Plaintiff v Defendant [2006] VSC 105 | Case summary

Plaintiff v Defendant [2006] VSC 105 | Case summary | Zoe

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In addition, certain medical records and reports pertaining to the plaintiff were put into evidence.

17 Counsel for the defendant, it is next convenient to note, did not contend that the plaintiff or any of the other relevant lay witnesses had deliberately attempted to mislead the court. Evidence adduced by the defendant from Dr Bell was rather that the plaintiff and his wife had demonstrated the fallibility of memory. They had been innocently unreliable witnesses, seeing cause and effect when in truth it did not exist.

18 It was not in debate that memory is fallible with the passage of years. But recollection is not necessarily unreliable . Its reliability or otherwise, bearing in mind the burden of proof borne by the plaintiff, must be assessed in the particular case having regard to overall body of evidence.

Uncontroversial evidence

19 Although this section of my reasons is concerned to resolve the question whether the plaintiff established that he suffered any, and what, compensable injury, a good deal of the lay evidence addressed both that question and other issues in the trial. So, for instance, the plaintiff, his wife and sister in law gave evidence bearing upon quantification of damages, and evidence concerning the factual basis for the pleaded estoppel/waiver. Other lay evidence addressed the latter question discretely - thus, the evidence given by Messrs. Dunlop, Graham, Halley, Robson, and Monsignor Lyons. I will summarise and assess the entire body of evidence to which I have just referred within the topic now under specific consideration. To do otherwise would be to create an artificial division in my assessment of the reliability, particularly, of the plaintiff's evidence.

20 Much of the chronology pertaining to the plaintiff's life history was uncontroversial. He was born on 2 April 1934, and so was aged 70 at trial. He was educated to grade 6 level. He ceased his schooling at about age 13. He enlisted in the Navy in 1958. In the years between leaving school and enlistment he had worked as a carpenter with his father, and had driven trucks.

21 At the time of his enlistment - this appears to have been common ground - the plaintiff underwent routine medical examination; and nothing abnormal, physical or mental, was detected.

22 The plaintiff enlisted for a 9 year period - that is, his period of service was to end in 1967. That is not to say, of course, that re-enlistment was not possible.

23 The plaintiff underwent training at HMAS Cerberus, in the Stores Department. He did well in all aspects of training. Following training he was transferred to HMAS Nirimba, a shore station in New South Wales, as a Second Class Stores Assistant.

24 The plaintiff married in June 1959. In July 1960 his first child, a daughter, was born. A second daughter was born in 1961.

25 Going back a little, in January 1960 the plaintiff was posted to HMAS Anzac. There he remained until being posted to HMAS Melbourne in August that year.

26 In January 1962 the plaintiff was transferred back to Nirimba. There he remained until he was posted to HMAS Penguin in May that year.

27 In January 1962 the plaintiff was posted back to Melbourne. There he served up to, and after, the time of the collision.

28 Not long before his second posting to Melbourne, the plaintiff was promoted to Leading Stores Assistant. Then, in January 1964 - that is, shortly before the collision - he was promoted to Acting Stores Petty Officer. With the effluxion of time, he was confirmed as Stores Petty Officer. That was in January 1965.

29 In November 1964, that is, not long before his confirmation as Stores Petty Officer, the plaintiff was transferred from Melbourne to HMAS Moreton. There he remained until being posted to HMAS Sydney in November 1965, from whence he was posted to HMAS Derwent in February 1966. Concerning his postings to Moreton, Sydney and Derwent, the plaintiff gave particular evidence which was said to bear upon the question whether he suffered compensable injury in consequence of the collision. I will refer to that evidence later in these reasons.

30 The plaintiff was discharged on 22 May 1967. His last posting, from 10 April 1967, had been at HMAS Kuttabul.

31 I pause for a moment, to add four matters.

First, the plaintiff's progress in Naval service was speedy. He achieved his promotions in the shortest time possible. He was favourably assessed from time to time by his superiors. His discharge Trade Certificate described his performance as "superior".

Second, in the course of his service the plaintiff received two Good Conduct Badges and a General Service Medal. There was, however, one instance of misconduct alleged against him. It led to charges being laid. In the event, they were dismissed. But a question arose at trial as to the significance, or otherwise - in the context of the plaintiff's mental health - of the whole episode.

Third, it seems to have been common ground that the plaintiff was medically examined shortly before the time of his discharge; and that his mental state was recorded as being normal.[5]

Fourth, in the course of his service the plaintiff made few sickbay attendances.[6] Nonetheless, the fact that he did attend the sickbay, before and after the collision, shows that he knew the facility was available to him, and that he was prepared to use it when he considered it necessary.

32 Returning to the narrative, the plaintiff had the following employments after his discharge from the Navy:

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• In the 1980s, the plaintiff suffered a double hernia.

• In late April 1989 the plaintiff suffered a "nervous breakdown", and was some 5 weeks off work. He made a claim for compensation against his then employer, asserting that his breakdown was a consequence of work stress. His claim was rejected. He sought reconsideration, and his claim was then accepted - embracing incapacity to 30 June 1989.

• In December 1990, subsequent to his ceasing work with Marine Operations, the plaintiff began to receive Sickness Benefits. Not long thereafter, he went onto a Service Pension.

• In 1997, the plaintiff was diagnosed with a bowel disorder. He underwent substantial surgery.

• In March 1998, the plaintiff applied for a Department of Veterans' Affairs (DVA) disability pension. In May 1998 a pension was granted at the rate of 40% for sensori-neural deafness referable to Naval service.

• In 1999, the plaintiff applied for a disability pension increase - relying upon asbestosis, skin cancer, varicose veins, bowel disease, Paget's Disease, and depression. He contended that those conditions were related to his service in Malaysia and Vietnam - that is, whilst serving on Derwent.

• In May 1999, Dr Likely was appointed to examine the plaintiff for DVA. He reported that the plaintiff had suffered depression since 1985. He did not diagnose PTSD attributable to the collision.

• On 24 June 1999, DVA decided to increase the plaintiff's disability pension to a 50% rate, accepting that there was a relationship between Naval service and skin cancer and asbestosis. But a relevant relationship was not accepted in the case of the plaintiff's depression.

• In January 2002, Mr Zemaitis, a psychologist, made a diagnosis of PTSD. The plaintiff had been referred to Mr Zemaitis by his present solicitors. The plaintiffs brother, the secretary of an RSL branch, had apparently filled out a form - inferentially, a document compiled in blank by the solicitors - and, with the consent of the plaintiff, had sent it to the solicitors. That had been the starting point for this proceeding.

• In February 2002, Dr Likely made a diagnosis of late-onset PTSD. He concluded that the plaintiff had been, in effect, 'in denial' at the time of his earlier assessment.

• In December 2004, Professor McFarlane diagnosed PTSD.

• In January 2005, Dr Bell made a diagnosis of anxiety and depression.

• Each of Mr Zemaitis, Dr Likely, and Professor McFarlane opined that there was a relationship between the PTSD which they diagnosed and the collision; and they discerned a relationship between the PTSD and the plaintiff's depressive illness.

• Dr Bell perceived no relationship between the anxiety and depression which he diagnosed, and the collision.

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66 Fortunately, according to his evidence, he was not long on Sydney. He managed to arrange a swap transfer onto HMAS Derwent, a destroyer. That was in February 1966. He served on Derwent for about 14 months. Within that period the vessel engaged in a 9 months' tour of the Far East - particularly Borneo, Malaysia and Vietnam. He felt "quite comfortable" whilst on Derwent. He still had flashbacks and dreams, just not as severely. He was having them 3 to 4 times a week.

67 It was whilst serving on Derwent that Mr Metcalfe decided, on his account, to leave Naval service. He remained on the vessel until shortly before his discharge. For the last month or so he had the shore posting at Kuttabul.

68 The plaintiff gave evidence about the incident which led to him facing charges. I briefly adverted to it earlier in these reasons. It occurred whilst he was serving on Derwent. The incident occurred in Borneo, where the vessel was undertaking shore bombardments. Some 'signals' - apparently in written form - that should have been shredded were in fact thrown overboard. The signals were retrieved and the plaintiff was charged. The charges were dismissed. The main fault, it should be added, apparently lay with one of the plaintiff's subordinates.

69 Concerning his service on Derwent, the plaintiff gave evidence that the vessel entered Vietnamese waters whilst escorting Sydney. He said that he did not feel that the ship was in danger whilst at port in Vung Tau.

70 I turn to the plaintiff's evidence concerning events subsequent to his discharge from the Navy. Again, I only mention evidence additional to that which I have earlier summarised.

71 The plaintiff said that he remained in the Ansett Airlines job - apparently it was in Townsville, where he and his family had decided to live - for about 12 months. He was drinking a bit, sleeping poorly, and suffering "horrific" recollections and dreams.

72 He described his service for 5 years in the Fleet Reserve as being "automatic". There had been no training in that period.

73 The plaintiff said that, after employment as a senior storeman with Crosby Tiles, he began work with the Commonwealth as a storeman and driver. That job lasted for about 5 years, until 1973. In that period, he said, he was drinking more, still having difficulty sleeping, and did not talk about the collision because he did not want to do so, and because he had been ordered not to do so.

74 He gave evidence that in 1974, after some 15 months in self-employment as a carpenter, he took on employment in Townsville as a claims assessor with the Transport and Storage Group of the Commonwealth Department of Administrative Services. He had to assess claims for property damage made by arriving and departing Commonwealth personnel.

75 In 1982, he said, having worked very hard as a means of avoiding thoughts about the collision, he was promoted to Townsville manager of the Transport and Storage Group. There were five aspects to his job. One of them was management of the hire car fleet which provided transport for visiting dignitaries.

76 The plaintiff said that he worked very hard in his new job. He continued to drink heavily. There was discontent in the family.

77 He gave evidence about an operation on his left knee. It took place, he thought, in October 1988.

78 I should next refer to the witness's evidence about his "nervous breakdown" in 1989. He said that he went to work one day. He began work, but had no recollection of what had happened from about 8.00 am. onwards. He was some 8 weeks off work.

79 The witness was taken to events which had occurred earlier in 1989. He had experienced difficulties with a casual employee. The man chanced to live next door to the plaintiff. While the plaintiff was off work with his knee problem, the temporary manager had offered the man a permanent position. Then the plaintiff, on his return to work, had been told to put the man off. There had been disputation. The Union had been called in. Eventually a decision had been taken to make the man permanent. The man had accused the plaintiff of "organising everything to put him off". On Mr Metcalfe's account - which, as will be seen, differed dramatically from what he told his medical practitioner at the time - the difficulties concerning this man were not affecting his state of mind at the time of his nervous breakdown.

80 The plaintiff described his mental state in the period shortly after his breakdown this way:

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86 Concerning his last employment, with Marine Operations, Townsville, the plaintiff gave evidence that it was a casual job; and that the job ended when casual work ended.

87 In December 1990, as I earlier noted, the plaintiff went onto sickness benefits. He gave evidence that he nonetheless applied, unsuccessfully, for a number of jobs thereafter; although he said that his mental health would then have been "pretty low".

88 Receipt of sickness benefits, it appears, did not last for long. In 1991 the plaintiff applied for, and obtained, a Service pension.

89 Tracing through his medical history in more recent years, Mr Metcalfe gave evidence of developing bowel problems which led on to surgery in April 1997. At surgery, three quarters of his small bowel, and part of his large bowel, were removed. He was more than 6 weeks in hospital. For a considerable period he could not move around, and just stopped at home. He visited his specialist monthly. He had to stop playing bowls, which he had taken up in his retirement, and which he had much enjoyed. Only in late 1997 did he take up bowls again. But he did so only for a short period.

90 The long term consequences of his bowel surgery, said Mr Metcalfe, had been a lot of problems with diarrhoea, and with uncontrollable and distressing flatulence.

91 The plaintiff described his life since he stopped playing bowls as having been essentially isolated. He spends most of each day by himself in his workshop. He makes little things. He drinks substantial quantities of home brew beer, which he first began to make in 1992. At time of trial, his consumption, he said, was possibly 4 to 6 large bottles in an afternoon, he having reduced his intake from an earlier 6 to 8 bottles in an afternoon. The beer he brews is now 3% alcohol, down from an earlier 6%.

92 As to his relationship with his wife, Mr Metcalfe gave evidence that subsequent to the collision, but not before, it had been marred by his occasionally abusing her verbally. This had happened for no reason whatsoever.

93 With reference to his 1999 claim for service-related disabilities, specifically depression, the plaintiff was asked why he had said nothing about the collision. He replied:

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94 The plaintiff gave evidence of an occasion in 2001 when an issue arose concerning newspaper clippings which pertained to the collision. He had sent the clippings to his wife soon after the collision. They had been put in a box. In 2001, he had said to his daughter that he did not care what she did with them, she should not talk about them to him, and she should just get out of his sight. After this incident, he said, his level of symptoms[30] had increased.

95 The plaintiff also gave evidence that in the latter part of 2001 he had thoughts of committing suicide. He had attended his general practitioner, and had been referred back to Dr Likely, the psychiatrist who had first seen him in 1999. Dr Likely, the plaintiff said, had told him that he was suffering from "severe post traumatic stress, severe depression",[31] and that he would require treatment. The doctor had told him that it was "from the Melbourne and Voyager incident." He, the plaintiff, had told the doctor that he didn't think that was so.

96 In the event, the witness said, Dr Likely had put him on medication. He had continued to consult the doctor. Medication had continued. He felt it had made him a bit more bearable.

97 Thus far, I have referred to the plaintiff's evidence in chief. I go to evidence which he gave in cross-examination. I deal with it in the sequence that questions were asked.

98 Concerning the signals incident, Mr Metcalfe gave evidence that he thought it was unfair that initially the Captain of Derwent had wanted to punish not him, but his subordinate. But this did not cause him to be disillusioned about the system of Navy discipline. The fact that, in the event, he had been charged had caused him only temporary concern. It had dissipated when the charges were dismissed.

99 Concerning Derwent's role in checking for mines in Vung Tau harbour, the plaintiff said the work had been done by frogmen, and by operation of sonar. He agreed that on Derwent's tour in East Asian waters there had been a true wartime element. But these incidents of his service, he said, had not caused him worry.

100 The witness agreed that his had been a traditional type of marriage. He had been the breadwinner. His wife had stayed at home. His attitude was, he agreed, that whatever problems he experienced were personal, and for him to deal with.

101 The plaintiff gave evidence that in 1989, and for many years before that, he had attended a Dr Joe Leong. He had visited the doctor on many occasions, and in respect of a variety of conditions. This topic was revisited frequently in cross-examination. The gist of the questions put to the plaintiff was that he had enjoyed a good relationship with that doctor, was likely to have mentioned problems or symptoms to the doctor, and had not done so in respect of any of the post-collision symptoms of which he had given evidence. The gist of the answers was that the witness may have mentioned sleep problems to, but had not discussed the collision with, the doctor.

102 Concerning the 1989 breakdown, it was put to the plaintiff that the history which he had provided to Dr Leong had focused upon his problem with the troublesome fellow-employee. Evidently that was the case.

103 Attention was drawn by the cross-examiner to an entry in the doctor's notes for 1989 which recorded that there had been no past history of anxiety/nerves before 27 April 1989. The plaintiff did not deny having given such a history. He said that he had been hiding his problems. But he agreed that he had discussed with the doctor, until the latter's retirement in 2001, "very personal medical problems".

104 Further with respect to his breakdown in 1989, the plaintiff gave evidence that Dr Leong had referred him to a psychiatrist, Dr Wilfred Richards. The psychiatrist had asked him about past problems. He did not think that he had told the doctor about any such problems. He was quite sure that he had not discussed any problems as a result of dreams about the collision. He had been, he said, dissatisfied with the attention which he received from Dr Richards.

105 Asked why, when he was advised by Dr Leong that he required medication, he had said that he would not take it, and why, although he believed that he may have needed help, he did not seek referral to another psychiatrist, the plaintiff said that he didn't want people thinking he had seen a psychiatrist; and that, as at 1989, he thought that a stigma attached to seeing a psychiatrist, and to taking medication for a psychiatric problem.

106 The plaintiff agreed, with respect to his claims for a service-related disability pension, and an increase in such pension, that he had ascribed certain conditions to Naval service. They had included depression, said to have had its onset in April 1989. He had attributed the depression to incidents of service whilst posted to Derwent. He agreed, as is the case, that such claims are made by declaration, false declarations attracting penalties. He agreed that before 1989 he had not told Dr Leong that he was experiencing flashbacks, intrusive thoughts, reduced concentration, nightmares or hallucinations. He agreed that he might possibly have told the doctor, in 1999, that he drank "four stubbies a night." He agreed, further, that in 1999 his depression did not affect his personal life, and that he had so informed the doctor; and that he had told the doctor that he was having no problems in domestic inter-personal relationships, because he had family support and understanding. Still further, he agreed that he had told the doctor in 1999 that he preferred not to take any tablets apart from occasional sleeping tablets.

107 In 1999, the plaintiff said, he began to read books about depression, in the context of seeking help. But he had read no books about PTSD.

108 It will be recalled that, in 1999, Dr Likely diagnosed the plaintiff as suffering from depression which could be attributed to service experiences other than the collision, and that he did not diagnose PTSD. The plaintiff was taken through the history which he had then given Dr Likely. He agreed that he had told, or may have told, the doctor that he had experienced irritability and sleep disturbance since 1985; and that he attributed the 1989 breakdown to the signals incident. That was what he then honestly believed. Concerning the collision, the witness agreed that he had told Dr Likely that he did not find it to be horrifying, that it did not induce feelings of fear, nor feelings of helplessness. He had, indeed, told the doctor that people from Melbourne were putting in claims that should be knocked back; that the crew of Voyager had borne the brunt of the disaster. He had also told the doctor that he did not feel the incident had caused him long-term psychological consequences, that he did not tell the doctor he was experiencing flashbacks or distressing dreams, nor seeing images or having thoughts about the incident, nor reacting to reminders of the incident.

109 It will next be recalled that, in early 2002, Dr Likely revised his diagnosis of the plaintiff's mental condition. The plaintiff gave evidence of telling the doctor that he began to be troubled by his experiences in connection with the collision from the latter part of 2001, his mental state having deteriorated "a terrible lot from" 1999[32]. He agreed also that things had deteriorated after re-reading a newspaper article concerning the collision in late 2001.

110 Questioned about when and why he decided to leave Navy service, the plaintiff said that it was in the latter part of 1965, that he didn't trust the Navy and he feared going back to sea. He had told a superior, between 1965 and 1967, that the true reason for not wanting to re-enlist was that he did not trust the Navy.

111 Returning to the issue of his 1989 breakdown, the plaintiff agreed that nothing had prevented him from discussing the enormous problems which he was then having with a psychiatrist. What had stopped him from being completely frank about his problems was himself; his embarrassment at having to discuss his difficulties with a psychiatrist, his reaction to what family and friends might think if it was known that he was receiving psychiatric treatment.

112 Concerning his work performance up to the time of his 1989 breakdown, the plaintiff agreed that his employers had spoken of him in glowing terms. He said that he had tried his best to make sure that his dreams and flashbacks did not affect his work performance.

113 As to the time of the onset of symptoms, the plaintiff agreed that, as he had told Profession McFarlane, their onset was when he received the news, in late 1965, that he was to be posted back to Melbourne. He agreed that he had said much the same thing to a Dr Young; and that he had told Dr Young that his symptoms were minimal until his breakdown in 1989, and that he had suffered no symptoms of significance between 1990 and 1998.[33]

114 Concerning the situation in 1998, antecedent to his making the claim for an increased service-related pension, the plaintiff was asked these questions and gave these answers:

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• Such symptoms as the plaintiff may have suffered from a time not long after the collision had not persisted indefinitely, had not been substantial in terms of pain and suffering and loss of enjoyment of life, had not been a cause of the plaintiff leaving the Navy, and had not impaired the plaintiff's employment capacity in the period preceding the 1989 breakdown. To an extent the plaintiff had overstated the position - for instance, with respect to the amount of alcohol which he had taken before his breakdown. Concerning the likelihood or otherwise of the persistence of any symptoms which had developed after the collision and, in the event of persistence, their likely severity, the plaintiff's failure to say anything pertinent to his long time general practitioner, Dr Leong, was significant.

• Whatever had been the situation before April 1989, from that time onwards the plaintiff had on his own account suffered more extensive and more disabling symptoms. The plaintiff's acute breakdown in 1989 was sufficiently explained by his immediate employment stresses. It had precipitated the end of his working life.

• The deterioration in his condition in 1998 and thereafter of which the plaintiff complained was explained by the impact of the non-compensable breakdown in 1989, compounded by the distressing sequelae of the bowel operation and by the rejection of most aspects of his claim for an increase in his disability pension.

• The 1989 breakdown had given the plaintiff an opportunity to reveal any past history of emotional upset. If the opportunity had been taken, any compensable injury would probably have been revealed. But, perhaps for personal reasons, the plaintiff had not taken up the opportunity.

• The plaintiff's 1999 attendance upon Dr Likely had given the plaintiff another opportunity to reveal any history of emotional upset stretching back to the mid-1960's. Again, the plaintiff had not taken up that opportunity.

• The plaintiff's recent attribution of long term symptoms, and his 1989 breakdown, to the collision was an understandable but inaccurate revision of history.

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138 The witness was not cross-examined. Her evidence was essentially compatible with the evidence given by Mrs Metcalfe. The force of her evidence depended to an extent upon the frequency with which she had dealings with the plaintiff. She said that she did not see him at all between a time shortly after the collision and "quite some time after". The latter time, she thought, was after his discharge. Then, responding to a question expressed in non-specific terms, she said that she had seen him frequently after he returned to Townsville. It appears that she was then speaking about the 1970s. She said that "at this time" the plaintiff was drinking heavily. She referred to his relationship with his children, they then being aged 10 to 12 years of age. That would have been in the early 1970s. Her reference to the plaintiff's response to Mrs Metcalfe's breakdown also pertained to an event which occurred in the 1970s. Evidently, the witness had continued to see the plaintiff thereafter. But I think that the frequency of such contact was not made clear.

Anthony Walker

139 Anthony Walker is a retired naval man. He first met the plaintiff in 1958, when the two of them were recruits at Cerberus. They became good friends. The plaintiff was somewhat older and the witness looked up to him a bit.

140 Mr Walker gave evidence of his own progress in Naval service. The evident purpose of that evidence was so that his progress could be compared with the plaintiff's swifter advancement through the ranks.

141 According to the witness, the plaintiff was very keen when in training, and he was enjoying the Navy when the two of them served on Anzac in 1960. The plaintiff was likeable, reliable, and neither drank alcohol nor smoked.

142 The witness gave evidence that he had been a Chief Petty Officer when he left Naval service in 1978. He had been next on the roster, he said, to be promoted to the new rank of Warrant Officer.

143 The witness also gave some evidence about the prospect, in the time of which he could speak, of a Stores Petty Officer achieving commissioned rank. It could happen. It depended upon a recommendation. He thought that 60 was the retirement age for officers.

144 About 6 years before trial, Mr Walker said, he met the plaintiff again. This was his description:

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In fact, the plaintiff had been "very reluctant to want to be considered for the upgraded position."[57]

154 Cross-examined, the witness affirmed that the plaintiff, had he not taken a redundancy package, would - almost certainly - have had a job offered to him.

155 Further, in cross-examination, the witness agreed that in February 1990 he had written a reference for the plaintiff which gave no indication that the latter's abilities had declined in the preceding year.[58]

156 The evidence given by Mr Clarence confirmed, if confirmation was needed, that the plaintiff had been an able employee before his breakdown. It cast little light on the circumstances of the breakdown, other than that the plaintiff had behaved in an uncharacteristic manner when the illness had its gross onset. The witness's evidence also confirmed that the plaintiff had reacted badly to the dispute with the fellow employee - albeit that Mr Clarence misdescribed the source of the plaintiff's upset.

157 Those matters apart, Mr Clarence's evidence was to the effect that the plaintiff's position had not been upgraded so as to force the plaintiff out of the job; and that the plaintiff's apparent capacity to perform his work was reduced after his breakdown. I see no reason why I should not accept those aspects of the witness's evidence. On any view, the plaintiff was considerably affected by mental upset after his 1989 breakdown. In the event, I conclude that the 1989 breakdown and its aftermath was a cause of the plaintiff ceasing employment with the Department, and that it was probably causative of him not obtaining employment after late 1990.

Speaking about the collision

158 The plaintiff, evidently, said nothing for a very long time about the symptoms from which he allegedly suffered. A number of explanations were offered how it could be that he in fact suffered such symptoms and yet said nothing. The plaintiff himself offered, as a partial explanation, an "order" which he said he had been given not to speak about the collision. I say "partial" because, as I have already noted, at several points in his evidence the plaintiff said that he had told enquirers that he did not want to speak about the collision, and was not allowed to speak about it. "Partial" is also apt because one thread in the plaintiff's case was that he would not countenance the idea of being psychiatrically unwell, and so said nothing as might indicate such unwellness; whilst another thread was that denial of symptoms was itself an aspect of PTSD.

159 I should examine such evidence as was adduced about the "order". The plaintiff gave evidence about the matter; whilst for the defendant, relevant evidence was given by John Dunlop, Paul Graham, George Halley, Charles Robson and Francis Lyons.

160 According to the plaintiff, whilst Melbourne was steaming back to port, a broadcast was made on the ship's public address. It went like this:

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161 In cross-examination, the plaintiff resisted the suggestion that all that had been said was that sailors should be cautious of saying too much on arrival back at port because journalists would be trying to get stories; and that nothing had been said about sailors not speaking to members of their families.

162 The plaintiff agreed in cross-examination that he had completed a questionnaire - he said he could not recall having done so, but his handwriting appeared on the document - for submission to the first Royal Commission into the disaster. He agreed with me that the circumstances of the incident had been exhaustively and publicly agitated at two Royal Commissions.[60] It is also the fact that, on his account, he spoke about the incident with the superior officer who asked him if he would like to be recommended for a commission; and that ultimately he did speak extensively about the collision, and its asserted effects upon him - with his solicitors, his counsel, and a number of doctors.

163 I go to the pertinent evidence adduced by the Commonwealth. In February, 1964 John Dunlop was an engineering officer on Melbourne. On his account, the Captain made a broadcast on the morning after the collision. In the course of it he said, inter alia, that when the ship arrived at port there was likely to be a lot of press interest, that crew members should be cautious in what they said, and that they should think first. There had been no order.

164 The witness gave some other evidence - particularly as to the availability on Melbourne of chaplains and medical staff. It went to there being professional help on board ship which the plaintiff could have accessed. It was pertinent to the estoppel plea raised by the plaintiff. I need not refer to that evidence now.

165 Mr Dunlop was not cross-examined.

166 I next refer to the evidence of Paul Graham. He was an Engineer Lieutenant on HMAS Melbourne at the time of the collision. It was his evidence that on the day after the collision the Captain made two broadcasts. In one of them he told the crew his version of events. In the other he asked crew members, if they were approached by the press, or anyone, not to quote what he had said in his earlier broadcast. He said that he had not heard a broadcast by anyone other than the Captain giving an order to the crew such as the plaintiff had described.

167 Cross-examined, the witness said that he had been asked to recall the nature of the broadcasts probably several months earlier. He agreed that he would have been tired when he heard the broadcasts.

168 George Halley was a Lieutenant Commander posted to Melbourne in February 1964 as Damage Control Officer. He gave evidence of an address by the Captain just after 9 a.m. on the morning after the collision. The Captain explained what had happened. Later that day he made a second address. He had seen a record of what had been said, but he had not heard the second address.

169 Charles Robson, Meteorological Officer on board Melbourne as at February 1964, gave evidence of an address by the Captain on the morning after the collision. The Captain had explained what had happened. Either at the end of that address, or later that morning, he believed that the Captain had given advice about the likely press reception when the ship berthed, and had advised the ship's company not to speak to the press about what had happened, and that the matters would be the subject of an enquiry. He had not heard anything said or ordered about not speaking to friends or relatives.

170 The witness was not cross examined.

171 Francis Lyons, a retired Catholic priest, was a chaplain on board Melbourne in February 1964. Part of his work was to assist crewmen, on a confidential basis, with any problems which they had.

172 The day after the collision, he said, the Captain made an address in which he said that the crew would be ambushed by the media, and to be cautious in answering questions because the matter would be sub judice. There was no mention of wives in the address which he heard. He did not hear any order given such as the plaintiff described.

173 This witness, also, was not cross-examined.

174 Viva voce evidence apart, Melbourne's Captain prepared a memorandum, dated 19 February 1964, which mentioned the matter now under discussion. This is what is said:

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177 Of the doctors called viva voce, only Dr Likely had been - and that in more recent years - a treating doctor.

178 I have already mentioned some aspects of the medical evidence. By that I mean that I have said something about the plaintiff's multiple problems involving physical ill-health over the years, about his nervous breakdown in 1989, about varying assertions made by the plaintiff as to the cause of his breakdown, and about matters concerning which the plaintiff said nothing to doctors. I will avoid, so far as possible, labouring the points already noted.

Pre-enlistment and Pre-discharge examinations

179 I have earlier mentioned the apparent concession made for the plaintiff in this connection. Contrary to a submission made for the plaintiff in final address, the examination records did not go into evidence. Nothing turns on it.

DVA file

180 The file shows that the plaintiff's claim for bilateral sensori- neural deafness, made in 1997, was accepted in May 1998. It shows that the plaintiff sought an increase in his disability pension in 1999, seeking to attribute a number of conditions, including "depression", to Naval service. That condition was said by the plaintiff to have come to his attention in April 1989 - that is, at the time of his breakdown. The file also shows that the plaintiff attributed the condition to "lots of pressure and responsibility to maintain supply of urgent naval Stores" when serving on Derwent.

181 With respect to his application for a disability pension increase, the applicant made a self assessment of his "lifestyle rating". He described his personal and social relationships as being "moderately affected" - this being 3 on a rating of 1-7. He likewise described his degree of impairment in connection with recreational and community activities, mobility, and domestic and employment activities.

182 The file shows also, to set the chronology in focus, that the plaintiff's claim in respect of "depressive disorder" was rejected by letter dated 24 June 1999. The grounds for rejecting that condition were expressed in elaborately bureaucratic language. It is not necessary to address the grounds of rejection any further.

Dr Joe Leong's records

183 The records, including reports received from other doctors, results of investigations, and so on, embrace the period June 1970 to May 2001.

184 I focus upon Dr Leong's own notes. I found them difficult to read. They show that the plaintiff attended the doctor with variable frequency over the years, at times quite frequently, and often enough for minor illnesses. But they also show attendances for a number of more serious conditions, and for a particularly personal problem - one to do with the plaintiff's sex life.

185 I note next that, in late October 1977, the doctor diagnosed the plaintiff to be suffering from an "anxiety state". His notes at the time record complaint of chest pain, and observation of "sighing respiration".

186 Then there is an entry in June 1985. The plaintiff reported that he had been dining with his boss, had two beers and a glass of wine, coughed and fainted. It is not clear to me what diagnosis the doctor made.

187 In 1988 there is reference to the plaintiff's knee problem.

188 In March 1989 the plaintiff was complaining of pain in his left scalp and across his eyes, and that he could not sleep. The doctor noted "pressure at work since started work in January."

189 That takes me to the entries commencing on 27 April 1989. The doctor's notes show that he saw the plaintiff at 10.20 am. They mention "stress of work", that the plaintiff was crying, and that he was experiencing, or had experienced, cold sweats. They refer also to the plaintiff's problem with the next door neighbour and subordinate. They show that the plaintiff was prescribed Xanax[62].

190 On 5 May the doctor noted that the plaintiff did not feel fit to return to work. He was shaking, but not weeping now. Medication was continued.

191 On 4 July 1989 the doctor noted the plaintiff's return to work.

192 The doctor's notes for 1 August 1989 were evidently made in anticipation of the first letter which he sent to Comcare connecting work stresses and the plaintiff's breakdown. They refer to an industrial problem with a staff member, a changeover to mechanization, computerization, and to slow commercialization of the department. Then there is the note[63] -

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The plaintiff was apparently advised to cease drinking beer for two weeks, and see what transpired.

202 On 19 March 1998 the plaintiff described tinnitus. That led on to the doctor filling in a disability pension claim form in respect of tinnitus with sensori neural deafness.

203 An entry for 19 June 1999 notes, in part, a report by the plaintiff that his dog had just been killed by a car; and that he felt guilty about it.

204 Then there is a note for 26 November 1999. The plaintiff complained, as I read it, that he still had no motivation. The doctor considered him to be depressed.

205 On 25 September 2000 the plaintiff reported that he was "no good". He was having "dizzy spells". It appears that he was prescribed Xanax.

206 Dr Leong's last note, for 30 May 2001, refers to the plaintiff having suffered chronic diarrhoea since the bowel operation; and to his having good and bad days.

207 Within the period June 1970 to May 2001 there are numerous entries in Dr Leong's notes that I cannot read, or cannot understand. The problem is not just one of legibility. Simply, I am not a medical practitioner. I should have thought that one party or the other would have wanted me to fully understand the nature and extent of the medical problems which the plaintiff had encountered over the years.

208 His sequential notes apart, in April 1999 Dr Leong completed an assessment for the plaintiff's disability pension claim in respect of depression. He reported that the plaintiff drank four stubbies per night, that he had loss of self confidence, did not mix with people, felt that people were staring at him all the time, and lacked motivation. He could not concentrate. He had lost interest in lawn bowls. He preferred not to take tablets. But he could cope with everyday living, and had family support and understanding.

209 Dr Leong's records contain many reports to him by other doctors; and also many reports of special examinations. Despite my attempts to clarify with counsel the evidentiary basis upon which those reports and investigations went into evidence,[65] I cannot say that I was ever satisfied by the responses which I received. In the event, I do no more than note that, according to the reports, the plaintiff suffered over the years from a venous condition affecting his left leg, and problems affecting his oesophagus and chest; such problems being in addition to those which I have already identified.

Mooney Street Medical - Report 20 December 2004

210 The plaintiff has been Dr Andrew Leong's patient since May 2001. Dr Andrew Leong is the successor to Dr Joe Leong in the same practice.

211 The report focuses on entries in the clinical records pertinent to the plaintiff's mental state.

212 On 1 February 2002 the plaintiff told the doctor that he was depressed, lacked motivation, had reduced appetite, had lost weight, had lost the will to live, had "fleeting thoughts of self harm", was insomniac, and had flashbacks to the collision which he had tried to black out. The doctor was concerned that he might be suffering from PTSD, and referred him to Dr Likely. By this time, of course, the plaintiff had consulted his solicitors, and had seen Mr Zemaitis.

213 Dr Likely reported to Dr Leong his opinion that the plaintiff was suffering from PTSD, and that he had been prescribed Cipramil.

214 On 18 December 2002 the plaintiff reported that he had been seeing Dr Likely regularly with improvement.

215 On 16 April 2003 the plaintiff reported feeling more depressed. He related this, in part, to increased faecal incontinence.

216 On 18 June, 2003, the plaintiff complained of increased depression.

217 At a consultation on 23 August 2003, the plaintiff reported that he had been asked why, in effect, he had said nothing about the effect of the collision upon him until so late in the piece. He told the doctor that the reason was that "his way of dealing with it was to hide it and... he had been trained to accept it as part of the course of his military service".

218 In all, the content of the report is largely a recitation of self-serving statements made by the plaintiff at a time after he had resolved to bring a proceeding against the Commonwealth. It may be observed that by the time when he first attended Dr Andrew Leong, on 1 February 2002, the "order" of which the plaintiff had spoken did not inhibit him speaking about certain alleged consequences of the collision; and that his professed reasons for remaining silent about matters of mental health did not inhibit him describing symptoms of mental illness in some detail.

Dr Wilfred Richards - Report 13 February 2002

219 This report shows that the plaintiff attended the doctor, a psychiatrist, on four occasions between 31 October and 30 November 1989. That is the entirety of it.

220 The plaintiff as I said earlier, described his consultations with the doctor as having been unhelpful. The report says nothing about the interpersonal difficulties which the plaintiff described. The only thing to be taken from the report, inferentially, is that Dr Joe Leong considered the plaintiff's mental state to be such as warranted him being referred to a psychiatrist some months after his acute breakdown.

Ms Elissa Morriss - undated report

221 Ms Morriss, a neuropsychologist, assessed the plaintiff for medical-legal purposes on 30 August 2002. She saw him once only. She prepared a report, which went into evidence.[66]

222 Ms Morriss took a history of the plaintiff's medical and mental health. The latter included -

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227 It is one thing to accept the validity of the test results. But their interpretation, as to cause, depended upon the history recounted by the plaintiff; a history sharply at odds, in a number of respects, with his evidence at trial.

228 Ms Morriss could not identify a single cause for the problems revealed by her testing. But evidently she toyed with the idea that long-term alcohol abuse could provide a significant explanation for the plaintiff's impairment. The history which the plaintiff provided of alcohol use, however, was not compatible with his evidence; nor with his alcohol use as noted by Dr Joe Leong, nor with the history provided by the plaintiff to Dr Likely in 1999.

Dr Likely

229 Dr Likely, a well-qualified psychiatrist, examined the plaintiff in May 1999 on behalf of DVA.

230 He prepared a report, which went into evidence.[68] According to the report the plaintiff provided a history of mental health disturbance since about 1985, from which time he had noticed prolonged periods of depression, accompanied by irritability, sleep disturbance, variable appetite, anergia, lack of motivation, inability to feel pleasure, and social withdrawal. He told the doctor that his symptoms had culminated in the April 1989 breakdown, since which time he had continued depressed.

231 Concerning Naval service, the plaintiff told the doctor about the signals incident. He denied concern about the incidents of his service on Derwent otherwise. He volunteered, it seems, that he had been on board Melbourne at the time of the collision, but plainly denied that he had suffered any sequelae of the incident. The doctor, according to the report, specifically questioned him about symptoms pertinent to a diagnosis of PTSD. The plaintiff reported no such symptoms.

232 Further according to his report, Dr Likely questioned the plaintiff about his drinking habits. The plaintiff reported taking "approximately four light beers a night". The doctor noted that there was no history of abusive use of alcohol.

233 The doctor observed that the plaintiff's mood was depressed, and that his thought content showed depressive cognitions. He diagnosed a major depressive disorder, which was recurrent, and in partial remission.

234 Dr Likely examined the plaintiff next in February 2002. By that time the plaintiff had retained his present solicitors, and had been diagnosed by Mr Zemaitis as suffering from PTSD. Again the doctor prepared a report, which was put in evidence.[69]

235 According to the report the plaintiff again provided a history of symptoms of depression dating back to about 1985.

236 On this occasion, however, the plaintiff recounted a significant deterioration in his symptoms. It had occurred in the past three to four years. The symptoms had begun to be associated with other symptoms. In the period just mentioned the plaintiff had become increasingly pre-occupied with the collision between Melbourne and Voyager. The precipitant - this was both what the plaintiff told the doctor, and the doctor's conclusion - appeared to be DVA's rejection of parts of the plaintiff's 1999 claim for a disability pension increase.

237 Concerning the collision, the plaintiff now gave a history of his response being one of intense anxiety and helplessness.

238 The plaintiff's history was now, further, that over the previous three to four years recollections pertaining to the collision had become more intrusive and prominent, and that he was also troubled by upsetting dreams. He told the doctor that he continued to attempt to suppress his recollections, and to avoid stress. He described, as the doctor put it in his report, "symptoms consistent with hyperarousal for many years." I think that this was a reference at least to irritability, and to the plaintiff being "constantly vigilant and keyed up".

239 The doctor again noted the plaintiff's mood to be one of depression. On this occasion his affect was anxious and agitated. The doctor further noted that the plaintiff became tearful when recounting the Melbourne episode.

240 Dr Likely, following this interview, opined that the plaintiff was suffering from post traumatic stress disorder with a delayed onset. It had been precipitated by the circumstances of the collision. Anxiety symptoms had only become more prominent in the past three to four years. The apparent precipitant had been the plaintiff's dealings with DVA, which had "re-awakened memories of the previous traumata."

241 The doctor opined that in the past the plaintiff had used denial as a coping mechanism.

242 The doctor still considered that his May 1999 diagnosis of major depressive illness was valid.

243 The impact of the Dr Likely's reports was this: In his opinion the plaintiff suffered from a major depressive illness. It had manifested itself in gross form in April 1989. Some symptoms of the illness had been present from about 1985. Since the major breakdown, the illness had continued to have a variable impact upon the plaintiff. From the late 1990's, additional symptoms had developed. They represented late-onset PTSD attributable to the collision. The condition had been precipitated by the plaintiff ruminating upon the collision following rejection of part of his 1999 claim for an increased disability pension.

244 Viva voce, Dr Likely said in evidence in chief that the plaintiff had initially rejected his revised diagnosis.

245 The doctor was then told by counsel for the plaintiff that his client had given in evidence an account of sleep disturbance from soon after the collision. The doctor responded that symptoms characterised as hyperarousal - which include chronic difficulty sleeping, irritability, poor concentration, hypervigilance, and easy startle response -pertain to PTSD diagnostic Criterion D. If such symptoms had been present from the time of the collision, it would point to the plaintiff having suffered from a significant anxiety disorder from that time onwards.

246 The doctor was next told that the plaintiff had given evidence that he had been ordered not to talk about the collision, but also did not want to do so. That, said the doctor, related to diagnostic Criterion C - the persistent avoidance of cue circumstances. The same was true of the circumstance, of which the doctor was told, that the plaintiff could not face being posted back to Melbourne.

247 Then the doctor was told that the plaintiff had given evidence of intrusive thoughts, and dreams, from about nine months after the collision. Such a history, said the doctor, was relevant to diagnostic Criterion B, which refers to re-experiencing phenomena.

248 The doctor, at this point in his evidence, was confronted by the plaintiff having given three very different accounts of events - one in May 1999, one in February 2002, and one in his evidence. He gave this explanation:

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251 Cross-examined, the witness agreed that, when the subject of the collision came up at the 1999 consultation, the plaintiff did not react either by an outburst of anger or a statement that the incident was too painful to discuss. He had not said that he could not speak about it.

252 The witness explained how he had elicited the response in 1999 that the plaintiff did not suffer "dissociative flashbacks". It had been by questions put in simple language. He told me that there is a difference between flashbacks and ruminations about an incident. "Flashbacks", he said, is a word which is now used too much.

253 The witness agreed that it was possible that the 1989 breakdown, as the plaintiff first asserted, had been caused by immediate work stress.

254 Referred to Dr Joe Leong's records, Dr Likely said that it appeared that Dr Leong had diagnosed anxiety in October 1977; but that there was nothing else in the notes that he could read, up to the 1980's, which was suggestive of any mental health problems. He agreed, as certainly seems to be the case, that Dr Leong had in 1989 revised the October 1977 diagnosis, and had ascribed a physical cause for the symptoms present at the earliest time.

255 Questioned about co-morbidity, Dr Likely agreed that it meant that several diseases or disorders can co-exist at the one time. They may be totally unrelated or they may be interlinked.

256 The witness was then cross-examined to show that, before he interviewed the plaintiff in February 2002, the plaintiff's solicitors had provided him with material which, it might uncharitably be said, suggested what the import of his opinion should be. Dr Likely said, and I do not doubt his evidence about the matter, that the material did not influence his opinion.

257 Dr Likely affirmed that his opinion in 2002 had been that this was a case of late-onset PTSD, and that the partly unsuccessful disability pension claim in 1999 had been the "precipitant for [the plaintiff's] decompensation."[74]

258 Dr Likely agreed that symptoms such as sadness, bad dreams and nightmares can result from a disturbing experience, without bespeaking PTSD. He agreed also that some symptoms of depression overlap symptoms of PTSD.

259 Re-examined, the doctor explained the emergence in significant degree of symptoms of PTSD after May 1999 this way:

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260 To my questions, the doctor opined that the plaintiff had suffered some symptoms of anxiety from soon after the collision, but that the assumed symptoms had not been so severe as to prevent the plaintiff working effectively until 1989.

261 The plaintiff had been examined by Dr Likely in May 1999, and had been treated by the doctor since February 2002. Evidently he had attended the doctor on a considerable number of occasions between February 2002 and trial. Never, it seems, had the plaintiff given the doctor a history wholly conforming with the evidence which he gave at trial about onset of anxiety symptoms soon after the collision, and their continuous persistence thereafter. The doctor's 1999 opinion, despite direct questioning designed to elicit symptoms of PTSD, was that the plaintiff suffered from a recurrent depressive illness. His opinion in 2002 was that the plaintiff also suffered late-onset PTSD attributable to the collision, precipitated by the plaintiff ruminating upon rejection of his claim for an increased disability pension. There was no mention of a link between PTSD and the major depressive illness. Provided with details of the plaintiff's evidence, the witness at trial expressed what seem to me to have been different conclusions again - that the plaintiff had suffered some symptoms of PTSD since soon after the accident, and that the assumed PTSD had causally contributed to the onset of the depressive illness. In all, there were a major series of shifts in the doctor's opinion. They reflected his interpretation of differing histories. The open question is whether, notwithstanding that the plaintiff was not attacked as a deliberately unreliable historian, the history which he eventually recounted in his evidence could be accepted by the Court.

Mr Zemaitis

262 Robert Zemaitis is a well-qualified psychologist. He holds or has held consultant positions with the armed services. He interviewed the plaintiff at the request of the latter's solicitors - on 31 January 2002, 7 February 2002 and 17 December 2004.

263 In his report dated 8 February 2002[76] Mr Zemaitis opined that the plaintiff was suffering from PTSD as a consequence of the collision, and as well quite significant levels of depression and anxiety. The PTSD was of the chronic subtype. Mr Zemaitis further opined that the plaintiff was in need of psychiatric treatment.

264 In his report dated 20 December 2004[77], Mr Zemaitis stated that -

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275 Cross-examined, the witness appeared to dismiss the possible relevance of Dr Joe Leong's records. Neither would he have been assisted, he said, had he known Dr Richards' opinion in 1989; for the plaintiff had not hit it off with that doctor.

276 Further cross-examined, the witness said that it was only on the day of his giving evidence that he had been asked for his opinion whether there was a link between the collision and the plaintiff's 1989 breakdown. He had not considered it necessary to further question the plaintiff. He had obtained, I interpolate, a very abbreviated account of circumstances leading up to, and existing at the time of, the breakdown.

277 Cross-examination also revealed that the witness knew nothing of the plaintiff having served in a war zone subsequent to the collision; and that his knowledge of the signals incident had been gained from reading Professor McFarlane's report.

278 Consistently with what Dr Likely had said, Mr Zemaitis gave evidence that in his experience there is overlap between symptoms of depression and PTSD.

279 Mr Zemaitis's evidence, in my view, was not wholly satisfactory. It was founded upon a history which bore some relationship to the evidence which the plaintiff gave. But the witness had not obtained anything like the full story from the plaintiff. He knew nothing of other stressful aspects of the plaintiff's Naval service, or much about the circumstances which attended the plaintiff's 1989 breakdown, or about stresses to which the plaintiff had been exposed over the years. He was not interested, it seemed to me, in knowing what the plaintiff had confided, or not confided, to his general practitioner in an association which lasted some 25 years. Until the day on which he gave evidence, he had not considered the question of a relationship between the collision and the 1989 breakdown. He accepted that there was a relationship although he did not know much at all about the events which led up to the breakdown. Again, he seems not to have brought to account the plaintiff's multiple health problems, of a medical and orthopaedic kind, when attributing a cause to the anxiety which he discerned was present.

Professor McFarlane

280 Alexander McFarlane is a highly-qualified psychiatrist. As I noted in Wright[80], his standing in psychiatry, most particularly concerning PTSD, appears to be very high world-wide. He had held, or holds, advisory positions with, inter alia, the Australian Defence Force, the Department of Veterans' Affairs, and the United Kingdom Ministry of Defence.

281 Professor McFarlane interviewed the plaintiff on 30 December 2004. He provided a report dated 31 December 2004[81]. It is unnecessary to refer to the detailed history which the professor took. In many respects it mirrored the plaintiff's evidence, although in some obvious respects the chronology with which he was provided was wrong;[82] and in other respects[83] it travelled beyond the plaintiff's evidence.

282 The plaintiff gave the impression, said the witness, of a man who had sought to minimize his distress over the years and to use activity and devotion to work as a distraction. Indeed, in the interview itself he had sometimes denied the existence of phenomena which he had earlier described.

283 Further, said Professor McFarlane, his interview with the plaintiff was noteworthy in that the plaintiff became psychologically aroused at various times.

284 The professor opined that the plaintiff had a "lifetime of history of" PTSD. His exposure to the collision satisfied the stressor criterion - that is, Criterion A - for PTSD. There had been a distressing conflict of duty at the time, and a sense of fear about what might happen to Melbourne.

285 Further, according to the witness, the plaintiff had experienced intrusive and distressing recollections of the event. They had the necessary quality of immediacy. There were intermittent dreams, spontaneously occurring intrusive recollections, and a pattern of triggered distress. The plaintiff had not suffered, however, from dissociative flashbacks.

286 Next, opined the professor, the plaintiff exhibited avoidance and estrangement phenomena. He would not talk about the incident, he had focused upon work and alcohol. He had sought to avoid being posted to large ships. He had declined an offer[84] to commissioned rank. He did not exhibit psychogenic amnesia of the incident, or its immediate aftermath, but he did have a psychogenic amnesia of events later in 1964.

287 The professor further opined that the plaintiff had suffered from a major depressive disorder, a lifetime history of alcohol abuse, and - in recent times - panic disorder with agoraphobia.

288 Professor McFarlane drew attention to particular aspects of PTSD. Thus:

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303 Professor McFarlane was a lucid witness. But there were, in my opinion, a number of problems with his evidence. They mainly arose because his assessment of the plaintiff was made so late, and because the material upon which he formed his opinions was less than complete.

Dr Bell

304 Dr David Bell is a well qualified psychiatrist who was in active practice for many years, but who has largely engaged in medico-legal work for some years now. It was not in debate that he has assessed many of the Melbourne/Voyager claimants on behalf of the Commonwealth.

305 Dr Bell interviewed the plaintiff on 7 January 2005 - even later than Professor McFarlane, and closer still to the trial. He also reviewed documents sent to him by the defendant's solicitors.[86] He provided a report.[87]

306 I deal first with Dr Bell's report. His review of the plaintiff's service and medical records led him to conclude that the plaintiff's apparent short-term lapse in efficiency in 1964 could have reflected an adverse response to the collision; and that several entries in the medical record were suggestive that the plaintiff suffered from psychosomatic disorder even before the collision. Each of those conclusions seems to me to draw a fairly long bow.

307 Dr Likely's first report, according to Dr Bell, virtually ruled out a diagnosis of PTSD. The history and presentation left no doubt that major depression was the appropriate diagnosis. The illness had begun decades after the collision, at an age typical for onset of major depression, and had followed the relapsing course which was to be expected. The plaintiff had recalled events which distressed him, but not by identifying symptoms suggestive of PTSD.

308 Further concerning depression, Dr Bell proposed an aetiology dependent upon "nature and nurture". It was, he opined, questionable whether disturbing events during adult life in fact play any part in causing the illness of depression.

309 Turning to the history recorded by Dr Likely in February 2002, Dr Bell opined that the radical change in the plaintiff's history likely lay in "a new idea evoking the recollections that confirm it." By that he did not suggest fabrication or dishonesty. Rather, memory has a compliant and malleable nature. He went on to opine that -

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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:

[174]

346 There could be no doubt that the foreshadowed particularisation of injuries was in part personal to the plaintiff's case. In the context of the observation that "many of our clients have been reluctant to discuss their injuries", the foreshadowed particularisation of injuries at least implied that the plaintiff had been asked questions which directed his mind to the type of symptoms which could show a link between the collision and his psychiatric illness. Once such matters were raised - in part, at least, they replicated matters raised by Dr Likely in 1999 - there was, in my opinion, a real possibility that the plaintiff would reflect upon the question whether he had ever suffered symptoms of the kind which had been enquired about.

347 Twenty second, the history provided by the plaintiff to Dr Likely in February 2002 was of development of particularly relevant symptoms essentially in recent times. It led Dr Likely to diagnose late-onset PTSD. There is nothing which indicates that the plaintiff gave Dr Likely any different history between February 2002 and trial 3 years later. The plaintiff's evidence at trial was not identical to the history which he had given Dr Likely in 2002; or with the history which he had given the doctor in 1999. For practical purposes, the plaintiff at trial had to offer some explanation for his failure to describe symptoms indicative of PTSD for a very long time - particularly when there had been obvious opportunities for him to do so. His task became that more difficult, as I see it, when his account, in its final form, only emerged in the several months before trial - that is, as recounted to Professor McFarlane and Dr Bell. It is, I think, easier to infer an ongoing process of self-deception in such a case. An alternative suggestion, that with time the plaintiff's level of resistance to revealing the true situation crumbled away, is not persuasive in all the circumstances of this case.

348 Twenty third, a good deal was made at trial of the plaintiff's resort to alcohol. Not only the plaintiff, but also his wife, Mrs Scorse and Mr Walker gave evidence about the matter. I think that the plaintiff substantially overstated his use of alcohol; or at the very least that he overstated such use up to the period when he commenced to home-brew his beer. Information which he contemporaneously provided - to Dr Leong and others - leads to that conclusion. Further, whilst I do not suggest that it is decisive, the plaintiff continued to perform well in Naval service until 1967, and thereafter held down regular, and sometimes - for him - demanding work for more than 20 years. I think that Mrs Metcalfe, reaching back into the past, did not accurately recall the frequency and extent of her husband's use of alcohol.

349 Twenty fourth, it may be said that, when the plaintiff began to describe symptoms indicative of PTSD, it was of symptoms which had only developed - at least in terms of any severity - from the time of part rejection of his claim for a disability pension increase; or from the time when he re-read, or talked with his daughter about, the old newspaper clippings. That, it might be argued, tended in favour of a diagnosis of late-onset PTSD, and against a conclusion that in truth the plaintiff suffered symptoms at the outset, which thereafter settled. But here again the prospect of false attribution needs to be considered. In terms of probability, it seems more likely to me that symptoms developed proximately to the collision, rather than they had their onset 35 years later. Some of the evidence given by the plaintiff and his wife - for example, about his refusal to speak about the collision, and about his response to being posted back to the Melbourne - was persuasive.

350 Twenty fifth, I have constantly kept in mind the fact that the plaintiff, by common consent an honest witness, described in his evidence persistent symptoms indicative of PTSD following upon an event apt to cause PTSD. But, as I have tried to make clear, there were major hurdles in the way of acceptance of that history. The number of explanations, not all consistent, which were offered in an attempt to explain the changes in the history given by the plaintiff to my mind underlines the problems which the plaintiff's case faced.

Damages

351 The plaintiff is to be compensated for pain and suffering and loss of enjoyment of life attributable to PTSD. I am satisfied, as must be apparent from these reasons, that some symptoms of the disorder appeared very shortly after the collision and that additional symptoms developed, particularly when the plaintiff was stationed at Moreton, and was posted back to Melbourne.

352 I am also satisfied, as I have said, that the symptoms of PTSD, which were not sufficient to impair the plaintiff's capacity as a serviceman, or as a civilian employee, settled over a period of time. It is impossible to be precise as to when all the symptoms were spent. It would certainly be open to conclude that they were spent before 1970, the year in which the plaintiff first consulted Dr Joe Leong. But I conclude that symptoms progressively declined after 1967, and were spent by the time that the plaintiff commenced in self-employment. That was in 1973. In an affidavit sworn in March 2003 the plaintiff deposed that, although he still suffered some 'flashbacks and nightmares' at the time, his period of self employment was 'probably the happiest time [he] had experienced since the collision.'

353 On that footing, then, that plaintiff suffered a modest level of distress arising from the symptoms which I have many times described, that the distress was at its worst in late 1965 and early 1966, and that thereafter it progressively declined between 1967 and 1973, I assess the plaintiff's damages at $60,000.

354 My conclusions why it was that the plaintiff left Naval service, and that there was no causal connection between the plaintiff's PTSD and his depressive illness, mean that the plaintiff is not to be compensated for economic loss. In the event, certain evidence given by the plaintiff and by Mr Walker, to which I have earlier referred, need not be further considered. Nor need I describe or analyse evidence adduced for the plaintiff from the actuary, Mr John Cumpston; and adduced for the defendant from Lieutenant Commander Christopher Harcher.

Section 5(1A), Limitation of Actions Act

355 When I heard the evidence in this matter, the Court of Appeal had not yet decided Clark v Stingel.[97] After that decision was published, I decided Wright. In doing so, I attempted to apply Clark. I then heard further submissions in this matter. Wright went on appeal, and on 20 December 2005 the Court of Appeal concluded, in light of an argument not advanced at trial, that I had misapplied Clark. Now Clark is the subject of appeal to the High Court, and an application for leave to appeal to that Court has been made in Wright. It might fairly be said that the circumstances are not ideal for resolution of the s.5(1A) argument in the present case. One can anticipate an argument in Clark that the way in which that case was explained in Wright underlines the problems which can arise when once the words of a statute are departed from. But my obligation is clear: to apply Clark as it was explained in Wright.

356 Section 5(1A) of the Limitation Act applies, inter alia, in an action for damages for negligence where the damages claimed by the plaintiff -

[182]

361 It was submitted for the defendant that, in Mazzeo v Caleandro Guastalegname & Co.,[102] Chernov, JA had distinguished between traumatic personal injury claims and claims falling within s.5(1A).[103] The present case should be viewed as falling within the former category. The plaintiff's cause of action had been complete long ago. There had been an undoubted traumatic event, and there had been consequences, in terms of the plaintiff's psychological well-being, from a time soon after the collision. A claim had not been brought within time. The proper remedy had been by way of a s.23A application.[104] Upon such an application, the plaintiff's state of actual knowledge of psychological sequelae of the collision could properly have been investigated; also the circumstances of his failure to seek a medical explanation for such sequelae. The plaintiff had known of those sequelae. It mattered not that he had not known the medical term for his problems[105]. So far as it might be argued that he had not known of the consequences of the defendant's act or omission, it was by his own choice. It could not be right that the circumstance that a prospective plaintiff was "in denial" could excuse a failure to know relevant matters. Neither could a failure to know be excused if, as a matter of personal choice based upon a particular social attitude, a prospective plaintiff chose not to seek medical advice despite being aware of certain symptoms.

362 In Mazzeo, the view of the interrelationship between s.5(1)(a) and s.5(1A) expressed by Chernov, JA was not adopted by the whole court. Tadgell, JA was circumspect in that connection.[106] The judgment of the Court of Appeal in Wright,[107] however, suggests that there is a clear dichotomy between injuries to which s.5(1A) applies and all other compensable injuries. The former must fit the description given in Wright in the passage which I cited a little earlier.

363 In the present case, the plaintiff "contracted" PTSD soon after the collision. Certainly, no later than when he was stationed at Moreton, he suffered from injury which was of more then minimal extent.

364 His cause of action was then complete. It follows that the ordinary period of limitation expired not later than 1971.

365 I am satisfied, however, that the plaintiff did not know that he had contracted PTSD until long after the expiry of the ordinary limitation period. It is true that he developed a disparate collection of symptoms, of which, well within the limitation period, he and his wife were aware. So, for instance, he knew that he had memories of, or associated with, the collision. He knew that he did not want to talk about the collision and its aftermath, or be posted back to the Melbourne. He became aware that his drinking pattern had changed. But that was not to know that he had suffered any injury at all. It amounted only to him being aware of what may be described as the ordinary and not unexpected sequelae of having been involved in a distressing event. It is not to the point that, more than 35 years later, armed with the certainty of hindsight and knowledge of PTSD as an entity, it can now be said that the plaintiff was suffering from psychological injury; let alone that he should be taken to have known that fact.

366 It follows from what I have said that the plaintiff positively established[108] that he suffered a disease or disorder to which s.5(1A) applied. The circumstances upon which the defendant relied to contend that any injury was one that must be dealt with by the application of ss. 5(1)(a) and 23A do not yield that result.

367 An action for damages might be brought in respect of personal injuries consisting of a disease or disorder contracted by the plaintiff, and yet be statute-barred under s.5(1A). That is because the sub-section sets up its own limitation period - that is, a period determined by reference to paragraphs (a) and (b).

368 In the present case, some, but little, attention was paid to those paragraphs, although it is only there that the sub-section in terms makes a plaintiff's knowledge relevant. There was no argument, in the context of paragraph (a), whether knowledge is confined to actual knowledge, or extends to matters which would or may be revealed on reasonable enquiry.[109] On the other hand, the defendant's submissions concerning a plaintiff's knowledge, though addressed to a different point, could extend to an argument that knowledge could not be gainsaid by the artifice of non-enquiry when confronted by symptoms calling for disclosure and medical investigation.

369 In _Cavenett v Commonwealth of Australia[110]_Gillard, J determined a claim by a former Melbourne crewman for damages for PTSD attributable to the collision. His Honour dealt with the question of knowledge for the purposes of paragraph (a). This is what he said about the matter:

[184]

370 His Honour did not have to consider whether want of knowledge by reason of failure, for one reason or another, to seek knowledge should nonetheless be accounted knowledge. The question is an interesting one, but even assuming that it had been sufficiently raised in argument in the present case, I do not think that it need be answered. That is so for the following reasons.

371 First, the plaintiff's case was simply that he first knew he had suffered PTSD in early 2002, when the condition was diagnosed by Mr Zemaitis and Dr Likely. Albeit that Dr Likely then diagnosed late-onset PTSD, and that I have concluded, to the contrary, that the plaintiff developed PTSD soon after the collision which settled no later than 1973, the plaintiff's evidence accurately stated the position. That is, such disparate symptoms, present no later than 1973, which in sum justified a diagnosis of PTSD, had never been recognized by the plaintiff as coherent elements of a discrete disorder; nor had the plaintiff been advised of such a matter until early 2002.

372 Second, had this been a case of late-onset PTSD - assuming that there is such a variant - the plaintiff's subjective knowledge would have been no different. But an antecedent question would have arisen: that is, how, if at all, late-onset PTSD could fit into the Wright framework.

373 Third, it is unnecessary to consider how s.5(1A) would have operated had I concluded that the plaintiff continued to suffer from PTSD from the time of its onset through to trial, and that the 1989 major breakdown was an interrelated condition. The depressive illness, considered discretely, should probably have been characterised as a late-occurring injury whose fate was to be governed by sub-s.5(1)(a) and 23A, not by s.5(1A). But, beyond that, the depressive breakdown may have become relevant to the question of the plaintiff's knowledge of the PTSD which I have postulated was then present.

374 Fourth, concerning the defendant's contention that the plaintiff's failure to make disclosure or enquiry had been unreasonable, and had disabled him from learning that he was suffering (or had suffered) from PTSD, at different points in the trial counsel for the defendant highlighted opportunities which the plaintiff had enjoyed to describe his symptoms to doctors whom he had attended. The opportunities identified by defendant's counsel, as I perceive it, were -

[186]

375 The writ was filed on 29 May 2002. It follows that if the limitation period began to run on or after 30 May 1996, then the proceeding was brought within time. In that event, there could be no legal relevance to the plaintiff having learned in 1998 or 1999 that he was suffering, or had suffered, from PTSD which was attributable to the collision. So, even if knowledge comprehended something more than actual knowledge, it would lead nowhere in respect of events in 1998 and 1999.

376 That takes me back to earlier times. Here it becomes important to bear in mind my conclusions that the plaintiff did suffer PTSD, but that its effects were never gross, did not interfere with the plaintiff's employment, and were wholly spent no later than 1973; and my conclusion that the April 1989 breakdown was triggered, as the plaintiff said was the case at the time, by the immediate strains of his then employment.

377 Against that background, there was, I think, no occasion for the plaintiff to have raised with Dr Joe Leong, before his symptoms of PTSD settled, the fact that he had such symptoms. If "reasonableness" was a pertinent criterion he was not unreasonable in not doing so.

378 Then, in the period 1973 to 1989, there was nothing for the plaintiff to have raised with Dr Leong.

379 Next, the plaintiff correctly identified the trigger for his major breakdown when he attended Dr Leong in April 1999. The indicative symptoms of PTSD were now long past. It was not the case - upon the conclusions which I have reached - that the plaintiff then suffered symptoms of PTSD; and that, for one reason or another, he concealed them.

380 Finally, in the period 1989 to 1998 the plaintiff suffered relapsing depression. But there was no occasion, upon the conclusions which I have reached, for him to tell his doctor about symptoms of PTSD, which were now in the distant past.

381 In the event, even if knowledge, for the purposes of paragraph (a) of s.5(1A), was held to extend beyond actual knowledge, it would have taken the defendant nowhere in the circumstances of this case.

382 It follows from what I have said that the plaintiff's compensable condition fitted the profile described in Wright. Section 5(1A) therefore applied. Regardless where the onus of proof lay, the plaintiff was not prevented from successfully relying upon that provision.

383 I should add two matters. First, if the outcome in Clark in the High Court was to return the law to the position stated in Herschberg and Anor v Mula[111] then, subject to something new being said about paragraphs (a) and (b), the plaintiff would remain able to successfully rely on s.5(1A). Second, if in Clark the High Court affirmed the meaning of s.5(1A) given it by the Court of Appeal, but said that such meaning was as I understood it in Wright,[112] then on the findings which I have thus far made, and bearing in mind evidence, which I accept, that the disorder now known as PTSD was medically recognised in the 1960s and 1970s, the plaintiff could not successfully rely upon s.5(1A).

Estoppel; Waiver

384 Because, in my opinion, the plaintiff's case is not statute-barred, it is strictly unnecessary to consider the plaintiff's reliance on the estoppel and waiver to which I referred earlier in these reasons. But I should say something about those matters.

385 The estoppel, as pleaded and particularized by paragraph 5(a)-(j) of the Second Further Amended Reply, is indistinguishable from the estoppel pleaded and particularized in Wright. In my reasons in that case, I considered the conceptual basis of the estoppel.[113] I concluded[114] that -

[188]

386 Save that "maintaining" might be substituted for "raising", I adhere to that conclusion.

387 Concerning the pleaded waiver, which was not separately addressed, I do no more than refer to, and adopt, what I said in Wright at [486].

388 Notwithstanding what I have said about the conceptual basis of the estoppel, I add this: In my opinion the evidence did not make out the estoppel as it was pleaded and particularised.

389 As a preface to my conclusions about matters of fact, I refer to and adopt the observations which I made in Wright at [401] - [404].

390 Against that background, first, I am positively satisfied that neither the Captain of Melbourne nor any other person in authority said anything which could have been reasonably understood to contain a prohibition upon crewmen speaking to anyone about the collision. Even if the plaintiff had some contrary belief, and I do not accept that he did, it could not have been reasonably derived from what was said.

391 Second, I do not accept that the plaintiff did not speak to his family about the collision and its aftermath, or to any doctor about his symptoms in the period that he suffered from them, in consequence of any order that he should not do so. There was no such order, and the plaintiff's conduct was otherwise explicable.

392 Third, I accept, as I did in Wright, that the Navy assumed something of a pastoral role in respect of its men as at 1964. Complementary to that role was the provision of naval doctors, and (on some ships) chaplains. The plaintiff was, speaking generally, entitled to assume that the defendant would treat him for injuries which he suffered, and which he reported. But it is a different question whether the defendant's failure to assess the plaintiff's mental health subsequent to the collision conveyed an unambiguous representation that he had not suffered injury in the collision. It is another question whether, if there was any such representation, it was conveyed with the intention that the plaintiff act - or not act - in reliance upon it; or that the plaintiff might reasonably have so understood the situation. It is yet another question whether the plaintiff assumed, in consequence, that he was a well man, and so acted - or did not act - to his disadvantage.

393 In my opinion, each of those questions should be answered unfavourably to the plaintiff. The following considerations are pertinent:

[192]

[39] T372.

[40] T373.

[41] T373-374.

[42] T374.

[43] T375.

[44] T434.

[45] I include in that description, whether or not it is quite apt, his resort to excessive use of alcohol.

[46] T395.

[47] T396.

[48] T398-399.

[49] T414.

[50] T379.

[51] T379.

[52] T380.

[53] T380.

[54] T381.

[55] T381.

[56] T382-383.

[57] T383.

[58] See exhibit 3.

[59] T114-115.

[60] See T296-298.

[61] Reports compiled by the medical witnesses called viva voce also went into evidence.

[62] Spelt 'Zanax' in the notes.

[63] I set it out in full, rather than in the doctor's abbreviated form.

[64] This may have been a note of something said by the plaintiff, in which he reported something which had been said to him.

[65] See the discussion, for instance, at T260-266.

[66] Exhibit N.

[67] Exhibit N.

[68] As part of exhibit G.

[69] As part of exhibit G.

[70] T309-310.

[71] T312-313.

[72] T314-315.

[73] T315-316.

[74] T358.

[75] T363.

[76] Part Exhibit P.

[77] Part Exhibit P.

[78] T516.

[79] T519.

[80] At [186].

[81] Exhibit K.

[82] For example, the bowel surgery was recorded as having taken place in the 1980s.

[83] For example, the plaintiff's description of events in the immediate aftermath of the collision.

[84] In truth, as the plaintiff explained it, no such offer was made.

[85] T483-484.

[86] Not all of the documents reviewed by Dr Bell were put in evidence, or were otherwise before the Court.

[87] Exhibit 7.

[88] He had read part of the records before he began giving evidence, and all the records before he concluded his evidence.

[89] T566.

[90] T570.

[91] T572-573.

[92] T574.

[93] T578.

[94] T579.

[95] I have set out the evidence at some length, together with a number of observations, and will not cross-reference my conclusions to the evidence.

[96] See, for instance, the doctor's evidence at T336, lines 16-28.

[97] [2005] VSCA 107.

[98] And in ICD-10 - that is, the International Classification of Diseases, 10th revision, published by the World Health Organization.

[99] I considered them in some detail in Wright at [319]-[354].

[100] At [84], my emphasis.

[101] [2005] VSCA 309, [36]-[37].

[102] [2003] 3VR 172.

[103] See at [43].

[104] Although, as it turned out, such an application could not be pursued in this case.

[105] Counsel cited Falcon v McCann [1998] VSC 83 at [13].

[106] See at [14].

[107] At [37].

[108] I say nothing about where the onus of proof lay.

[109] For instance, no analogy, or contrast, was sought to be drawn between the language and operation of s.5(1A) and 23A(3).

[110] [2005] VSC 333.

[111] (1993) Aust Torts Reports 81 - 256.

[112] That meaning did not turn on the question whether medical advice in a particular case was or was not available to a plaintiff.

[113] At [375] - [398].

[114] At [398].

[115] Part of exhibit L.

Plaintiff v Defendant

At a glance

Court

Decision date

Before

Source

Judgment (192 paragraphs)

Parties