Plaintiff v Defendant [2005] VSC 333 | Case summary

Plaintiff v Defendant [2005] VSC 333 | Case summary | Zoe

1 The plaintiff in this proceeding, instituted by writ, seeks damages for personal injuries arising out of a collision at sea and loss of earning capacity. His alleged injuries are of a mental nature, namely, post-traumatic stress disorder ("PTSD") and depression.

Parties

2 The plaintiff, John Robert Cavenett ("the plaintiff") who is now retired and a pensioner, was born on 1 August 1942 and is now aged 62 years. He served in the navy for 20 years and since his discharge some 25 years ago has had a variety of jobs. He ceased work on 22 November 1996. He is in receipt of two pensions, a pension under the Defence Fund Retirement and Death Benefits Act and a 100% Disability Pension due to acute lumbago. He is a married man.

3 The defendant, the Commonwealth of Australia ("the Commonwealth") is sued because at all material times the officers and crew of the ships involved in the collision were acting in the course of their service with the Commonwealth as officers and employees of the Commonwealth.

Basic Facts

4 The basic facts which led to the proceeding can be briefly outlined. On 28 September 1959, when the plaintiff was aged 17 years, he joined the Royal Australian Navy. He successfully completed his training in late 1961. On the evening of 10 February 1964 he was on the naval vessel HMAS Melbourne as a sick berth attendant. On that evening at approximately 8.56pm, a collision occurred between the HMAS Melbourne and the HMAS Voyager upon the high seas about 20 miles south-east of Jervis Bay. As a result of the collision the vessels were damaged, and the HMAS Voyager suffered substantial damage, eventually sinking. A number of personnel on board HMAS Voyager were killed and many suffered injuries. Immediately after the collision, the plaintiff was engaged in duties as a sick berth attendant. This involved him, inter alia, occupying a small boat on the seas rescuing personnel in the water and on life rafts and providing treatment.

5 The plaintiff remained in the navy until he was discharged on 14 December 1979. All told he served just over 20 years. At the time of his discharge he had reached the rank of Chief Petty Officer Medical. He had a variety of jobs after his discharge and it was in 1996 that he turned his thoughts to the problems that he had endured since the collision which he thought may have been caused by the collision and its aftermath. He was referred by his general practitioner to a psychiatrist who in October 1996 diagnosed him as having PTSD. On 15 November 1996 he instituted the proceeding in this Court.

Issues

6 The pleadings have been amended. The amended statement of claim was filed 29 June 1999 and the amended defence on 4 August 1999.

7 This is a common law proceeding. It is necessary for the plaintiff to prove that the officers and crew of one or other of the ships who were employed by the Commonwealth at the relevant time owed him a duty of care, that a servant or agent of the Commonwealth acting in the course of his engagement was negligent, that the Commonwealth was liable for the negligence, that the negligence was a cause of injuries he suffered. He must prove the damages caused by the injuries suffered and losses and expenses incurred. The amended defence made certain admissions, which relieved the plaintiff from proving that a duty of care was owed by the officers and/or crew of either ship, that the officers and crew were acting in the course of their service with the Commonwealth, that they were negligent and that the Commonwealth was liable for the negligence of the officers and crew.

8 The plaintiff has to prove that he suffered injury as a result of the negligent conduct, that the negligence was a cause of his injuries, and the quantum of his loss and damage.

9 The Commonwealth has pleaded that any injury or damage suffered by the plaintiff due to excessive consumption of alcohol and/or tobacco was caused by the plaintiff's own acts, that in any event the said injuries and damage were too remote and accordingly the plaintiff was not entitled to recover damages for those alleged injuries and damage. In addition, the Commonwealth has pleaded that the plaintiff was guilty of contributory negligence, the particulars of which assert that if he excessively consumed alcohol and tobacco he failed to heed warnings and advice concerning the deleterious effect of excessive consumption of alcohol and/or tobacco.

10 In addition, the Commonwealth has pleaded that the plaintiff's cause of action was statute barred by virtue of s.5(1)(a) of the Limitation of Actions Act 1958 ("the Act"). In anticipation that such a defence would be taken, the plaintiff in his amended statement of claim has pleaded that the injuries he suffered were a disorder within the meaning of s.5(1A) of the Act and that the section applied in answer to a defence based on s. 5(1)(a) of the Act. The limitation period of six years from the date the cause of action accrued is made subject to s.5(1A) which if it operates has the effect of postponing the running of time. He went on to assert that he first knew that he suffered his injuries and that they were caused by the collision, in or about April 1996. In its amended defence dated 4 August 1999, the Commonwealth admitted that "post-traumatic stress disorder is a disorder within the meaning of s.5(1A) of the" Act. It otherwise denied that he was suffering from PTSD or any other disease or disorder within the meaning of s.5(1A) of the Act and it otherwise did not admit the allegations made by the plaintiff that the provisions of s.5(1A) of the Act were an answer to the limitation defence raised pursuant to s.5(1)(a) of the Act.

11 At the outset of the trial, counsel for the Commonwealth sought a ruling as to the effect of the admission made. The Commonwealth had on two occasions in the past attempted to amend the defence to withdraw the admission. The last application was prompted by the Court of Appeal decision of Clark v Stingel.[1] In that case the Court of Appeal by a majority confined the operation of s.5(1A) to a disease or disorder which was contracted at the time of the negligent act or within six years thereafter and which was unknown to the victim. In that case, Eames JA, speaking for the majority, said:[2]

[5]

12 It was contended by the Commonwealth that although it had admitted that the post-traumatic stress disorder was a disorder within the meaning of s.5(1A) nevertheless they were entitled to argue that the limitation defence was not defeated by s.5(1A) unless the plaintiff proved that the stress disorder occurred within the six year period and was unknown the plaintiff. I ruled that they were bound by their admission.[3]

13 The Commonwealth is entitled to rely upon the limitation defence under s.5(1)(a) of the Act. However, it is open to the plaintiff to defeat the defence by establishing that s.5(1A) applies.

14 By reason of the admission made by the Commonwealth, the plaintiff is relieved from proving that if he suffered personal injuries, namely, PTSD, it was a disorder contracted by him within the meaning of s.5(1A) of the Act.

Facts

15 The plaintiff was born on 1 August 1942 in South Australia. His mother was a housewife and his father was employed as an office worker. He was the eldest of five sons. He always had an interest in first aid and joined St John's Ambulance in 1952. In 1957 he did his Intermediate Certificate year, but failed every subject and left school. The following year he was employed as an invoice clerk in Adelaide for some 12 months, followed by employment as a storeman/packer. On 28 September 1959, at the age of 17 years, he joined the navy. He underwent basic training at HMAS Cerberus at Westernport in this State and after basic training, completed in late 1961, was employed as a sick berth attendant. In the following year he was promoted to sick berth attendant second class and in 1961 he completed an educational test and moral leadership course. In 1962 he underwent a theatre assistant's course which he passed. A sick berth attendant is in effect a nurse and paramedic and by completing the theatre assistant's course he achieved a skilled position within the Medical Branch of the Navy. On 22 October 1963 he was posted to HMAS Melbourne as a theatre assistant/sick berth attendant.

16 On 10 February 1964 a catastrophe occurred when two Royal Australian Navy ships collided.

17 At about 8.56 pm some 20 miles south-east of Jervis Bay off the coast of New South Wales, an aircraft carrier HMAS Melbourne collided with a destroyer HMAS Voyager. At the moment of collision the plaintiff was in the sick bay on duty as a crash boat medic. The crash boat crew were on duty because of the risk of an aircraft ending up in the sea after attempting to land or take off. The plaintiff felt the collision, went outside, and ascertained that there had been a collision. At that point he thought he saw or heard a metal object going past the Melbourne and scraping it. He returned to the sick bay, and said that he donned foul weather gear. He got into the crash boat, it was launched and moved towards voices that could be heard. He said the seas were very rough, it was very dark and that he was scared. Later evidence which I accept established the swell as a low sea swell of four to five feet, and the weather as a pleasant summer's night with a slight breeze. He helped to pull injured sailors out of the water into the crash boat or assist them into the boat from a life raft. He said at one point when attempting to move from the crash boat to a raft, he slipped and fell into the water, sank and eventually rose to the surface. He initially thought he would sink and not come up. He stated he started to rise and observed light coming in through the water which guided him to the surface. The crash boat returned to the Melbourne after about 30 minutes. At this stage it was taking water. The plaintiff got back on board and told a superior he did not wish to go back into the sea. He said he was scared, he was not happy, and he was crying at the time. He stated that he felt he had done his duty and that some other sick berth attendant should go back in the crash boat. He was told to do his duty. He stated he took off the foul weather gear and returned to the rescue mission. He was involved in picking up sailors out of the sea and providing medical treatment. He was then transferred to a sea/air rescue launch. This was a much larger vessel than the crash boat. He treated sailors and when the launch returned to the Melbourne the swell was too great to enable the passengers to be off-loaded. The boat then went to Jervis Bay. He said he was feeling miserable and felt helpless. He said he was totally scared of the water. At Jervis Bay he helped treat survivors and then went to bed. He thought he was in shock.

18 On 11 February 1964, he was taken to Nowra and then to the Sydney base HMAS Penguin. He was left to find his own accommodation at the base and he felt that he had been abandoned. He said he did not sleep well that night. He stated he had a degree of anger, mostly due to the fact that no one seemed to care, and also because of what had happened. On the following day he went to Garden Island and by this time HMAS Melbourne had returned to Sydney, though in a badly damaged condition. He returned to the ship. He was appointed duty medic which annoyed him because he was told that since he had had a break which was described as a holiday and the others had not, it was appropriate that the others should have leave. He said he complained but was told to do his duty. He said at one point whilst on board HMAS Melbourne he saw a set of brains in a jar and he felt miserable. His anger continued towards the navy because he thought the navy had not done enough. His anger, distress and upset were aggravated by the fact that he and others from the HMAS Melbourne were abused and criticised and called murderers not only by other members of the navy but also the public. He said things got worse to the point where he did not like going ashore. The media was critical of the officers and crew of the HMAS Melbourne. The Royal Commission commenced in March 1964 and for some months those associated with HMAS Melbourne came in for a lot of scrutiny and adverse criticism.

19 He described that he was having problems. He said he was not sleeping well, waking up after experiencing nightmares, sweating profusely in bed and on occasions screaming out. He said the nightmares appeared to be the same. They comprised two particular subject matters, namely, that he was under the water looking up seeing a halo of light and felt he was drowning, and also seeing something going past and/or scraping the ship. He said that he became terrified of the sea. Sometimes he had dreams that the sea was blood red.

20 He stated that he commenced to drink heavily. The evidence was that prior to the collision, he was a moderate drinker of alcohol and that he smoked about ten cigarettes a day. He said that after the collision he was drinking pretty heavily all the time and to oblivion. This helped him to sleep.

21 He was told within the week after the collision not to discuss the collision or the aftermath. This was reinforced after he completed a statement for the Royal Commission on 25 February 1964. He was told not to discuss matters with anyone. Ever since, he has rarely discussed the events of the collision with others or volunteered to anyone that he was involved.

22 He stated that for the rest of 1964 his nightmares kept recurring. He said he was experiencing them two to three times per week. He felt angry and upset, and he drank to try and cover up. He agreed that his resentment towards the navy still remains today.

23 The Melbourne was under repair during February to 11 May 1964 and then sailed to Jervis Bay, returned to Sydney on 8 June and on 29 June sailed to and around south-east Asia until 21 August 1964. The ship returned via Papua New Guinea arriving back in Sydney on 1 September 1964. Between 22 September and 10 November the ship was engaged in exercises and docked in Sydney. The plaintiff was given long leave on 17 December 1964 and on his return to the ship on 10 January 1965 was transferred on 13 January 1965 to HMAS Tarangau, Papua New Guinea. He stated that he was still sleeping badly and suffering from the nightmares.

24 After transferring to HMAS Tanangau which was on Manus Island, he said his drinking and smoking increased and that he was smoking to 30 to 40 cigarettes per day. He said things improved a little because he was not on water or in a ship. He said he was still having the same nightmares. He stated he became withdrawn. He said that he thought about the collision, he did not want to discuss it, he lacked concentration and was suffering from hangovers. He said his condition got worse when he thought about ships and the sea.

25 He stated that he did not attribute all the changes in his emotional state to the collision. However, he admitted that by reason of the co-incidence of the collision, the nightmares, especially the same subject matter of the dreams, his mental disturbance, change of sleeping habits and his excess drinking and smoking were caused by the collision and its aftermath.

26 He remained in New Guinea for a couple of years and returned to a land base in Melbourne. He said the nightmares still continued and he was concerned about being around boats and near to the water. In 1967 he was posted back to Papua New Guinea where he remained for about 14 months, returning to HMAS Penguin in Sydney in April 1968. He spent the next 18 months in Adelaide at a land based appointment, namely, HMAS Encounter. He said that he was still drinking and smoking heavily, and was twice convicted of drunk driving. In July 1970, he went to sea on the HMAS Derwent and remained with that ship for some 18 months. It was a river class frigate which did tours of duty in south-east Asia. He said he became very agitated and frightened, and very scared being on a small ship at sea. He was sleeping badly and had nightmares again involving the same pattern, going down in the sea with a halo of light above and something scraping down the side of the ship. At the end of 1971 he returned to Cerberus for a short period and in June 1972 returned to HMAS Penguin in Sydney where he remained for some three years. Between 1975 to 1979 he was at various land bases throughout Australia.

27 In late 1979 he resigned from the navy. He told the Court the reason why he resigned was because he was aged 37 years, that although he was a Chief Petty Officer recently appointed, he felt he was at the end of the promotion scale and hence not going anywhere, and he wanted to start out a new life. It was put to him in cross-examination that he left because he had completed the 20 years which entitled him to a pension and, secondly, that he was negotiating the purchase of a business. Initially he disagreed with this suggestion but was shown a letter which he wrote dated 9 November 1979 in which he sought a discharge for two reasons, namely, that he completed 20 years' continuous service and was currently negotiating the purchase of a business. Another letter was produced which showed that he had sought information concerning receiving a lump sum as part of his superannuation entitlements. He had in fact been promoted to Chief Petty Officer Medical on 23 April 1979. In 1976, the navy had created a new rank, namely, Warrant Officer. This was above Chief Petty Officer but below the rank of Officer. If he stayed in the navy this promotion opportunity would have been available to him.

28 The evidence showed that many members of the navy leave after 20 years' service and one officer who gave evidence described that after 20 years service most personnel had had "a gutful" and wanted to move on to do something else.

29 His attempt to mislead the Court on the reason why he left the navy reflects on his credit as did his vague evidence on when he was entitled to obtain a pension. He said he was unsure and thought it may have been 15 years. I do not believe that he was unsure of the minimum period before he could obtain his pension. He knew it was 20 years.

30 He did leave the navy in early 1980 and worked for a surgical supply company as a salesman for some 18 months. This involved a lot of travel in a car, and in the end he resigned from that job because he did not want to be a sales representative for life and also found driving for long periods was wearing on his back. He stated that he was still having significant nightmares.

31 He then undertook work in a real estate agency and this lasted some three months. In 1982 he commenced employment with the Red Cross in New South Wales in charge of first aid training. He remained in that job for approximately ten years and then commenced work at the Hunter Institute of Technology in Newcastle teaching first aid. He ceased that employment in 1996. By this time his low back problem had increased and he found working extremely difficult. By 1996 he had obtained a 90% disability pension which was increased to 100% disability on 3 November 1998. He obtained a gold card which gave him free medical services.

32 It is necessary to go back in time and summarise the plaintiff's ranking within the navy. On 28 March 1960 he was promoted to Sick Berth Attendant Class 2 ("SBA"). On 13 August 1961 he was appointed a SBA and on 23 May 1968 he was promoted to Acting Leading SBA.

33 On 26 June 1969 he was promoted to Leading SBA. On 12 August 1971 he was promoted to Acting Petty Officer SBA, and on 24 August 1972 was promoted to Petty Officer SBA. His title was changed on 1 January 1974 to Petty Officer Medical. On 23 April 1979, he was appointed Chief Petty Officer Medical. The plaintiff said that his promotion prospects were adversely affected by a series of misconduct offences post collision to 1970 and his promotions were delayed. This was not borne out by the evidence. I do not accept his evidence. He received promotion as expected through to 1974. Promotion to Chief Petty Officer was delayed from about 1975. However, there is an explanation for this which I will discuss later.

34 After the collision, the plaintiff was charged with a number of naval offences. On 20 March 1964, he was charged with absenting himself without leave for one hour 45 minutes and was punished with removal of leave entitlements and the imposition of further duties. On 22 May 1964, he was convicted of negligently failing to perform his duty in that he failed to remove blood from a refrigerator before defrosting. On 3 September 1964 he absented himself again without leave for a period of two hours and ten minutes and it was noted that this was a first repeat offence.

35 On 27 October 1964, a far more serious transgression occurred. He was in the company of Leading SBA John Ray and they were involved in a drinking binge. They came to the view that they were fed up with the navy and unhappy and did not wish to remain in it. They did not return to their ship but continued drinking. Eventually they sobered up. By this time their ship, the HMAS Melbourne, had left Sydney and the two men hitchhiked to Melbourne to rejoin the ship. All told they were absent some 84 hours without leave. The plaintiff was deprived of one good conduct badge which had taken some four years to obtain, lost a substantial period of leave and was obliged to carry out additional duties. This was a serious offence and one that potentially could have interfered with his prospects of promotion. It did not do so. I will refer to this later.

36 On 14 August 1966, he was convicted of an offence of behaving towards a superior officer with contempt and again lost leave. On 6 September 1967 when in Papua New Guinea, he was convicted of disorder to the prejudice of naval discipline by creating a disturbance and using insulting language to an Able Seaman. In evidence he told the Court that there had been an incident involving some of the locals in Papua New Guinea which had caused him to become extremely upset. Finally, on 3 August 1970 whilst on the HMAS Derwent, he was convicted of being slack in turning out at 0640 hours. He was admonished. He had no other indiscretions in the following ten years. It is his belief, and it was put on his behalf, that these offences affected his chances of promotion within the navy. I do not accept the evidence or the submission.

37 The plaintiff gave evidence that he has suffered from his nightmares two or three times per week for most of the last 41 years. He says that they are always about the same topics, namely, the scraping and the fear of drowning in the sea. He stated that he had a real fear of water, and that he was uneasy and unhappy in small ships whilst at sea. In the whole of his 20 years in the navy he was on board ships only for a relatively short period of time. He was on the HMAS Melbourne for about 13 months between October 1963 and December 1964, on HMAS Derwent for about 18 months from July 1970 and on the HMAS Stalwart from 8 March 1976 for 13 months. The HMAS Stalwart was a fairly large ship. It is noted that at the end of his period on HMAS Derwent he was promoted to Acting Petty Officer.

38 Despite his fear and concern about being on ships, he re-signed for a further period of three years at the end of his first nine years in the navy, namely, September 1968. He re-signed for a further period of three years in September 1971, and in 1974 he re-signed for a further period of eight years. As stated, in the year 1979 he applied for a discharge which was granted although he had at least two years to serve.

39 It is noted that the plaintiff failed his Year 10 at school in South Australia. He failed all subjects and had a particular weakness in mathematics. It was essential for promotion that he pass a test equivalent to the Intermediate certificate. The navy had its own test called ET1. The plaintiff, on 23 March 1960, at the age of 17 years, failed the test. He eventually passed it on 10 September 1965 at the age of 23 years. The test standard was School Year 10, i.e. about the same standard of the Intermediate test that the plaintiff failed at school. During the period from November 1962 through to November 1969 he passed a number of courses. In November 1972 he failed a course being a section two for promotion to Chief Petty Officer. This contributed to the delay in his promotion to Chief Petty Officer. He eventually passed a number of courses through to 1979 when he was appointed Chief Petty Officer.

40 He said that he developed a fear of water after the collision. This was made worse when he went to sea. Despite his alleged fear of the water, some four months after the collision he applied for a transfer to the electrical branch as it was reported that he was "not happy as SBA - not enough sea-time and generally uninterested in the work" (emphasis added). The report noted that he had failed his intermediate certificate in all subjects because he said he had messed about. He passed the ET1 after he made the application.

41 The report went on to say the following:

[13]

There is no evidence of him losing time at work due to PTSD or any other mental condition. At this stage the plaintiff's general practitioner was Dr Paul Gobbo who practised in Gwandalan in New South Wales. The evidence revealed that having discussed the matter with Dr Gobbo, the plaintiff was referred by Dr Gobbo to Dr Leonard Lambeth, a consultant psychiatrist. Dr Lambeth first saw the plaintiff on 2 September 1996. Dr Lambeth was of the opinion that based on what he had been told the plaintiff had PTSD which was caused by the events of 10 February 1964. It will be necessary to refer to the medical evidence later.

49 The plaintiff claims that he was officer material, and but for his involvement in the collision and its aftermath, his career path in the navy would have led to promotion to the rank of Officer. There were a number of avenues open to achieving the rank of Officer. The first concerned the path taken by young men who apply for Officer School in their late teens, secondly, those who go up through the ranks during the course of their career in the navy, and finally those who are recommended during their career in the navy. The plaintiff asserts that he would have, in the normal course of events, been promoted through the ranks and eventually to the rank of Officer. He stated he intended to stay in the navy until at least 55 years of age and retire with the rank of Lieutenant Commander. A number of factors are important and relevant to the course of promotion to Officer. First of all there is the education qualification. As stated, the plaintiff dismally failed his Year 10 at school. He failed the ET1 test in 1960 and eventually passed it in 1966. Secondly, it is important to achieve excellent assessments. Each year the plaintiff was assessed. The efficiency in rating varied from satisfactory through moderate to superior. According to the records for the years ending December 1960-63 (inclusive) the efficiency rating was satisfactory, and it improved to moderate after the collision. Those facts tend to go against any conclusion that he was officer material. In addition, he failed a course to become a Chief Petty Officer in 1972. He left the navy in early 1980, having just attained that rank at the age of 37 years. By this time he would not have been eligible for promotion to Officer. The avenue which was open to him ended when he turned 34 years. A very large monetary claim was made for the lost opportunity. In my opinion, the claim for economic loss due to non-promotion said to have resulted from the collision, the PTSD and consequences was baseless and devoid of merit. I will amplify on this conclusion later. The fact was that the plaintiff was never Officer material. To make such a claim reflects on the plaintiff's credibility.

50 Going back to the plaintiff's personal history, in 1973 he met Maxine Joyce. They formed a relationship and on 6 October 1973 they were married. Initially their relationship was a good one but by 1986 it had irretrievably broken down and thereafter for some two years they lived under the same roof but pursued separate lives. In 1988 they divorced. He stated that he then gave up drinking because it was "killing him". It is to be noted that it is his case that he had been a very heavy drinker for most of the period from 1964 through to 1988 and that he gave up drinking because of his concern about his health and the effect it was having upon his relationships. If in fact he was drinking as a form of self-medication to blot out the recurring nightmares as he suggested, it is strange that he gave up this form of self-medication in 1988 bearing in mind that he said he was still having the disturbing nightmares and flashbacks and that it was not until 1996 that he commenced to take antidepressants. There is no evidence of what he did to self medicate between 1988 and 1996 as a substitute for alcohol. About this time he formed a relationship with a woman named Pamela Robertson and in April 1990 they moved to Lake Macquarie. They moved into his house. This relationship soured and the plaintiff wished to bring it to an end and requested his partner to leave. She refused to do so. He saw a solicitor and handed to his partner a letter from the solicitor demanding that she leave. In late 1990, Pamela Robertson committed suicide by gassing herself in the garage. The plaintiff found her. He was extremely upset at the time.

51 He subsequently met another woman whom he married in the year 2000. She did not give evidence because she had been involved in a terrible family incident which resulted in the death of a child and she subsequently brought proceedings for mental shock in the Supreme Court of New South Wales, which were settled. She found the court proceedings a harrowing business and hence her absence from the witness box in this trial.

52 The plaintiff stated that he is still having nightmares and he wants closure. He has been on a variety of antidepressants since 1996. He is still smoking 40 to 50 cigarettes a day despite having had a cancer scare in his throat. Some years ago he also was treated for cancer of the prostate. He suffers from a serious bad back. The evidence showed a man who is now short of temper and at times difficult to converse with.

Factual issues

53 The defendant has put in issue a number of factual matters. First of all, the involvement of the plaintiff in the rescue operations. It is in issue whether he did fall into the water and feel himself being pulled under and whether he was wearing foul weather gear. Secondly, his drinking habits and whether they are as serious as suggested. In relation to this I note that his former wife, now Mrs Joyce, did not paint the same drunken history that the plaintiff painted. She stated that during weekends both he and she drank solidly and partied a lot. However, she stated during the week, during his navy days he did not come home from work affected by liquor, and nor did they drink each night. Thirdly, it is heavily contested that he did or does suffer from PTSD, and in particular, that he suffers from recurring nightmares of the intensity that he said he did in evidence. Emphases were made in respect to him re-signing, his gradual promotion over the years demonstrating efficiency in his duties, his failure to discuss any problems with anybody, his feigned fear of the sea bearing in mind his application to transfer to the Electrical Branch and his re-signing on three occasions post the collision, and his lack of receiving any treatment for the alleged PTSD prior to meeting Dr Lambeth in 1996. Much was made of the fact that he met the Veterans' Advocate who, on his behalf, filled in the form which the plaintiff signed seeking compensation for PTSD before he was so diagnosed and which was lodged with Veterans' Affairs.

54 Save for those matters in issue, what I have summarised are the facts. It will be necessary to further refer to the facts as I consider each issue.

Alleged injury and the factual issues concerning it

55 It is trite law that the plaintiff has the burden of persuading this Court on the balance of probabilities of each element of his cause of action. By reason of the admissions, he does not have to prove a duty of care or negligence in the course of employment by officers and crew serving with the Commonwealth. He has to prove that he did suffer injury as a result of the collision and its aftermath, and that the negligence was a cause of the injury. If he persuades the Court that he did suffer from PTSD as a result of the collision and its aftermath, he would have no difficulty proving that the negligence, which is admitted, was a cause of the injury.

56 Professor Malcolm Hopwood, a psychiatrist who is involved in treating psychiatric disorders with a focus on PTSD and other anxiety disorders, defined PTSD as follows:

[15]

57 That definition accords with most accepted definitions of the disorder.

58 Doctor Leonard Lambeth is a psychiatrist who in addition to his private practice in forensic and general psychiatry, is a consultant psychiatrist to the Australian Defence Force and has had considerable experience in medico-legal matters. His major interests are in the diagnosis and treatment of PTSD, depression and anxiety disorders and he has a special interest in teaching psychiatry. He has treated many veterans of the World War II, Korean War and Vietnam War skirmishes. The plaintiff was referred to him by Doctor Gobbo in September 1996. He saw the plaintiff twice in 1996, twice in 1997 and once in December 1999. He saw him on three occasions in early 2000, and on 20 March 2002 he carried out a psychiatric examination and assessment of the plaintiff. Dr Lambeth gave evidence about PTSD. He stated it was a psychological/psychiatric condition which is a particular type of anxiety disorder. The characteristic symptoms of PTSD develop following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury or other threat to one's physical integrity. In addition, it may develop as a result of witnessing an event that involves death, injury or threat to the physical integrity of another or learning about an unexpected or violent death, serious harm or threat of death or injury experienced by a family member or other close associate. The doctor added that this is a disorder in which the person responds to an event with intense fear, helplessness or horror. He went on to describe the usual characteristics resulting from an exposure which include persistent re-experiencing of the traumatic event, persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness and persistent symptoms of increased arousal. He noted that PTSD sufferers may have painful guilt feelings about surviving when others did not. Also avoidance patterns typically interfere with interpersonal relationships which may lead to marital conflict, divorce or loss of a job. He further noted that PTSD is very much associated with increased rates of major depression, substance related disorders, panic disorders and other associated phobias.

59 An important matter that he noted was that by definition PTSD cannot be diagnosed unless the duration of the disturbance is more than one month. If the symptoms last less than three months, the condition is acute but if they last three months or more it is described as chronic. There are times when the onset of symptoms is some six months after the stressor and this is considered to be PTSD with delayed onset.

60 I interpolate to observe that the case presented on behalf of the plaintiff was that he suffered from the symptoms within a matter of days of the collision. Dr Lambeth stated that denial and avoidance are extremely common and the patient seeks to avoid anything that reminds him of the event, trying to avoid talking about it, and may use substantial amounts of denial with respect to his symptomatology. Often this is seen in the use of alcohol or other drugs. Alcohol use, tobacco use and other substance use are common and it is part of the avoidance and seen as an attempt at self-medication. It is not unheard of to have a lifetime suffering PTSD.

61 It is trite to observe that it is very easy to allege symptoms of PTSD and difficult to disprove the disorder. PTSD has been a recognised psychiatric injury since about 1980, although it was pointed out by Professor Hopwood that a similar type of mental disorder had been recognised for many, many years. He referred to effects on service personnel during the First World War and earlier. Proof of its existence in a person to a large part depends upon the honesty and accuracy of that person stating what his or her symptoms were and are. The American Psychiatric Association has published a work called "The Diagnostic and Statistical Manual of Mental Disorders." It has gone through various editions, the current being the fourth edition. It was that work which first described the condition known as PTSD in the 1980's. This followed a close study and increasing awareness of the problems amongst Vietnam veterans, but since then it has been recognised that similar symptoms could develop following non-combat trauma. Descriptions in early accounts of non-combat related PTSD involved the same symptoms of re-experiencing, hyper-arousal and avoidance as seen in combat related cases. Susbequent study has revealed that generally the same level of stressor is required to produce PTSD in non-combat situations. Paragraph 309.81 of the work deals with post traumatic stress disorder. The work is referred to as "DSM-IV." That is a reference to the Diagnostic and Statistical Manual fourth edition. It is now accepted as an appropriate and invaluable method of determining whether a person has PTSD. The question is does the person satisfy the DSM-IV criteria?

62 All medical and psychology experts called in this case have relied upon the DSM-IV test for PTSD to determine whether the plaintiff suffered from PTSD. In a step by step diagnosis, a medical practitioner or psychologist seeks to determine whether certain consequences are present from the exposure to a traumatic event through re-experience of that event in one or more of a variety of ways, a persistence of the symptoms, evidence of persistent avoidance of stimuli and persistent symptoms of increased arousal, duration of the disturbance for more than one month and whether the disturbance causes clinically significant distress or impairment of social, occupational or other important functioning. The exercise depends to a large extent on the truthfulness and accuracy of the patient in stating his or her symptoms and problems.

63 There are some tests that psychologists administer which provide some basis to test the genuineness of a patient's complaints. There is controversy as to the usefulness of the tests. A psychologist, Dr Leah Giarratano on 16 April 1999 administered what is known as the Clinician Administered PTSD Scale (CAPS). The psychologist noted that the plaintiff had scored 48, which was within the range of PTSD patients, and she opined "on clinical interview indicator that he is suffering PTSD." Although this has been described as the golden test of PTSD, I noted in her cross-examination, in which a number of the questions were revealed, that the questions were to some extent suggestive of a particular answer. Professor Richard Bryant, called by the defendant, an eminent psychologist in the field of PTSD, opined that the test was inappropriate in a compensation situation. His reasoning was that because many of the questions suggested an answer they were inappropriate to test the genuineness of a person claiming compensation for PTSD. He said that the test was a proper one in a non-compensation situation and had the advantage of focussing the mind of the patient by referring to a particular matter. Whilst I have some concerns about Professor Bryant's credibility which I will refer to later, I accept his evidence on this question. I place no reliance upon that test result. Professor Bryant was of the opinion that the Minnesota Multiphasic Personality Inventory - Second Edition (MMPI-2), was a more appropriate test to administer. He described the test as the most robustly designed personality test in clinical psychology. It was a test designed in the 1940's to diagnose psychiatric patients and it has since been developed and extended. Its most common forensic use is its validity scales. The validity scales are the lie scale which measured the degree to which a person is trying to look good in an obvious way, the F scale which measures a degree to which a person's thoughts are different from those of the general population, and the K scale measuring defensiveness and guardedness. The most commonly used index of malingering on the MMPI-2 is the dissimulation index which is the F score minus the K score. By pursuing this test, it is said that one can ascertain whether a person is malingering. Dr Robert Wu, a consultant psychiatrist, was retained by the plaintiff's solicitors to consult and assess the plaintiff. Dr Wu saw the plaintiff on 14 August 1997. He administered the MMPI-2 investigation, but came to the conclusion that it was "invalid due to errors in terms of his answering his questions in a relatively indiscriminate way." The defendant sought to place some reliance upon this as suggesting that the plaintiff was malingering. Unfortunately, Dr Wu has passed on, and accordingly there was no cross examination on his report. I would not be prepared to infer that the result suggested malingering. Professor Bryant stated in his report, dated 19 April 2003, that he administered the MMPI-2 test but later evidence revealed that this was not correct. This reflects on his credibility. Some criticism was made of the application of the MMPI-2 test as being more appropriate for areas of depression, but in light of the evidence that was placed before the Court I am not prepared to infer that it is or is not an appropriate test, nor is there any evidence of the outcome of the test of Dr Wu upon which I can place reliance. It was a contention put on behalf of the Commonwealth that the plaintiff was a malingerer in the sense that he either has made up the evidence of his symptoms or grossly exaggerated them. On the other hand, medical practitioners called on behalf of the plaintiff and Dr Giarratano did not accept that he was a malingerer.

64 The difficulty that one experiences in resolving conflicts in this area arises because the objective facts which one may rely upon suggesting that the plaintiff is not suffering from PTSD are explained by the psychiatrists as being examples of symptoms experienced with PTSD, that is, a denial of the effect of symptoms and living with them. Added to the difficulties are the question marks concerning the plaintiff's credibility and the events and circumstances leading to the initial diagnosis of PTSD in 1996.

65 It is convenient at this stage to set out the PTSD test in DSM-IV.

309.81 Post-traumatic Stress Disorder

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66 It is the plaintiff's case that he commenced to suffer the symptoms of PTSD within a matter of days of the collision. It follows that his case is not concerned with a delayed onset. Given that is his case, I commented during the course of the trial that it was necessary to focus on the events of the two years after the collision and the evidence of the plaintiff, his symptoms and any objective evidence that bore upon his conduct and circumstances during this period. I do have a number of criticisms of the experts called in this case. First, none of them appear to have concentrated to any degree upon the first few years after the collision. Much is made of the plaintiff's alleged complaints post retirement from the navy and in particular from 1982 to 1996 and following. But in my view one must concentrate on the first few years and some of the expert witnesses agree that it was an important period. The other matter which I wish to note at this stage is category F of the DSM-IV. It is clear that category F must be satisfied before a diagnosis of PTSD can be made. This clear from the definition given by Professor Hopwood set out above and DSM-IV itself. Symptom F provides a means of testing the patient. Criteria B, C and D in the main will depend upon information given by the patient. On the other hand, category F can provide some means of testing the effect of the alleged disturbances. In my opinion, category F is extremely important in the diagnosis of PTSD. The disturbances that arise out of a traumatic event, being symptoms in criteria B, C and D, must cause "clinically significant distress or impairment in social, occupational or other important areas of functioning." It is not just a question of being exposed to the traumatic event, and having persistent symptoms and persistently avoiding stimuli with increased arousal unless they do in combination cause one or other of the matters in criteria F. It is important to note that the effect must be "clinically significant distress or impairment." The adjective "significant" adds to the necessity of demonstrating such an effect and the word "clinically" means an observable distress or impairment. Dr Bell, a psychiatrist called by the Commonwealth, produced a paper which concluded that PTSD on its own does not necessarily cause disability. Dr Bell then gave evidence that it was his opinion that if criterion F is not satisfied, then strictly speaking that should eliminate PTSD. He went on to observe -

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• That as a result of that traumatic experience he thereafter suffered from nightmares, disrupted sleep and sweating during the night - the dreams had the same subject matter, namely, a fear of drowning and being under the water looking up and seeing a halo of light, and the observance of something passing across the side of a ship and sometimes scraping.

• That he felt that the navy did not look after him once he reached Jervis Bay on the night of the collision and for the next 48 hours when he was basically told to look after himself. Upon returning to HMAS Melbourne, he was told that he had had a break and therefore would go straight back onto duty as a SBA and that others would be given leave. He resented this dismissive-type treatment bearing in mind the part he played on the night in question and that resentment and anger continues to today.

• That during the month that followed the collision, he was abused verbally by other sailors and members of the public and called names like "murderer" and "killer" because he had been on HMAS Melbourne which had sliced through the HMAS Voyager causing it to sink with the loss of many lives. He found this extremely harrowing and upsetting.

• That he had been a moderate drinker to that time, but thereafter began to consume alcohol in substantial quantities, getting drunk on a regular basis, describing himself as an excess drinker which was the pattern right through to 1988 when he gave up drinking.

• That during the balance of 1964 he was convicted of four misconduct offences, one of which was serious. This was out of character with the previous four and a half years in the navy. At the end of October 1964 he and a leading SBA, John Ray, went absent without leave for a period of 84 hours, having participated in a drinking binge. He was severely punished for what was a very serious offence.

• That in August 1966 he was convicted of an offence of showing contempt to a member of the naval police, in September 1967 he was convicted of disorderly conduct in an outburst against a person whilst in Papua New Guinea, and on 3 August 1970 was convicted of a fairly minor offence of being late for duty.

• He stated that he became fearful of water and was unhappy when serving on a small ship and has a real fear of water today.

• That from 1983 until 1996, he indulged in bossy anti-social behaviour in relation to fellow employees and students, that he had difficulty in relating to other people, was antisocial, was dogmatic and this has been very apparent over the last 15 years.

• That in 1996 he was diagnosed with, and treated for, depression.

• That between 1964 and 1980 when he left the navy, he was promoted through the various ranks up to Chief Petty Officer Medical. He stated that because of his contemptuous attitude to authority post the collision and the convictions that followed, his promotion to higher ranks was delayed. He stated that he left the navy because when he got to 20 years and eligible for the pension, he decided at the age of 37 that he had no future in the navy because he had no chance of promotion to officer rank and it was pointless staying in the navy

• He stated but for the delay in promotions, he would have been a Chief Petty Officer earlier than age 34 years, and would have gone on to become an Officer. A claim is made on his behalf for lost income and lost superannuation benefits in the order of $447,566.

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• That he first raised the complaint of PTSD in 1996 some 32 years after the event.

• That prior to 1996 he never sought any treatment for his alleged recurring nightmares and sleep disturbance or his excess alcohol consumption.

• That during his period in the navy attached to the medical branch he had ready access to free medical treatment. His medical records show that he did seek treatment on a regular basis for a variety of problems, and on two occasions in 1973 and 1976 he received medication for anxiety, nerves and mild depression.

• That the objective evidence showed a person who was able to carry out his duties in the navy in an efficient and appropriate manner. There is no evidence in his naval records to show, let alone suggest that the plaintiff was unable to perform his duties as a SBA, duties which required application, consideration, understanding, care and responsibility.

• That between 1964 and 1979 he was promoted through the ranks ultimately to Chief Petty Officer Medical. From at least 1970, when he was appointed a Petty Officer, he was involved in looking after the sailors below him in the medical branch, receiving and issuing orders, and carrying out duties of a sick berth attendant.

• Whilst stating that he was fearful of the water and this was a condition he said he felt very soon after the collision, at the end of his first nine years in the navy which expired in 1968, he re-signed for a further period of three years and another three years and then eight years. He served at sea for periods in excess of one month after re-signing in 1968.

• That on 17 June 1964, some four months after the collision, he made application to transfer to the electrical branch as he was not happy as a SBA, more particularly because there was not enough sea time and generally he was uninterested in the work. An assessment made at the time was that although he was in a good state of health, overall he was not of adequate ability for the electrical branch, had not given any evidence of an educational standard or industry requirement and accordingly the application was refused. The latter observations are relevant to the claim that but for the collision and the effects upon his health, he would have been an officer.

• Although he re-signed in 1974 for a further period of eight years, he applied for a discharge in November 1979 stating that he had completed 20 years' service and that he was then negotiating the purchase of a business. This was contrary to his evidence in Court as to his reason for leaving. He initially denied that he was in the process of negotiating the purchase of a business until a letter was produced which contradicted him.

• He was employed from 1980 through to 1996 during which time he apparently performed his tasks efficiently and responsibly. His first employment was for a period of about two years as a salesman in which he travelled a lot in a car. The following three months he was in a real estate agency, and for the next ten years was in charge of first aid training with the Red Cross. The latter job would have involved him organising and planning first aid training. For a period of three years from 1993 to 1996 he was employed as a lecturer which would have involved him lecturing students. There is no evidence to suggest that he did not perform these tasks adequately, responsibly and efficiently. He did say that he had run ins with staff and students but as he told the Court, it was perhaps because being an ex Chief Petty Officer he was used to giving orders and expecting things to be done. This employment history shows that he was functioning normally and efficiently and raises doubts about his level of drinking as he stated it, during 1980 to 1988.

• His evidence that he suffers and has suffered for a period of some 40 years from nightmares some two or three times per week is not borne out by other evidence, is contradicted by what he had told some medical witnesses, and suggests exaggeration, especially as he did not seek any treatment for what had to be on his evidence a harrowing and distressing disorder over a long period of time. He gave histories to some doctors suggesting that there was waxing and waning in the frequency of the nightmares.

• He stated that he was drinking heavily, drinking himself into oblivion on many nights from 1964 through to 1988. This is not borne out by the evidence which comes from a former wife from some notes made in his medical file, his naval history and his promotion. I accept the evidence of Lieutenant Commander Hartcher that drinking to excess was not tolerated on board ship and if he was affected by long term drinking it would have been noticed and dealt with. The evidence shows the plaintiff was conscientious and performed his duties without blemish or criticism. The Lieutenant Commander gave evidence that drinking to excess whilst on a land base would have been noticed, if frequently occurring. The alleged drinking is inconsistent with his work record at the Red Cross. Witnesses from that organisation stated he appeared friendly, co-operative and efficient. His employment in the early years brought him into contact with many people associated with the Red Cross.

• He first turned his mind to the question of PTSD after seeing an article concerning claims made, and seeing a veterans' advocate who assisted him to make a claim for PTSD before receiving any medical advice.

• In his letter responding to what would apparently have been an advertisement by his present solicitors, he did not mention the symptoms that subsequently he stated to various medical practitioners and psychologists.

• Having stated that he was fearful of water and unhappy with the navy, in June 1981, some 18 months after leaving the RAN, he made application to the Naval Reserve Training, Canberra to become a member of the Royal Australian Fleet Reserve on a fulltime basis for one to two years. This application was declined.

• The plaintiff stated that he was wearing foul weather gear when he fell into the water, that this dragged him down and he feared that he may drown. The Court asked him whether he was wearing a life vest. Clearly it was a question he was not expecting as evidenced by his flustered response. He said he was not. He was then asked that surely he had been trained in the navy to always wear a life vest when travelling in a small boat. He said he was not so trained and it was not mandatory for him to wear a life vest. Commander Halley gave evidence on behalf of the defendant. He was the Damage Control Officer on the HMAS Melbourne on the night of the collision and approximately 35 minutes after the collision he entered a cutter boat to assist with looking for survivors. He said that they were trained to wear life vests, that life vests were in the motor cutters and that it was a requirement to wear a life vest. Importantly he emphasised that it was part of the training. In cross-examination he accepted that there may have not been enough life vests in the cutter at the time when the plaintiff got into one. Whilst I am suspicious about this incident, I am prepared to accept the evidence of the plaintiff that he was not wearing a life vest but nevertheless I do not accept his evidence that he had not been trained to wear a life vest when travelling in a small boat.

• During evidence-in-chief, the plaintiff was asked whether he did during the whole of his naval career from 1964 until 1979 "associate any of the things, that is the drinking, the increased smoking, the nightmares, sleeping problems and so on, did you associate any of that as being caused by the collision?" His answer to that was, "No". I do not accept that was a truthful answer. In answer to a question by the Court that because the nightmares occurred within a matter of days after the collision, the subject matter of his dreams was much the same, namely, a fear of being dragged under the water and drowning, and something passing across the side of the HMAS Melbourne, and that this had been the pattern for the last 40 years, it followed that the closeness of the symptoms to the incident and the very subject of the nightmares could only have been attributable to the collision. He then admitted that his symptoms were caused by the collision and the aftermath.

• The plaintiff gave evidence that he had a fear of the sea and when he first gave the evidence it was a general statement not attributable to any particular period during his life. In cross-examination he was asked whether he ever applied to transfer to the electrical branch. It was put to him it was in June 1964. He denied that and said that it was back in 1962, before the collision. His answer was, "I didn't apply for a transfer while I was on the Melbourne", and that it took some couple of weeks to go through the process and he was refused. He was then shown a document which caused him obvious concern and he became flustered. It was a psychological report dated 23 June 1964 which noted an application for transfer to the electrical branch. This was some four months after the collision. When asked did he remember this he said he did not. He was then asked why he would want to transfer out of the medics to the electrical branch and he stated he had no idea. In my opinion, his reaction to this evidence showed that he was not expecting the line of question and the thrust of the report shown to him was contrary to his evidence that he was fearful of the sea and drowning. I do not accept his evidence. He was asked the question what was his interest in the electrical branch and he stated he had no idea and he could not give any idea why he might want to request a transfer. He was then asked why he thought it might have been back when he was at HMAS Cerberus in his training days and he stated he was interested in being an electrician. He said he had no memory of the application whilst on the Melbourne. The notation in the report stated that the reason why he wanted the change is that he was not happy being a SBA and "not enough sea time". He denied that the reason why he was applying for a change in occupation was so he could get more sea time. He then adopted the role of the advocate. He said this:

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He was then challenged on that statement. It is an incorrect statement. He passed his ET1 course on 10 September 1965. In observing the plaintiff give evidence this was a piece of evidence which caught him by surprise. It was also apparent from the reaction of his legal representatives that they were unaware of the report's existence. However I am quite satisfied that it was discovered but more importantly there is a reference to it in one of the medical reports.

• He gave a reason for leaving the navy that after he was appointed Chief Petty Officer Medical in April 1979, he made a decision later that year to apply for permission to resign because he had reached the end of the promotion ladder and would not progress further. The latter observation was wrong. He could have, if he continued, been promoted to Warrant Officer. I am strongly of the opinion that at no stage was the plaintiff officer material and at no stage did he have any aspirations to reach the rank of Officer. He gave evidence that once he had passed the Test ET1 which he thought was before the collision in 1962 (in fact it was 1965) he was going to do his HSC and apply for a commission. I do not accept his evidence. It is contrary to his conduct and attitude during his naval life. He had to request permission to resign because he had in 1974 re-signed for a further eight years. The Court put to him that there was the attraction of getting a pension and he fudged the answer. He appeared somewhat vague as to the minimum period when one could obtain a pension and initially said 15 years and then subsequently admitted it was 20 years. Defendant's counsel then put to him in cross-examination a letter which he had written in which he stated the reasons for wishing to resign at the end of 1979, and they were that he had completed "20 years continuous service" and was currently "negotiating the purchase of a business". The letter revealed that they were the true reasons why he wished to leave. He knew he was eligible for the pension at the end of 20 years in the navy. At the time he sought permission to leave the navy he requested information from the pension authority as to his entitlement to a lump sum. I do not accept that his vagueness as to when he was entitled to a pension was an error of memory and his reasons given in evidence for leaving the navy were false. I do not accept the latter was due to a lapse in memory.

• When giving evidence about the activities post collision, he was asked whether whilst out in the motor cutter could he get his bearings in the sense that he knew where the HMAS Melbourne was. He said he could not because it "was pitch black out there." He was then asked the question "There must have been a light?" and he answered - "there was about a 30ft swell. We were up and down all the time and you couldn't get your bearings at all." This was a surprising piece of evidence bearing in mind the size of the HMAS Melbourne and the strong likelihood that searchlights were being used to light up the collision area. Commander Halley was the Damage Control Officer on the ship on the night of the collision. He described the swell as a low sea swell, something between 4 and 5 ft, and he gave evidence that all the HMAS Melbourne's ships and boats carried an aldis lantern which is very handy when looking for something in the water and in addition HMAS Melbourne had many lights which were able to highlight and certainly shine on the Voyager's stern hull. The commander was an extremely impressive witness, and I accept his evidence. I do not accept that the plaintiff's evidence was due to some memory lapse. He was anxious to paint a very frightening picture of the circumstances post the collision and in particular that the area was pitch black and there was a 30ft swell. The plaintiff's evidence again reflects adversely on his credibility.

• Before he had been diagnosed by any medical practitioner as suffering from PTSD, the plaintiff signed an application form on 9 July 1996 seeking a disability pension for PTSD. He was asked the question whether the disabilities that he was claiming affected his employment at any time and he said yes and his answer was "I've had to take numerous days off." There was absolutely no evidence to support this contention. In particular, there was no evidence in his naval records which supported this statement. He did not give any evidence himself that he had had many days off. No claim was made on his behalf for any loss of income due to days off. This statement also reflects upon his credibility.

• Allowance must be made for memory loss and the passage of time. However it cannot be overlooked that the plaintiff has had considerable time to think about the issues in the case since 1996. Further at least one expert, Dr Leah Giarratano sent him a copy of her report. Her report set out in tabular form the criteria A - D of DSM-IV and the plaintiff's responses. I have no doubt the plaintiff was well aware of what had to be established to prove PTSD.

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• First, this case was overburdened by experts' evidence. The simple fact is that in the main, whether the plaintiff did or did not suffer from PTSD as a result of the collision and its aftermath, depends upon his truthfulness as a witness and accuracy of memory and importantly whether he satisfies the criteria in DSM-IV. A party to litigation does not succeed or fail depending on the number of witnesses called on the question of whether or not the plaintiff suffered from PTSD.

• Secondly, all experts save for Dr Lambeth only saw the plaintiff once, usually for a period in the order of two hours. It is clear from the reports of the plaintiff's experts that each relied heavily on what the plaintiff told him or her.

• Thirdly, it was apparent from the viva voce evidence and the reports, that all experts were very aware which party had engaged him or her to give evidence.

• Fourthly, that those who had studied PTSD fell either into the category of accepting that the condition can and does occur or a category of one who approaches each claimant with a degree of disbelief and cynicism.

• Fifthly, and in my opinion of some importance, none of the experts appears to have concentrated on the plaintiff's alleged symptoms and their effects during the crucial period covering the first few years after the collision. In particular, how he coped with life in the navy as a SBA. I did not derive any real assistance from the evidence given by the plaintiff and other witnesses including the experts of his problems, difficulties and depression during the years 1990 to the present. His anti-social behaviour, his withdrawal, lack of concentration and memory, irritability and general upset and distress during that period to the present can be explained on any number of grounds. The period 1996 to the present commences some 32 years after the collision. There is substantial objective evidence from a number of sources as to how the plaintiff was functioning from 1964 to 1996, how he was behaving and his state of health.

• Sixthly, the experts called on behalf of the plaintiff either paid little or no attention to criteria F in DSMIV. As stated, this in my view is an extremely important criteria to consider before reaching a conclusion whether a plaintiff has suffered PTSD.

• The seventh matter concerns the attack upon Professor Bryant's evidence. Professor Bryant saw the plaintiff in May 2002 and requested him to complete the MMPI-II psychological test. Some nine months later, in April 2003, the professor wrote a report in which he said that he had marked the test and it demonstrated that the plaintiff was a malingerer. When the plaintiff gave evidence, he was not examined on the result of that test although the topic was discussed in his cross-examination and the suggestion made that he was making up his symptoms and their effects.

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81 Dr Glaser, a psychiatrist who saw the plaintiff for medico-legal purposes, gave evidence on the third day of the trial. In the course of cross-examination it was put to him that Professor Bryant had administered this test, and it demonstrated that he was a malingerer. There was some discussion in the evidence as to the results of the tests and whether one could place any reliance upon them. The plaintiff informed the Court later that he believed he was in the Court when this evidence was given. When the psychologist, Dr Leah Giarratano gave evidence, she gave it by audio-visual link from Sydney. She was again cross-examined about Professor Bryant's test and the results and whether the results in any way affected her opinion concerning the plaintiff. I observed that throughout this evidence the plaintiff was present in Court. He was only a matter of 15 feet from the audio-visual link which had a very well defined picture of the witness and the sound was more than sufficient for everybody in Court to hear. He could not have misunderstood or failed to hear the cross-examination about this test. She gave evidence on Thursday, 16 June and on Friday, 17 June 2005 Professor Bryant gave evidence. He was asked by plaintiff's counsel whether he in fact received the test back from the plaintiff, the evidence being that the Professor had given the test to the plaintiff to complete at home. This was the first time it had been suggested that he had not. It was pointed out that there was an error on page 3 of his report and this was clear and the professor said that it was a typographical error. He was again asked whether he got the test back. He said he had and that he had marked it. After the luncheon adjournment, the professor was asked to identity a document which appeared to be the front page of the test booklet. He admitted that he had written the name "Cavenett" on the paper that was produced. It was clear that the paper represented a photostat of a facsimile that had been sent over the luncheon adjournment from Mr Cavenett's home, which is on the central coast in New South Wales, to a telephone number in Victoria. Later evidence showed that the plaintiff had requested his wife to send it down over that luncheon adjournment. Not surprisingly, the professor became somewhat flustered and said that to the best of his memory he had received the test back. I pointed out to Mr Kennan SC, who appeared for the plaintiff, that what he was alleging was indeed very serious. It was left in that way at the end of the evidence. Professor Bryant was excused. On the following Monday the plaintiff was recalled to give evidence and he then produced the original envelope, addressed to the professor, which contained the test booklet. He told the Court that he had only thought about the test when the professor was giving evidence. I do not believe him. His answers to questions about where the test was, how he forgot its existence and how he managed to have it sent by facsimile over a luncheon break lacked credibility. I think he contrived to set up the professor so that an attack could be made on the professor's evidence and his overall credibility. The reports of the professor provided to the plaintiff's advisers before trial stated that the plaintiff did the test, and contained the opinion that the plaintiff was a malingerer and that he did not suffer PTSD. The professor is an acknowledged world expert in PTSD. It was an issue from the very beginning of the trial that the plaintiff was a malingerer. The Commonwealth's counsel referred to the test performed by Dr Wu and also to Professor Bryant's evidence. It could not have been lost on the plaintiff that it was a very live issue. One obvious area of investigation in evidence was, bearing in mind Dr Wu's test results, why did the plaintiff not respond to Professor Bryant's test? Was he concerned that the test might show he was a malingerer? By resorting to the tactics he did, the plaintiff to some extent deflected the thrust of the Commonwealth case. Dr Wu saw the plaintiff on 14 August 1997 and sent his report that day. He referred to the MMPI-2 investigation as being "invalid due to errors in terms of his answering his questions in a relatively indiscriminate way." I have little doubt that the plaintiff would have been apprised of the contents of that report at some time. Professor Bryant saw him in May 2002. He handed to him the test to complete and requested he return it. He did not do so.

82 On the other hand I find that Professor Bryant did not receive back the completed teste and hence could not have marked the plaintiff's answers. Mr Kennan SC disavowed any suggestion that Professor Bryant set out to mislead the Court and in my opinion there is no evidence he did. I am very concerned about the way the issue was raised in Court and in particular that the professor was not given the opportunity to explain himself when the unanswered test document was later produced in evidence after he was excused. I reject his evidence of the test and its effect and, because of his carelessness, have scrutinised his evidence very closely.

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83 In the end it is a question of fact for the Court to decide whether or not the plaintiff suffered PTSD as a result of the collision and if he did, the nature and effect of it. The observations and comments made by the two psychiatrists called by the Commonwealth of the reports of other experts and also comments and observations made about other evidence, namely, records and the like, intrude to some extent into the fact finding field of the tribunal of fact, namely, the judge. I do not accept the comments and observations based on records and the like as evidence but nevertheless the comments and observations are relevant and I have considered them for what they are worth.

84 It is trite to observe that what the plaintiff told each of the experts is not evidence of the truth of the fact but is merely evidence of what he told that expert. It has no probative value unless the fact is proven by the evidence. It is a matter for the tribunal of fact based on the evidence given to the Court to make the decision on questions of fact which are relevant to the issue of the presence or otherwise of PTSD. What the plaintiff told the experts by way of history of the incident, the aftermath and his complaints over the years is evidence of what he said at the time. As such it is not evidence of the fact but, if contradicted by other evidence which is accepted, can be used as an admission against interest or as a prior inconsistent statement. When this is established, whether it be an admission against interest or a prior inconsistent statement, it may affect the credibility of the plaintiff. There are instances in the evidence which show that what the plaintiff told the Court was different in some respects to what he told the experts.

Did the Plaintiff suffer PTSD?

85 I propose in order to answer the question whether the plaintiff suffered PTSD as a result of the collision by applying the DSM-IV in a step by step consideration, as have most of the experts called in the case.

Exposure to traumatic event

86 Does the evidence show that the plaintiff experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself and did his response involve intense fear, helplessness or horror?

87 The Commonwealth disputes the evidence of the plaintiff that he fell into the water during the course of the rescue operation post-collision or that he was wearing heavy foul weather gear. Other than that, there is no dispute concerning the events stated by the plaintiff commencing with the collision to the time when he went back on the HMAS Melbourne two days later in Sydney. There has been an attack upon his credibility and I find him to be a witness who at times did not tell the truth, was well aware of the criteria of DSMIV and falls into the category of a witness who is inaccurate, prone to guess and exaggerate. Accordingly the Court must scrutinise with care anything he says. The Commonwealth has submitted that it was somewhat fortuitous that he fell in the water, that there is no record corroborating his version of this event and no witness to it. In particular, he was unable to identify any person in the crash boat or indeed on the raft who would have witnessed what happened. The event is very important to criteria A of DSM-IV. There are a number of suspicious features about this incident. He first of all stated that he was in wet weather gear which comprised oilskin two-thirds coat and trousers which in the circumstances was a surprising attire bearing in mind that it was a balmy, pleasant night in February 1964. In addition, he said he was not wearing a life vest and was particularly vague when questioned by the Court as to the necessity of wearing a life vest and whether he had been trained to wear a life vest. Despite the lack of any record and the suspicions surrounding the evidence, I am persuaded that the incident occurred as he described it. I am prepared to accept his evidence that he was wearing foul weather gear. Indeed, when he made first contact with the solicitors in 1995 in response to what appeared to be an advertisement article, he did mention in his letter that he had fallen in the water. I do not overlook the fact that by this time he had seen the veterans' advocate and secondly, had actually put in an application for PTSD before he had seen any medical practitioner.

88 Given his version of the events, I am satisfied that criteria A(1) and (2) have been satisfied. Given the finding of falling into the water, the evidence of experts and in particular Dr Bell and Professor Bryant supports the conclusion that criteria A is satisfied.

Criteria B - F

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89 Consideration of these criteria involves a number of questions. The first is the nature of his re-experiences of the traumatic event. An attack has been made upon his credibility in that his evidence of these re-experiences was hardly consistent and was in considerable doubt because of the circumstances existing at the relevant time.

90 In my opinion, in looking at the effects of the traumatic event, it is essential to consider the circumstances and events that occurred over the next two years after the collision. It is well recognised that it is not possible to diagnose PTSD until at least one month after the traumatic event because the duration of the disturbance symptoms must be more than one month. The learning on the subject states that the majority of the persons who suffer from PTSD as a result of a traumatic event make a good recovery within the first few months. Nevertheless if the symptoms continue after a period of one month and each symptom of DSM-IV is established PTSD is described as acute and if the symptoms continue after three months PTSD is described as chronic. Most if not all the experts spent time on the problems and disabilities that the plaintiff said he was suffering from after he left the navy in 1980. In my opinion, it is important and necessary to initially consider and determine the issue confining it to the first few years after the collision. Indeed, it was the plaintiff's case that he suffered from PTSD within a short period after the collision. His counsel accepted that that was his case. It was put that the plaintiff suffered from the classic symptoms of PTSD within a matter of a week of the collision and that they have continued up until today.

91 In reaching my conclusion on the facts, I am very much influenced by the objective facts concerning the events, activities and circumstances of the plaintiff that followed the collision over the two years post collision. Whilst I accept that a person suffering from PTSD is reluctant to seek help and does not necessarily understand what is happening to him, especially as it was not known by that description back in 1964-1966, nevertheless the facts concerning the life of the plaintiff paint a picture which is in marked contrast to what he said in the witness box. He was a SBA, versed in medical matters, dealing with the ills and disorders of others, having regular contact with medical practitioners and able to obtain full medical advice and treatment without charge when he requested it.

92 The experts say that one cannot make a diagnosis of PTSD during the first month after the traumatic event. It is after that period, if the symptoms persist, that one is in a position to make an initial diagnosis of PTSD. If it continues for three months it passes from the acute stage to the chronic stage. Much of what the experts have said in evidence was based on what the plaintiff told them. Some of the experts on the defendant's side did advert to other evidence to raise doubts about the diagnosis of PTSD. The Court must also scrutinise with considerable care the evidence of the experts. All other than Dr Lambeth fell into the category of medico-legal experts. The two psychiatrists called by the Commonwealth, Drs Bell and White, patently played the role of advocate, by making comments in the course of their reports and also criticising the reports of the experts called by the plaintiff. However, I gained some assistance from their observations because they highlight the issues between the parties. Other than Dr Lambeth, the experts called by the plaintiff only saw him once for very short periods and one of them did not see him at all. Dr Lambeth was in a different position to all the others. He saw the plaintiff on nine occasions and has treated him for depression. He is very experienced in the field of PTSD, especially within the defence forces. On the other hand, I do not overlook the fact that some of his answers given in evidence demonstrated a person who was very aware of which party had engaged him to give evidence in the case. In his first report dated 7 October 1996 and after seeing the plaintiff on two occasions, his opinion commenced -

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In his record of problems experienced by the plaintiff, the doctor does not refer to the periods when he was suffering from the symptoms. In particular symptom F of DSM-IV was not specifically considered during the period when the plaintiff was in the navy. Much of what the doctor recorded appeared to involve functioning interruption after the plaintiff left the navy. In my opinion Dr Lambeth's first report is superficial, does not properly analyse the important symptoms necessary for a diagnosis of PTSD and serves to base his opinion on general symptoms post 1980 without seeking to determine other possible causes. His dogmatic opinion exposes his partiality to the plaintiff's case. The other observation I make about Dr Lambeth is that he treated the plaintiff on and off for depression. However, he has not supervised the treatment, and more importantly, has not persuaded the plaintiff to undergo appropriate psychological treatment to alleviate his alleged problems. I accept that the evidence shows that intense counselling does not always provide a solution, but until one tests the waters, I find it difficult to accept the proposition that it would not. The plaintiff's refusal to undergo such treatment does impinge upon whether he suffered PTSD and is still suffering it.

93 Whether the plaintiff persistently re-experienced the traumatic event depends upon his evidence. I have summarised in paragraph 17 the plaintiff's evidence of his involvement immediately after the collision in rescuing and treating sailors. The defendant disputes that he fell into the sea. It is an important element in the plaintiff's case because he states that the fear of drowning stayed with him, leading to his fear of serving in smaller RAN ships and a fear of the water to the point where he is not prepared to sail in small vessels or go swimming. I have accepted that his version is correct. He says he was not wearing a life vest. While his evidence that he was not trained to wear a life vest is one of the matters that impinges upon his lack of credibility, I am prepared to accept, based upon Commander Halley's evidence, that there may not have been sufficient life vests in the vessel when he got into it. I cannot overlook the fact that there must have been enormous pressures, urgency and danger involved in the events immediately after the collision.

94 I have set out in paragraph 18 the events that occurred on the following two days until he rejoined the damaged HMAS Melbourne in Sydney. In paragraph 19 I set out his evidence as to the problems he was experiencing. These problems were that he was not sleeping well, waking up after experiencing nightmares which occurred two to three times per week, that the nightmares had the same subject matter, namely, drowning and something going past and/or scraping a ship that he was on, that he began to drink heavily, commenced to smoke heavily, that his nightmares kept recurring for the balance of 1964, that they occurred some two to three times per week and continued "from then on". He stated that apart from the broken sleep and dreams he felt "angry and ...... very upset. As a matter of fact, I started to drink to try and cover it up." He stated that his sleeping patterns during the balance of 1964 whilst on board ship was the same, that he would sleep some nights, but have interrupted sleep other nights, he would wake up with nightmares and that when in port he would drink to excess so he could get to sleep. In January 1965, for some 14 months, he was based at HMAS Tarangau on Manus Island, Papua New Guinea. It is a land base. He stated that his drinking habits and cigarette consumption increased, that he did not feel as bad there even though he was still angry and depressed as he put it, and that his sleeping patterns were the same, namely, nightmares which were "as I said before, nightmares of the ship and of drowning". He stated that he was anxious and had a panic attack whilst at HMAS Tarangau. He stated that in 1964/1965 he was not relating to authority, he hated crowds and socialising. He felt that he was withdrawn. He stated that he was lacking in concentration because he was suffering from hangovers. He gave evidence that these symptoms remained much the same until 1979, though he did state that things settled down from time to time, but not to any great extent and that he had the biggest problems when sailing in ships. He had problems when he was posted to HMAS Derwent which occurred in 1970. He gave evidence that later after he had left the navy, when working for the Red Cross, he was still having nightmares. He worked with the Red Cross for a period of ten years from 1982 to 1992. He stated he was having nightmares a couple of nights each week and again the same subject matter, namely, drowning and something rubbing across the ship. He said he suffered nightmares whilst at sea on HMAS Derwent and HMAS Stalwart. He stated that often he would wake up screaming and wake his wife up but he would not tell her why.

95 The overall picture painted by the plaintiff in giving evidence is that he has had nightmares since the first few days after 10 February 1964, up to the present. They had been regular and these dreams have the same subject matter, namely, drowning and something passing across a ship.

96 I do not accept the evidence of the plaintiff as to the continuation of nightmares, or the alleged problems he had as a result, namely, lack of concentration, irritability, bad memory and being withdrawn. There is ample evidence from other sources to show that this evidence cannot be accepted. The plaintiff has failed to prove the continuation of the nightmares. I reach that conclusion for a number of reasons:

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97 Dr Glaser is a psychiatrist who was retained for medico-legal purposes by the plaintiff's solicitors. He saw the plaintiff on 27 April 2005. He was provided with the medical reports of Drs Lambeth and Koller, Drs Bell and White and Professor Bryant, all of which subsequently were placed in evidence. He was also provided with a report of Professor McFarlane who was not called. He evidently was retained by the plaintiff's solicitors. Dr Glaser is a psychiatrist experienced in medico-legal work of a varied nature. He has had much experience in the field of PTSD. The plaintiff told him that "after the collision he suffered from some nightmares which seemed to resolve". In cross-examination the plaintiff admitted that fact, and then stated that he did not have nightmares all the time. They came and went. This is hardly consistent with the evidence he initially gave to this Court. Dr David Bell, who is an extremely experienced psychiatrist retained by the defendant, reported that when asked about nightmares, the plaintiff told him that he rarely had flashbacks or nightmares until the stuff started coming out again about 1996/1997. The plaintiff denied this in cross-examination. However, I accept the evidence of Dr Bell. The plaintiff told Dr Glaser that he did not suffer much from intrusive memories but they did trouble him when he talked about them to others. This only occurred when talking to expert witnesses.

98 Dr Glaser gave evidence that one would be suspicious of a person who stated that he has the same nightmare over decades. Dr Glaser was of the view that classic PTSD nightmares present a picture of waxing and waning. He also stated that nightmares of alcoholics are non-specific.

99 A compelling piece of evidence which raises doubts about the plaintiff's credibility was a statement supplied to Dr Leah Giarratano, a clinical psychologist. She saw the plaintiff on 16 April 1999 approximately three years after the plaintiff saw Dr Lambeth who asserted he suffered from PTSD. She was retained by the plaintiff's solicitors. She was provided with reports of Dr Lambeth. In what was in my experience an unusual step, the plaintiff gave a statement to her. It became Exhibit DEF 31. It comprised three closely typed pages of the plaintiff's career in the navy, the posting to HMAS Melbourne, the collision and the aftermath. There is a common theme that runs through the plaintiff's evidence concerning the events immediately after he arrived at Jervis Bay on the night of the collision. That theme is that he became very angry and resentful towards the navy because of the attitude of the navy towards him. His anger and resentment was exacerbated by the events during the following months in which the media, fellow sailors and members of the public criticised and abused sailors from HMAS Melbourne. The Royal Commission commenced approximately one month later and there is no doubt that the overall attitude towards personnel from the HMAS Melbourne was one of disgust and loathing. The plaintiff frankly admitted that he has never forgotten the anger and resentment that he felt or the experiences that he had during this period. I have no difficulty accepting his evidence that this was so and further that he was angry, annoyed and distressed by the events. In the statement he provided to Dr Giarratano, he recounted the events of being in Jervis Bay, being told to get his own accommodation, returning later to the HMAS Melbourne in Sydney and being told that he had had a bit of "a bludge" and hence should go back on duty immediately whilst others were given leave. He complained that he was not given any counselling. He then said:

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106 Dr Giarratano in her statement sets out in tabular form the criteria of DSM-IV. Against criterion B she wrote: "Mr Cavenett also stated that he woke once or twice a week with nightmares that caused him extreme overwhelming distress that left him unable to return to sleep. He stated, 'I woke up drowning'." However Dr Giarratano did not say when he was suffering from these nightmares. This omission reduces the weight to be attached to the plaintiff's evidence. Indeed, in context it appears that was the situation in 1999. Without considering criteria E and F in her report, which are important criteria to satisfy, the doctor was prepared to find on what she had been told, that the plaintiff suffered PTSD. She attempted to remedy this significant omission in her evidence. However, she was largely speculating because she did not have the evidence to say when the events were occurring which would enable her to say criteria E and F matters were occurring. I found her evidence unconvincing. Her assessment was based on what he told her. However, if she had compared what he said with what was in the statement, she would have been a little wary of the report of the nightmares. It is trite to observe that each of the criteria of DSM-IV must be established before it is open to form the opinion that the patient suffers PTSD. This must involve questions of when and exclusion of other significant causes.

107 The plaintiff's naval career after the collision which can be determined from various naval reports and his promotion through the ranks does not support his assertions concerning nightmares and excess consumption of alcohol. He stated that he was drinking heavily in the years following the collision. He stated this occurred very soon after returning to the HMAS Melbourne on 12 February 1964. The first thing that is noted which emerged in cross-examination, was that he was suffering from venereal disease which he had contracted in Sydney on 18 January 1964 and was confined to the sick bay in the Melbourne from 15 February 1964 to 9 March 1964, a total of 23 days. The medical records show that on 15 February 1964, he was suffering a profuse discharge of pus which indicated gonorrhoea. The evidence reveals that he was confined to the sick bay. It was impossible for him in this period to drink to excess or at all; he was not permitted any alcohol. Further, if he was suffering two or three times a week nightmares which caused him to scream out, resulting in sweating and interrupted sleep, one would expect it to be noted on his record. But more importantly, one would expect that a 21 year old young man with gonorrhoea may be extremely concerned about the nightmares and their effects. One might think that a sick berth attendant with background medical knowledge, assuming he was having nightmares with the same subject matter every two or three nights, would have realised that the collision had had a substantial effect upon his mental well-being. There is no record of any problems and no record of seeking any treatment.

108 The next matter of significance is that the navy did not permit alcohol consumption whilst on duty. Further, being hungover whilst on duty, especially in the medical branch, would not have been tolerated. The plaintiff's duties would have involved him in face to face contact with patients and being observed by others including superiors. Naval discipline would not have permitted it. If he had been drinking whilst on duty or just before going on to duty it would have been observed and he would have been disciplined. Further, although a ration of a 26 ounce can of beer was sold per day to a sailor whilst the ship was at sea, and although it would have been possible to get non-drinkers to buy a can and hand it over, it could not be said in the light of Commander Hatcher's evidence that it would have gone unnoticed if the plaintiff was drinking to excess.

109 Whilst the HMAS Melbourne was being repaired in Sydney, the plaintiff did have opportunities to go ashore and no doubt drink to excess. I am satisfied that from time to time he did so. However, on 11 May the ship left and sailed to Jervis Bay. It returned to Sydney later in the month of May and remained for three days, subsequently returning to the Jervis Bay area for ten days and then back to Sydney for some three weeks' maintenance. On 22 June 1964 it sailed from Sydney, going to Manus Island, then to South-East Asia, visiting Malaysia, Hong Kong, Singapore and Papua New Guinea, eventually arriving back in Australia on 1 September 1964. His opportunities to drink to excess, as he puts it, to enable him to sleep, would have been limited and would have been confined to shore leave. I do not accept his evidence of excess drinking on many, many nights.

110 The HMAS Melbourne stayed in Sydney for the first three weeks of September and then recommenced exercises, returning to Sydney on 3 October. It was in and out of Sydney right up to 10 November when leave was given to all personnel. His efficiency record while on the Melbourne showed that in most disciplines he was good, however he had "F" for "maintaining discipline". This reference is explicable when one considers the four misconduct offences he committed from 20 March 1964 through to 27 October 1964. I will refer to these offences later as they do provide some evidence which may support a finding of PTSD.

111 Continuing with his record in the navy, he served in a number of bases after leaving HMAS Melbourne at the beginning of 1965 until 1971 when he was promoted to Acting Petty Officer SBA.

112 He gave evidence of a fear of the sea. One of the characteristics of PTSD is criteria C, the persistent avoidance of stimuli associated with the trauma, and one of the pieces of evidence relied upon was that he had a fear of water. This was associated of course with the subject matter of the dreams and the fact that he fell into the water during the rescue operation. On 17 June 1964, some four months after the event, the plaintiff applied to transfer to the electrical branch because he said he was "not happy as SBA - not enough sea time and generally uninterested in the work". The evidence contradicts his evidence of fear of the sea. It is also noted by the psychologist who dealt with the application that he "seems adequately adjusted in the service and socially".

113 Despite the offences which I will discuss in a moment, his career path in the navy continued as one would have expected. Commander Fregon gave evidence as to the likely promotion path of the plaintiff if he had not been involved in the collision and if he had not suffered PTSD. The plaintiff was a SBA at the time of the collision. He was appointed Acting Leading SBA in May 1968 which was a month ahead of what Mr Fregon expected. It may be concluded that the misconduct offences did not have any practical effect upon his promotion. Another event of considerable importance occurred in September 1968 in that he re-signed for a period of three years. He had completed nine years and it was open to him to leave the navy. In re-signing, he had an option of re-signing for at least up to eight years but chose three years. This piece of significant evidence bears on his concern about avoiding stimuli associated with the trauma. Continuing with his promotion, he was appointed Leading SBA in June 1969 which was about the time when Mr Fregon expected that he would achieve that promotion. His last serious misconduct offence occurred in June 1968 although he was convicted of a minor offence in August 1970 when on the HMAS Derwent he was slack in turning out and was admonished. Despite that, on 12 August 1971 he was appointed Acting Petty Officer SBA and this accords with what Mr Fregon expected. In September 1971 he re-signed again for only three years. In considering this pattern of re-signing, I interpolate to observe that his entitlement to a pension did not arise until he had served for 20 years and that the evidence showed that a substantial majority of sailors re-signed at the 20 years mark. Indeed in an average intake no more than 17% were remaining in the navy after 20 years. Personnel were thinking of other things, they were usually aged in their late thirties and could obtain a pension. According to Mr Fregon it was expected that the plaintiff would become a petty officer SBA in June 1972 and indeed achieved that in August 1972. He married in 1973. His wife, Mrs Joyce, told the Court that although they drank usually over weekends when they partied a lot, the plaintiff did not appear to drink during his service duties and did not come home smelling of alcohol, nor did they drink to excess during the weekdays. Her evidence tended to refute the suggestion that he drank to excess during the week to enable him to sleep; if excess alcohol was involved it was usually during the weekends.

114 He re-signed again in September 1974. By this time he had completed 15 years and he re-signed for a period of eight years. By this time he had become a Petty Officer SBA, and no doubt was enjoying the benefits of that rank. There is no suggestion in his record that he was incapable or inefficient in doing his duties, that he was not a good Petty Officer, that he in any way ruffled or annoyed either those below him or those above him in rank, and generally one gets the impression from the records that he was operating in an efficient, suitable and appropriate manner. All this evidence is against the evidence that he was suffering nightmares two or three times a week, interrupted sleep, sweating and the like. Indeed if he did wake from time to time in a sweat and had tremors in the hands, these were all features of excess consumption of alcohol.

115 Although he stated that he lacked concentration, that his memory was affected and that he was often hung over and had difficulty performing his duties, had difficulty socialising and was dogmatic and at times rude, those alleged facts are not supported by any objective evidence. His irritability, bad temper, dogmatic attitude, perhaps becoming a little bit withdrawn is supported by some evidence of his behaviour from about 1980 onwards. However, I am not prepared to find that that was his situation whilst he was in the navy.

116 He left the navy of his own volition. He had signed on for eight years in 1974 but in late 1979 he applied to leave the navy. I have already adverted to this. I do not believe his evidence that he left because he felt he had no future in the navy because of lack of promotion. The real reasons he left are that he got to 20 years, the pension was available to him, and he was considering purchasing a business. He wanted to leave the navy.

117 The plaintiff's medical records were placed in evidence and covered the period from the date of admission in 1959 through to 11 December 1979. The records reveal a man who was prepared to consult regularly and often if he had any particular problem. This is not surprising. He was a SBA mixing with the medical profession often, had a knowledge of basic medicine and was not reluctant to seek treatment when he thought it appropriate. For example, he would seek treatment in relation to influenza, colds and the like. In August 1974 by way of example, he sought treatment because he had a history of lassitude for some three months. In October 1978 he reported malaise for several months. He sought treatment and was concerned about diarrhoea, indigestion, malaise, mild arthritis and it was noted by the doctor that "as he is a medical sailor he is most anxious regarding his condition". It was noted in what could be described as a very thorough examination and investigation of his problems, that he reported he "socially drank alcohol only". In August 1974 he underwent a detailed investigation, again complaining of lassitude and it was noted that he complained of a variety of matters but no reference to any sleeping problems, nightmares or sweating at night. In a full medical examination in May 1975 he had no complaints at all. This was prior to the posting to HMAS Watson. It is noted that he stated in his statement which he gave to Dr Giarratano that he had self-medicated with antidepressants in 1970. In 1977 he reported with anxiety neurosis and was given a repeat antidepressant. He was diagnosed with mild depression in February 1979. His symptoms were described as follows:

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118 I do not accept his evidence of a life long suffering of nightmares, the frequency of same, the subject matter of the nightmares or excess alcohol abuse. In addition, I do not accept that during his naval career he was difficult to get on with, was inefficient in any way, became withdrawn or was in any way incapable of carrying out his duties.

119 Any suggestion of avoiding sailing or water or navy life is contradicted by what the plaintiff did some 18 months after he had left the navy. On or about 20 June 1981 he wrote to Naval Reserves Training in Canberra seeking to become a member of the Fleet Reserve on fulltime service for one to two years. He stated that if approval was given, since he lived in Sydney and owned a home there, he requested that he be permitted to carry out service in Sydney. In the end he did not re-join as part of the Fleet Reserve. He also expressed a concern in the letter as to how his pension entitlements might be affected if he was to return.

120 This is hardly the conduct of a person who was suffering as he alleges he was, having a fear of sailing and the sea, yet after 18 months as a salesman wishing to return to the navy. He requested that he be permitted to retain his rank of Chief Petty Officer.

121 After spending some three months selling real estate, he joined the Red Cross as an organiser of first aid training. He was involved in the conduct of courses and later in his employment he became the IT specialist. He remained with the Red Cross for ten years. He gave evidence that he did not get on with staff and that in the end he was retrenched. A number of lay witnesses were called from the Red Cross who said that they had intermittent contact with him, one more than the other, and that neither witness found him difficult to deal with or unpopular with anybody. He left in 1992. He then obtained a job with the Institute of Technology in Newcastle teaching first aid and remained there for three years. Whilst he reports that he did annoy people he frankly stated that at times he did carry into civilian life some of the characteristics of a Chief Petty Officer who expected to be obeyed. I accept that around the 1990s he did have an explosive temper, that he got a bit down and depressed, that he was withdrawn to some extent and not easy to get on with. In 1996, Dr Lambeth diagnosed the plaintiff as suffering from mild depression, opined that as a result of the collision he had suffered from PTSD, based upon the history given, and that he was of the opinion the plaintiff required psychotherapy. He did not in fact undergo the psychotherapy. The plaintiff stated that he felt it would not help him.

122 The question which arises is, if he suffered PTSD, was this in any way responsible for his depression? I accept that often depression is diagnosed in patients suffering PTSD. By 1996 there were many factors which could explain his mild depression:

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• His marriage which began to fail somewhere around 1985/86 or maybe earlier, resulting in a divorce in 1988 when the matrimonial assets were divided between he and his wife.

• He gave up drinking in 1988 because he felt that he had been drinking far too much in the previous years and was concerned about the effect of alcohol on his health.

• He left the navy in 1980 and it is apparent that by 1981 he had some doubts whether that was the proper decision to make. When he left the navy he had been assessed as suffering from a low back pain and he was granted an incapacity pension of 10%. His back evidently steadily worsened and he made an application in July 1996 for an increase in the pension due to his continuing bad back. He was subsequently re-assessed at 90% of the disability pension. He had ceased work at the Newcastle Institute in 1996 because of his bad back condition. He stated that he was unable to carry out any employment, and ultimately he was assessed at 100%. He ceased employment in late 1996, with the reason given as a crippling disability in his back. He has had that ever since. This is a clear source of discomfort to him, it is disabling and a cause of depression as some of the medical practitioners accepted.

• After he and his wife separated, he formed a relationship with Pamela Robertson and they lived together for a period of time. In April 1990 they moved to his house in Lake Macquarie, however the relationship soured. The plaintiff demanded that Ms Robertson leave the home but she refused. In the end he obtained a solicitor's letter which he gave to her, demanding she leave. In late 1990 Ms Robertson committed suicide in the plaintiff's garage. He found her there. There is no doubt this was a source of stress to him.

• The litigation process which commenced for the plaintiff in about 1995 when he saw the newspaper article relating to his present solicitors, has also been a source of stress to him and no doubt played its part in the depression.

• He was diagnosed with cancer of the prostate although it would appear that he has made a reasonably good recovery.

• He has also suffered from cancer of the throat due to his excess smoking. He told the Court he still smokes.

• He is now aged 62 years, is moving into the area where it is common for men to feel disenchanted with life, grumpy and difficult and he has a bad back which obviously causes him pain. I observed this during the course of the trial. He has not worked since 1996 when he was aged 52 years.

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123 All these factors point to stressors explaining depression and the plaintiff has not satisfied me on the balance of probabilities that any PTSD that he may have suffered was the cause of his depression. In making that assessment I do not overlook the evidence that often PTSD is co-morbid with other psychiatric conditions such as depression and alcohol dependence. But each case must be considered on its own particular facts. One would have to show some causative link between the PTSD and the depression. Whilst it appears that in the 1970s some ten years after the event, he suffered bouts of mild depression, the main depression appears to have surfaced much later and after he left the navy. I am not persuaded there is any causative link between the collision and the aftermath and the depression which was diagnosed in 1996.

124 Given that I am not persuaded by the plaintiff as to the symptoms which were relied upon by the medical practitioners in their diagnosis of PTSD, the question is whether or not there is some objective evidence in any event which supports a finding of PTSD during 1964. Objective evidence during the period of some two years after the collision is found in the misconduct offences in 1964. It is accepted by the medical and psychology professions that one cannot diagnose PTSD in the first month after the traumatic event but if symptoms persist then one may be able to diagnose PTSD. Dr Glaser was of the opinion that after completion of the service on HMAS Melbourne he did not see any features which would merit diagnosis of PTSD for the next six to seven years. Dr David Bell, an experienced psychiatrist retained by the defendant, said that there was some evidence to suggest that the plaintiff may have suffered from PTSD in the early months, and that he may have been experiencing it over the 11 months following the collision but it resolved. In reaching his conclusion, Dr Bell placed reliance on the objective record of his bad behaviour over the period to the end of 1964 and his improved conduct thereafter. On any view, his misconduct during 1964 was out of character with the man who had been in the service for some five years prior to the collision, and according to Dr Bell, provides some objective evidence of post-traumatic stress disorder. In his oral evidence, Dr Bell repeated these observations but noted that if he did suffer from PTSD it resolved and that any difficulties that he may have had later should be put down to other causes such as heavy drinking.

125 In my opinion, the plaintiff did suffer from PTSD during the balance of 1964 and it resolved during the course of 1965. It re-emerged in 1971 when he was on the Derwent and his evidence is that he suffered from problems which appear to me satisfy the criteria set out in DSM-IV. He took medication for his problems when on HMAS Derwent. I am satisfied they settled down after he left the ship. The evidence of his conduct and behaviour in the navy until discharge supports this. I do not accept that his problems since 1996 are PTSD; they are matters caused by the events in his life since leaving the navy. In my view, there is no causative link between the PTSD that he suffered during this period and any other problem, namely, the depression observed in 1996 and following which in my view was caused by other factors, and the alleged drinking which on the evidence I do not find was excessive or that he was an alcoholic during his career in the navy. I accept that between 1980 and 1988 he drank to excess on some weekends.

126 It follows that insofar as any of the experts were of the opinion that the plaintiff suffered from PTSD from early after the collision through the years to the present, I do not accept their evidence. They gave their opinions based on what the plaintiff told them. I do not accept that what he told them was accurate. In addition, none of the experts who opined acute PTSD for many years focussed on the first two years and more particularly considered criteria F in the first two years. There can be any number of reasons why at any one time there is a significant distress or impairment in social, occupational or other areas of functioning. A proper approach to determining PTSD requires consideration of matters occurring in a specified period. All criteria must be present. Further, I had more information than any expert as to the plaintiff's functioning in the years that followed the collision.

127 It now becomes a question of calculating a sum of damages for PTSD which I find occurred during the periods 1964-5 and 1970-1, but resolved. In determining general damages, the Court is compensating for the injury, its effects, any pain and suffering and any loss of enjoyment of life. I have little doubt that during 1964 things were not easy for the plaintiff, that he did react to the incident, that he did change somewhat from a disciplined, obedient person to a rebel, that he did drink to excess on occasions when given shore leave, and that he suffered intrusive thoughts. I do not accept that he suffered the horrific dreams that he said he suffered during this period as often as he said he did because the other evidence just does not support his contention. I did ask one of the psychiatrists what effect, if any, PTSD would have upon a person. The tribunal of fact in reaching its conclusions on fact is entitled to rely upon its general knowledge, experience of life and common sense. One has little difficulty in appreciating intrusive thoughts of unfortunate and/or traumatic incidents, the aftermath of a sleepless night leading to irritability, and excess drinking leading to drunkenness and hangovers. His involvement in the misconduct offences was no doubt a source of concern to him, not only at the time, but of concern with respect to his naval record. In addition, the punishment meted out for the prolonged period of absence without leave would no doubt have been a very distressing time for him as it is a punishment that is usually meted out in front of the ship's company. Dr Glaser indicated that one might expect to suffer from sleeplessness, tiredness and irritability and maybe interference with one's ability to carry out one's duties. The plaintiff stated that he suffered from lack of concentration from time to time and that he was hung over. I accept that that was so in 1964-5. However, the evidence of how the PTSD impacted upon his functioning during this period was sparse, and absent the misconduct offences in 1964, there is no suggestion that he did not perform adequately in that year. According to the service record, he received a moderate rating for efficiency which is to be compared with satisfactory before and thereafter, and it was noted - although it was also noted over the next two years - that he was not recommended for advancement. His character during this period was given as very good and his efficiency in rating was noted as satisfactory.

128 The intrusive thoughts and problems associated with his service on the HMAS Derwent seem to have been well managed by the plaintiff who self-treated with the use of antidepressants.

129 Damages

General damages are awarded for injury, pain and suffering and loss of enjoyment of life. There was no evidence the plaintiff was suffering from any physical pain as a result of PTSD. On the other hand he was suffering from anxiety and distress. He would have suffered as a result of bouts of excess drinking and his misconduct. But there is little evidence of loss of enjoyment of life.

130 Taking into account that I find that the PTSD was not prolonged, that by and large he coped in 1964-5 and later in 1970-1 although he had a number of misconduct convictions and thereafter progressed in the navy in accordance with normal promotion until at least 1975, in all the circumstances based on the evidence as I find it, in my opinion the general damages should be assessed at $20,000.

Economic Loss

131 There are two heads of damage under economic loss. The first relates to medical and like expenses which were incurred from 1996 to the present in the sum of $5,088.35. I am satisfied that these expenses related to his depression which was treated from about 1996 onwards and accordingly, in my opinion, is irrecoverable. I am not persuaded that the depression in any way was related to the PTSD from which he suffered in 1964 into early 1965, and 1970-71 or the collision and its aftermath.

132 The second claim relates to his loss of earning capacity.

133 In a nutshell, it was the plaintiff's case that but for the collision and the alleged PTSD, he would have stayed in the navy after his first 20 years, would have been promoted earlier than he was, that he would have ended up as a Lieutenant Commander or, alternatively, as was alleged during final submissions he would have at least ended up a Warrant Officer. It was contended that his misconduct offences marred his promotion prospects, it being said that they were caused by PTSD.

134 In my opinion, the plaintiff has not proven that at any time he was officer material or that he aspired to officer rank. Secondly, so far as the alternative claim is concerned, namely, that he would have achieved the rank of Warrant Officer, I am of the opinion that he failed to prove that he would have achieved this rank because his left the navy of his own volition and not as a result of any alleged PTSD which thereby deprived him of the opportunity of ever reaching Warrant Officer. I do not accept that he left the navy at the end of 20 years' service because of any alleged disability or that his promotion was in any way, over the years held back because of the collision, its aftermath or any alleged disability suffered by him after the collision.

135 The plaintiff joined the navy on 28 September 1959. He was then aged 17 years. In the previous year he had failed his Intermediate Certificate at school, failing in all subjects. He joined the navy with the minimal educational qualification. He finished his training in September 1961, and at that time he became a SBA First Class. He then underwent a course to qualify him as an operating theatre nurse. In March 1960 he sat the navy's ET1 test and failed it. This test was in English and mathematics. It was equivalent to Year 10 at school. By this time he was aged 18 years. He joined HMAS Melbourne on 22 October 1963. By this time he was 21 years of age. His efficiency rating prior to joining was only satisfactory, although by the year 1968 he was given a superior rating. Satisfactory equates to average efficiency. It could be truly stated at the time he joined HMAS Melbourne, with the rank of SBA that his future did not point to rank of Officer. His efficiency was no more than average. His biggest drawback was his lack of education. He had failed the ET1 test which on any view could not have been a very demanding test. In mid 1964 when he sought to transfer to the electrical branch, his lack of educational qualification was noted as being against him for transfer. He obviously appreciated this because in September 1965 he sat the ET1 examination again and passed. By this time he was aged 23 years. Prior to this on 31 March 1962 he failed his professional test for promotion to Leading SBA which he subsequently passed. The evidence hardly supports a contention that he was officer material. Indeed, it is against him.

136 The evidence revealed that there were a number of lists which provided avenues for promotion to Officer. I have already referred to them. The first two avenues were not open to him.

137 The third list was the Special Duties List. This was the one, it was submitted, that was open to the plaintiff. There are a number of prerequisites. First of all the applicant had to be under the age of 34 years. For the plaintiff this cut off date was 1 August 1976. Secondly, an applicant had to be a Petty Officer or above. The plaintiff was appointed a Petty Officer on 24 August 1972 so his window of opportunity would have been between 1972 and 1 August 1976. Importantly, he had to have certain passes in the Higher Education Test or Services General Certificate of Education subjects. This equated to Year 11 at school. It was necessary to pass in English, maths and science subjects. But in addition, there had to be recognition that the applicant had specialist experience and achievements in having attained a non-commissioned officer's rank.

138 There is no evidence that the plaintiff at any stage turned his mind to seeking promotion to Officer through the Special Duties List avenue. It is necessary to consider what the plaintiff was doing between August 1972 and the cut-off date of 1 August 1976. He was not pursuing any activity to enable him to pass the educational qualification. His lack of educational qualifications were very much against him. In addition, there was one matter of significant importance in this period. On 14 November 1972 when he was a Petty Officer SBA he failed the Section 2 course for promotion to Chief Petty Officer. He passed the course in October 1974. As the evidence revealed, one needed a recommendation from an Officer together with educational qualifications to go via the Special Duties List. There is no evidence, in my opinion, which leads to the conclusion that the plaintiff at any stage was officer material. There is nothing in any of the evidence to support such a contention. In so far as the plaintiff asserts that he was deprived of the opportunity because of the collision and the PTSD that he alleged he suffered, I find the claim baseless and it reflects upon his credibility in this case.

139 The plaintiff's case relied upon evidence given by Lieutenant Commander Fregon who gave evidence of the likely career path for the plaintiff in the navy. When compared with the actual career path, the plaintiff's career was in accordance with Mr Fregon's evidence up to the time when the plaintiff was promoted to Petty Officer. He was appointed Petty Officer SBA on 24 August 1972 which was some two months after Mr Fregon expected the promotion. There is a divergence in the expected and actual promotion occurred between 1975 and 1979. Mr Fregon expected that in April 1975 the plaintiff would have been appointed Chief Petty Officer Medical, whereas in fact he was appointed on 23 April 1979. However, on 14 November 1972 he failed the Section 2 test for promotion to Chief Petty Officer. He did not pass that until October 1974. None of the evidence supports the contention that his misconduct offences had any effect on his promotion. The four misconduct offences of 1964 did not appear to affect his promotion up to 1972. He was promoted between 1964 and 1972 in accordance with the evidence of Mr Fregon.

140 In addition, the evidence reveals that persons were occupying the positions of Chief Petty Officer after 1972 at the bases where the plaintiff was serving. Another matter that cannot be overlooked is that at the end of nine years he only re-signed for three years, leading to 1972 when he re-signed again for three years. This conduct hardly supports the conclusion that he was intent upon becoming an officer. Something more would have been needed to persuade those in charge that a Petty Officer wished to become an officer after signing on for only three years. In 1974 he re-signed for eight years. This step would have at last indicated that he was prepared to stay beyond 20 years. The evidence of Lieutenant Commander Hartcher who gave evidence as to the requirements concerning promotion, and also statistical evidence of service in the navy, revealed that of the total 1959 year enlistees, only 17% served for 20 years or more out of a total number of 1,153. Of the personnel in the medical branch who enlisted in the plaintiff's intake in September 1959 only two persons attained the rank of Officer. The medical branch was small. No doubt the opportunities were limited.

141 The final way of being promoted to Officer was through the Limited Duties List which was created in 1986. Sailors who had been promoted to Warrant Officer and who gained three years seniority could apply for appointment. By 1986 the plaintiff was well out of the navy. He left in 1980. There is no evidence to suggest that he could have ever utilised this avenue.

142 Lieutenant Commander Hartcher is an Officer in the RAN Reserve. He is currently serving as Staff Officer Litigation in the Directorate of Naval Officers' Postings in Canberra. That directorate is responsible for the career management of officers within the service. He prepared three reports and gave evidence on behalf of the Commonwealth. He considered the plaintiff's prospects of promotion generally and stated -

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144 I agree with his evidence. It is amply supported by a consideration of the career path of the plaintiff in the navy. I reject the plaintiff's claim. It has no merit. In my opinion the plaintiff never had any aspirations to become an Officer and his career in the navy amply supports that conclusion. The claim should not have been made.

145 Late in the trial, namely, during final submissions, an alternative case was put on behalf of the plaintiff. It was submitted that he would have, but for the collision and the alleged PTSD, stayed in the navy and attained the rank of Warrant Officer. The evidence upon which this was based is very sparse. It was put that the plaintiff but for the collision and the PTSD would have remained in the navy for life. It was then said that he left the navy having lost opportunities for promotion and therefore was deprived of the opportunity of ever reaching Warrant Officer. The rank of Warrant Officer was created in 1976. According to the evidence of Mr Fregon, he would have expected in the normal course of events for the plaintiff to achieve that rank in April 1980. This was on the basis that he was appointed Chief Petty Officer in 1975. The evidence revealed that before one could qualify for promotion to Warrant Officer the applicant had to have been a Chief Petty Officer SBA for four years and for a period of three years immediately prior to the promotion have continuous "Very Good" conduct. In light of what happened, the four years from the date when he was appointed Chief Petty Officer would have meant that he could not possibly have been appointed prior to 23 April 1983. By this time he had left the navy. There is absolutely no evidence to support the contention that he was ever on a career path to become a Warrant Officer which had been in any way affected by the collision in 1964 or the PTSD that he suffered in that year. The fact was he put it beyond his ability to ever reach Warrant Officer rank. As Lieutenant Commander Hartcher pointed out, the record shows that he would have completed four years by 13 April 1983 by which time he was out of the navy but he had not attempted any of the promotion board tests that were required and he had not achieved any seniority or conduct requirements prior to discharge on 14 December 1979. The fact was that the plaintiff was neither eligible for the position, nor did he give himself any opportunity of attaining that position because he left the navy. In my opinion, he left the navy for reasons which had nothing to do with the collision, its aftermath or the PTSD that he suffered in that year. Indeed, the number of all 1959 enlistees who served for 20 years or more was only 17.7%. Of the plaintiff's intake only 16.88% continued after 20 years, and at the end of his first nine years not one of the personnel in the medical branch intake of September 1959 had achieved any rank above Leading Seaman. This was also a baseless claim. I reject it.

146 It was put in final submissions on behalf of the plaintiff that the Court should approach the question on the basis of a lost opportunity and reference was made to the decision of Malec v J.C. Hutton Pty Ltd.[4] The Court can award a general sum of damages for lost opportunity, having made some assessment of the likelihood of the opportunity occurring. The first step, of course, is to make some determination as to the likelihood of the event taking place. I am not satisfied on the evidence that at any time the plaintiff had any prospect or possibility of being promoted to Officer and by his own conduct could not have attained the rank of Warrant Officer. I am not prepared to allow a sum based upon the possibility that he may have reached either rank.

147 The claim for economic loss due to impairment of earning capacity fails.

Limitation Defence

148 In its defence delivered 4 August 1999, the Commonwealth pleaded that the plaintiff's action was statute barred by reason of s.5(1)(a) of the Limitation of Actions Act 1958 ("the Act"). There is no doubt that that defence has been made out. The negligent act occurred on 10 February 1964 and the injury was suffered within a matter of days of that negligent act which meant that the cause of action in common law negligence had accrued by the end of March 1964 at the latest.

149 However, that is not the end of the case. This is because s.5(1A) of that Act provides to the plaintiff a means of avoiding the effect of s.5(1)(a) of the Act. In anticipation that the defence would be taken, the plaintiff pleaded in the amended statement of claim that the injuries referred to were a disorder within the meaning of s.5(1A) of the Act and that he first knew that he had suffered such injuries and that they were caused by the incident in or about April 1996. This was an unnecessary pleading. It should have been pleaded in reply to the defence raised by the Commonwealth.

150 The first question for consideration concerns the burden of proof. It was submitted by plaintiff's counsel that the Commonwealth had the burden of establishing that s.5(1A) did not apply. My initial reaction to the submission was one of surprise, bearing in mind that it is the plaintiff who has the necessary knowledge which is important in the application of the sub-section. In Herschberg and anor v Mula[5] the Full Court held that the burden did rest upon the defendant. The appeal concerned s.5(1A) in a medical negligence case. Southwell and O'Bryan JJ said:[6]

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(a) that he had suffered those personal injuries, and

(b) those injuries were caused by an act or omission of the defendant.

169 If the plaintiff establishes that he acquired the necessary knowledge not more than six years prior to the institution of the proceeding, s.5(1A) will apply provided of course he proves elements (i) - (iii) (inclusive). The cause of action accrues on the date when the plaintiff first knew that he was suffering the personal injuries and that they were caused by the act or omission of some person for whom the Commonwealth was responsible. He had to prove the cause of action accrued after 25 November 1990. If it accrued prior to that date s.5(1A) did not provide an answer to the limitation defence under s.5(1)(a).

170 There was no contest that the proceeding was an action in damages for negligence in respect of personal injury. The Commonwealth's admission meant that the plaintiff did not have to prove that the PTSD and its consequences consisted of a disease or disorder contracted by the plaintiff. In the light of the decision of Ashley J (as he then was) in Carl Henning Wright (as executor of the will of Lindsay John Stafford - deceased) v The Commission of Australia [2005] VSC 200, the plaintiff may consider himself fortunate. Ashley J held following Clark v Stingel supra that PTSD was not a disease or disorder contracted by the victim and unknown at the time it was contracted.[16] In that case the deceased had been serving on the HMAS Melbourne at the date of the collision. It is alleged by the plaintiff that he did not know he had suffered from PTSD until told by Dr Lambeth in 1996.

171 In determining whether or not the plaintiff has established that he did not know he had suffered "those personal injuries" until a date after 25 November 1990 it is necessary first of all to consider and determine the facts bearing on the issue.

172 At the date of the collision, the plaintiff was aged 21 years. He joined the navy in September 1959 when aged 17 years with the intention of serving in the medical branch. He spent two years on basic training at HMAS Ceberus at Westernport in the State of Victoria. His basic training included training as a sick berth attendant. In November 1962, he completed an operating theatre assistant's course at the Alfred Hospital, Melbourne. On 22 October 1963, he was posted to HMAS Melbourne as a sick berth attendant. He gave evidence that he was a moderate drinker and smoker and there is no suggestion that he was anything other than a model trainee and later a qualified SBA. Evidence was given in the trial that he was observed by one of the instructors as a relatively immature young man during his training. There is no suggestion in the evidence or the records that he was suffering from nightmares, anxiety, distress of any nature or depression prior to the date of the collision.

173 The plaintiff stated that on the night of the collision he was in a state of shock and cannot remember whether he had any difficulty sleeping. The following night he was miserable because he felt he was ignored and he stated he did not sleep much that night because he could not sleep properly. He said he had thoughts about his experiences in the collision. He had a degree of anger. This was because he said he was treated "like a leper". His evidence was that prior to the collision his average consumption of liquor per week was about a half a dozen or so glasses of beer. His consumption of cigarettes was five to ten a day. In the few weeks or month after the collision he stated he was pretty miserable, was angry at the navy and also because members of the Melbourne were copping abuse from other sailors and civilians. He also stated that in the first month or so he was waking up a lot, suffering from nightmares, sweats and screaming out. He said the nightmares were much the same in that they were concerned with seeing something go past the side of the ship and him being underneath the sea looking up in the water up at a halo of light. He had dreams about the sea, that he was going to drown, that the sea was going to take him and he was terrified of the sea. He stated that he began to consume excessive quantities of beer and that he was "drinking myself basically into oblivion every night". He said during 1964 he was uncertain about staying in the navy and that he felt angry because the navy had not treated him well. He stated his sleeping pattern in the ship in 1964 was the same: "I would sleep some nights, I would wake up with nightmares and that and most times when I was awake in port I would drink so that I could sleep soundly." During the balance of 1964 he was involved in four misconduct offences, one of which was serious in that he was AWOL for 84 hours in the last week of October 1964. After leaving HMAS Melbourne at the end of 1964 he went to a land base HMAS Tarangau in early 1965. He said he was still angry and depressed but not feeling as bad because he was not around water. He said that his personality changed during the period after the collision into 1965. He said he thought about the collision from time to time. He said he did not want to discuss it with anybody. He said his concentration was affected but he thought that may have something to do with his hangovers. He said things settled down from time to time right up to 1979 but when he was actually seagoing or being reminded of ships he had his problems. He said he certainly did when he went to HMAS Derwent which was in 1970. He stated that he was still continuing to drink heavily when the opportunity presented itself and he was also smoking excessively. I have made my findings in relation to the plaintiff suffering PTSD. In my opinion he suffered it during 1964-5 and 1970-1.

174 On any view of the evidence given by the plaintiff, there was a marked difference in his mental state and behaviour when compared with his conduct and behaviour prior to the collision.

175 In 1979, prior to his discharge, he did have some treatment for depression and he stated that he did not think that the treatment and the diagnosis related in any way to the collision. He stated that it was not until he had seen Dr Lambeth a number of times in 1996 that he first knew that he had PTSD. Dr Lambeth told him that it was his opinion that it had arisen from the collision. The plaintiff stated that that was the first time he knew that he had had PTSD arising from the collision. He was asked in cross-examination, that each time he re-signed, he had to undergo a medical examination and that on every occasion he ticked the box that said that he was normal mentally. It was put to him that if he was suffering so badly from nightmares and could not control his behaviour he must have understood that the symptoms and cause were of a mental nature. He denied that. But then when asked what did he think was the cause of the recurrent nightmares he said, "Just a thing that I had witnessed and things bringing it back up again." Whilst he said that he could not see any change in his personality he accepted that he was depressed and getting anxious. He said that he thought his antisocial behaviour and being withdrawn was something to do with being a sailor. He did not think it was any psychological problem. Sometimes he woke up talking and screaming. Nevertheless when pressed the plaintiff did accept that the symptoms and problems were caused by the collision and the aftermath.

176 He was asked about what he had in mind were the symptoms of PTSD when he first spoke to the veterans' advocate in July 1996 and filled in a form stating that he was suffering from it. He stated that the veterans' advocate told him that he was suffering from it. One of the questions in the form asked what he understood the symptoms were. He described his symptoms as:

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178 He agreed, comparing his situation prior to the collision and after the collision, that common sense told him that the cause of his problems was the traumatic event. He said that he never sat back and thought about it but agreed that it was obvious. He said, "I had had no idea of what post-traumatic stress disorder was." He agreed however that what caused the symptoms would have to have come from the collision.

179 I find on the evidence that the plaintiff knew that the symptoms that he was complaining about and which commenced very shortly after 10 February 1964 and remained with him on the findings I have made into 1965 and occurred again in 1970 for a period were caused by the collision of the two ships. Indeed, the cause and effect exercise leads to that conclusion and is obvious and beyond doubt. It is clear that the plaintiff was aware of the symptoms. A comparison of his situation and state of mind prior to the collision, with what occurred thereafter, leads to that conclusion. According to him the content of his dreams was always the same, and concerned events which occurred on the night of the collision. He admitted in his evidence that his symptoms were caused by the collision. He stated he did not know he was suffering from PTSD, that is a mental injury.

180 Has he proven on the balance of probabilities that he did not know that he suffered from a mental injury until after 10 November 1990?

181 The phrase "personal injuries" is defined in s.3 of the Act as "includes any disease and any impairment of a person's physical or mental condition". It was accepted by plaintiff's counsel that the disease or disorder for which he claims compensation is PTSD. This is a recognised mental injury. The knowledge in question is concerned with a mental injury. The question does arise as to what a plaintiff has to know? Does the plaintiff have to know the symptoms or does he have to know the symptoms together with the fact that he is suffering from impairment of his mental condition? Does he have to know the name of the mental injury?

182 Counsel referred to a number of cases in respect to other legislation both in this Court and in the New South Wales Supreme Court. However, I derive no assistance from those cases. They were dealing with different legislation.

183 The definition of "personal injuries" in the Act is not exhaustive. However the definition does give an indication as to what is contemplated as an injury which is not physical, namely injury to, or impairment of, the plaintiff's mental condition. The definition first appeared in the Act of 1955. As at 1955 and today, the law does not allow damages for mental injury which is not consequent upon physical injury. In Tame v New South Wales[17], Gleeson CJ said at p.329 -

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The mental injury must be a compensable mental injury and is something more than mere grief and upset caused by a traumatic event. Sometimes it is difficult to draw the line. Hence the assessment of damages is made difficult, but it is necessary to draw a distinction between grief and psychiatric injury; the former is not compensable, the latter is. See Hinz v Berry[18] and Pham v Lawson[19] and Luntz - Assessment of Damages for Personal Injury and Death.[20] In my opinion, in considering the plaintiff's state of knowledge, where the injury is mental, the knowledge is concerned with a compensable mental injury. It is recognised that PTSD is a compensable mental injury.

184 What is the test to determine knowledge within the meaning of s.5(1A) of the Act? Is it an objective test, is it a subjective test or is it a combination of both? In my opinion it is a subjective test. It is the knowledge of the plaintiff which is the relevant knowledge for the purposes of the section. Being a subjective test, the plaintiff's knowledge includes his knowledge at the relevant time and takes into account his intelligence, knowledge and experience. In this regard the observations made by the courts in relation to mitigation of damages in cases concerning an allegation that a plaintiff failed to undergo medical treatment to mitigate his loss are relevant. I refer to Karabotsos v Plastex Industries Pty Ltd[21] and the High Court decision of Fazlic v Milingimbi Community Inc[22]. In my opinion in determining whether or not the plaintiff has established the date when he first knew he had suffered the personal injuries to his mental condition, the Court takes into account his state of knowledge and experience. In determining that issue, the plaintiff's knowledge and experience of matters medical equip him with a better understanding of the symptoms and whether the personal injuries he suffered were an injury or impairment to his mental condition. In my view he does not have to know the name of the mental injury. The plaintiff has to prove that he did not know that he suffered an injury to, or impairment of, his mental condition.

185 It is clear that the plaintiff has to prove that he did not know he had suffered a mental injury prior to the commencement of the six years' period. It is therefore important to determine what he did know. I have set out the facts which establish that he had a good knowledge of the symptoms which the experts say lead to the conclusion that he was suffering from PTSD soon after the collision. In determining whether the plaintiff knew that he suffered from a mental injury, I take into account his knowledge, background, experience and qualifications, including his understanding of medical matters. The evidence established that the plaintiff had been trained in matters medical, he had an understanding of medical matters, and he admitted that he had treated RAN personnel for depression and mental-type problems. He appreciated the differences between physical and mental injuries. He knew that he had undergone a substantial mental change post-collision from his pre-collision situation. In my opinion the only thing he did not know was that he was suffering from a mental injury known as PTSD. On the other hand, the symptoms and the dramatic change in his mental well-being which continued for about 12 months and resurfaced in 1991 led him to a state of knowledge that he was suffering from some mental injury. In my opinion it is not necessary to know the actual mental injury by name. It is sufficient if he has the symptoms which he knows is affecting his mental condition and is suffering from a recognised psychiatric injury. The symptoms were obvious, clearly caused by the collision and the aftermath and lasted for a period in excess of six months. The symptoms affected his mental being. But I do, with some hesitation, find that he did not know he was suffering during 1964-5 with a compensable psychiatric injury. He knew that he had disturbing symptoms during this period but they settled down and the plaintiff put the disturbing events behind him. On the other hand when the disturbing symptoms recurred in 1970 when the plaintiff was on HMAS Derwent, the plaintiff did have knowledge that he was suffering from a mental injury. In my opinion the plaintiff has failed to establish that he first knew that he was suffering from the mental injury after 10 November 1990.

186 He saw the psychologist, Dr Leah Giarratano, on 16 April 1999. He produced a document to her which was tendered in evidence as Exhibit DEF31. As I have earlier stated, it appears to have been a statement prepared on behalf of the plaintiff. The statement is illuminating. On page 2 appears the following:

Plaintiff v Defendant

At a glance

Court

Decision date

Before

Source

Judgment (97 paragraphs)

Parties

Cases Cited (5)