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: