319 The witness further agreed that the plaintiff's response to him being posted back to Melbourne in later 1965 showed that he was still having a very high degree of distress about the collision[94].
320 Dr Bell agreed also that PTSD can be a chronic condition. But whilst he conceded that the plaintiff may well have had PTSD in the year or two following the collision, it was a remote possibility that it had continued through his life.
321 The reliability of Dr Bell's evidence was challenged on a number of fronts. It was said, in effect, that he was a witness whose views were well-known as being compatible with the Commonwealth's position in the Melbourne/Voyage litigation; that he had misrepresented research findings; that his report had selectively omitted a part of the plaintiff's account of events; and that he too readily sheltered behind phrases such as "not compelling". There was force to aspects of the challenge. But that does not gainsay, I consider, the validity of a good deal of Dr Bell's opinion. The doctor was confronted with a confused picture; and I think that he attempted to explain it in a rational way. He affirmed in unequivocal language his acceptance of the plaintiff as an honest - if mistaken - witness. He was prepared to concede that the plaintiff had been much distressed following the collision; and that a diagnosis of PTSD was maintainable for a limited period thereafter. He provided a reasoned explanation of his thesis that the plaintiff unintentionally adopted, at a late stage, a history which gave continuity to PTSD.
Analysis
322 Did the plaintiff suffer any and what compensable injury?
323 The answer to the question does not lie in the circumstance that the collision was a large-scale disaster in which a great number of servicemen lost their lives. Nor does it lie in the circumstance that the Commonwealth by its servants breached a duty of care which - ultimately - it admitted that it owed its sailors. Neither does it lie in criticism which the Commonwealth attracted over the years for the bases upon which, from time to time, it denied liability to servicemen and their widows. Neither again does it lie in the notion that mental injury is easily asserted and is difficult to disprove; or in the notion that an allegation of mental injury requires some more generous consideration than does an allegation of physical injury. Rather, the answer lies in a rigorous examination of all the evidence in the particular case, bearing in mind that the plaintiff carries the burden of persuasion.
324 The correct answer in the present case is not easily arrived at. The evidence left open a number of possible answers. They ranged from the plaintiff succeeding at every point to the plaintiff failing altogether. At different stages in the course of the trial different answers attracted me. In the end, I have concluded that the plaintiff proved that he suffered a psychiatric injury which had its onset soon after the collision, and which persisted for a period of years thereafter; but that he proved no other injury. I must explain those conclusions[95].
325 First, I am satisfied that the plaintiff attempted to give reliable evidence. That was my impression when he gave evidence. I have already explained why I reached it. My impression was confirmed by the assessment of other witnesses, including Dr Bell, called for the defendant.
326 Second, it does not follow that the evidence which the plaintiff gave about the onset and persistence of symptoms was accurate. Much evidence at trial was taken up with explanations why the plaintiff's final account had emerged so late in the piece; and whether it could be relied upon.
327 Third, the collision, viewed from the perspective of the plaintiff's involvement in its immediate aftermath, met the stressor criterion - Criterion A - which is pertinent to a diagnosis of PTSD.
328 Fourth, it could readily be expected that the plaintiff's involvement in the aftermath of the collision might cause him mental upset. A wish not to talk about the incident would not be unexpected. The same could be said about the plaintiff having recollections of the collision and its immediate aftermath, having bad dreams, (mis)using alcohol, and wishing not to be posted back to Melbourne.
329 Fifth, I think it likely that the plaintiff in fact responded, shortly after the collision, and to some degree for a period of years thereafter, in the ways which I have just mentioned. That response met the criteria for a diagnosis of PTSD, and the plaintiff's response should be so characterized.
330 Sixth, PTSD often resolves quite quickly. But in some instances it can become a chronic problem. The fact that the condition can become chronic does not mean, of course, that such was the case here. A number of circumstances point in the opposite direction.
331 Seventh, despite the plaintiff suffering the onset of PTSD not long after the collision, it is nonetheless the fact that his service life continued satisfactorily - so far as that is ascertainable from his service record - until his discharge. In that period the plaintiff was from time to time subjected to what would ordinarily be accounted stressful situations. In particular, he served in a war zone, which involved active and defensive operations at different times. Those circumstances bear upon the likely extent of symptoms and disability attributable to PTSD.
332 Eighth, I accept that the plaintiff would probably have re-enlisted in 1967 had it not been for the collision. But it does not follow, and I do not accept, that a cause of him leaving the Navy was compensable psychiatric injury. I consider it probable that he left the Navy because he had lost faith in its processes. Principally, he had lost such faith because of the simple fact that the collision had occurred. Another consideration, probably, was the way in which his commanding officer had handled the signals incident.
333 Ninth, the plaintiff began to attend Dr Joe Leong in mid 1970. The doctor's records, as I have said, went into evidence. Regrettably, their full detail was not revealed. But what is at least clear is that, although the plaintiff attended Dr Leong many times between 1970 and 1989, the doctor did not record - with an exception or exceptions to which I will refer in a moment - any complaints or signs consistent with mental illness, specifically PTSD. In November 1977, this is an exception, the doctor diagnosed anxiety. But the presenting symptoms were not indicative of PTSD; and in any event, as I have noted earlier, the doctor later revised his diagnosis. Then, this is a possible exception, Professor McFarlane suggested that in 1984 Dr Leong may have diagnosed depression.
334 Tenth, it is clear that the plaintiff was not inhibited in discussing confidential matters with Dr Leong. The doctor's notes for 28 January 1977 appear to read, in part - "Sex problems. I SQ - worse." Further, when the plaintiff suffered his major breakdown in 1989, he was quite prepared to implicate a particular cause. Again, in 1999 he was prepared to attribute his depression to aspects of Naval service.
335 Eleventh, whatever might be said about general practitioners' notes in the abstract, or about the ability of general practitioners to diagnose psychiatric illness in the abstract, Dr Leong had a long-term patient who suffered a serious psychiatric illness. He treated the patient for the illness, and followed him up over the years. He evidently turned his mind to the possible significance of the diagnosis of anxiety made in October 1977. I decline to accept that the doctor did not see, before or after April 1989, something that was there to be seen.
336 Twelfth, the weight of evidence favours a conclusion that, if the plaintiff had been suffering PTSD in the period preceding April 1989, that condition probably should be taken to have contributed to the onset of his major depressive illness. But it does not follow, because the plaintiff suffered a major depressive illness, that PTSD was then present. I accept Dr Bell's evidence that major depression commonly manifests itself in persons aged in their fifth decade, the plaintiff being in that decade of his life at the time of his breakdown. It is unnecessary to reach any conclusion about the validity of Dr Bell's "nature or nurture" explanation of the underlying aetiology of depression.
337 Thirteenth, the import of the medical evidence was that there is an overlap in the symptoms of depression and the symptoms of PTSD. But some symptoms of PTSD are quite specific to that condition. It could not be said, absent such symptoms, that the presence in 1989 of symptoms of depression which could also be symptoms of PTSD means that the plaintiff then suffered from PTSD.
338 Fourteenth, to make explicit what I have thus far only implied, in my view no causal link was established between the PTSD from which the plaintiff suffered for a time after the collision and the major depression which had its gross onset in April 1989. Neither was any causal link established between such PTSD and the continuing course of the plaintiff's depressive illness after 1989.
339 Fifteenth, the issue of false attribution was much debated in the evidence. What is, however, at least clear is that the plaintiff, at the time of his acute illness in 1989, immediately ascribed his problem to a particular work stress. It was said by Mr Clarence that the plaintiff had a small job, and that it was not stressful from the witness's perspective. What must be considered, however, is the matter viewed from the plaintiff's perspective. Psychological testing showed that the plaintiff's verbal fluency was not matched by his level of intelligence. He was in a small managerial position in Townsville. But it did not follow that he was equipped to deal with it easily. There was a source of upset. The plaintiff was caught between his superiors on one side, and on the other side the subordinate, who blamed the plaintiff for his predicament, and the Union. It seems to me explicable enough that these circumstances should have been beyond the plaintiff's ability to cope; and have triggered his breakdown.
340 Sixteenth, the plaintiff evidently suffered relapses in his depression in the years after 1989; and some overall deterioration in his condition. That was in keeping with the natural history of depression. It did not bespeak an underlying PTSD. Further, with the passage of years the plaintiff's medical problems multiplied. He was left with particularly distressing sequelae of his bowel operation. The medical evidence supports a conclusion that such circumstances were apt to trigger relapses in, or lead to worsening in, the chronic level of the depression; and to provoke symptoms of anxiety.
341 Seventeenth, while the plaintiff agreed in cross-examination that he was a man who felt that a stigma attached to mental illness, and to receiving treatment for mental illness, in fact he sought treatment in 1989, and in fact he made a disability claim in part reliant upon mental illness in 1999. Moreover, in 1999 he sought to attach his depression to particular incidents of Naval service. The point is not whether the attribution was sound, but rather that he did not shy away from asserting that he suffered from mental illness, and that it was attributable to Naval service.
342 Eighteenth, in 1999 Dr Likely evidently considered the possibility that the plaintiff was suffering from PTSD. So, he questioned the plaintiff about relevant symptoms. The plaintiff obviously knew at that time that former members of the crews of Melbourne and Voyager had made, or were pursuing, claims for damages. Why should it have made any difference to the plaintiff whether his disability pension was increased - so far as he relied upon psychiatric injury - because his injury related to the collision rather than to the stresses of service on the Derwent?
343 Nineteenth, it seems probable that some of the questions pertaining to PTSD which Dr Likely asked the plaintiff in May 1999 would not have conveyed the idea that the doctor was enquiring about mental illness connected with the collision[96]. Particularly that would be so in the case of a man who, according to Profession McFarlane, did not readily understand the import of questions with a conceptual context. In those circumstances, I consider that the plaintiff's failure to identify any relevant symptoms was not inconsequential.
344 Twentieth, the fact that Dr Likely asked the plaintiff questions about the collision, and about the plaintiff's perception of its effect upon him, was apt to focus the plaintiff's mind upon a possible relationship between whatever mental illness he suffered from and the collision, when once his claim for an increased disability pension by reason of depression had been rejected. Earlier on, in connection with his 1989 breakdown, the plaintiff had shown his determination to pursue a compensation remedy in respect of mental illness.
345 Twenty first, before the plaintiff was interviewed by either Mr Zemaitis or Dr Likely in early 2002, he had consulted his solicitors. As earlier noted, they sent a letter to Dr Likely in anticipation of him seeing the plaintiff. This is what, in part, it said: