Plaintiff v Defendant

Plaintiff v Defendant - [2005] VSC 200 - VSC 2005 case summary — Zoe

[148]

His concentration had been affected from shortly after the collision up to the present time. His reading fell off after the collision. He would say it was lack of interest. Thereafter he had made attempts to read, but it was difficult applying his mind to the task.
From shortly after the collision he had suffered from irritability, and had become argumentative and intolerant in his relationships with family members, friends and his staff. He would not accept what he considered to be "misbehaving" by others. He had arguments with his wife, she saying that he was being too hard on the children, and that he had no reason to be hard. He thought he agreed with her, he did not want not to change his attitude, but he did not do so. Except for a few close friends much of his social life disappeared, although after he was posted to Leeuwin in 1965 he took to playing golf on Wednesdays and Saturday mornings, and later played on Saturday mornings only until about 18 months before giving evidence. He became harder with his Navy staff. He had disagreements with his superior officer about the content of reports in which he sought to assign blame to others - in particular a report concerning what he considered was defective workmanship by Garden Island personnel.
From when he first went home after the collision his sleep pattern had been poor. Problems with sleep had been associated with hot and cold sweats. He did not think he could point to anything that triggered the sweats. His sleep had remained poor. He had tried to help his sleep problem by taking alcohol.
He had consumed more alcohol than previously from the time that he first went ashore after the collision. He stayed later at hotels, and he drank at home. He drank by himself at a Leagues Club until moving to Leeuwin in 1965. He took beer, spirits, wine and fortified wine. When he played golf, he drank a fair bit after the game.
When he returned home after the collision, he did not talk about the matter with his wife. In the days after he got home, he went to an hotel and met other sailors. There was talk about whose fault the collision had been, but he and most of the others refused to discuss it.

[216]

In this period also he and the plaintiff drank at the plaintiff's home and at his home. They drank quite a lot. The plaintiff, he would say, drank more than he did. They were drinking beer, spirits and wines.
- In late 1967 he was posted to Sydney. Then the plaintiff was posted to that vessel. The plaintiff suggested, good humouredly, that the witness had organised the plaintiff's posting. They served together in 1968 and 1969, parting company in January 1970.
- The plaintiff did not participate in a number of sports that were organised for the crew of Sydney; nor did he attend concerts.
- The plaintiff got on well with the Engineering Commander, but not with his immediate superior, Lieutenant Swan, when posted to Sydney. They disagreed about how things were to be done. Eventually, he thought, they had it out before either the Engineering Commander or the Captain.
- The plaintiff was very strict with his staff. He mixed with very few of the crew.
- He observed that the plaintiff would sit on the fo'c's'le drinking beer. The plaintiff would drink by himself, or with the witness. He drank more than his ration. He would drink both before and after dinner. The witness believed that the plaintiff then had a bigger drinking problem than he did.
- Except in respect of two things, the plaintiff never said anything about the collision, even though he was asked questions by the witness and by others.
- The plaintiff slept on the bunk above him. The plaintiff did not sleep well. He would roll around. He would get up and go for a walk. At times the witness would hear him mumbling. He, the witness, did not sleep well whilst posted to Sydney. He put it down to the demands of the work.
- When he and the plaintiff parted ways in January 1970, the plaintiff was going to stay in the Navy. He told the witness that he would do his whole Navy time hopefully in depots.
- He next met the plaintiff in 1985. They formed a friendship, and played golf together on Saturday mornings. Golf was followed by drinking.
- Between 1985 and 2000, he saw the plaintiff at his home. The plaintiff's attitude to his wife was pretty abrupt. At times he spoke to her very roughly.
- The plaintiff's wife joined the RSL in 1992; but the plaintiff only joined, after persuasion, in 1999. He did not socialise well, though he had some friends.

[744]

[1] This was the final formulation, framed in light of Clark v Stingel [2005] VSCA 107
[2] Although, as I have said, the Reply pleaded that the circumstances relied upon in support of the estoppel constituted a waiver, no mention at all was made of waiver in counsel's closing submissions.
[3] Citation at Footnote 1
[4] Exhibit DB1
[5] See, example, entries dated 6 December 1957, 3 August 1959, 17 June 1960, 31 August 1961, 22 June 1962
[6] See entries dated 3 August 1959, 31 October 1961
[7] Exhibit DB2
[8] Part Exhibit DB11
[9] Dated 12 November 1970
[10] Exhibit DBA2
[11] Exhibit DBA3
[12] Exhibit DBA1
[13] Exhibit DBA7
[14] It eventually became part of Ansett Transport Industries Ltd
[15] Exhibit DB9
[16] 13, 14, 15 and 16 September 2004
[17] See the evidence of Mrs Stafford at T 112
[18] Exhibit DBA11
[19] In fact, though it is not presently important, DSM-IV has already gone through revised and transitional versions. Thus: "DSM-IVR" and "DSM-IVTR"
[20] Professor Burrows, T 732
[21] See T 790
[22] The detail of criteria A-F is set out in Professor Bryant's Report, Exhibit 3
[23] T 15, De Bene Esse Examination ("DBE")
[24] T 16, DBE
[25] T 17, DBE
[26] T 33, DBE
[27] T 19, DBE
[28] T 34, DBE
[29] T 24, DBE
[30] T 90, DBE
[31] T 91, DBE
[32] T 57, DBE
[33] T 58, DBE
[34] T 58, DBE
[35] T 62, DBE
[36] T 59, DBE
[37] T 55, DBE
[38] T 56, DBE
[39] T 47, DBE
[40] T 38-39, DBE
[41] T 45, DBE
[42] T 45, DBE
[43] T 45, DBE
[44] T 50, DBE
[45] T 79, 80, DBE
[46] T 80 DBE
[47] Exhibit DBA7
[48] T 82, DBE
[49] T 91, DBE
[50] T 111, DBE
[51] T 115-123, DBE
[52] T 65
[53] T 68
[54] T 67
[55] T 66, 68
[56] T 66
[57] T 68
[58] T 70
[59] T 70
[60] T 103
[61] T 103
[62] T 128
[63] T 116
[64] T 128
[65] T 117
[66] T 118
[67] T 118-119
[68] T 123
[69] He said that his case was settled in 2000 or 2001
[70] See T 428
[71] T 423
[72] Having regard both to examination in chief and cross-examination
[73] T 451
[74] T 454
[75] T 534-5
[76] T 834
[77] T 552-3
[78] T 563
[79] T 564
[80] T 565
[81] T 566
[82] T 584
[83] As the plaintiff himself apparently told the doctor on 28 May 2004. See report 31 May 2004, part exh N
[84] See generally T 336-8
[85] T 339 - 340
[86] Performed in late 2000
[87] T 354-5
[88] See [97]
[89] See T 361-2
[90] See [97] at p. 25, [98] at p. 28
[91] T 368-9
[92] See, example, T 370
[93] Part exh. P
[94] T 469 - 70
[95] T 470
[96] See, for example, the witness's evidence at T 477-9
[97] T 485
[98] T 495
[99] T 473 - 4
[100] T 490
[101] T 495
[102] Exh E
[103] Concerning which, see also his viva voce evidence a T 147, 148
[104] See also his viva voce evidence at T 148-9, 230
[105] Exh E
[106] T 169
[107] T 223-4
[108] T 282-3
[109] T 226-7
[110] T 229
[111] Exh 2
[112] T 231
[113] T 248
[114] T 248-9
[115] T 249
[116] T 250-1
[117] T 251-2
[118] T 254
[119] T 258
[120] T 326-7
[121] T 282
[122] T 286-7
[123] T 306
[124] T 392-3
[125] T 392 - 3
[126] T 393
[127] T 404 -5
[128] See exh. 1, it including Dr Milton's reports dated 27 February 2003 and 24 October 2004
[129] See exhibits R and Q
[130] He cited research work which Professor MacFarlane had said addressed a quite distinct issue, and was misleading if stated as a general proposition
[131] T 600
[132] T 601
[133] T 605
[134] T 607
[135] See at T 612
[136] See at T 612-4
[137] See exh. Q, p. 21
[138] See exh Q, pp. 21-22
[139] See exh 1, p. 26, lines 3-20
[140] Exh 1, p.35, T 632-3
[141] See T 616
[142] Exh 1, pp. 36-7, T 633-4
[143] See exh 1, pp. 25-26, T 625-627, 629-630
[144] See T 616-7
[145] T 619-20
[146] T 618
[147] T 631
[148] T 638
[149] T 640-641
[150] T 644
[151] Part of exh 3
[152] Part of exh 3
[153] T 705
[154] The adage runs - "There are three kind of lies: lies, damn lies and statistics." It was attributed by Mark Twain to Benjamin Disraeli; but there is no other record, it seems, of Disraeli saying such a thing.
[155] T 706-7
[156] T 710
[157] T 708
[158] T 711
[159] T 712
[160] T 715
[161] T 713
[162] T 718
[163] T 720
[164] T 722
[165] T 723-4
[166] Exh 2
[167] Exh 2, p. 13
[168] Compare T 666, 660, 669
[169] T 677
[170] T 677
[171] T 684
[172] T 735-7
[173] T 742
[174] T 744
[175] Statement, exh 6, p. 8
[176] Exh 6, pp. 13-14; see also T 787-8, 804
[177] Exh 6, p. 14
[178] Conference notes, being part of Exh 6, p. 3
[179] Conference notes, p. 1
[180] Conference notes, p. 3
[181] Conference notes, p. 3
[182] Conference notes, pp. 3-4
[183] T 816
[184] T 786
[185] T 790
[186] T 806
[187] T 790
[188] T 791
[189] T 799
[190] DBE, T 111-133; exh DBA 11
[191] See DBE, T 104 lines 8-10
[192] At [17]
[193] See [38]
[194] At [97] at p. 26
[195] See at [123]
[196] There was evidence that, had the plaintiff been promoted to Warrant Officer rank - it was introduced into the Navy in 1972, and it was common ground that had the plaintiff remained in Naval service he would have been so promoted, whether in 1972 or soon after - most likely he could have stayed ashore: Lieutenant Commander Harcher, T 763.
[197] See, for example, the evidence of Mrs Stafford at T 74
[198] Exhibit B
[199] Defendant's written submissions dated 11 March 2005, para 4
[200] T 427-8
[201] See the submissions of counsel for the plaintiff at T 947, 954, and of counsel for the defendant at T 989. See also Luntz, Assessment of Damages, 4th ed, para 1.10.1, and Medlin v The State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 at 6, 11-12, to which counsel referred me. Medlin, factually, is not this case. But application of its principle could reasonably yield the position which both parties supported. I see no reason to reject that position.
[202] [1955] QN 67
[203] (1970) 45 ALJR 80 at 84-86 per Windeyer J
[204] [1981] UKHL 3; [1982] AC 794
[205] Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 639-640 per Brennan and Dawson JJ; and at 642-643 per Deane, Gaudron and McHugh JJ
[206] That is, Passmore's earnings plus 10%, adjusted for rises in average weekly earnings
[207] His actual earnings adjusted for rises in average weekly earnings
[208] See [42]
[209] [1961] HCA 15; (1961) 105 CLR 569
[210] Compare DBE T 105 and exhibit DBA 10
[211] As to which see, for example, per Windeyer J at 588-9 and 599-600. The fact that the plaintiff received such benefits not in respect of the injury the subject matter of this proceeding would run more strongly still in his favour.
[212] See, for example, Ramsey v Watson [1961] HCA 65; (1961) 108 CLR 642
[213] The grossing up exercise is not quite in point because of the presumed period of three years' work as a maintenance officer
[214] [2005] VSCA 107
[215] Exh D
[216] Exh C
[217] See the evidence of Professor McFarlane at T 258, 273; and of Professor Shalev at T 779
[218] Exh E, p 9
[219] T 167-8
[220] See, eg, at T 215
[221] T 220-1
[222] T 220-1
[223] T 289-90
[224] T 294-5
[225] T 296
[226] T 380-381
[227] T 384
[228] T 389
[229] T 390
[230] T 394-5
[231] T 405-6
[232] Part of exh 6. Its true date was 23 January 2005
[233] At p. 11
[234] At p. 12
[235] At p. 15
[236] Part of exh 6
[237] At p. 1
[238] At p. 3
[239] T 777-8
[240] T 778
[241] T 781
[242] See, eg, at T 807-810
[243] T 809
[244] T 810
[245] T 817-8
[246] Exh 2
[247] At p.17
[248] T 683
[249] T 684
[250] T 684
[251] See T 818-821
[252] In Clark v Stingel the plaintiff sought a declaration that, by operation of s. 5(1A), her causes of action were not statute-barred. Her counsel accepted that she carried the onus of establishing that the circumstances of her case fell within s. 5(1A). See Clark at [37]. It is not necessary for me to decide questions of onus in light of conclusions which I later express about the application of the sub-section.
[253] Cited at Footnote 1
[254] (1993) Aust Torts Reports 81-256
[255] (2000) 3 VR 172
[256] At [89]
[257] Falcon v McCann [1998] VSC 83 at [13] citing Donnelly v State of Victoria (unreported, O'Bryan J, 30 June 1994)
[258] Clark at, inter alia, [73]
[259] At [73}
[260] At [86]
[261] At [74], [75], [76]
[262] At [84]
[263] At [77], [88]
[264] At [88]
[265] At [74], [75], [87]
[266] At [76]
[267] Or a "disease" if the defendant carried the burden of showing that permanent physiological change does not develop in cases of chronic PTSD
[268] That conclusion does not depend upon the plaintiff not having suffered frank physical injury at the time of the collision
[269] Nor, if it could be relevant, to there not being, then or now, any physiological abnormality which is specific to PTSD as would enable diagnosis of that condition
[270] I have, of course, considered the applicability of s. 5(1A) by reference to my understanding of Clark. I do wonder, however, whether there are not several areas of factual controversy in the analysis of Eames JA in that case. If that be the situation, it might suggest the difficulty of establishing a sufficiently bright line, in the circumstances of the particular provision, when once the words of the provision are construed to fit a meaning considered to be consistent with extrinsic materials and with the continued existence of s. 23A.

[747]

[271] At [10]
[272] Para 2(a)
[273] See the closing address of counsel for the plaintiff at T 957-8
[274] Heptonstall v Gaskin (No2) [2005] NSWSC 30 at [18] - [23]
[275] [2001] VSC 169; (2001) 3 VR 499 at [25] - [26], [67] - [90]
[276] [2004] VSCA 90 at [21]- [23] and [28]-[29]
[277] At least when the plaintiff enlisted and re-enlisted before February 1964, and as at February 1964
[278] Commonwealth v Quince and anor [1944] HCA 1; (1944) 68 CLR 227 at 233-235, 236 per Latham CJ, 242-243 per Rich J; Commonwealth v Welsh [1947] HCA 14; (1947) 74 CLR 245 at 258 per Latham CJ, 262 per Rich J, 264 per Starke J; Marks v Commonwealth [1964] HCA 45; (1964) 111 CLR 549 at 573 per Windeyer J. That is not to say that in other respects common law duties and liabilities may not attach: Thomson v Davison [1975] Qd R 93 at 97 E - F; Groves v Commonwealth [1982] HCA 21; (1982) 150 CLR 113
[279] Breen v Williams (1996) 186 CLR 71 at 82 per Brennan CJ, see at 92 also per Dawson and Toohey JJ, and at 108 - 109 per Gaudron and McHugh JJ
[280] Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 at 96-97 per Mason J
[281] Birtchnell v Equity Trustees, Executors and Agency Co Ltd [1929] HCA 24; (1929) 42 CLR 384 at 409 per Dixon J
[282] Breen at 95 per Dawson and Toohey JJ. See also at 108, 112 - 113 per Gaudron and McHugh JJ
[283] Breen at 135-136 per Gummow J
[284] Paramasivam v Flynn [1998] FCA 1711; (1998) 90 FCR 489 at [67] - [79]; Cubillo and anor v Commonwealth [2000] FCA 1084; (2000) 103 FCR 1 at [1307], and, on appeal, though addressing a different point [2001] FCA 1213; (2001) 112 FCR 455 at [466]
[285] Or expectations
[286] See, most plainly, the closing address of counsel for the plaintiff at T 958, 968-970; but compare T 957
[287] T 958-9
[288] (1990) 170 CLR 394
[289] [1994] VicRp 66; [1994] 2 VR 333
[290] Treating the former as having been determined to be a case of estoppel by a majority of the judges who dealt with the matter in this Court and in the High Court.
[291] [1933] HCA 61; (1933) 49 CLR 507 at 547
[292] [1937] HCA 58; (1938) 59 CLR 641
[293] At 657
[294] At 674-5
[295] Whether in chief or by cross-examination
[296] Which, depending on the vagaries of classification, has been said both to include estoppel by representation and to be a sub-set of estoppel by representation.
[297] Paraphrasing Mason CJ in Commonwealth v Verwayen (1990) 170 CLR 394 at 409
[298] Verwayen at 411 per Mason CJ
[299] Crabb v Arun District Council [1976] Ch 179 at 198
[300] In which I include representation.
[301] A great deal has been said judicially and in texts about this matter. The sense of the debate can be gleaned from observations in Waltons Stones (Interstate) Ltd v Maher and anor [1988] HCA 7; (1988) 164 CLR 387 at 404, 405 per Mason CJ and Wilson J, at 413-417, 419-420 per Brennan J, 451-3 per Deane J, 458-459 per Gaudron J; in Commonwealth v Verwayen (1990) 170 CLR 394 at 409-413 per Mason CJ, 422, 428-429 per Brennan J, 443-446 per Deane J, 443-446 per Deane J, 453-455 per Dawson J, 487 per Gaudron J, 499-501 per McHugh J. See also Giumelli and anor v Giumelli [1999] HCA 10; (1999) 196 CLR 101 at [7], [37]-[48].
[302] See, for example, Thompson at 547 and Grundt at 303 per Dixon J
[303] At 444-445, his Honour remained of opinion that promissory estoppel was but one aspect of a general doctrine of estoppel by conduct. That was not the majority opinion. But there is nothing radical in the passage cited.
[304] At 444-5
[305] At[42]
[306] [1965] HCA 12; (1965) 112 CLR 295 at 301-303
[307] [1982] HCA 21; 150 CLR 113 at 119 per Gibbs CJ, Stephen 125, 128-134 per Mason, Aicken and Wilson JJ and 136 per Murphy J
[308] As to which see Nippon Yusen Kaisha v Pacific Navegacion SA(The "Ion") [1980] 2 Lloyds Law R 245 at 250, albeit a case of promissory estoppel; and see also, though not directly in point, the unusual factual circumstances which arose for consideration in Pacol Ltd and ors v Trade Lines Ltd and RII SIF IV (The "Henrik Sif") [1982] 1 Lloyds Law R 456.
[309] At 444 - .
[310] Paraphrasing Spencer Bower, Estoppel by Representation, 4th ed, para I.2.3.
[311] At IV.2.1 - IV.2.7.
[312] Paraphrasing Low v Bouverie [1891] 3 Ch 82 at 106 per Bowen LJ, in a passage frequently cited with approval.
[313] Sidney Bolsom Investment Trust Ltd v E. Karmios & Co (London) Ltd [1956] 1 QB 529 at 540-541 per Denning LJ
[314] T 25, DBE
[315] T 88, DBE
[316] T 89 - 90, DBE
[317] T 37, DBE.
[318] T 422
[319] T 423
[320] T 429
[321] T 505
[322] T 505
[323] T 508
[324] T 517
[325] T 518
[326] T 520
[327] T 540
[328] T 540
[329] T 542
[330] T 557
[331] T 571
[332] T 650-651
[333] T 651
[334] T 653
[335] T 656
[336] T 657
[337] T 726-7
[338] T 729
[339] T 750
[340] T 751
[341] Part of Exhibit DB6
[342] T 25, DBE
[343] T 89 DBE
[344] T 65
[345] T 740
[346] See, for example, Professor McFarlane at T 241-242
[347] Professor McFarlane at T 242
[348] See, for example, Professor Hopwood at T 385-6, 397
[349] See, for example, Professor McFarlane at T319; Professor Hopwood at T400; Professor Burrows at T735-6
[350] See, for example, Professor McFarlane at T 319; Professor Hopwood at T 398-400; Dr Milton at T 594; Professor Shalev at T 776, 796-797
[351] Robbins at T 422, 430; compare McCracken at T 572; Bate at T 506-507; Gurnett at T 544-545
[352] Fourth edition, paragraph 17-140
[353] Because in some instances the defendant has admitted the applicability of the qualifying element of s. 5(1A); whilst in other cases it has denied it. In those cases in which the defendant has denied it, the pleas of estoppel and waiver which I have considered in these Reasons have most often been pleaded.

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Judgment (747 paragraphs)

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Legislation Cited (8)

Cases Cited (23)