not from the perspective of NCO and men.
156 I turn to the medical evidence. I begin with the evidence of Dr James Fellows Smith, who is a consultant psychiatrist with British and Australian qualifications. He has practised as a psychiatrist since 1989. His practice has included the treatment of patients with psychological and psychiatric injuries arising out of traumatic events. It appears that he has treated many former naval personnel in private practice, and a relatively few Melbourne/Voyager crewmen for medico-legal purposes. The plaintiff was, as the doctor recalled it, the first former crewman whom he interviewed for medico-legal purposes. There was no reason for me to think that the witness was, by general inclination, partisan in favour of the plaintiff.
157 The witness interviewed the plaintiff and his wife on two occasions in October 2001, and again interviewed the two of them in May 2004. On each occasion he diagnosed the plaintiff as suffering from PTSD attributable to the collision. He considered that the plaintiff made complaint or exhibited behaviour fulfilling each of the criteria A-F of DSM IV. He opined that the plaintiff's condition had been exacerbated by his many physical problems since 1989.[83] In December 2004 he reported again, having read the transcript of the plaintiff's evidence on the de bene esse examination, and having viewed the video tapes. His opinion was unchanged.
158 The doctor did not shrink from recognising the complicating feature that by the time he examined the plaintiff, and when he re-examined, the plaintiff had suffered more than a decade of serious physical ill-health. None the less, he concluded that PTSD was present on each occasion; and that it was related to the collision. He explained the plaintiff's apparent failure to tell naval doctors about the psychological effects of the collision as being in part due to lack of proper understanding and in part avoidance.
159 With reference to the plaintiff's de bene esse examination as he had viewed and read it, the doctor particularly commented that the plaintiff's tendency to deny symptoms was evident throughout. He opined that on one occasion the plaintiff had responded in significant fashion to a so-called "cue question". He "had demonstrated evidence of dissociative flashbacks of his traumatic experience".[84]
160 The witness also commented on pauses between the plaintiff being asked questions and responding. One of them, he said, he had timed at exactly 60 seconds, and he
"got the sense that [the plaintiff] was observing a minute's silence for his lost mates."[85]
161 The witness referred to evidence on CT scan[86] that the plaintiff had suffered an infarct in the grey matter nucleus in the base of the brain. That damage, the doctor said, explained, or could explain, certain features of the plaintiff's presentation on examination. But it did not gainsay his diagnosis.
162 The main point of cross-examination was directed to the proposition that the plaintiff, when cross-examined, had said that he could not identify "images" or "flashbacks". The doctor's position was summarised, I think, in these questions and answers
"I need to complete your information as to why he would say, at page 101, that he can't remember the content of the flashback, in the sense that he was asked 'Flashbacks of what?' and he said 'I don't really remember'? --- The dissociative type of flashback I think would be on the same terms as compartmentalisation of the cognitive and the effective components of that experience, and he has problems with verbalising that, those experiences. In fact, he has an avoidance style of talking about some of those experiences; but also, in addition I believe he has problems with his attention. That needs to now be drawn to those experiences, when he experiences them. It is quite possible that he might be fully aware of an answer "No" - it is very a fine point.
If you look at the wording, what he says - for example, if you said 'Do you have thoughts?' he might say 'No', but if he said 'The collision is always in my mind' he has an awareness of those, those thoughts there, but he answers 'I can't say' on occasions so he has trouble with the semantic processing of that experience."[87]
164 Another issue raised in cross-examination was whether the plaintiff's reported reaction to work done by Garden Island personnel in connection with repairs to an anchor[90] should be regarded as evidence of the plaintiff having become less tolerant (as a feature of PTSD) than had been the case before the collision. The witness was of the opinion that it ought be so regarded.[91]
165 Again, the doctor was cross-examined to suggest that the plaintiff's civilian work record after 1970 stood opposed to the notion that the plaintiff was then suffering from PTSD. He refuted that suggestion.[92] His reputation was compatible with conclusions that I have already expressed in respect of evidence given by the plaintiff, Solomon and Passmore.
166 I consider that the witness gave, in the main, coherent and credible evidence. He seemed to me to make allowance, so far as he could, for the limitations imposed by the fact that he did not examine the plaintiff until 2001. The attack on his opinion was essentially based on the content and reliability of accounts given by the plaintiff from time to time about persisting intrusive recollections or flashbacks. Whether the plaintiff did suffer the same, and if so their content, was a matter of dispute at trial. The witness gave an explanation why the plaintiff's account might have varied over time. The likely validity or otherwise of that conclusion must later be considered.
167 The witness did give evidence about several matters about which I am, to greater or lesser extent, unpersuaded. I have in mind his evidence about the duration of and explanation for a particular pause between the cross-examiner's question and the plaintiff's answer (although the witness said in cross-examination that he did not suggest that the plaintiff consciously selected that period); and his evidence that symptoms indicative of a dissociative reaction could be observed in the plaintiff's conduct when he was asked a particular question in cross-examination. Those caveats, however, have not caused me to doubt the usefulness of the doctor's evidence.
168 Dr Helen Stain is a highly qualified clinical psychologist. She had been in practice since 1996. The primary focus of her clinical practice has been with patients suffering from psychological symptoms as a result of exposure to various kinds of trauma.
169 The witness consulted with the plaintiff on 2 occasions in November 1990, for a total of about 6 hours. The consultations included her taking a history from the plaintiff, the essence of which she set down in her report dated 30 January 2001.[93] She also separately interviewed his wife. She had the plaintiff complete mind over mood symptom checklists. Then she administered three tests: A self assessment report specific to PTSD; a structured interview for PTSD; and the Minnesota Multi-Phasic Personality Inventory (MMPI).
170 The symptom check lists showed that the most prominent symptoms were anxiety related.
171 The diagnostic self report showed that the plaintiff met the criteria for a diagnosis of PTSD - with a moderate symptom rating of chronic duration, and with significant impairment in functioning.
172 The structured interview for PTSD confirmed a diagnosis of PTSD. It showed a significant impairment in social and occupational functioning.
173 The MMPI is directed to a comprehensive assessment of personality functioning. In the plaintiff's case it confirmed then-current high levels of anxiety and depression. His outlook was pessimistic, with a high level of concern for his physical health.
175 The doctor opined that the plaintiff's PTSD had significantly affected his functions for many years. He had maintained employment by working alone. Even so, he had continued to experience high levels of arousal and irritability when at work. His family relationships had suffered considerably. He showed marked social discomfort - this leading his withdrawal from others. There had been emotional detachment and numbing. Other features were irritability, argumentativeness, an increase in drinking, a disturbed sleep pattern and "strong cognitive avoidance."
176 The doctor noted in her report of 30 January 2001 that the plaintiff
"presented as a credible and genuine historian who felt great discomfort in disclosing his emotional distress."
That conclusion is certainly compatible with the impression which the plaintiff created with me on viewing and listening to his evidence.
177 Dr Stain reported again on 19 December 2004, having considered the evidence given by the plaintiff at the de bene esse examination. Her opinion was unchanged. She made the point that by reason of understandably focussing upon his impending death, and because of the effect of the pain relief medication which he was then taking, the plaintiff's evidence about his traumatic experience and his feelings needed to be carefully considered; the plaintiff having earlier presented to the witness as being "rather withdrawn, avoidant - socially and emotionally, irritable, impatient and unwilling to engage his emotions."
178 The main focus of cross-examination of Dr Stain was whether the plaintiff had provided information or test results which enabled satisfaction of all the criteria of DSM IV - in particular whether the plaintiff had provided information on testing which satisfied criterion B.
179 It is, I think, clear that the plaintiff gave contradictory test answers to questions concerning criterion B; and that answers he gave in which he denied the presence of criterion B features could not sit with the history he had earlier given the doctor.[96]
180 It was put to the witness that many of the "non-re-experiencing" symptoms reported by the plaintiff could be attributable to anxiety and depression relating to his then-present physical illness. The doctor did not agree.[97]
181 Those aspects of the cross-examination aside, parts of the history taken by Professor Bryant from the plaintiff were read to the witness; and a few other parts of his report were mentioned and her opinion sought. Essentially she made no comment about the matters of history, save to point out areas where the history she had taken was inconsistent with the history taken by the other doctor; and to ask whether
"the Professor is saying that if the person doesn't spontaneously blurt out these symptoms at the initial assessment or in interview, then they don't have PTSD?"[98]
182 As to tests used by Professor Bryant to express opinions that the plaintiff did not suffer from PTSD, and that the plaintiff had presented in "an excessively virtuous moral light", the witness gave evidence, in short, that the tests had been in the one case misused[99] and in the other case misinterpreted.[100] She explained why that was so. As to Professor Bryant's observation that it was inconsistent to suggest that the plaintiff could suffer PTSD and not be distressed by salient reminders of the collision, Dr Stain made, I think, an important point. It was not a question of a doctor making a general list of things that he or she thinks might stir recollection:
"'Salient' means what is salient to that person ... there might be certain things that are salient to him and not to someone else ... [reminders can be] personally specific."[101]
183 In my opinion Dr Stain was a well-informed, impressive and persuasive witness. A distinct, and legitimate, attempt was made by the cross-examiner to get her to abandon or modify her opinion by reference to the opinion of "Associate Professor" or "Professor" - the titles were often repeated - Bryant. He was a witness called for the defendant. Dr Stain stood her ground, explained her opinion, and on several occasions at least pointed up apparent flaws in Professor Bryant's methodology and opinions.
184 The main focus of the attack on Dr Stain's opinion turned upon whether the plaintiff had provided a history making out the requirements of criterion B of DSM IV. Dr Stain's evidence in that connection assisted the plaintiff. So, inter alia, the doctor made it clear that obtaining relevant material is not confined to particular answers to particular questions in the course of an extensive interview in which a considerable history is obtained from a patient and his wife (or husband). Particularly that must be so where the history given and later answers to particular questions do not coincide.
185 Neither Professor McFarlane and/or Professor Hopwood interviewed the plaintiff. Their evidence was mainly directed to other issues agitated at trial. But each of the witnesses adverted to issues raised in the present connection.
186 Professor Alexander McFarlane, whose standing in psychiatry, most particularly concerning PTSD, appears to be very high world-wide, and who has held and/or holds advisory positions for, inter alia, the Australian Defence Force, the Department of Veterans Affairs and the UK Ministry of Defence, commented, pertinently, about various aspects of the report of Dr Milton of 27 February 2003. In short, he opined in his report dated 27 December 2004[102] that Dr Milton had misused certain medical literature to advance opinions to do with the faults of memory, agreed with the doctor that prospective assessment of symptoms will generally be more reliable than retrospective recall[103] and disagreed with the doctor's proposition that substance abuse is not caused by experiencing stressful events (whilst observing that personality, genetic and social factors are not to be ignored).[104]
187 Dr McFarlane also commented in his report, pertinently for present purposes, about the "phenomenon of avoidance". He said this:
"The uniqueness of PTSD lies within the group B criteria that describe the re-experiencing phenomena where the memory of the traumatic event recur and cause significant distress to the individual. Essentially, as van der Kolk and van der Hart (1991) have emphasised, PTSD is a disorder of memory, where there is a failure of normal integration of the traumatic experience. Thus, the re-experiencing symptoms reflect the primary characteristic of the disorder."
"The manifestations of PTSD can best be understood as being driven by several simultaneous processes. Firstly, the repetition of traumatic memories is a well demonstrated fact of traumatic experiences. This is probably in part because of the way in which these memories are laid down and the continued difficulties which the individual has in processing them and forming a complete representation. The triggering of these memories is also consequent upon primitive conditioning mechanisms, which are critical to many aspects of human learning. These serve to sustain and kindle the increased arousal. The avoidance and numbing represent homeostatic mechanisms, where the individual attempts to modulate and shut down his or her hyper responsiveness. The disorder arises because of some individuals' inability to progressively quench or shut off the acute stress response, which is ubiquitous at times of exposure to such events."
"... the nature of behavioural avoidance is often subtle where the individual will have little awareness of the nature or origins of their behaviour. The individuals will often make considerable efforts to shut off their memories by using destruction and focussing on other activities.
In conclusion, avoidance is a component of PTSD. It is possible to make the diagnosis in the absence of these phenomena, if the numbing aspects dominate the clinical picture. Also, an individual's avoidance can be highly circumscribed, where many aspects of the experience can be tolerated but some idiosyncratic aspect of the trauma will be associated with avoidance. For example an individual who has PTSD following an MVA may be able to drive a car with little anxiety but avoid a location that reminds him/her of the accident."[105]
188 Viva voce, Professor McFarlane gave evidence that if a person has had a normal sleeping pattern before trauma and after trauma there is observed evidence of interrupted sleep, nightmares as indicated by groaning and waking in a sweat, the circumstances strongly suggest that the dream content is likely to be related to the trauma in some way.[106]
189 The Professor also gave evidence that it is not inconsistent with the presence of PTSD acquired from a military service event that the sufferer will stay in the military for a period. He cited several studies in that connection.[107] Further, there are sufferers who can continue to perform adequately in a relatively undemanding job.[108]
190 Further again, the witness gave evidence that there is a significant body of evidence that many people in the community are not able to recognise psychological disorders; but that another reason for sufferers not seeking help is so as to avoid addressing traumatic memories.[109] Avoidance, he said, has been shown to increase as a feature of PTSD with the passage of time after the initiating trauma.[110]
191 Still further, Professor McFarlane gave evidence that Dr Bell was simply wrong in stating in his report dated 10 February 2005 [111] that "flashbacks" are a modern day phenomenon inspired by cinematographic technique rather than representing something truly experienced. They are a feature long-described.[112]
Said that inclusion of criterion A had little effect on the diagnosed prevalence of PTSD. A trial had showed the very few people satisfied Criteria B, C and D but not criterion A.[114]
Said that, in light of criterion B, he did not see how a diagnosis of PTSD could be made absent the presence of one at least of flashbacks, nightmares or intrusive thoughts.[123]
193 In my opinion Professor McFarlane was a thoroughly impressive witness. His evidence in the present connection was for the most part not controversial. Evidently his opinion was at odds with certain statements made by Drs Milton and Bell. In respect of that clash of opinion I definitely prefer Dr McFarlane's evidence. Of this, more later. Professor McFarlane's evidence in the current context was also not entirely consistent with opinions expressed by Professor Shalev. But the pertinent differences of opinion were not great, for the most part matters of emphasis. Where there were differences beyond that, I think that Professor McFarlane's evidence, well supported by reference to learned articles, was persuasive.
194 I go to Professor Hopwood's evidence, so far as it was pertinent in the present connection.
195 Professor Malcolm Hopwood is a consultant psychiatrist at the Austin Repatriation Medical Centre and Associate Professor in Psychiatry at the University of Melbourne. In his clinical practice he has had extensive experience with cases of PTSD. His MD thesis concerned the neuroendocrinology of post traumatic stress disorder. I take him, from his qualifications and experience, to be highly qualified in the pertinent area.
• In his experience the majority of people diagnosed as suffering from PTSD are specifically aware of the troubling nature of reliving the event. It is not uncommon, however, that a person will not be aware of the content of all his or her dreams.[124]
• There is quite a wide variation in how individuals understand the experience of symptoms. Particularly in the 1960s, some may have considered their symptoms to be part of what happens in life after a traumatic incident. Again, some would be aware of disturbing symptoms and probably feel they would like help, but could not face seeking treatment because of the anxiety associated with doing so.[125]
• The most common presentation involves either flashbacks or nightmares.[126]
197 In re-examination Professor Hopwood said that some sufferers deny psychological symptoms for fear of being asked to describe events that they find overwhelmingly arousing to discuss. Denial of difficulty is very common, and can be very prolonged. He gave a powerful example based on his own clinical experience.[127]
198 In my opinion Professor Hopwood's evidence, not only with respect to the matters just mentioned, but also generally, was marked by fair-mindedness and erudition. In the present connection I consider that it accorded with the body of learning about PTSD and ought be accepted.
199 I turn to the medical evidence adduced for the defendant in the present connection. Dr Rodney Milton was the first witness called.
200 Dr Milton qualified as a medical practitioner in 1960. He obtained postgraduate qualifications in psychiatry in 1968, 1978 and 1981. He had teaching positions at the University of Sydney at different times. In 1970 he became a civilian consultant at the RAAF base at Richmond, treating members of the service for alcohol addiction. From that year until 1986 he engaged in private practice. From 1987 his practice has been, according to his curriculum vitae, "limited mostly to forensic psychiatry." His letterhead, at all times relevant to this matter, specified his area of practice as "Forensic Psychiatry".[128]
201 The doctor interviewed the plaintiff on 3 February 2003 for over 2 hours; and then briefly interviewed the latter's wife. That was the only occasion upon which he interviewed either of them, although he provided a second report, in October 2004, arising out of the plaintiff's examination de bene esse.
202 On the occasion that he interviewed the plaintiff, Dr Milton recorded a videotape. Both the videotape and a transcript of the interview derived from the videotape went into evidence.[129]
203 The doctor's conclusions can be quickly stated. As a result of his interviews with the plaintiff and his wife, and having read documents provided to him by the defendant's solicitors, he concluded that the plaintiff was not suffering and had never suffered from PTSD arising out of the Melbourne/Voyager collision. In consequence of reading the plaintiff's de bene esse examination, his opinion was confirmed.
• Stated that it is well-recognised that memory is faulty.[130] The plaintiff and his wife had presented as honest and sincere, but it was probable that their recollection had been significantly altered by the litigation process.
• Recounted a history which included the plaintiff telling him -
+ that he had left the Navy because of family problems with his son;
+ had missed the Navy, and had been unsettled in work for a period;
+ had ceased work after suffering a serious leg injury.
• In a section entitled "The Collision", set out at some length reasons why, in his opinion, the incident was unlikely to have produced anxiety; opining that crew members on board Melbourne who were able to engage in familiar activity after the collision were likely to have found it reassuring.
• Noted in that section an abbreviated account given by the plaintiff of the incident, his activities thereafter, and his concerns. According to that account, the thing which had most worried the plaintiff was the feeling of being blamed unfairly on return to Sydney.
• Noted the plaintiff's history of subsequent heavy drinking, argumentative and irritable behaviour, being hard on the men (but not more so than before the collision), and avoiding thinking about the incident.
• Recorded a history that at time of interview the plaintiff was not mixing much, and his sleep pattern was poor.
• Recorded a history that the plaintiff had coped "all right" with his multiple physical problems since 1990; but opined that observations which he made of the plaintiff when the latter was answering questions about those problems meant that the same were having a considerable emotional effect.
• Recorded a history of the plaintiff being told by his wife that he moaned and groaned in his sleep; but that the plaintiff had himself said that he did not have bad dreams.
205 To specific questioning, according to the doctor's report, the plaintiff had said that -
• He could not say what was mainly in his thoughts - which the doctor took to mean that the plaintiff's mind was not constantly occupied by intrusive distressing thoughts.
• He was tense, worrying about domestic and financial issues and his health.
• He now had thoughts, quite a bit, about the collision.
• He had been able to go to Rottnest Island on a cabin cruiser without trouble.
• The plaintiff showed no hypervigilance or other aspects of autonomic arousal.
• There were no major signs of the plaintiff drinking to excess.
• The plaintiff performed a simple test of cognitive function perfectly.
• Evaluation of the plaintiff's experiences indicated that any stress was insufficient to have had major adverse emotional effect.
• Complaints by the plaintiff that he had become irritable, short tempered and drank to excess after the collision were not supported by the Naval record.
• Naval medical officers would have taken emotional symptoms seriously, and would have recorded them. The silence in the medical records was significant.
• The plaintiff's life history was that of a normal person.
• Any depression was attributable to the plaintiff's serious physical illnesses. The plaintiff had acknowledged this in his 1998 claim for Veterans' Affairs benefits.
• The literature suggests that alcohol abuse is not caused by experiencing stressful events.
208 I go to Dr Milton's second report, which addressed the plaintiff's examination de bene esse.
209 Concerning the plaintiff's account of the collision and its aftermath, the doctor opined that the plaintiff's experiences were not extreme, and insufficient to cause permanent severe emotional effects.
210 Concerning the symptoms allegedly experienced by the plaintiff, Dr Milton noted that his method was to ask non-specific questions; contrast legal methodology. The plaintiff had complained of symptoms in his evidence which he had not mentioned to the doctor.
211 Concerning the plaintiff's alleged intolerance and irritability, Dr Milton opined that the evidence showed the plaintiff to have been intolerant and irritable before and after the collision.
212 The doctor took it to be important that, as the plaintiff had conceded, he had a photograph of Melbourne on his wall at home. This showed an absence of avoidance behaviour; as did going boating with his son-in-law and enjoying it.
213 Reviewing the plaintiff's evidence, the doctor concluded that taken as a whole it did not indicate a significant increase in alcohol consumption after the collision. Possibly there had been a gradual increase over time. This is characteristic of regular drinkers of alcohol.
215 In cross-examination, the witness agreed that in his forensic practice, which had been near enough to the entirety of his practice for a decade, he had examined a number of persons whose claims arose out of the Melbourne/Voyager collision. All the examinations had been conducted at the request of the Commonwealth. PTSD could have been expected to develop in some people after the collision. He had not diagnosed PTSD in the case of any person - they had all been Melbourne crewmen - whom he had examined.
216 Thus far the cross-examination showed only, as a cynic might expect, that the particular party had made use of a non-practising psychiatrist whose opinion was, at least statistically, unlikely to be adverse to it - which would not give the lie to the doctor's opinion in a particular case. But that was not the end of the cross examination. The doctor's evidence was attacked on the basis that he had interviewed the plaintiff in such a way as to produce an unfairly distorted and incomplete account of events - this facilitating a conclusion that the plaintiff did not suffer and had never suffered from PTSD related to the collision.
217 The first thread of this cross examination was that the witness had departed from his asserted practice of asking open-ended questions so as to confine the plaintiff's account of the incident of symptoms arguably related to PTSD. The witness was taken to -
• The interchange concerning the frequency of arguments between the plaintiff and his wife.[135]
His questioning of the plaintiff with respect to the amount of alcohol consumed by the latter.[136]
• His attribution of depression to the plaintiff's bladder problems.[137]
• His putting to the plaintiff - after the latter had reported his wife saying that he moaned and groaned in his sleep:
• His questions after the plaintiff told him of going on the cabin cruiser to Rottnest Island.[139]
His questions of the plaintiff, twice repeated, in the form that the latter was not in a panic in the period shortly after the collision.[140]
218 Second, the doctor was cross examined to suggest that he did not follow up aspects of the plaintiff's history concerning the incident, or accounts of symptoms potentially relevant to PTSD. Examples were his failure to follow up with Mrs Stafford her account of the plaintiff's apparent nightmares, his moaning and groaning,[141] or with the plaintiff his abbreviated account of the proposed use of shipwrights in a boarding party to Voyager.[142]
219 Third, it was put to the doctor had at times he had headed the plaintiff away from discussing a possibly relevant complaint. One instance was his response to the plaintiff's remark that he was then thinking quite a bit about the collision, re-living being on the Melbourne.[143]
220 In my opinion there was very substantial force to the thrust of this cross-examination. It was difficult to believe that the pattern of the interview was not as the plaintiff's counsel contended.
221 Further, in my opinion, some of Dr Milton's attempts to deflect criticism were unimpressive. Instances were his handling of cross-examination about the possible significance of Mrs Stafford's account of her husband having nightmares after the incident[144] and his attempt to rely on material of which he did not know when he wrote his first report to support his contention that known circumstances did not fit the plaintiff's history.[145]
222 What I have so far said provides good reason for doubting the reliability of the doctor's opinion. For it was founded on a somewhat confined and skewed account of the plaintiff's history before and after the collision. Beyond that, however, the doctor made certain concessions upon a state of facts which he was asked to assume truly represented the situation. Thus, cross-examined on the footing that Mrs Stafford's account of her husband suffering nightmares after but not before the collision had been accurate, Dr Milton agreed that one could attribute the same to the collision.[146] Again, taken to the history of the collision which the plaintiff had actually given him, the doctor agreed, in effect, that it had been "a pretty powerful experience".[147] Further, he agreed that the job at MMA was quite a dramatic shift from the plaintiff's service life. Whilst he characterised it as a way of the plaintiff accommodating the differences of civilian life, another interpretation was that it was a way of accommodating a PTSD sufferer.[148]
223 The witness was ultimately brought to the position that if the history given by the plaintiff and his wife, so far as they had emerged, had been corroborated by other material, it would have been reasonable to diagnose PTSD.[149] But he denied that in essence he had simply rejected out of hand what the plaintiff and Mrs Stafford had told him. So far as he had rejected their accounts it was because he did not feel it received adequate support, or was inconsistent with other data.[150]
224 I have spent much time analysing Dr Milton's evidence. I could have spent much longer, but only to emphasise issues thus far discussed. In the end, I do doubt both the validity of the doctor's methodology and his conclusions.
225 It must certainly be valid, in arriving at an opinion whether a plaintiff suffers or has suffered from a particular condition, to weigh the effect of material not provided by that person. No doubt, also, it is right to consider the fallibility of memory and the possible intervention of other causes of illness. But it is very difficult to escape conclusions that in this case Dr Milton -
226 I said a few moments ago that I doubted the validity of the doctor's opinion. It would readily be open to conclude that by intent he was not an impartial witness. But I err on the side of caution and do not find positively that he was partial by intent.
227 Richard Bryant is a highly qualified clinical psychologist. He took his undergraduate degree in 1983, and post-graduate degrees in 1986 and 1999. He is presently Scientia Professor in the School of Psychology at the University of New South Wales, having taught at the institution of since 1995. His curriculum vitae[151] is 33 pages in length, and details his many academic and clinical appointments, awards and scholarships, grants, consultancies both national and international, international collaborative work, publications, and conference and seminar presentations. It is evident that a considerable part of his work has involved investigation of both acute and chronic stress reaction.
228 The Professor assessed the plaintiff on the defendant's behalf over a three hour period on 26 June 2000. He prepared a report dated, 15 August 2000.[152]
229 The Professor took a history from the plaintiff about matters subsequent to the collision which included the following:
230 The Professor administered the MMPI test. It showed, he said, that the plaintiff had portrayed himself in an excessively virtuous light, that he had not exaggerated his symptoms, that he had not been markedly guarded in his responses and that his score on the PTSD scale was markedly below the cut-off for identifying the presence of the condition.
231 The Professor concluded, with reference to DSM IV, that the plaintiff had satisfied criterion A, had not satisfied any of criteria B, C, E or F, and had exhibited two of five criterion D circumstances. He opined that the plaintiff had not given an account of re-experiencing symptoms consistent with the accounts of people who genuinely have PTSD. He opined also that the extent of the plaintiff's experiences had not been very threatening - this bearing on the probability that he had developed PTSD.
232 Viva voce, the witness opined that it was not possibly to reliably conclude, on viewing a videotape of the plaintiff's de bene esse examination, whether he had experienced a flashback.
233 Cross examined, the witness did not squarely deny that from about 1998 he had given reports in 35 Melbourne/Voyager cases, and that in each instance he had concluded that PTSD was not present. All the claimants referred to him, he said, had been crewmen from Melbourne. He agreed that cases of PTSD could have been expected in the crews of both Voyager and Melbourne at an incidence of 15 to 20 percent. Statistically, he said, it was very possible that he had seen 35 claimants and had not found one sufferer.[153] Presumably that could be so, notwithstanding an adage which implies the contrary.[154]
234 That line of cross-examination prefaced criticism of the witness's history-taking and test methodology.
235 The witness gave evidence that as a treating psychologist he would use the CAPS test to identify the presence or absence of PTSD; but that in a medico-legal setting MMPI should be used. He agreed that a treating psychologist administering the former might find PTSD and that a forensic psychologist administering the latter might find the converse. He agreed that MMPI is definitely not designed for PTSD. Although sub-scales had been validated for PTSD, that was not why he administered the test.[155] He did not consider it anomalous that he should only administer a non-specific test in a medico-legal setting. He gave explanation why he did not administer a PTSD-specific test. Whatever be the validity of that explanation, the test which he did carry out was unlikely to be very helpful in detecting the presence or absence of PTSD; and I am quite satisfied by the evidence of Dr Stain that in two respects - to which I referred when discussing her evidence - what Professor Bryant drew from it was in error.
236 Because Professor Bryant did not administer any test specific for PTSD, his opinion that the plaintiff did not suffer from that condition depended almost entirely upon the validity of the history which he took from the plaintiff, the interpretation which he placed upon it, and his interpretation of what he characterised as "objective events". In that connection I should mention these matters:
237 First, the history taken by Professor Bryant from the plaintiff concerning the incident and its aftermath occupied 14 lines in a 13 page report. The witness estimated that taking this part of the history would have occupied probably about 15 minutes out of a three hour interview.[156] The pertinent history was grossly contracted. A number of very worrying features about the incident and its aftermath from the plaintiff's perspective, of which he gave evidence and about which he told other medical practitioners, were altogether absent. The Professor said that he had asked the plaintiff questions to elucidate the detail, but that responses had not been forthcoming. He agreed that avoidance was one possible explanation.[157] His conclusion that the experience had not been very stressful for the plaintiff, this going to the likelihood of the plaintiff developing PTSD, was in my opinion seriously compromised by the inadequacy of the history which he recorded, whatever be the reason for such inadequacy.
238 Second, the witness agreed that he had taken a history that the plaintiff's marital relationship had deteriorated after the collision; and conceded that it was possible this could be attributed to psychological upset as a result of the collision.[158]
239 Third, the Professor gave evidence that he recognised a link between PTSD and alcohol abuse, alcohol being sometimes used by a PTSD sufferer to try and relieve symptoms. He had taken a history of increased use of alcohol by the plaintiff. But he thought that the reported night sweats and sleep disturbance, in the absence of other experiencing symptoms, were attributable to alcohol abuse and not bad dreams or nightmares.[159] Alcohol abuse was also his explanation for Mrs Stafford's account that the plaintiff suffered disturbed sleep, and that he moaned and groaned.[160] The plaintiff had denied having dreams. The witness conceded the possibility, however, that such denial had been avoidance.
240 Fourth, although the plaintiff had reported that he woke three-four times a night, he had also said that he no problems with sleep. According to the witness, that revealed no inconsistency.[161]
241 Fifth, the Professor agreed that some matters of which the plaintiff had complained - moodiness, withdrawal, irritability, listlessness, poor appetite, loss of libido and poor motivation - were psychological symptoms compatible with the presence of PTSD (or depression).
242 Sixth, the witness agreed that his conclusion whether the plaintiff suffered flashbacks as distinct from simply memories of the collision involved his assessment of the plaintiff's answers to questions; and also reliance on what he characterised as "objective events" - going back to sea, deep sea fishing, watching the movie "Titanic".[162]
243 Seventh, the Professor agreed that if the plaintiff had avoided talking to his wife about the collision, that was evidence of avoidance.[163]
244 Eighth, the witness gave evidence, the plaintiff's job with MMA having been described, that he was not prepared to make a judgment one way or the other whether, in effect, it was indicative of PTSD induced impairment.[164]
245 Given a summary of the evidence best supporting the plaintiff's case, the witness understandably conceded, putting the history he took to one side, that he may have diagnosed PTSD.[165]
246 The opinion expressed by Professor Bryant seems to me to face problems on a number of fronts.
247 First, it was founded in part upon a history which was very contracted; a history which was not consistent with circumstances as I have concluded they were.
248 Second, it was unsupported by psychological testing specific for PTSD. Further, I am satisfied that in two respects the Professor misinterpreted tests which he did perform.
249 Third, at a series of points the witness made judgements whether to characterise described circumstances as being compatible or incompatible with PTSD. There seems to have been no occasion when he made a judgement favourable to the plaintiff. At times his reasoning to achieve that outcome was unimpressive. I have in mind, as an example, his explanation for the plaintiff's reported disturbed sleep, moaning and groaning.
250 Fourth, the witness proposed, I have no doubt, that anything which might provoke a recollection of the collision - from being on a fishing boat to watching a film - could be expected to provoke a response in a person suffering from PTSD in consequence of the collision; for which reason it would be avoided. That ran counter to the evidence of Professor McFarlane and Dr Stain, which was that cues are characteristically specific to individuals. I have earlier concluded that each of those witnesses gave impressive evidence. I think that their evidence should be accepted on this point.
251 Fifth, I do not conclude that Professor Bryant gave deliberately partisan evidence. But I do think that his methodology was apt to yield a result favourable to the defendant. If he adopted a similar approach in each of the other instances in which he interviewed a Melbourne/Voyager claimant I am not surprised that he detected PTSD in not one instance.
252 Dr David Bell is a medical practitioner with postgraduate qualifications in psychiatry. He has practised as a psychiatrist in private practice since 1971, the experience in psychiatry having commenced in 1956. He commenced medico-legal work in 1972. In more recent years it has occupied the great part of his time. It was not in dispute that he most often examines patients for defendants, frequently the Commonwealth.
253 Dr Bell did not examine the plaintiff; but he provided a report dated 10 February 2005.[166] Relevantly for present purposes the doctor expressed the following opinions:
"I don't known what a representative view would be. I do know that some people hold views as extreme as those of Professor McFarlane. I do know that a lot hold views as extreme as mine. That is at the opposite end. All I can say is that... there is no consensus."[169]
"I have no doubt that the type of disorder following disastrous experiences that are quite severe at the time, shortly after it, and gradually diminishes over a period of months, is no doubt, I have no doubt in my mind is PTSD."[170]
254 Dr Bell criticised Professor McFarlane as a advocate. He described Professor McFarlane as being at one extreme of opinion about a particular matter, and he as being at the other extreme.
255 Professor McFarlane's evidence did not cause me to think that he was an advocate, or an extremist. Dr Bell's evidence, on the other hand, seemed to me to reveal the advocate at work; an advocate knowing that opinions he expressed were extreme and at odds with the views of most of his professional colleagues. So, it was implicit in his evidence that there is no such thing as chronic PTSD. No other witness took that position. Again, he described flashbacks as being a fiction deriving from cinematograph technique. No other witness even hinted at such an idea - which stands opposed to criteria specified in DSM IV. Further again, he was evidently at odds not only with witnesses called by the plaintiff but also with other witnesses called by the defendant as to the existence of a causal relationship between PTSD and alcohol abuse. His evidence on that question appeared to me to reason that because genetic or societal factors can be discerned when a person drinks to excess, therefore a stressful incident (or symptoms attributable to the same) cannot be a cause of more than a transient increase in alcohol consumption. Such reasoning appears to be conceptually unsound. Finally, it is one thing to point out the fallibility of human memory. The witness was not alone in pointing it out. Professor McFarlane, derided by Dr Bell, did so. But the true question for the Court, recognising such fallibility, is where the evidence leads in the particular case.
256 As I noted earlier, counsel for the defendant did not refer to Dr Bell's evidence in his final address. That does not mean that I could simply ignore it. But in my opinion, for reasons discussed, the evidence did not provide a reliable template for resolution of the question now under consideration.
257 Professor Graham Burrows is a psychiatrist of high renown and long experience. Called by the defendant, he mainly addressed issues other than that now under discussion. He did, however, give evidence that:
258 In my opinion the Professor gave frank and generally persuasive evidence. The question which mainly arises from it in the present connection is, I think, what if anything is to be made of the plaintiff saying nothing about psychological symptoms at Naval medical consultations and assessments after February 1964.
259 Professor Arieh Shalev is a highly qualified Israeli psychiatrist who has engaged in much research into PTSD. He has published extensively, on occasions with Professor McFarlane - whom he described, though it did not find its way into the transcript, as a "giant" in the particular area - and Professor Bryant. Called by the defendant, he mainly addressed issues other than that which I am now considering. He did, however, give this pertinent evidence:
To ruminate about what might have happened is not "exposure" as that term is used in DSM IV.[179]
It is very uncommon for a person to suffer PTSD without experiencing flashbacks, nightmares or intrusive thoughts.[180]
One of the major indicators that a person is suffering from PTSD is an inability to perform one's daily or occupational tasks as efficiently as before.[181]
Most clinicians use DSM IV as the diagnostic tool rather than ICD 9 or 10. The vast majority of studies and of measuring instruments have been performed using DSM criteria.
Criterion B of DSM IV is permissive, in that it does not differentiate between people who suffer from PTSD, and people who do not. By contrast, criterion C is the hardest criterion to satisfy.[187]
It is very difficult to draw a line, a propos criterion B, between unhappy recollection and intrusive thoughts. There is no real threshold criterion, this being a weakness [in DSM IV].[188]
It would have been foreseeable in 1964 that the collision would give rise to psychological injuries, including instances of what was then called traumatic neurosis.[189]
261 Upon the present issue I see no reason not to accept the burden of Professor Shalev's evidence. There was not, I think, anything radical in it save perhaps his opinion - contrary to that expressed by Professor McFarlane - that in explaining why a PTSD sufferer does not seek treatment avoidance can be put to one side; and the weight which perhaps he would attach to a person's continuance in an employment after the occurrence of a traumatic incident as tending against that person suffering PTSD.
262 Bearing steadily in mind the burden of persuasion which rested on the plaintiff, the problem of fallibility of memory, and the fact that there was conflict within the evidence, the plaintiff has nonetheless satisfied me that -
263 The plaintiff has not satisfied me, on the other hand that he left the Navy for reasons which directly or indirectly were a consequence of him suffering PTSD.
265 First, I am persuaded that the plaintiff exhibited over a long period behaviour which satisfied each criterion of DSM IV. I am so persuaded by reference to the evidence of the plaintiff and a number of other witnesses both lay and medical.
266 As to criterion A, the evidence of the plaintiff and Robbins suggests that the plaintiff was affected at the time of and in the aftermath of the collision by concerns which were not centred on ruminating about what might have happened, but which related to the prospect of death or injury to Melbourne crewmen, a prospect in part attributable to orders which the plaintiff had to give; and as well a period of concern for, and helplessness about, the fate of his brother and other Voyager crewmen. The plaintiff, I am satisfied, because he was a man who did not easily articulate his emotions, found it difficult to express those concerns. But he sufficiently did so. I refer to and repeat my conclusions at [95]-[96]. Medical and like evidence which I have accepted supports my conclusions. The opinions of Dr Milton and Professor Bryant, on the other hand, were based upon histories the reliability of which, for reasons indicated, I do not accept.
267 As to criterion B, I am satisfied by the evidence of the plaintiff, Mrs Stafford and Lincoln that the plaintiff suffered from sleep disturbance from a time proximate to the collision; and that this was very probably accompanied by recurrent distressing dreams about that event. Pertinent nightmares, as Professor Hopwood noted, are one of the most common presentations by persons suffering from PTSD.
268 Further as to criterion B, the question was much debated at trial whether, in response to cues symbolising the event, the plaintiff suffered recurrent intrusive recollections of the collision, flashbacks, distress or arousal. I am satisfied that the plaintiff engaged in conduct which constituted avoidance, which likely implies that there were specific cues which precipitated intrusive recollections, flashbacks, distress or arousal. But I will not reason in that way so as to conclude positively that the plaintiff did suffer such responses. I need reach no positive conclusions about the matter; and I do not do so.
269 Medical evidence which I have accepted, as in the case of criterion A, supports my conclusion that criterion B was satisfied. Contrary medical opinion, for reasons discussed, did not rest on a sound factual foundation.
270 I turn to criterion C. I am satisfied by the evidence of the plaintiff, Mrs Stafford, Mrs Wright, Lincoln, Swan and Passmore that the plaintiff engaged in behaviour fitting paragraphs (1), (2), (4), (5) and (6) of that criterion. The evidence given by Dr Fellows Smith and Dr Stain which I have accepted assists a conclusion that the plaintiff's behaviour satisfied that criterion. The contrary evidence of Professor Bryant, for reasons described, was not persuasive of a contrary conclusion.
271 Criterion D: the evidence of the plaintiff, his wife, his daughter, Robbins and Lincoln strongly suggests behaviour by the plaintiff which at least met paragraphs (1) and (2) of that criterion. Dr Milton's conclusion that the plaintiff had always been intolerant and irritable - this in essence denying one feature of behaviour falling within criterion D - was at odds with evidence which I have accepted.
272 Criterion E: evidence of the plaintiff and every other lay-witness called in this proceeding, for reasons given in my analysis of the evidence of those witnesses, supports a conclusion that the plaintiff's disturbance of behaviour lasted more than one month.
273 Criterion F: evidence of the plaintiff, his wife, his daughter and Robbins, at least, has persuaded me that the plaintiff was impaired in social functioning after 1964. Evidence of the plaintiff, Passmore and Solomon has satisfied me that the plaintiff was also significantly impaired in an occupational setting.
274 I have said so many times that I have been persuaded by the evidence of the plaintiff and other witnesses that the plaintiff exhibited behaviour fitting the various criteria of DSM IV. I should make it very clear that I have considered material tending in a contrary direction. I do not at all suggest that some of that material lacked force. I should refer to some of it.
275 First, the plaintiff's medical record and the Navy after 1964 shows that he had opportunities to disclose that he was suffering from mental distress; but that he did not do so. The question is whether he did not do so because he was not suffering any distress. I do not conclude that such was the case. I think that the plaintiff was not a man who was likely to have talked about mental upset even if he had perceived himself to be suffering from something other than what was to be expected in the aftermath of the collision; and even if, which is not known, he had been asked questions which clearly framed what the questioner was seeking to ascertain. It is unnecessary to consider whether non-disclosure could be explained as avoidance behaviour - a matter about which, I have said, there was contradictory expert evidence.
276 Second, the plaintiff did re-enlist in 1966. He continued to serve in the Navy and up until February 1971. Part of his service was a sea. He continued to do his job well. These are all undeniable circumstances. The question is whether they deny the presence of behaviour in the period up to February 1971 of which the plaintiff gave evidence, and which was described in the evidence of other witnesses. In the end, I have concluded that the two threads of the plaintiff's behaviour were not incompatible. Much depends, I think, upon what the plaintiff understood about his situation; and in that connection I think that his perception at the time did not admit of psychological disturbance. Rather, I think, it is likely that his response to any symptoms (the true nature of which he did not appreciate) was to bury himself in his work. It is true that continuance in the service was likely to mean that he would be exposed to "cues" about the collision; but Professor McFarlane gave evidence, not rejected by Professor Shalev, that in fact a substantial proposition of service personnel suffering from PTSD do continue their engagement.
277 Third, the plaintiff did undertake civilian employment until suffering injury in 1989. The evidence in that connection, however, suggests to me that in fact the plaintiff was experiencing persistent symptoms of PTSD. I have earlier noted his unsettled employment history until he joined MMA; and the characteristics of the MMA employment. I have not ignored the possibility that the plaintiff's work history after 1971 simply revealed a man who was having trouble adjusting to civilian life; but I have concluded that such an explanation would insufficiently explain why a skilled artisan with revealed leadership skills should take on and continue an undemanding job which had no potential for advancement or the exercise of supervisory skills.
278 Fourth, I have considered whether certain of the plaintiff's behaviour contra-indicated him experiencing symptoms of PTSD. I have in mind the circumstances that he went "deep sea fishing" - or perhaps to Rottnest Island - in a cabin cruiser without distress; that he had a photograph of "Melbourne" on a wall in his home; and that he watched the film "Titanic" without mental upset. To my mind, much turns upon an understanding of the nature of "cues". Evidence adduced for the plaintiff, which I have accepted, is that cues are specific to individuals; that it is not a question of reminder of an event generally provoking distress. In that context the plaintiff, members of his family, and other witnesses, gave evidence of things which he did avoid. The fact that he did not avoid other things which would generally have reminded him of the collision seems to me not to weigh against the conclusions which I have reached.
279 Fifth, it is the fact that the plaintiff's supervisors at MMA had no criticism of the plaintiff's work over a long period - rather the contrary; and that during such period the plaintiff by his account and the account of others was drinking a good deal. I have considered whether the plaintiff's work performance gave the lie to the evidence about the extent of his drinking. I have concluded that there was no necessary conflict. It is, I think, a commonplace that people who regularly drink a good deal are able to fulfil job requirements. That would likely be the more so where a person's work was not subject to minute by minute supervision.
280 Sixth, by his statutory declaration dated 28 July 1998 the plaintiff made assertions in support of his claim for an increase in a Disability Pension. He attributed to malignant neoplasm of the colon and "impotency", as at that time, virtually all of the emotional symptoms and their consequences which were said in this proceeding to disclose the long-term presence of PTSD. In cross-examination, he agreed that what he had said in his 1998 statutory declaration was true.[190] The question is whether that was a reliable admission against interest. I do not consider that it was. My conclusion is not based on a narrow conception of what the plaintiff declared - that is, that it focussed upon the situation then existing; but rather upon there being a substantial body of evidence - aside from the plaintiff's evidence - which has satisfied me of the existence of relevant symptoms long before discovery of the cancers (or, for that matter, the 1989 ankle injury).
281 Seventh, it is the fact that the plaintiff did not call any of the doctors whom he had consulted over the years. But I doubt that much could be made of that circumstance; and, indeed, defendant's counsel did not seek to make anything out of it. The plaintiff's case was that his behavioural changes had for a long time gone unrecognised by him as markers of psychological injury. It would be no more than speculation that he had, to the contrary, addressed such behavioural changes to a doctor long before 2000; or that, having done so, he had ascribed them to some other cause. Further, assuming that I concluded, consistently with the plaintiff's evidence, that he did not seek medical attention for what on his case were persistent behavioural changes after 1964, it would not follow that the changes were inconsequential. Rather, such conduct would seem to me to fit the plaintiff's revealed personality, and his want of insight that the changes represented psychological illness. Finally, it seems likely in fact that the defendant's solicitors were provided with copies of medical records.[191]
282 I must say, next, something about the matter concerning which I said earlier that the plaintiff had not satisfied me. The plaintiff's enlistments, as I have noted earlier,[192] were for periods exactly totalling 20 years. Periods of enlistment effective on 2 November 1961 and 13 February 1966 ensured that such was the case. After 20 years' service, the plaintiff gained a pension entitlement.
283 The plaintiff evidently had that entitlement well in mind when he wrote to the Board on 20 July 1970 indicating an intention of retiring at the end of such period. His subsequent correspondence in November and December 1970 shows the particular use - purchase of a house - to which the plaintiff proposed to put a part of his pension entitlement.[193]
284 The plaintiff's evidence, pertinently, was that he had intended to stay in the Navy to age 55; that he had reconciled himself to the Navy after the disappointment - how could such a thing have happened? - which followed the collision; and that he left because of concerns about his son's behaviour - behaviour which he believed was attributable to the Navy being his life.[194] On the other hand, Mrs Stafford's evidence, which I have accepted, is that the incident involving their son breaking into a school occurred many years before February 1971; but that their son's troubling behaviour for the most part followed her husband's discharge. Her further evidence, which I have accepted, is that she did not press the plaintiff to leave the Navy.
285 Lincoln's evidence, which was pertinently that as at January 1970 the plaintiff intimated an intention of staying in the Navy, hopefully doing his time at depots,[195] shows only - accepting for argument's sake the reliability of the evidence - that the plaintiff expressed a particular intention on one occasion.
286 In all, years before February 1971 the plaintiff set up periods of enlistment which would permit him to leave the Navy after 20 years, he then becoming entitled to a pension. The plaintiff had a use which made sense for part of the pension - buying a house for the first time. As at February 1971 he had been 20 years in the service - a long time. It had involved both periods at sea and periods at shore bases at various locations. Even if there was a prospect that his future postings would be ashore, there could be no certainty, one would think, about where such postings would be.[196]
287 The context which I have described seems the very likely explanation why in 1970 the plaintiff began to take discrete steps as would culminate in his discharge in February 1971. It was not a context which had its genesis only in steps taken after the collision.
288 I do not consider that other circumstances disclosed by the evidence are persuasive against the conclusion which I have reached. First, I have concluded that the plaintiff was not pressed by his wife to leave the Service. Neither was his son's behaviour the precipitant for him doing so. But if, contrary to those conclusions, the plaintiff did perceive that his son needed closer supervision, the problem was, as he perceived it, that the Navy was his life - that is, it occupied too much of his time. That was not a consequence, direct or indirect of the collision.
289 Second, I do not doubt that before he first enlisted and periodically thereafter the plaintiff had indicated an intention of remaining in the Navy "for life" - by which he meant 55 years. He would not be the first person whose intention changed with the passage of many years.
290 Third, there was a strong family history of military service in the plaintiff's family.[197] But that says little about the likely period of service of an individual within the family.
291 Fourth, it must be recognised that, according to my findings, the plaintiff was affected by symptoms of PTSD, unrecognised by him as symptoms of that condition, from at least soon after the collision. But I cannot discern in that circumstance a reason to conclude, having regard also to other revealed circumstances, that the temporal sequence which began with the collision and ended with the plaintiff's discharge was accompanied by a causal relationship.
292 Later in these Reasons I conclude that, although the plaintiff developed chronic PTSD as a result of the defendant's tortious conduct, this action is statute-barred. There a number of elements within that conclusion. I consider, notwithstanding, that I should address the issue of damages.
Damages for Pain and Suffering and Loss of Enjoyment of Life
293 Counsel for the plaintiff submitted in his final address that a proper award of damages for pain and suffering and loss of enjoyment of life was in the range $225 - 250,000. Counsel for the defendant submitted that an appropriate amount was $80,000.
294 I have concluded that the plaintiff developed PTSD at least soon after the collision, and that the condition persisted throughout his life. I have expressed conclusions about the symptoms which it produced, and their effect upon the plaintiff's relationship with family members, with workmates and others. So also, it seems likely to me, the condition probably had an impact, in terms of enjoyment of life, in an employment context. For a long time the plaintiff engaged in what seems likely to have been, in light of his disclosed skills, a socially isolated, non-challenging, dead end job. I have noted the occurrence of a series severely incapacitating physical conditions from 1989 onwards, which very likely had their own emotional sequelae. The plaintiff is to be compensated, as I perceive it, for a long period during which his life was considerably less happy and fulfilling than would otherwise have been the case, it being a period which began when he was still a young man.
295 Although in trial by judge alone a single amount is awarded to a successful plaintiff (except if some legislation otherwise decrees), it is nonetheless desirable that I indicate what sum I discretely allow for pain and suffering and loss of enjoyment of life.
296 In my opinion the range of figures advanced for the plaintiff, whilst somewhat too high, was far closer to the mark than the amount advanced for the defendant. It is important to remember that, as I have found the facts, the plaintiff was to be compensated for a very long period of multi-faceted distress, albeit not distress at a level which should be described as grave. I consider that the appropriate quantum of damages is $180,000.
297 The plaintiff advanced, between November 2002 and March 2005, a series of differently formulated claims for economic loss damages. The formulations yielded amounts which were generally large, but which varied considerably. Most of the formulations were set out in reports by the consulting actuaries, Cumpston Sarjeant Truslove Pty Ltd dated 10 December 2005, 24 January 2005 and 10 March 2005.[198] The reports made very many assumptions. Very often the assumptions were not supported by direct evidence. The defendant did not concede the accuracy of the assumptions, but in truth only a few of the assumptions were in issue - that is:
298 Most of the formulations of the plaintiff's economic loss damages claim were founded upon critical assumptions of fact which are at variance with findings which I have already made, further findings set out in this section of my Reasons, or both.
299 I have thus far concluded, expressly or implicitly, that -
Robbins' evidence pertinently lacked both precision and detail. It would be guesswork whether the plaintiff could have translated his skills into earnings of such dimensions had he not suffered from PTSD. The earning capacity of two men with the same skills may well not coincide. Personal factors, amongst others, are likely to intrude.
Further, it appears that Robbins brought and settled a claim for PTSD. If his claim had any merit, it might be argued that he earned amounts substantially in excess of the plaintiff's actual earnings despite injury. Even if that was no reliable guide to the plaintiff's actual earning capacity when suffering from PTSD, it would render more doubtful still relying upon Robbins' earnings post-1979 as a guide to the plaintiff's earning capacity had he remained uninjured. It could be said, for instance, that if uninjured Robbins might have earned still larger amounts. But again that would be a doubtful guide to the value in weekly dollar terms of the plaintiff's earning capacity if uninjured.
301 It follows from my findings of fact that the plaintiff is at least entitled to economic loss damages reflecting the likely monetary consequences of his loss of earning capacity between February 1971 and July 1989, and his likely relative loss of civilian superannuation entitlement in that period. It was not in debate between the parties, I add, that the plaintiff was not precluded from having the former entitlement because he had suffered no actual earnings loss between 1964 and February 1971.[201]
302 The further question which arises is whether the plaintiff established from July 1989 a loss of earning capacity which sounds in damages.
303 Counsel for the plaintiff submitted that there was no evidence that the plaintiff had been unable to work after July 1989 by any condition other than the ankle injury. That injury should be disregarded because it was not unconnected with the defendant's breach of duty and the compensable condition. Had the plaintiff not been obliged to engage in manual rather than supervisory work by reason of his condition, he would not have suffered the ankle injury that he did. Further, it could not be said, had he been PTSD free and had he possessed supervisory skills, that he would have been unable to turn them into a job and earnings after assumed retrenchment by MMA in 1991.
304 According, however, to the submissions of counsel for the defendant, no entitlement had been established to damages reflecting loss of earning capacity after 1 July 1990. The plaintiff's working life had been wholly ended by his ankle injury (and other conditions). It would be wrong to assess damages on the footing that the plaintiff, absent the effect of (assumed) PTSD, would not have been at a particular place at a particular time. Further, the plaintiff would have been retrenched by MMA in 1991 in any event.
305 I have already accepted the plaintiff's submission that the evidence did not show that the plaintiff was physically incapacitated between July 1989 and his attaining 65 years by anything other than the effects of his ankle injury. I do not accept, however, the submission that the ankle injury should be disregarded, as being "not unconnected" with the defendant's breach of duty and the compensable PTSD.
306 Counsel for the plaintiff accepted, as I understand it, that an event subsequent to a defendant's negligent conduct may bring an end to a damages entitlement for loss of earnings capacity if it is unrelated to the tortious conduct or its consequences. That acceptance accords with authorities such as Lesche v Jeffs[202], Faulkner and anor v Keffalinos[203], and Jobling v Associated Dairies Ltd[204]. The principle involved is one of taking account, not of contingencies, but of events which have actually occurred by the date of assessment.
307 Counsel for the plaintiff submitted, within the framework, that the plaintiff's ankle injury was "not unconnected" with the defendant's tortious conduct because it was a consequence of such conduct that the plaintiff, with his compensable PTSD, was working in a manual job rather than in a supervisory job. That submission fails, in my opinion, for two reasons. First, I consider that it is unsound to found a causal link between tortious conduct and a second injury (which is really what counsel was attempting to do) on the footing that the plaintiff would not have been where he was at the time of the second injury were it not for the tortious conduct. Second, the evidence shows only that the plaintiff suffered injury when, or after, attempting to adjust the air conditioning in a hotel where he was staying whilst performing his job in country Western Australia. That is, it was not a "work" injury in the ordinary sense. It is wholly speculative that the type of work which the plaintiff was reduced to doing by the defendant's tortious conduct had any connection with his suffering the ankle injury. All that could possibly be said is that his work meant that he had to stay in an hotel; and that by a series of events the plaintiff came to suffer injury whilst at the hotel.
308 Rejection of the plaintiff's argument just noted does not mean, however, that the plaintiff necessarily cannot establish an entitlement to damages for loss of earning capacity after 1 July 1989. Assuming (in accordance with my earlier conclusion) that the plaintiff had been employed in supervisory work within the area of his expertise as at July 1989, and that he then suffered ankle injury - it matters not for present purposes, where he sustained such injury - is there at least a real prospect that he could have returned to his supervisory work at some stage thereafter? The situation is one in which, in respect of the past at trial, there were both actual and hypothetical circumstances to be considered. The ankle injury was in the former category, as were the payments of weekly compensation until April 1991. The plaintiff's ability to get supervisory work from 1971, and to resume such work after the period of total incapacity caused by the ankle injury was at an end, fell into the latter category. As to the last mentioned, provided that the prospect of the plaintiff resuming supervisory work was not de minimis, it ought be valued.[205]
309 It is clear that the plaintiff could not have done any work for a period - say about 12 months - after he sustained ankle injury in July 1989. Further, he was paid weekly compensation for total incapacity (except, perhaps, for periods when he unsuccessfully attempted to resume work) up until April 1991. Between April 1991 and November 1994 there is a realistic possibility, in my opinion, that he would have been able to resume the supervisory job in which I have concluded he would probably have been employed as at July 1989. Given the obviously conjectural nature of the exercise, I estimate the prospect at 50%.
310 What, if anything, is to be made of the circumstances that the plaintiff would have been retrenched by MMA in 1991? In my opinion, the risk of retrenchment should be taken into account as a contingency.
311 All in all, I consider that for the period April 1991 - November 1994 the plaintiff should be compensated on the basis of one third of the difference between what he could probably have earned in supervisory work[206] less what he could have earned in a job such as that which he performed for MMA[207]. Further, his damages should reflect the fact that he would have earned a proportionately greater superannuation entitlement in that period - although the amount must surely be small.
312 It remains to consider a submission for the defendant that the plaintiff's damages entitlement should in any event be reduced by amounts received by the plaintiff from MMA as a resignation benefit and as a total and permanent disablement benefit.[208] According to the defendant's submission, these were benefits received from an employer other than the defendant. The resignation benefit had been earned by the plaintiff's work over many years with MMA. The total and permanent disablement benefit had been payable by reason of the incapacitating effect of the defendant's ankle injury vis à vis the type of work which he had performed for MMA. The plaintiff had worked to earn those benefits. They were part of the value of his residual earning capacity. They were not payments which should be excluded from consideration in assessing damages by reference to the principle described in The National Insurance Company of New Zealand Ltd v Espagne[209].
313 Counsel for the plaintiff briefly submitted, in response, that there was simply insufficient evidence about the two benefits to support the submission advanced for the defendant. Then, in later written submissions, counsel noted that receipt of total and permanent disablement benefit had in fact been allowed for by the actuaries; contended that there was in fact no evidence that the plaintiff had received the resignation benefit; and argued that exhibit DBA 10, upon which the defendant in part relied, was incomplete and virtually meaningless.
314 Upon the factual issue there was definitely a want of evidence. Probably, but not certainly, the plaintiff received both benefits[210]. Certainly the plaintiff contributed some amount over the years towards his resignation and/or total and permanent disablement benefits. Whether there was any employer contribution in respect of either benefit was not disclosed by the evidence. Whether in fact the disablement benefit was payable because the plaintiff was precluded from performing the type of work which he had performed for MMA is no more than presumption.
315 Espagne did not address, in terms, the present situation. In that case the question was whether an advantage which accrued to an injured person which but for the injuries he would not have obtained ought be taken into account in assessing damages. There were statements in that case which would suggest that the benefits here received by the plaintiff should be equated with insurance benefits effected by the money of an injured person for his own benefit.[211] Beyond that, it seems to be clear that if a person who is injured must cease employment, and then becomes entitled to payment of a pension or superannuation benefits by the employer or from a fund, the same are generally ignored when assessing damages.[212] That is so whether the pension or benefits are payable under a contributory or non-contributory scheme. The position from the plaintiff's standpoint is stronger; for on no view did he receive benefits which related to the injury now being compensated.
316 In the event, I consider that neither the resignation nor the total and permanent disablement benefits should be taken into account when assessing the plaintiff's damages. That is so by reason of authority, regardless that - so far as the evidence here disclosed it - the plaintiff alone made the contributions which secured his entitlement to those benefits.
317 I assess the plaintiff's economic loss damages, in light of the lengthy foregoing discussion, at $75,000. I have arrived at the figure this way:
318 I assess the plaintiff's damages in total at $255,000. That in fact is the amount arrived at by accumulating my assessments of pain and suffering damages and economic loss damages. Looking at the amount globally, I consider that it accords with what should be accounted proper compensation in all the circumstances.
319 When this proceeding was tried, Clark v Stingel[214] had not yet been decided. One possibility was that the outcome of that appeal, or at least its application in this case, might be influenced by whether PTSD is to be regarded as a purely psychological condition; or whether, alternatively, it has in part at least a physiological aspect; a fortiori such an aspect which is progressively developmental - and so might arguably be characterised as insidious. In that connection I heard a good deal of highly technical evidence from Professors McFarlane, Hopwood and Shalev. Dr Bell also made a contribution to the discussion. Sometimes the true question was to an extent obscured - so as to make it appear that the question was whether PTSD should be described as a disease rather than as a disorder. But at its heart the issue was as I have just described it.
320 In light of the reasoning of Eames JA for the majority in Clark v Stingel - reasoning to which I refer later in these Reasons - it appears that the evidence which I heard as to the aetiology of PTSD was not in point in this case; although counsel for the plaintiff, in submissions which I heard after that decision was handed down, argued that this was not so. In the event, I should say something about the evidence which I heard on the issue; and express conclusions in respect of the evidence.
321 In my opinion the following propositions can be confidently stated:
"Although this volume is titled the Diagnostic and Statistical Manual of Mental Disorders, the term mental disorder unfortunately implies a distinction between 'mental' disorders and 'physical' disorders that is a reductionistic anachronism of mind/body dualism. A compelling literature documents that there is much 'physical' in 'mental' disorders and much 'mental' in 'physical' disorders. The problem raised by the term 'mental' disorders has been much clearer than its solution, and, unfortunately, the term persists in the title of DSM-IV because we have not found an appropriate substitute.
Moreover, although this manual provides a classification of mental disorders, it must be admitted that no definition adequately specifies precise boundaries for the concept of 'mental disorder'. The concept of mental disorder, like many other concepts in medicine and science, lacks a consistent operation definition that covers all situations. All medical conditions are defined on various levels of abstraction - for example structural pathology (eg, ulcerative colitis) symptom presentation (eg migraine), deviance from a physiological norm (eg hypertension), and etiology (eg, pneumococcal pneumonia). Mental disorders have also been defined by a variety of concepts (eg, distress, dyscontrol, disadvantage, disability, inflexibility, irrationality, syndromal pattern, etiology, and statistical deviation). Each is a useful indicator for a mental disorder, but none is equivalent to the concept, and different situations call for different definitions.
Despite these caveats, the definition of mental disorder that was included in DSM-III and DSM-III-R is presented here because it is as useful as any other available definition and has helped to guide decisions regarding which conditions on the boundary between normality and pathology should be included in DSM-IV. In DSM-IV each of the mental disorders is conceptualised as a clinically significant behavioural or psychological syndrome or pattern that occurs in an individual and that is associated with present distress (eg, a painful symptom) or disability (ie, impairment in one or more important areas of functioning) or with a significantly increased risk of suffering death, pain, disability, or an important loss of freedom. In addition this syndrome or pattern must not be merely an expectable and culturally sanctioned response to a particular event, for example, the death of a loved one. Whatever its original cause, it must currently be considered a manifestation of a behavioural, psychological or biological dysfunction in the individual"[215]
It seems, in the event, that the description of PTSD as a "disorder" does not exclude it having an element of "biological dysfunction".
"The term disorder is used throughout the classification, so as to avoid even greater problems inherent in the use of terms such as 'disease' and 'illness'. 'Disorder' is not an exact term, but it is used here to imply the existence of a clinically recognisable set of symptoms or behaviour associated in most cases with distress and with interference with personal functions. Social deviance or conflict alone, without personal dysfunction, should not be included in mental disorder as defined here."[216]
Nothing is said there about "disorder" having any possible element of biological dysfunction.
322 I turn to the competing evidence in the main area of controversy.
323 In his report, Professor McFarlane stated that -
"There is a significant body of work now demonstrating a specific acquired underlying neurobiological disorder in post-traumatic stress disorder. This can be characterised with physiological measurement such as startle response and also Neuro imaging methodologies such as MRI and cortical evoked potentials. There are associated abnormalities of various hormonal systems in the condition."[218]
Viva voce, he said that the adjective "specific" was inappropriate.
325 The Professor, as I understand it, characterised the process which he described in his report as "the model of progressive neuronal sensitization".
326 Viva voce, Professor McFarlane described the evolution of PTSD in a given individual this way:
"At the time of exposure, or the experience of an event like this, there are several things that happen. The first one is that the person will develop a psychological stress response, and that will activate a variety of symptoms.
The first one is the autonomic nervous system to which the sympathetic and parasympathetic components are central. The second thing that will happen is that a variant of neurohormones will get activated. The most commonly known one is obviously cortisol, and the other one is noradrenaline. Apart from that sort of physical somatic response, obviously at the same time we are laying down a memory for this experience, and our brain obviously is the organ that has the machinery of memory in it and that is influenced by the hormones that are obviously in the blood supply that go to the brain. Equally, there are a series of processes within the brain that get triggered, or commence to change at the time of the event.
Now one of the important issues is that people don't get post traumatic stress disorder on the first day after the event; rather, there is a progressive facilitation over the weeks and months that follow, and Professor Shalev has done some very important work in this field, demonstrating, for example, that the abnormal startle response doesn't emerge until about, for several weeks or months after the experience, and it is that process of induction or kindling and sensation that occurs, that is thought to be critical to the underpinning of post traumatic stress disorder. What essentially happens is that the individual's physiological reactivity progressively increases, and the trouble for a person is that the memory obviously is repeating the experience, and each time it is focussed upon that the physiological response is again reactivated and it creates an environment where you have this progressive escalation, and one of the processes that we believe occurs is that the particular pathways in the brain that are involved in memory and attention become modified by those stress effects, and it is possible, in neuroimaging studies and with studies of the electrical activity of the brain, to demonstrate those effects.
Now, it is important to emphasise that some of those effects are not specific to post traumatic stress disorder. You can identify those same abnormalities in other psychiatric disorders. The important issue is about the overall pattern of reactivity that you get, which appears to be characteristic of PTSD."[219]
327 The witness gave evidence that the progressive development of an abnormal startle response is one element of what he described as the underlying neurobiological dysfunction.[220] Other elements of that dysfunction involving hormonal changes are susceptible, he said, of measurement in different ways.[221]
328 The Professor acknowledged, as I perceive it, the vagaries of scientific research. He said this:
"... obviously science is an evolving discipline, and one always has to be ready to criticise one's own observations. If you don't face negative results and deal with those observations science doesn't progress; so one does have to be critical. But I think that there is a sufficient body of evidence, now, to say that with reasonable probability these studies have been replicated sufficiently often to say that there is a substantial probability that this theory is, in fact, the case."[222]
329 The Professor agreed that in one connection - dealing with so-called "brain plasticity" - results were based on animal experiments. That is because one does not biopsy the brains of living humans. Nonetheless, he opined that the experiments showed the likelihood of changes in human brain plasticity associated with repeated stressor effect.[223]
330 In the end the witness explained the matters thus:
"As is summarised in the papers that I tabled yesterday, there is a broad acceptance of the biological underpinnings of post traumatic stress disorder, and the treatment, the funding of research, the discussion at meetings is organised around a general acceptance of that view.
And do you think it is perhaps there, in that arena, that you and Professor Shalev part ways? --- Well, again, I would be extremely surprised about that, because if you read what he writes in those papers that I tabled yesterday - and I have published papers with him around this field, and he has never disagreed with me when we have been sitting down writing the manuscripts together - I would be surprised that he doesn't think that this is a core hypothesis around which current knowledge is organised."[224]
"It will never be proven beyond doubt. You see, I wouldn't, I would never ascertain, never assert that it has been proven beyond doubt. But I would say the accepted probability is that this is the theory ---
Right? --- And I think, again, this is, you know, I guess, the difference between law and medicine, that we always doubt what we think. We have to ---
He says? --- I mean, that is where you develop your ideas from; and, of course, there are contradictory findings."[225]
331 The relevant evidence in chief given by Professor Hopwood can be summarised in these questions and answers:
"I would believe there are a series of now reproduced findings showing altered brain function in PTSD. It is important to stress these are not findings that can be used to diagnose PTSD as a single case, because it is not a test as such, but consistent findings comparing groups of individuals with PTSD to a group of individuals without it, who are otherwise matched.
Yes. And can you give some examples of that by reference to parts of the brain? --- Yes. The most often repeated finding is the changes in the hippocampus, which is a part of the brain which has a main role in memory, in particular, which is obviously a central issue in post traumatic stress disorder. Repeated structural imaging studies have shown the hippocampus is smaller in people with PTSD, compared to age and educational match control. There is also a series of functional imaging studies which, as opposed to showing how big something is, how active that it is, which have shown that other areas of the brain, including the amygdala, seem to react differently to emotional stress. In people with post traumatic stress disorder, the amygdala is a very important part of the brain in our emotional responses to events and our memory.
Yes? --- There are a number of other studies that have looked at other aspects of functions of the brain. Those studies that have looked at aspects reflecting brain function include the hormonal studies that have particularly focussed on cortisol. That is the main hormone in the body's response to stress and anxiety of any kind, and there is a consistent body of work that shows cortisol levels in people with post traumatic stress disorder are lower on average, than relevant controls, and that the regulation of cortisol is also altered so that the system is far less sensitive than it would be in normal people.
There has also been a series of studies looking at other markers of general arousal in the body, such as blood pressure and heart rate variability, and they have demonstrated reasonably consistent findings of abnormality in individuals with post traumatic stress disorder, suggesting that the brain's control of those peripheral functions changes. Again, to sort of explain that issue of group versus individual findings, for most of those parameters, like blood pressure, the range of what is normal is quite large; so even if an individual has had a ten percent variation from their baseline results of having a disorder, when they are compared to a population as an individual, you wouldn't be able to tell anything from that result. It is only by grouping 20 or more subjects together, for example, in a study that you will find an identifiable difference from normal controls."[226]
"... have you reached a view as to whether or not PTSD is a disease? --- Yes. As I understand the meaning of that term, I would clearly be of the view that PTSD is a disease."[227]
332 In cross-examination Professor Hopwood rejected the proposition that the physiological changes which he described were "really not much more than hypotheses".[228] He expressed the view that the majority of studies do indicate changes in the hippocampus.[229] He described techniques which are available to detect the type changes to which he had referred in evidence in chief.[230]
333 In cross-examination he expressed the opinion that the position which he had expressed was a reasonable consensus amongst Australian psychiatrists with an interest in PTSD, had a reasonable level of acceptance amongst Australian psychiatrists generally, and was refuted by a small group of psychiatrists who in essence deny the very existence of PTSD.[231]
334 I focus next upon key aspects of Professor Shalev's evidence. In his report dated 23 January 2004[232] he stated that
335 In conference notes dated 6 February 2005[236] Professor Shalev returned to some of the themes just outlined. He stated that -
336 Viva voce, in examination in chief, Professor Shalev gave evidence that -
In the case of people with chronic PTSD "we are seeing people who should have forgotten... the events and memories... but it is still there using or mediated by the same mechanisms that would mediate fear and horror immediately after a traumatic event... the abnormality is eventually in the persistence of these brain processes over time; not so much in that they are being out of the usual, or abnormal as such."[241]
337 The witness was cross-examined, particularly, with a view of showing that in learned articles he had contended, without equivocation, for the existence of a neurobiological factor in PTSD.[242] There is no doubt that the cross-examiner was literally correct. The Professor's response was that he and his co-authors had overstated their conclusions. He agreed that what they had said was "the current state of knowledge".[243] But he added that "We are building castles. But are they in the air, or not? We do not know yet".[244]
338 Later in his evidence he returned to its general theme:
"We have a good explanatory model, a plausible explanatory model, it is rational, but it has not advanced to the point of being practically useful, both in diagnosis or in treatment."[245]
339 The problem, he emphasised on a number of occasions, is not simply that there are abnormal physiological responses which are not specific to PTSD; but also that such responses are (at least in a number of cases) neither themselves abnormal, nor such as are demonstrable in each PTSD sufferer.
340 I should finally refer briefly to the evidence of Dr Bell. In his written report,[246] in answer to the question: "Is PTSD a disease or a disorder?" the doctor replied:
"The name of course gives the answer, but Professor McFarlane prefers to report it as a disease. He gives a variety of reasons, none of which impress me enough to provide a response. A disease implies knowledge of the cause. Despite the pretensions to knowing the cause of PTSD, that still remains the type of conjecture which depends upon the post hoc fallacy."[247]
341 Further in his report he criticised both what Professor McFarlane had said in support of his opinion, and a considerable number of aspects of Professor Shalev's report.
342 Cross-examined, the witness said that he saw a psychosis as a disease - although it is described by ICD 10 as a disorder. He accepted it as a disease because "it is, from experience, a very real and reliable entity".[248]
343 The witness said also in cross-examination that the PTSD which he characterised as "undisputed and generally accepted" could also be described as a disease.[249] By that he meant, by reference to his other evidence, a short-lived condition following upon severe emotional trauma. He did not include, evidently, what he described as "the great crop of cases that have appeared in the last decade, the enormous increase, the epidemic", of which the "great bulk" were "pseudo illnesses".[250]
344 In my opinion the situation should be summarised this way:
345 First, the fact that PTSD is characterised as a disorder by each of DSM IV and ICD 10 does not provide an answer to the question whether the condition in part involves permanent and/or progressive physiological change. The definitions of "disorder" do not exclude such a factor. Witnesses were prepared to describe as diseases conditions - such as the psychoses - which one or both of DSM IV and ICD 10 categorise as disorders. Professor Shalev was not prepared to so describe PTSD; but apparently that was because he did not feel free, for what might be called medico-political reasons, to depart from the current categorisation.[251]
346 Second, the reasons why different witnesses were prepared to describe PTSD as a disease varied. Professors McFarlane and Hopwood did so, I consider, because they accepted that there is development of permanent physiological change at a neurobiological level in PTSD sufferers. Dr Bell rejected the idea that there is such a change. His acceptance that PTSD is a disease depended upon the "reality" of the condition in cases which he accepted as fitting the conception of PTSD. Professor Shalev would have been prepared to describe the condition as a disease, I think, notwithstanding its present categorisation by DSM IV and ICD 10, if he had been persuaded that the condition was demonstrable by specific physiological abnormality.
347 Third, from a medical standpoint the identification of permanent physiological changes specific to PTSD would be important for purposes of diagnosis - and hopefully treatment. It must be expected in such circumstances that medical researchers of high standing in the particular area - and Professors McFarlane and Shalev seem clearly to fit within that description - would be cautious before finally expressing unqualified opinion that one physiological abnormality or another could be relied upon as an indicator of the presence of PTSD. Evidently, even if the opinions of Professors McFarlane and Hopwood were accepted, medical research is not yet at the point where any physiological abnormality of that kind has been identified.
348 Fourth, from a lawyer's standpoint the issue is, I think, somewhat different. It does not depend upon medical researchers, or the wider community of psychiatrists, being satisfied that a particular physiological abnormality can be relied upon as marking the presence of PTSD. Rather, the issue is whether the party carrying the onus of proof demonstrated, more probably than not, that one or more physiological abnormalities develop in the case of PTSD sufferers, this providing at least part explanation for the condition becoming chronic in those instances where it does become chronic. In resolving that issue it would not matter that any such abnormality was not specific to PTSD.
349 Fifth, it is true, as counsel for the plaintiff submitted, that the Court must decide the issue upon the present state of knowledge. But that does not mean, if research has led only to tentative findings, that such findings will found a conclusion upon a balance of probabilities.
350 Sixth, for quite a number of years now medical research - conducted by persons such as Professors Shalev and McFarlane - has centred upon the search for a (partly) physiological reason why some persons exposed to stress go on to develop PTSD whilst in other persons so exposed memory works in the ordinary way. Plausible explanations have been developed which seek to explain the phenomenon by reference, in effect, to abnormal sensitisation of the affected individuals. This implies, as I understand it, the development of some permanently aberrant behaviour by what are otherwise normal physiological responses to a mentally traumatic event.
351 Seventh, I do not doubt that Professor Shalev is of the belief that research will in time identify a component of permanent acquired physiological abnormality bearing upon the development of chronic PTSD. Professor McFarlane and Hopwood plainly share that belief, but consider that such a component has been sufficiently identified.
352 Eighth, there remains contradictory research whether any particular physiological abnormality has been repeatedly demonstrated in PTSD sufferers; albeit not an abnormality specific to that condition. In recent times, highlighting the vagaries of research findings, one suggested marker - reduced volume of the hippocampus - has been at least cast into doubt; for it now seems that such abnormality may be a predisposing factor to, rather than a consequence of, PTSD. That was a marker, I note, particularly mentioned by Professor Hopwood.
353 Ninth, it is true that researchers - witness Professor Shalev and his co-authors - have published findings in unqualified language. No doubt such findings have articulated the current state of knowledge as revealed by the particular research. But I do not accept that findings so expressed mean that the particular researchers, let alone the wider research community or practising psychiatrists, regard the issue the subject of publication as being now closed. More likely the form of publication is apt to invite vigorous debate.
354 Tenth, there are undoubtedly factors which pull in opposing directions upon the question whether a partly physiological explanation for the development of chronic PTSD has been established to the standard which the law requires. In all the circumstances which I have described , I am not so satisfied. It can certainly be said that research is leading in the particular direction. It may be conjectured that one or more of the aspects of the model described by Professor McFarlane will in time be clearly accepted by the relevant psychiatric community. But I have found it impossible, notwithstanding the difference between the tasks of the medical researcher and the lawyer, to ignore the caveats expressed by Professor Shalev. To me, those caveats carried considerable weight. In the end, assuming for the moment that the plaintiff carried the burden of persuasion, I conclude that he did not discharge that burden. In my opinion the probability scale was in balance. In the event, making the assumption to which I just referred, I would not yet characterise PTSD as a "disease" from a medical perspective. Insofar as that could inform the meaning of "disease" in s. 5(1A) of the Limitation Act, the like conclusion would follow.
355 Eleventh, it may be, however, notwithstanding the plaintiff's pleaded reliance on s. 5(1A), that the defendant carried the burden of showing that such provision did not aid the plaintiff.[252] If that was the case, it would at least be arguable that the defendant would carry the burden of showing that in a case of chronic PTSD there is not an element of permanent, progressive, acquired physiological abnormality. If the defendant did carry that burden, in this case it did not discharge it.
Section 5(1A) of the Limitation Act
356 I have concluded that the plaintiff did suffer from PTSD arising from the circumstances of the collision, and that such condition developed at least very shortly after the collision.
357 Assuming but not deciding that it was for the defendant to persuade me that a permanent physiological change is not an element of the condition of chronic PTSD, the defendant did not establish that matter. Neither, in consequence, could it satisfy me that PTSD is not to be characterised as a "disease" from a medical perspective; a conclusion which, in the absence of definition of that term in the Limitation Act - contrast the Accident Compensation Act 1985 - may be thought to bear on the meaning of "disease" in s. 5(1A).
358 I have concluded, still further, that although the plaintiff's condition manifested itself in behavioural changes from very soon after the collision, the fact that such changes bespoke a psychiatric condition was not known to the plaintiff for a long time; and likewise, that although the changes were apparent, to greater or lesser degree, to the plaintiff's wife, daughter and some associates, none of those people perceived the same to represent some psychiatric condition.
359 The question to be decided is whether, as the plaintiff contends, those findings (some of which I have made on an assumed basis) bring his claim within the protection afforded by s. 5(1A) of the Limitation Act as it must be understood in light of Clark v Stingel;[253] or whether, as the defendant contends, those findings mean that s. 5(1A) does not avail the plaintiff.
360 Counsel for the plaintiff submitted that Clark decided that late-onset PTSD, having its onset nearly 30 years after the trauma alleged to have induced it, could not be a disease or disorder contracted by the victim within s. 5(1A) of the Limitation Act because there was no sufficient temporal relationship between the condition and the event. In order that a disease or disorder be "contracted" for the purposes of the sub-section, there had to be a close temporal connection between the condition and the tortious conduct. That was the present case.
361 Further according to counsel's submission, passages in the judgment of Eames JA to the effect that s. 5(1A) could only apply to cases in which the disease or disorder could not be known until a time much later than the tortious conduct must be read as meaning could not be known to the plaintiff. That was clear from the extrinsic material to which his Honour had referred. If any wider meaning was given to what his Honour said, s. 5(1A) would be deprived of meaning. That was because sophisticated medical techniques can pick up the presence of a disease long before it becomes evident to the sufferer. Counsel instanced blood tests which are able to show HIV and hepatitis C infection long before any illness develops.
362 Here, counsel submitted, by contrast with Clark, there was a wealth of evidence describing the aetiology of PTSD, its neurobiological component, and the time of its contraction both generally and in the instant case. There was also much evidence showing that the condition, having had its onset at or shortly after the 1964 collision, had gone unrecognised - not only by the plaintiff but also by his family; this being, in the case of the plaintiff, part of the process of denial which can accompany the condition.
363 The effect of the material before the Court, counsel submitted, was that the plaintiff was plainly brought within the protection afforded by s. 5(1A).
364 Counsel for the defendant submitted that the Court in Clark had been faced with resolving a controversy which existed by reason of the decision of the Full Court in Herschberg and anor v Mula[254] and dicta in Mazzeo v Caleandro Guastalegname and Co[255]. It had settled upon principles of general application, and had then applied them to the facts in Clark. The facts in Clark, then, did not define the limits of the principles, which counsel submitted were these:
365 Counsel for the defendant did not dispute that there was evidence upon which I could conclude that the plaintiff had suffered the onset of PTSD at or shortly after the 1964 collision and attributable thereto. But, he submitted, it was not of the necessary insidious character because it had been observable and because it had not been progressive so as only to disclose itself belatedly.
366 In reply, counsel for the plaintiff submitted that the defendant wanted it both ways: In the present context it argued that the PTSD (if the plaintiff had suffered from such condition) had been known or knowable from the outset; but in the context of its answer to the estoppel relied upon by the plaintiff it asserted the contrary.
368 Counsel for the plaintiff was correct in submitting that:
369 As I understand it, Clark stands for the following:
+ insidious diseases and disorders on the one hand; and
"frank (ie: not disguised) diseases or disorders, the contraction of which was neither unduly delayed nor disguised".[264]
370 In describing the necessary characteristics of a disease or disorder which is "contracted", Eames JA repeatedly emphasised, as I read it, that -
There would be long delayed awareness in the sufferer of the injury the subject of the claim.[266]
371 In the event, it appears to me that s. 5(1A), as interpreted by the majority in Clark, cannot assist the plaintiff. It is to be accepted that PTSD is a disorder,[267] and to that extent capable of falling within the subsection. I have concluded also that the condition had its onset, in the case of the plaintiff, at a time proximate to the collision between Melbourne and Voyager. Again, the mere fact that the condition had its origin in a traumatic incident does not require the inapplicability of s. 5(1A).[268] Further again, it may be accepted that the plaintiff did not know for a protracted period that he was suffering from the condition. Still further, if the defendant carried the burden of persuasion upon the particular issue, I should conclude that there developed, as part of the condition of PTSD, subtle physiological change; change of which the plaintiff was unaware. But at the heart of Clark lie the twin notions that a disease or disorder is described as one which is "contracted" because its contraction invariably could not and would not be then known by the victim, the reasons being that the time of contraction is at least most often uncertain and in any event that the disease or disorder is not then of an extent to enable it to be known; and that the victim's knowledge that he or she suffers from the same will be long-delayed because of the time elapse until the disease or disorder progresses to the point at which it declares itself.
372 That is not this case. The plaintiff's PTSD was present as a condition and symptomatically present from soon after the collision. Even if, within the condition, there was an element of developmental physiological change, which could be said to have progressed after the onset of symptoms, the circumstances that the plaintiff's PTSD was present as a condition and was symptomatically present from soon after the collision could not be gainsaid. Further, the reason why the plaintiff did not become aware that he was suffering from PTSD well within the ordinary limitation period had nothing to do with the condition not having progressed to the point where it had symptomatically declared itself.[269] The reason had to do with the plaintiff's non-awareness of the significance of his symptoms; or with a process of denial; or both. Such considerations may have assisted the plaintiff had he brought application under s. 23A of the Limitation Act; but according to the majority opinion in Clark they are, as I understand it, irrelevant to s. 5(1A).[270]
373 I should make it clear, in case there could be any doubt, that in resolving the applicability of s. 5(1A) my focus has been on the phrase "disease or disorder contracted by [a] person". The knowledge of which Eames JA spoke in Clark, and to which I have been referring, is knowledge pertinent to explaining why it is that some diseases and disorders fit that description. It is not knowledge considered in the context of s. 5(1A)(a) and (b) - for one never gets to those sub-paragraphs except if the disease or disorder fits the initial descriptive words.
374 I should also reiterate that in considering the applicability of s. 5(1A) I have approached the matter from the standpoint that it lay with the defendant to demonstrate its inapplicability in each aspect. There were definitely arguments why that should not have been so. I need not discuss them.
375 My conclusion that s. 5(1A) of the Limitation Act does not avail the plaintiff means that the defence raised in reliance on s. 5(1)(a) of that Act becomes relevant. As I said much earlier[271] the plaintiff's action was inevitably statute-barred on that account except if the defendant was precluded from reliance on s. 5(1)(a). The plaintiff pleads that the defendant is so precluded: by operation of an estoppel and/or by waiver. To those pleas I now turn.
376 The circumstances relied upon in support of the pleas of estoppel and waiver are set out in paragraph 2(a)-(j) of the Reply. The structure of the pleading was not much addressed in counsel's closing submissions. I have not found it easy to comprehend. As best I understand it, the plaintiff's case runs this way:
"2(b) ... the plaintiff was exposed to the risk of psychological injury in the collision;
(c) ... a common way to resolve such psychological injuries was to discuss the events and feelings surrounding the collision with supportive or skilled people;
(d) ... a common consequence of such psychological injures was self-medication by consumption of alcohol for subjective relief of symptoms."
377 Having outlined how it is, as I understand it, that the plaintiff in substance pleads the circumstances giving rise to the alleged estoppel, it is necessary to discretely address a number of aspects of the pleading; then to consider whether the circumstances pleaded could give rise to such an estoppel; and then to consider whether, in any event, the evidence made good the circumstances relied upon.
378 Plaintiff's counsel made no submission as to the legal basis of the pleaded duty. That has certainly complicated my task, but it is nonetheless necessary to address the matter.
379 First, in some respects the pleaded duty resembles the term of mutual trust and confidence which is (or may be)[274] implied into employment contracts. There is an extensive body of case law pertaining to such an implied term, some of which I reviewed in Aldersea and ors v Public Transport Corporation[275]. See also passing mention of the term in Intico (Vic) Pty Ltd v Walmsley[276]. But even if paragraph 2(a) of the Reply was intended to plead such a term it would lead nowhere. For no case is sought to be erected based upon breach of such term being a cause of psychological injury to the plaintiff. So the question whether such a cause of action could possibly lie - for the term has been considered for the most part in varying contexts to do with the dismissal of employees - and the antecedent question whether[277] a term of that kind could be implied into the relationship between State and serviceman, which is other than a contractual relationship,[278] do not arise.
380 Second, the pleaded duty is also somewhat akin - it can be put no more strongly - to a fiduciary duty, which may arise by reason of "a relationship of ascendency or influence by one party over another, or dependence or trust on the part of that other"[279].
381 The relationship of employer and employee is an accepted fiduciary relationship.[280] But a fiduciary relationship is not at large. It is necessary to identify the subject matter over which fiduciary obligations extend.[281] Moreover, in Australia such a duty gives rise to obligations - to avoid a conflict between interest and duty, to resolve any such conflict in favour of duty, and (ordinarily) to not make a profit from the arrangement between the parties - which are not to be equated with it becoming "an independent source of positive obligations" and creating "new forms of civil wrong".[282] Where breach of a fiduciary duty in respect of identified subject matter of the duty "provides not a gain to the fiduciary but a loss to the party to whom the fiduciary duty was owed... there is an obligation to account for the loss by provision of equitable compensation".[283] Here, if a fiduciary duty was intended to be alleged, and assuming paragraph 2(a) of the Reply identified its subject matter, no plea is raised of breach of a pertinent obligation; nor of resulting loss for which the plaintiff should recover equitable compensation. Further, if breach and loss were pleaded, such loss must be in essence non-economic - that is, personal injury, albeit with economic consequences. Australian courts, post Breen, have not accepted that such a loss may be claimed for breach of fiduciary duty.[284]
382 Third, absent submissions, I go no further in attempting to find a legal basis for the pleaded duty. I simply conclude, whatever be the conceptual basis of the pleaded duty, that the structure of paragraph 2 of the Reply shows that the plaintiff's intention is that the duty be relied upon as a circumstance which on the one hand the more readily induced him to make the assumptions upon which he relies; and which, together with the circumstances alleged by paragraph 2(b)(c)(d) and (e) make it unconscionable for the defendant to have induced such assumptions. In the event, the pleaded duty might better be described as responsibility. As pleaded, I add, the duty (or responsibility) would seem to be too broadly framed. One of the things that commanders must do at times is to put servicemen at risk of physical harm.
383 Paragraph 2(g) pleads that the plaintiff was induced to make three assumptions.[285] They do not include an assumption that the plaintiff was forbidden to discuss the collision with anyone - as to which see paragraph 2(f). Yet the alleged consequences of the impugned conduct - see at least paragraph 2(h)(i) and (ii) - and the reason why the plaintiff's acts or omissions were to his detriment - see paragraph 2(i)(ii) 1 and 2 - focus upon the plaintiff's obedience to a direction that he not talk with anyone about the collision. It is conceivable that the pleader intended paragraph 2(f), 2(h)(i) and (ii) and 2(i)(ii) 1 and 2 to address unconscionability discrete from the effect of any assumptions or expectations that were allegedly induced in the plaintiff. But that is not the way that the case was conducted either in the course of evidence or in submissions.[286]
384 In the event, I consider that the Reply should be approached on the footing that, apropos assumptions, it pleads, as I said a little earlier, that the plaintiff was induced to assume that -
385 According to paragraph 2(h)(vi) the plaintiff drank alcohol in order to avoid the symptoms of PTSD. That is, it appears, one of the "actions or omissions" which paragraph 2(i) pleads were to the plaintiff's detriment, and which are said to be part of the reason why the defendant should be estopped from relying upon a limitation defence. Now, paragraph 2(i) says nothing directly about use or abuse of alcohol. It is not alleged, assuming it could be relevant, that acting upon the induced assumption the plaintiff drank so much as to make himself alcohol-addicted, that being to his detriment. It rather appears, in the context of the duty pleaded by paragraph 2(a) and the defendant's actual or constructive knowledge pleaded by paragraph 2(b) and (d), that the use of alcohol to which reference is made in paragraph 2(g)(iii) and 2(h)(vi) is said to be part of the explanation why - to his detriment - the plaintiff failed to learn until very late in the piece that he was suffering from PTSD.
386 In his closing address, counsel for the defendant submitted that the plaintiff had suffered a detriment in that PTSD was well-entrenched by the time that he came to get treatment; and that "the longer you leave it, the worse it becomes"[287]. Such a detriment is not pleaded. Notwithstanding absence of complaint by defendant's counsel, and notwithstanding that some evidence was adduced concerning the likely impact of treatment, I doubt that the plaintiff should be permitted to rely upon that asserted detriment, even if it was conceptually capable of being regarded as a detriment, and even if there was evidence which on balance made good counsel's submission that delay in treatment had led to worsening of the assumed PTSD.
387 The matters pleaded in support of the alleged estoppel (and waiver) in this case are quite different from the circumstances relied upon in Commonwealth v Verwayen[288] and Commonwealth v Clark[289] In those cases the Commonwealth represented, in essence, that it would not take, inter alia, a limitation defence; and then it did so. Verwayen had prosecuted his claim on the footing of the representation made. Clark had initiated his proceeding and incurred cost. Further, when the limitation defence was belatedly taken, his psychological health deteriorated. In those cases there was, then, a promissory element central to the pleaded estoppel; and what the plaintiffs sought to do, in effect, was to have the defendant held to its promise, a promise which specifically addressed the taking of a limitation defence. Each of Verwayen and Clark[290] fell into the category of so-called promissory estoppel, involving a representation or promise as to future conduct.
388 In the present case, according to paragraph 2 of the Reply, the defendant made no promissory representation - whether to the plaintiff, or such as might influence him - with respect to a limitation defence. Rather, certain of its conduct in 1964 induced the plaintiff to make the assumptions to which I have earlier referred, assumptions upon which he then and thereafter acted (or for the most part, did not act) to his detriment. There was no promissory element in the conduct upon which the plaintiff relies.
389 Given the nature of the circumstances pleaded, counsel for the plaintiff submitted that the Reply pleaded estoppel by conduct, the impugned conduct involving action, inaction and things said. Counsel referred to and relied upon what was said about estoppel in pais by Dixon J in Thompson v Palmer[291]:
"The object of estoppel in pais is to prevent an unjust departure by one person from an assumption adopted by another as the basis of some act or omission which, unless the assumption be adhered to, would operate to that other's detriment. Whether a departure by a party from the assumption should be considered unjust and inadmissible depends on the part taken by him in occasioning its adoption by the other party. He may be required to abide by the assumption because it formed the conventional basis upon which the parties entered into contractual or other mutual relations, such as bailment; or because he has exercised against the other party rights which would exist only if the assumption were correct, as in Yorkshire Insurance Co v Craine (1992) 2 AC 541, at pp. 546-547; cp. Cave v Mills [1862] EngR 494; (1862) 7 H & N 913, at pp. 927-928; [1862] EngR 494; 158 ER 740, at pp. 746-747; Smith v Baker (1873) LR 8 CP 350, at p. 357;Verschures Creameries Ltd v Hull and Netherlands Steamship Co (1921) 2 KB 608, at 612; and Ambu Nair v Kelu Nair (1933) 60 IA 266, at p. 271; or because knowing the mistake the other laboured under, he refrained from correcting him when it was his duty to do so; or because his imprudence, where care was required of him, was a proximate cause of the other party's adopting and acting upon the faith of the assumption; or because he directly made representations upon which the other party founded the assumption. But, in each case, he is not bound to adhere to the assumption unless, as a result of adopting it as the basis of action or inaction, the other party will have placed himself in a position of material disadvantage if departure from the assumption be permitted."
390 The elements of estoppel in pais were revisited in Grundt and ors v The Great Boulder Proprietary Gold Mines Ltd[292], another important authority referred to by plaintiff's counsel. What had been said by Dixon J in Thompson was adopted by Latham CJ[293]. Dixon J expanded to an extent upon what he had said in that earlier case. He said, inter alia, the following:
"One condition appears always to be indispensable. That other must have so acted or abstained from acting upon the footing of the state of affairs assumed that he would suffer a detriment if the opposite party were afterwards allowed to set up rights against him inconsistent with the assumption."
"That purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it."
"His action or inaction must be such that, if the assumption upon which he proceeded were shown to be wrong and an inconsistent state of affairs were accepted as the foundation of the rights and duties of himself and the opposite party, the consequence would be to make his original act or failure to act a source of prejudice."
"The justice of an estoppel is not established by the fact in itself that a state of affairs has been assumed as the basis of action or inaction and that a departure from the assumption would turn the action or inaction into a detrimental change of position. It depends also on the manner in which the assumption has been occasioned or induced. Before anyone can be estopped, he must have played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it."[294]
391 In light of the plaintiff's understandable submission that this was a case of estoppel by conduct, several points should be made. First, estoppel by conduct has been repeatedly described as a "rule of evidence" which prevents the person who engaged in the conduct from making, or attempting to establish by evidence, any averment substantially at variance with the import of the conduct. That is, the estoppel may deny a defendant the right both to aver a particular defence and adduce evidence[295] concerning that defence.
392 Second, it has traditionally been said that the principle of estoppel by conduct[296] provides protection against the detriment which would flow from a party's change of position by preventing that party from departing from an assumption of fact which his conduct has caused another to adopt or accept for the purpose of their legal relations[297]. In the case of promissory estoppel, however, once the grounds for an estoppel have been established, "equity [is] concerned, not to make good the assumption, but to do what [is] necessary to prevent the suffering of detriment[298]; or, what is "the minimum equity to do justice to the plaintiff"[299]. In Australia there has surely been an attempt to subsume the various categories of estoppel into a single doctrine. One aspect of the attempt has focussed upon bringing the remedies into line. At this stage, however, the attempt cannot be said to have succeeded; and I doubt that it can be said that the remedies have been brought into line. Perhaps there has been some amelioration in the traditionally absolutist consequence which flows from circumstances giving rise to an estoppel by conduct[300], but I doubt that the tide of judicial opinion has yet swept away that consequence in favour of the minimalist remedy appropriate where the circumstances give rise to a promissory estoppel.[301] Whether or not that is the correct analysis, it is at least clear that the high water mark of protection which may be given whether in a case of estoppel in pais or a case of promissory estoppel is the same - that is, preclusion against departure from the assumed state of affairs.
393 Third, notwithstanding the area of continuing divergence just mentioned, it remains the fact that most of the criteria by which circumstances are examined to see whether a party can rely upon an estoppel are common both to estoppel by conduct and promissory estoppel. It is unnecessary to presently mention all the areas of convergence. Some are pertinent to analysis of the evidence in this matter, and I will refer to them in that context. It is convenient, however, to mention that one common thread is consideration whether a party's departure from an assumption which he has created should be considered "unjust and inadmissible".[302] Deane J put the matter this way in Verwayen:
"(2) The central principle of the doctrine is that the law will not permit an unconscionable - or, more accurately, unconscientious - departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party's detriment if the assumption be not adhered to for the purposes of the litigation."
"(4) The question whether such a departure would be unconscionable relates to the conduct of the allegedly estopped party in all the circumstances. That party must have played such a part in the adoption of, or persistence in, the assumption that he would be guilty of unjust and oppressive conduct if he were now to depart from it. The cases indicate four main, but not exhaustive, categories in which an affirmative answer to that question may be justified, namely, where that party: (a) has induced the assumption by express or implied representation; (b) has entered into contractual or other material relations with the other party on the conventional basis of the assumption; (c) has exercised against the other party rights which would exist only if the assumption were correct; (d) knew that the other party laboured under the assumption and refrained from correcting him when it was his duty in conscience to do so. Ultimately, however, the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted. In cases falling within category (a), a critical consideration will commonly be that the allegedly estopped party knew or intended or clearly ought to have known that the other party would be induced by his conduct to adopt, and act on the basis of, the assumption. Particularly in cases falling within category (b), actual belief in the correctness of the fact or state of affairs assumed may not be necessary. Obviously, the facts of a particular case may be such that it falls within more than one of the above categories."[303]
394 In the present case paragraph 2(j) of the Reply pleads, particularly by reference to paragraph 2(a)-(e), that it would be unconscionable for the defendant to rely upon the provisions of s. 5(1)(a) of the Limitation Act. But the true question would seem to be whether it would be unconscionable to permit the defendant to depart from the assumptions which it allegedly caused the plaintiff to make. Nonetheless, on an assumed footing that it was relevant to the question whether the defendant should be free to rely upon a s. 5(1)(a) limitation defence that the plaintiff had been induced to make the assumptions relied upon, I think that it could be pertinent to consider not simply that the defendant had induced the assumptions, but also that in doing so it had taken advantage of knowledge or had not pursued means of knowledge which were at its disposal. The dicta of Deane J in Verwayen[304], cited in the joint judgment in Giumellii[305], suggest that this should be so.
395 Fourth, the prima facie or high water mark of protection where circumstances give rise to an estoppel by conduct is that a party will be precluded from departing from assumptions which that party has caused another party to make and act upon. In the present case there was nothing either in the Reply or in the evidence which could suggest that the assumptions which were allegedly induced had anything to do with possible or foreshadowed legal proceedings by the plaintiff against the defendant. That conclusion is reinforced when it is remembered that, though subject to later disapproval, the 1965 observation of Windeyer J in Parker v Commonwealth[306] was that neither the Commonwealth directly, nor the Commonwealth vicariously in respect of the conduct of a member of the Services, could be liable for injury suffered by a serviceman in the course of his duties. This likely represented the state of thinking in 1964. Only in Groves v Commonwealth were the limits of the Commonwealth's immunity from suit by servicemen, in respect of negligently caused injury, confined[307].
396 It appears to me, in the event, that there is a disconnection between the assumptions which were allegedly induced and what the plaintiff pleads the defendant should be estopped from now relying upon. I do not mean that on the plaintiffs case there is not a pleaded series of events which link those assumptions with the s. 5(1)(a) limitation defence; but rather that what the plaintiff seeks to estop the defendant from doing is greatly distinct from obliging it to adhere to those assumptions. That seems to me to be inconsistent with the conception that an estoppel at its highest precludes the party estopped from departing from the assumptions which were induced. The point is illustrated by considering the assumption allegedly induced that the plaintiff was a well man. The defendant has never desired to depart from such an assumption. That was its case at trial.
397 It would not be necessary, for the defendant to be estopped from relying upon the s. 5(1)(a) limitation defence, that it must have specifically represented by words or conduct that it would not take such defence. The same might be implicit in a representation[308]. But that is a quite different situation from the circumstances here pleaded.
398 In the event, I consider that even if the plaintiff made out, on the evidence, his case that by conduct and words the defendant induced him to make the assumptions which are alleged, and in reliance thereon he acted and abstained from acting to his detriment, nonetheless the defendant would not be estopped from raising the s. 5(1)(a) limitation defence.
399 Thus far I have focussed, in expressing that conclusion, upon the disconnection between the assumptions which are alleged and the estoppel sought to be relied upon. Consideration of unconscionability would seem to me to yield the same conclusion. Accepting that unconscionability is, at least most often, rooted in the presence of one of the situations described by Dixon J in Thompson and summarised by Deane J in Verwayen ,[309] those circumstances imply a relationship between the assumption made and the consequences to the person to whom the same is made of departure from that assumption.
The Estoppel considered by reference to the Evidence
400 In case my conclusion that the estoppel as pleaded is untenable be wrong, I should address the evidence. Before I do so, however, it is convenient to mention principles particularly pertaining to the quality of conduct relied upon to found an estoppel and the intention of the person who engages in the same.
401 It is said that conduct must be unambiguous and concern a matter of fact. It is said also that it must be engaged in with the intention, actual or presumed, and the effect, of inducing the party raising the estoppel to alter his or her position on the faith thereof to his or her detriment.[310]
402 The conception of what is unambiguous, in the context of representation, is discussed in Spencer Bower.[311] At best for the representee the position is that, even if the language can possibly be open to different constructions, it must be such as will be reasonably understood in a particular sense by the representee.[312]
403 The question whether action or omission to act was induced in fact is a matter of evidence. Inference may play a part in the fact-finding exercise.
404 The requirement that the representor intended the representee to act on the representation will be made out if that was the representor's actual intention, or if the representee reasonably so understood it. In the latter connection,
"a man must be taken to intend what a reasonable person would take him to intend."[313]
405 Those principles outlined, I go to evidence pertaining to pleaded assumptions.
The assumption that the plaintiff was forbidden to speak to anyone about the collision
406 The thrust of the plaintiff's case was that on an occasion during the period when Melbourne was returning to port her Captain gave the crew an order or direction not to speak to anyone about the collision; that the same was reinforced by the ship's divisional officers before the vessel berthed; and that what was said had induced the plaintiff to assume that he was so forbidden, and to conduct himself in accordance with that assumption.
407 The evidence clearly showed that the Captain did make a broadcast on 11 February in which he said something about crewmen not speaking about the collision; and that one divisional officer at least conveyed the same to his men in somewhat more expansive terms. There was a considerable measure of disagreement in the evidence, not surprising given the elapse of more than 40 years, as to just what the Captain did say.
408 The plaintiff's evidence showed that, whatever the Captain and any divisional officer said, the plaintiff himself had not heard it directly. Rather, he had heard scuttlebutt, as he put it, to the effect that nothing should be said about the collision.
409 The defendant relied upon plaintiff's concession that he had heard nothing said by the Captain or any divisional officer. Counsel submitted that necessarily the basis for any assumption by the plaintiff was not shown to have been induced by any conduct for which the defendant could be liable. I do not agree with that submission. The evidence showed that many announcements were made over the tannoy system, and that not all crewmen were likely to hear each such announcement. It is entirely understandable that the substance of some announcement would be passed from one sailor to another. If a sailor happened to hear of some announcement via another sailor and not directly from the tannoy, it would in my opinion matter not at all so long as the recapitulation of what had been said was accurate. It would be likewise if the announcement was repeated by a divisional officer.
410 The questions, I consider, are what was said, with what intention, and whether the plaintiff's understanding of what had been said coincided with the fact.
"The general consensus was that we weren't to talk about the collision to anyone, any family, friends or anybody or amongst ourselves."[314]
412 His reaction, he said, was to refuse to discuss it with his wife; and not to discuss it with anyone.
413 Asked in cross-examination whether any officer had said to him that he was ordered or directed not to speak about the collision to his family he said
"That seemed to be the strong one going around the ship."[315]
414 Further in cross-examination the plaintiff appeared to agree that in the month or so after the collision he met and spoke with fellow crewmen about aspects thereof - specifically about lives that had been lost;[316] although in examination in chief his evidence was rather that there had been some discussion, but he had not participated in it.[317]
415 The plaintiff called a number of witnesses to give evidence of what they heard the Captain say.
416 Robbins gave evidence that in the course of an address on the day following the collision the Captain had said that
"... we should not discuss that circumstances of the collision with anyone, as it was almost certain there would be a major enquiry and many of us could be involved."
"said there would be a lot of news people around, trying to zero in on us, and he reiterated the statement that was made by the Captain about not speaking to anyone.'[318]
418 On shore, he said, he was twice interviewed - apparently in connection with the imminent Royal Commission - and was
"warned of the implications of the Official Secrets Act and ... was told not to discuss the circumstances of the collision or events which occurred during the collision or afterwards, with anyone, including my family."[319]
419 Cross-examined, Robbins agreed that the Captain had mentioned the likely presence of the media. But that, he said, followed the Captain being emphatic that they should talk to no one.[320]
420 James Bate, who was a junior officer on watch at the time, and who later rose to the rank of Commander, gave evidence that the Captain had made a broadcast in which he described the events leading up to the collision and briefly the circumstances of the collision itself. He, the Captain, emphasised that it would be the subject of a full enquiry. He gave instructions about not talking about the matter outside the ship. The witness took it to mean that crew members
" ... were to shut up until the matter of the enquiry had been started or concluded."[321]
"could expect that the media interest would be large when [they] arrived back in Sydney and, if in particular, they were not to be told ... what took place."[322]
421 As a divisional officer, Bate had repeated the Captain's announcement to his sailors. He told them that they were to say nothing, just shut up.
422 The witness gave what I consider was impressive evidence about the circumstances in which he broke his "code of silence"[323] I am satisfied that he, at least, believed that the Captain's announcement was directed to keeping quiet more widely than just in connection with the media.
423 In cross-examination the witness reiterated his understanding that the import of the Captain's announcement was that crewmen should not talk about the collision outside the ship until the facts were established by the enquiry.
424 Lyndon Thurlow was a Petty Officer on board Melbourne on 10 February 1964. According to his recollection, which he understandably said was imperfect in detail, the Captain
"... virtually discussed the collision, he mentioned the, the enormity of it, he mentioned the loss of life, he mentioned the work that the crew of Melbourne had done by bringing in what we brought in, and he also mentioned that it would be in the best interests of the Navy if nobody discussed the matter with anybody at all."[324]
As a Petty Officer, according to his evidence, he had to obey what the Captain said.
425 Cross-examined, the witness agreed that the Captain mentioned the media, but
"also talked if we went ashore in hotels, and civilian people. They were his words."[325]
426 Further in cross-examination the witness said that "anybody" meant anybody not within the ship's company.[326] There was, he said, discussion within the ship's company.
427 William Gurnett, one of the Admiral's Staff Cooks as at 10 February 1964, gave evidence that the Captain
"... was most upset about the accident and also that we had lost so many lives and injuries, and also, too, not to say anything to anybody when we did dock in Sydney, to the press in particular, and even down to other shipmates on other ships, when we went into Sydney."[327]
428 Referring to a possible repetition in daily orders of what the Captain had said, the witness gave evidence that
"... specifically, we weren't to talk to the press or public about the accident."[328]
429 Cross-examined, the witness agreed that the substance of the message was that the crew should not speak to members of the press or strangers about how the collision had happened.[329]
"He made a statement to the effect that we were going to sail for Sydney. We had stopped, looking for survivors, and we were going to sail for Sydney and expected to arrive back there some time in the next day, or morning, or something like that; and he said 'When we get there some of you will be going ashore,' and he said 'Be very careful.' He said, 'There will be a lot of press and that. Just be careful. Don't talk about anything you don't know anything about it.' That sort of thing."[330]
431 In cross-examination he restated his recollection of what the Captain had said this way:
"'When you go ashore you will have, the press will be around, and just be careful with anything you say. Don't say anything unless you know what you are talking about, because no-one knows how the incident happened, or anything'. That is what he was telling the people."[331]
432 John Dunlop, who was a lieutenant on board Melbourne at the critical time, gave this evidence in chief concerning the Captain's statement:
"... the substance was a summary of all the things that had taken place during the preceding 12 hours.
Yes? --- I think the status of the search and rescue, the fact that other ships and aircraft would continue the search, but that the Melbourne was going to head back to harbour for repairs.
Yes? --- A mention that the press may be interested in this, and that we should be cautious in our statements. And that is about all I remember.
Alright. Do you recall any order suggesting or saying - or you say which, if you do recall it - that you are not to speak to anyone at all? --- No."[332]
434 He could not recall whether the Captain had mentioned that there was likely to be an enquiry.
435 Frank Geoffreys, Second Officer of Watch on Melbourne on 10 February 1964, gave this evidence in chief:
"It was basically that we, we had all been through a traumatic sort of experience, and that we were to try and get over it the best we could. We were not to speak to the press, which he said were waiting for us when we got back into Sydney Harbour and that, you know, we should try to get over it the best we could."[335]
436 It was, he said, more of a fatherly talk than an order which must be obeyed. But he agreed in cross-examination that he supposed he would have been most surprised if, the Captain having said that the ship's company were not to speak to the press, anyone had done so.[336]
437 Further, in cross-examination, the witness mentioned that the Captain had said that there was going to be an enquiry; and said he had no reason to think that the Captain had imposed any prohibition on crew members talking about the collision amongst themselves.
438 Francis Lyons, a retired Catholic priest who was on board Melbourne in February 1964, gave evidence of hearing a short broadcast by the Captain on the day following the collision. The broadcast, he said:
"... began by saying that there was an army of press and media waiting at Garden Island for the ship to arrive, and that if anybody was besieged by the press they should be careful what they said because the matter would be before the courts by then."[337]
439 It was, said Monsignor Lyons, a cautionary talk rather than an order. But in cross-examination he agreed that an announcement by the Captain would be taken pretty seriously by crewmen; and that, whether couched in terms of an order or otherwise, it would be something that the crew would in fact comply with. [338]
440 Paul Graham, an Engineer Lieutenant on board Melbourne in February 1964, gave evidence of hearing two broadcasts - one on the morning following the collision, the other before the vessel got to Sydney. This was his evidence in chief:
"It was basically telling us what had happened. The Captain told us what had happened and that we were returning to Sydney; and in the one before we got to Sydney, he once again said that, part of it was that we would probably be asked by the press for comments, and that he asked that we shouldn't quote his report or his comments to the press."
Alright. Is your recollection that he referred to the freedom of the crew to speak amongst themselves about the collision? --- Yes."[339]
441 Cross examined, the witness agreed that several weeks earlier, in another trial arising out of the collision, he had given evidence that the Captain had said he should not be quoted if crewmen were "approached by the press or anyone". [340]
442 Thus far I have not mentioned the Captain's report of what he said. It is contained in a memorandum to the Flag Officer Commanding, H.M. Australian Fleet, dated 19 February 1964[341]:
"38. At about 0900K on Tuesday 11 February, I addressed the ship's company over the Main Broadcast. Amongst other matters I told them of the ship's movements so far as they were known to me and explained at some length events leading up to the collision. Later in the day, after directions regarding communications with the press had been received, I gave the ship's company some advice on this subject and asked that whatever they may say to persistent reporters they should not quote my account given to them earlier that day. I am glad to be able to report that so far as I am aware this confidence has been respected by both Melbourne's ship's company and the survivors from Voyager who were on board at the time."
443 Notwithstanding the passage of years, I consider that it is possible to arrive at fairly clear conclusions as to what Captain Robertson probably told the crew on 11 February 1964.
444 First, it is to be noted that the Captain's report indicates that there were two relevant broadcasts. Almost all the witnesses recalled one only. Probably they conflated the contents of two broadcasts. The short time elapse between events and the Captain's report tells in favour of acceptance of his chronology.
445 Second, it is further to be noted that the Captain's account is in the form, understandably, of a resume. It does not purport to be either exhaustive or word for word.
446 Third, it is to be observed that the Captain referred to "directions regarding communications with the press [having] been received". This makes it likely that the Captain would have laid particular emphasis upon crewmen not speaking to the press; and that he would have conveyed a firm wish that what he said should be abided.
447 Fourth, it is likely that when Captain Robertson first spoke to the crew, and when he later addressed them, he did so against a background of certainty, or at least near certainty, that there would be an extensive enquiry into the disaster. It is therefore likely that this circumstance was mentioned in the context of at least one of the addresses in which, collectively, on the one hand he attempted to bring the crew and Voyager survivors up to date with what was thus far known or supposed about what had occurred, and on the other hand was concerned that his account not be disseminated in advance of the enquiry.
448 Fifth, whilst for reasons outlined it is likely that Captain Robertson particularly warned crew members against speaking to the press about the matter, I consider it probable that he also warned crew members against speaking about the matter in situations which could lead to the press getting hold of information by indirect means - as, for example, by something unwisely said in an hotel. Bear in mind also that a member of the press would not necessarily so announce himself or herself.
449 Sixth, it is likely that Captain Robertson's admonition was couched in terms of not prejudicing or anticipating the enquiry. It is altogether improbable that it conveyed or might reasonably have been thought to convey a warning against talking about the collision into the indefinite future. After all, if the foreshadowed enquiry was held, it was inevitable that the circumstances of the collision would be a matter of detailed evidence and analysis.
450 Seventh, it is clear, I think, that Captain Robertson did not give a warning or direction that crewmen should not speak about the collision between themselves.
451 Eighth, it is clear also, I consider, that the Captain did not specifically warn crewmen that they should not speak to family or friends about the collision.
452 Ninth, what I have just said does not mean that Bate did not give a warning to his sailors in more expansive terms. To have done so would have presented sailors with a simple criterion rather than exposing them to decision-making in particular instances if they were asked about the collision.
453 Tenth, even if a warning in more expansive terms was given by Bate or some other divisional officer and even if that became scuttlebutt, I do not consider that, sensibly, it should have been understood as precluding private discussion between a sailor and his family. But even if it did lead to such an understanding in the case of an individual sailor, it is another question whether the defendant should be held to an understanding deriving from the inaccurate paraphrase by a divisional officer of what Captain Robertson had told the crew..
454 Eleventh, even if McCracken gave a warning in more expansive terms to his sailors - compare his evidence and that of Robbins - I am satisfied that the plaintiff did not hear it; and I am not satisfied that any scuttlebutt which the plaintiff did hear had its origin in anything said by McCracken.
455 Twelfth, I consider it very clear that Captain Robertson did not warn the crew against speaking to medical practitioners about the collision.
456 It is next convenient to mention certain notorious facts:
457 I turn to evidence given by the plaintiff and his wife about their not discussing the collision. The plaintiff said that he reacted to "the consensus" that they were not to speak about the collision to anybody by refusing to discuss it with his wife.[342] In cross-examination there was this question and answer:
"And so, you've said in your evidence you didn't speak to your wife about it, but that was a matter of your personal choice wasn't it? --- Yes, I guess I could have spoke to her if I had wished to."[343]
458 Mrs Stafford gave evidence that the plaintiff never in fact discussed the collision with her. She said also that:
"Sorry, one time he did tell me how he was told not to discuss it."[344]
She did not say when, even approximately, that remark was made.
459 The plaintiff gave evidence that in the month or so following the collision he met up with members of the crew, and that there was discussion concerning those lost in the collision as well as talk about what had happened. I have referred to the threads of that evidence a little earlier.
460 Other witnesses gave evidence that the plaintiff did not in fact talk much about the collision over the years. I have earlier referred to some of that evidence. I consider that it was reliable. It is another matter why the plaintiff did not much discuss the incident.
461 The burden of the Reply, relevantly, is that the defendant induced the plaintiff to assume that he was forbidden to speak with anybody about the collision; that the plaintiff acted upon that assumption by avoiding discussion with people about it; that (perhaps this is alleged), he avoided making timely complaint about his symptoms, or obtaining timely advice or treatment in connection therewith; and that his silence was to his detriment.
462 In my opinion the plaintiff did not make out that case. The following considerations are pertinent: first, for reasons described at length whatever statements the Captain made did not contain nor could have been reasonably understood to contain a prohibition upon crewmen speaking to anyone about the collision. On no view did any such statement extend to fellow crewmen on Melbourne, and some of the plaintiff's evidence suggests that he did not understand there to be any such prohibition. Further if the plaintiff believed, contrary to the import of some of his evidence, that he was at least forbidden to speak with his wife about the collision, that was neither said by the Captain nor could reasonably have been derived from what the Captain said. Nor should any more expansive warning by a divisional officer, if the plaintiff came to learn of it, reasonably have been so construed. Further again, any statement by the Captain that the crew should not speak about the collision, or of what he told them about it, was almost certainly limited temporally - that is, by reference to the likely Royal Commission.
463 Second, the plaintiff did not altogether avoid discussion about the collision. At least he was present at, and he may well have participated in, discussion with crewmates about it in the period immediately thereafter. Discussion with his peers was, on the evidence, probably the best support that he could have got.
464 Third, the plaintiff did not in fact report his symptoms to a doctor, or seek advice or treatment, for many years. But the plaintiff gave no evidence that such conduct reflected his belief that he could not unburden himself to a doctor about the collision and its effect upon him. It seems clear, indeed, on the plaintiff's case that he did not relevantly consult with a doctor because he maintained that relevantly there was nothing wrong with him; or as an avoidance mechanism
465 Fourth, whilst I have accepted evidence that the plaintiff generally did not much talk about the collision over the years, that is more likely the consequence of his desire to shut the event out of his mind by not recapitulating its circumstances.
466 Finally in connection with this aspect of the estoppel I should mention paragraph 2(b)(c) of the Reply. The matters there raised can be put to one side in the present connection, for the plaintiff has not satisfied me of circumstances which could make them relevant.
The assumptions that the plaintiff would be treated by the defendant for any injuries which he suffered, that he was not injured in the collision and that it was acceptable for him to drink alcohol in order to forget the collision
467 In my opinion, it should be accepted, particularly having regard to the divisional officer structure which was described in evidence and the presence of naval chaplains on board some ships and (probably on shore), that the Navy assumed something of a pastoral role in respect of its men as at 1964. Complementary to that role was the provision of naval doctors, both on some ships and on shore. In those circumstances I think that the plaintiff was entitled to assume, speaking generally, that the defendant would treat him for injuries which he sustained in the course of his service and in respect of which he reported to such a doctor.
468 It is further the case that in certain specific circumstances - enlistment, re-enlistment and discharge - the Navy initiated enquiry whether any injury had been allegedly suffered, and whether the examinee complained of any disability.
469 Questions may then be framed as follows: First, did the circumstances which entitled the plaintiff to assume that he would be treated for injuries which he sustained and which he reported, the fact that in specific circumstances the Navy initiated enquiry whether injury or disability was present, and the fact that the Navy did not mass-screen or otherwise investigate the state of the plaintiff's psychological health after the collision - together, or in some lesser combination - each of which alternatives it is convenient to describe as "the circumstances" - constitute an unambiguous representation that the plaintiff had not been injured in the collision?
470 Second, did the circumstances convey such a representation, intending that the plaintiff act thereon; or were they such that the plaintiff might reasonably have so understood the situation?
471 Third, did the plaintiff so understand the circumstances, this causing him to assume that he had not been injured?
472 Fourth, by reason of such assumption, were the circumstances causative of the plaintiff doing or not doing any of the things set out in paragraph 2(h) of the Reply?
473 In my opinion the answer to the first of those questions is "no". There is a great difference between a representation by conduct that injury will be treated and a representation by conduct that the possible presence of injury will be investigated. The very limited circumstances in which the Navy embarked upon the latter course did not amount to a plain representation that possible injury would be investigated in all circumstances; rather the contrary. Further, the circumstance that the Navy made a decision not to screen all (Voyager) survivors for possible psychological sequelae was, on the evidence, unknown to the plaintiff. Again, it did not specifically relate to the crew of Melbourne. Finally, see further in a moment, it was a decision which had a rational medical basis. It could not be said to have been an unambiguous representation that a particular seaman had not in fact been injured.
474 I go to the second of the questions which I framed. In my opinion, whatever way the circumstances which I have mentioned might be put together, the defendant did not intend by conduct to represent that the plaintiff had not been injured in the collision and that he should act upon such representation; nor could the plaintiff reasonably have understood the contrary. What I have already said about the circumstances entitling the plaintiff to assume that he would be treated for injury which he sustained, if reported, and about circumstances in which the Navy initiated enquiry about injury is in point.
475 Other than that, the Navy undoubtedly made a decision, noted in a Minute dated 16 May 1964, not to carry out psychological assessment of Voyager survivors "on grounds that to treat all the survivors as potential psychiatric cases might well implant such disabilities in minds hitherto free of them"; but decided that there should be "close observation and sympathetic action in the case of a rating showing signs of psychological trauma... any such cases to receive every appropriate assistance and treatment".[345]
476 There was debate in the medical opinion evidence as to what was known in 1964 about what is now called PTSD. That debate was in some respects sterile. The Minute shows that the Navy then understood that there was the potential for "psychological trauma" in the case of Voyager survivors; and that, as the Navy perceived it, treatment was available for such injury.
477 Focussing for the moment upon the Minute in its specific application to Voyager survivors, the burden of the evidence was that the decision not to psychologically assess all survivors, but to treat those who showed signes of "psychological trauma", was appropriate to the standards of the day. The evidence was clear that psychological counselling, or "debriefing" of all survivors would not have been in accordance with those standards;[346] and was unlikely to have been helpful. Again, the evidence showed that mass-screening is, in the context of the Australian Armed Forces, a fairly new technique[347]. The evidence was also clear that according to the standards obtaining in 1964 presentation by a sailor to a doctor would have been the usual circumstance which triggered medical investigation and treatment.[348] The evidence, on balance, suggested also that it would have been prudent for a naval doctor upon whom a survivor attended, even for an apparently discrete condition, to have asked questions about the patient's psychological condition.[349] Finally, the evidence suggested that it was appropriate that officers look for signs of "psychological trauma" in sailors under their command - a concept implicit in the Minute - although the capacity of officers to understand the significance of behavioural patterns could be doubted.[350]
478 In all, then, applied to Voyager survivors the Minute was consonant with the practice of the day, subject only to the possible criticism that it did not suggest that survivors who attended naval doctors for apparently unrelated conditions might prudently be questioned as to the presence of symptoms of psychological injury. The soundness of the decisions reflected by the Minute removes any suggestion that they were intended to represent that a Voyager crewman who displayed no symptoms of psychological trauma, and who for that reason was not psychologically assessed, was a well man and should act upon an assumption to such effect.
479 The decisions were confined to the crew of Voyager. The burden of the evidence was that as at 1964 it should have been perceived that some members of Melbourne's crew - but a lesser percentage than in the case of Voyager's crew - would suffer psychological injury in consequence of the collision. The debate between the parties was conducted on the footing that the Minute of 16 May 1964 reflected the Navy's position concerning the crew of Melbourne. Making that assumption, the decisions reflected in the Minute were no less appropriate than in the case of the crew of Voyager. On no view, in my opinion, could it be said to be conduct which, against a background of responsibility and knowledge, was intended to cause the plaintiff to assume, in circumstances where he was not referred for psychological assessment and treatment, that he was psychologically well; and that he should act upon such assumption. Further in my opinion, the Navy's conduct in the present connection - of which in fact the plaintiff knew nothing - could not reasonably have been understood by the plaintiff to convey a contrary representation.
480 I go to the third and fourth questions which I identified a little earlier. In my opinion the plaintiff did not make out a case that any conduct of the defendant caused him to assume that he had not been psychologically injured in the collision; or to act upon such an assumption. There was evidence that the plaintiff believed that he had not been injured. But the evidence did not link such belief with any conduct of the defendant whether pleaded by the Reply or as emerged in evidence; and it would not be safe, even if it was theoretically available, to draw an inference that there was such a connection.
481 The evidence showed, as I noted earlier in these reasons, that the plaintiff in fact attended naval doctors on three occasions in 1964, in each instance after February that year. That circumstance shows his readiness, attested also by visits to naval doctors before and after 1964 - to seek medical attention when he believed that he needed it. Those visits do not sit easily with a case which seeks to found an assumption of wellness upon the Navy not having initiated psychological assessment of the plaintiff subsequent to the collision.
482 There is nothing to suggest, as I noted earlier, that a naval doctor made any enquiries about possible psychological problems consequent upon the collision on any occasion when the plaintiff attended in 1964. Accepting for argument's sake evidence that some such enquiries might prudently have been made, albeit that the plaintiff attended for unrelated conditions, the most that could be said is that, conceivably, the failure to enquire demonstrated a want of reasonable care on the part of the defendant. But that is not the same thing as saying that the failure to enquire was intended to lead the plaintiff to assume that he had not been injured in the collision; or that he could reasonably have so understood the situation. Nor, indeed, that the plaintiff made any such assumption by reason of those circumstances. The same observation may be made in respect of the plaintiff's relatively few attendances upon naval doctors between 1965 and 1971; remembering also the medical records that were completed and upon which the defendant relied.
483 That leaves the issue of alcohol. The thrust of the pleaded case is that the defendant knew or should have known that a common consequence of psychological injuries induced by trauma was self-medication by alcohol. Next, that in the context of the defendant's responsibility for the plaintiff as pleaded by paragraph 2(a) of the Reply and the actual or constructive knowledge pleaded by paragraph 2(b), the defendant induced the plaintiff to assume that it was acceptable to drink alcohol in order to forget the collision. And then, that the plaintiff drank to avoid the symptoms of PTSD, this (implicitly) being one reason why he did not discover that he was suffering from the condition until his claim was statute-barred.
484 The pleaded case, in my opinion, is grossly at variance with the evidence. At its highest, evidence was given that when the men were disembarking after Melbourne's return to Sydney some of them were told to have some drinks and forget about what had happened.[351]
485 Such remarks, even if the defendant could be fixed with responsibility for them, did no more than address the immediate aftermath of a shocking event in the near-recent past. It is really at odds with reality to imagine that, insofar as the plaintiff learned second-hand of any such remark, it caused him to assume that it was alright for him to drink to excess for 35 years - not that, it must be said, the plaintiff gave any such evidence. Again, it would be really at odds with reality to infer that any such remark was intended to induce such an assumption on the plaintiff's part; or might reasonably have been so understood.
486 As I noted earlier, no submissions were made by plaintiff's counsel concerning the plea of waiver. It was founded (see paragraph 3 of the Reply) on the same circumstances as were relied upon in connection with the plea of estoppel. The varying judicial views expressed in Verwayen about the nature and sphere of operation of waiver are considered in Meagher, Gummow and Lehane's Equity Doctrine and Remedies.[352] Whether or not the term has independent content, the great problems for the plaintiff in the present case, it seems to me, are in the first place that by no stretch of the imagination was the defendant's pleaded conduct directed towards its giving up a right to pursue a s. 5(1)(a) limitation defence; and in the second place, that the plaintiff has not made out the factual building blocks of the plea.
487 It was proved that the late Mr Stafford developed chronic PTSD as a result of the defendant's tortious conduct in connection with the 1964 collision between Melbourne and Voyager. But his estate cannot recover the damages which I would otherwise award, $255,000, because I have concluded that the action which he commenced, and which his estate continued, is statute-barred. This outcome will no doubt be welcomed by the defendant and be deplored by many others. It is the fact that over the years, and even in recent years, a very considerable number of cases arising out of the collision have been successfully litigated by crew members of both vessels. Yet a considerable number of cases remain to be heard. My Reasons, if correct, are likely to affect, adversely to plaintiffs, the fate of some but not all of those cases.[353] It cannot be thought satisfactory that the future disposition of litigation arising out of the Melbourne/Voyager collision should be, in effect, a lottery the outcome of which in individual cases may well depend upon the vagaries of pleading.
I certify that this and the 151 preceding pages are a true copy of the reasons for Judgment of Ashley J of the Supreme Court of Victoria delivered on 22nd June 2005.
First, his Honour referred to s. 5(1A) "being concerned with contraction of a disease or disorder at or proximate to the time of the tortious act or omission" (at [76]). He referred also in his judgment, as examples of diseases which are contracted, to asbestosis and mesothelioma. Having led, heard and read a great deal of evidence over the years concerning those diseases, I think it can safely be said that the precise time at which either of them is contracted in a particular instance will, if not always then almost always, be uncertain. But I very much doubt that it can be said that either such disease is contracted at a time proximate to the tortious conduct. It can be said, I think, that the inhalation of an asbestos fibre or fibres sets the scene for later contraction of one or other disease; but no more.
Second, his Honour at several points described osteoarthritis as a (late onset) injury (at [76], [88]); one, as I understand it, which would not fall in s. 5(1A). I think there is really no doubt that doctors would describe osteoarthritis as a disease. The time of its onset, even where the "cause" is frank trauma, will generally be unknown to the sufferer. Characteristically, according to great deal of evidence which I have heard over the years, it reveals itself at a time remote from the time of its first onset. In the interim it has progressed. Maybe there is a question whether osteoarthritis should, on his Honour's analysis, be capable of falling within s. 5(1A) - the more so if the condition is alleged to be the consequence of repeated micro-trauma suffered over a period of months or years.
Wright
Commonwealth of Australia [2005] VSC 200
(1995) 182 CLR 1
(1970) 45 ALJR 80
(1990) 169 CLR 638
(1961) 105 CLR 569
(1961) 108 CLR 642
(2000) 3 VR 172
(2001) 3 VR 499
(1944) 68 CLR 227
(1947) 74 CLR 245
(1964) 111 CLR 549
(1982) 150 CLR 113
(1996) 186 CLR 71
(1984) 156 CLR 41
(1929) 42 CLR 384
(1998) 90 FCR 489
(2000) 103 FCR 1
(2001) 112 FCR 455
(1990) 170 CLR 394
(1933) 49 CLR 507
(1938) 59 CLR 641
(1988) 164 CLR 387
(1999) 196 CLR 101
(1965) 112 CLR 295