The Collision
1 On 10 February 1964, the aircraft carrier HMAS Melbourne, the flagship of the Royal Australian Navy ("RAN"), was engaged in working up exercises off Jervis Bay. These were to be the prelude to a voyage north for the SEATO exercises which were scheduled to commence on 25 May that year. With the flagship was an escort vessel, the Daring Class Destroyer HMAS Voyager.
2 It was important that ships, equipment and personnel, at all levels, be fully prepared to meet the challenges which the exercises would present. In particular, it was essential that the pilots attached to Squadron 816, who would fly the "Gannet" anti-submarine aircraft which formed part of the flagship's complement, were qualified to perform night landings at sea. They and HMAS Melbourne were therefore performing "touch and go" exercises. These, as the phrase suggests, required the pilots to fly from HMAS Albatross, their base at Nowra on the New South Wales coast, to HMAS Melbourne, touch down on the flight deck and, before landing, take off immediately to return to base.
3 In February 1964 Rodney Burk was a Naval Air Mechanic (1st Class) with the Fleet Air Arm. He was 23 years of age, having been born on 28 December 1940 He had already enjoyed two tours of duty on HMAS Melbourne, both of them in 1961. With this experience behind him, and being attached to Squadron 816, he was allocated to the flagship once more as part of the Squadron's small advance party. He and his colleagues in that select group were present in case any of the aircraft had to make an emergency landing during the "touch and go" routine.
4 On the evening of 10 February 1964, Naval Air Mechanic Burk had been on the flight deck watching the aircraft perform their manoeuvres. As twilight descended, however, the calm conditions and light wind meant that the aircraft could not achieve sufficient lift, despite HMAS Melbourne increasing her speed to about 22 knots. From time to time flying was therefore suspended pending the advent of more favourable conditions.
5 Shortly after 8.30pm, during a lull in activity, Mr Burk descended below deck to the mess positioned at what was known as "4 Charlie"(Deck 4, position C; position A being closest to the bow). He was watching some of his colleagues playing cards when he heard what he described as a massive explosion, "like a bomb going off"[1]. Commander George Halley, who at the time of the collision was the Damage Control Officer and Training Officer on HMAS Melbourne with the rank of Lieutenant Commander, initially thought that one of the aircraft during "touch and go" practice had flown into the flagship's superstructure.
6 It is doubtless impossible for someone who was not there to comprehend the magnitude of that which had then occurred, or its impact on those immediately involved. Mr Burk, together with his colleagues among the officers and men of the two warships, had been caught in the maelstrom of the worst peace-time disaster in Australia's military history. The bow of HMAS Melbourne had struck HMAS Voyager amidships. The smaller vessel was not merely damaged; it was cut in two. Its bow section sank within minutes. Its captain, Lieutenant-Commander Duncan Stephens, together with another 81 members of its crew, were killed. The accident was the subject of extensive press coverage and two Royal Commissions. As this litigation attests, the consequences continue to reverberate across more than 40 years. Many claims have been brought against the Commonwealth of Australia by men from both vessels. This proceeding is one of them. It will doubtless be some years yet before the last page is turned.
7 Initially, Mr Burk felt and heard the huge, cacophonous resistance of whatever it was that had confronted HMAS Melbourne's bows. He thought at first that the ship had run aground, but quickly realised that this was impossible. Then, as he ran forward, he sensed the irresistible force with which his ship tore through its victim with a "terrible metal on metal" sound. Looking through the mess and the adjacent chain locker area to the toilets, he could see broken porcelain lying everywhere. He stopped and "was just sort of staring at it"[2]. It occurred to him that, had there been on board not a small advance party from his squadron, but the unit at full strength, someone would almost certainly have been using the toilets, with tragic consequences, at the time the two ships met. Colleagues ran past to secure the water-tight doors. Mr Burk then climbed the ladder to 3 Deck and ran across to the open weather deck where he saw something that "absolutely startled" him: a red kangaroo. As he remembered it in his cross examination, he thought: "What the bloody hell is that? Why is that there?" He recalls that, while trying to absorb all that had happened and was happening, he recognized that he was looking at the red kangaroo which was affixed to "either the bridge or the chimney" of HMAS Voyager. In his words, "it was just right there, in front of my face"[3]. Although it was dusk, the visibility was still good. The stricken vessel seemed to be almost close enough to touch. He stood staring "like a zombie"[4], "dumbstruck", feeling helpless. He could hear the sound of steam being forced from the ruptured boilers of HMAS Voyager with a rushing, whistling noise; and he heard the fearful screams of the men trapped below decks. As he watched, the two ships seemed to be drifting at a similar speed, stuck together. HMAS Melbourne slowed. Mr Burke saw men jumping from Voyager into the water;[5] or, as he later acknowledged during cross examination, perhaps into life-rafts.[6]
8 Although he cannot now recall doing so, Mr Burk made his way to his emergency station on the flight deck. As the rescue operation proceeded, he remembered "helicopters going everywhere with searchlights" looking for survivors while he helped to distribute blankets and hot chocolate to those who, having been found, were brought to the aircraft carrier's hangars. The ship's spotlight was held on what remained of HMAS Voyager until, as midnight approached, it sank.
9 By early morning, HMAS Melbourne had commenced its return to Sydney. Despite calm conditions, progress was slow. Mr Burk recalls being worried that if the weather got up, the ship might founder. He had a vague memory of being off Wollongong at midday the next day and arriving at Garden Island at about six the day after. At some time he slept but he had little recollection of the return trip. He does remember, however, that two announcements were made over the public address system. One informed the ship's company that HMAS Melbourne would be taken to the Cockatoo Island Naval Dockyard for repairs. The other, according to Mr Burk, was an order that they were "not to discuss the accident with anybody." Mr Burk did not take this to mean his shipmates; but he said in evidence that he did believe that it applied to "virtually everybody else".[7]
10 There was one other incident that remained in Mr Burk's mind from the trip from Jervis Bay to Sydney: he encountered Rod Layfield, a friend who had been rescued from HMAS Voyager. Layfield was standing on the weather deck with a group of other survivors. Mr Burk greeted him warmly. The response came out of the blue, and left Mr Burk in a state of shock. The entire group, including Layfield, turned their backs on him. As he saw it, the message was brutally forthright: according to Layfield and his Voyager colleagues, the blame for the sinking of their ship lay with HMAS Melbourne and all on board her, including Mr Burk himself. He was therefore to be ostracised; an experience repeated when, having disembarked at Cockatoo Island, he and other members of Melbourne's crew went to a pub. They were in uniform, and so could be identified by the HMAS Melbourne tally band around their navy hats. A group of civilians were discussing the collision. They had already bestowed upon the aircraft carrier the epithet of "the killer ship". Mr Burk overheard them. Faced with this hostility, he and his shipmates concealed their hats and quietly disappeared.
Other background material
11 The plaintiff was born, in Tasmania, on 28 December 1940. He is therefore now 65 years of age. He is the younger of two boys; his elder brother, Raymond, is three years his senior. His education began at the Railton Primary School, Railton being a Tasmanian town dominated by the "Goliath" cement works, where for a time Mr Burk's father was employed.
12 The plaintiff completed his secondary education at the Sheffield Area School, where he obtained his Modern School Leaving Certificate. He was academically average, and sports mad; that too was doubtless typical. Cricket, football, tennis and other sports were part of the scheme of things, both at school and in the local community.
13 Mr Burk's first job was as an apprentice to a butcher. He then joined Goliath as a "calcinator", doing shift work. This was followed by a quick promotion to the laboratory, where samples of product were tested to ensure that standards were maintained. He was then 17 years of age, or thereabouts, and (as a shift worker) was on an adult wage although he could not - and did not - consume alcohol because he was under the legal drinking age.
14 The wider world beckoned, and the plaintiff answered the call. A family friend had been in the Navy during the War, and loved it. His nostalgic wish to recapture his days in the service quickened the plaintiff's interest in a naval career. On 28 September 1958, being all of 17 years and nine months old, Mr Burk enlisted.
15 His basic training was completed, in Victoria, at HMAS Cerberus, from which - having passed all his subjects - he graduated in the top half of his class in mid-December 1958. He was drafted into a squadron of the Fleet Air Arm stationed at HMAS Albatross, near Nowra. Life was good. He was young and fit. He enjoyed his work, accepted naval discipline, played much sport, and made friends. For two years he trained in weapons mechanics before joining a sea-going squadron, Squadron 805, in January 1961.
16 Mr Burk's first tour of duty at sea began a little later that month. Squadron 805 was attached to HMAS Melbourne, so it was to the Navy's flagship that the plaintiff was posted. It was, as the plaintiff said in his evidence in chief, a "dream come true".[8] Once he found his sea legs (though he was never physically seasick) the plaintiff loved it, as he loved his time at HMAS Albatross: "the best time of my life".[9]
17 Shortly before the tour of duty began, the plaintiff met Elaine Thompson. They decided to correspond. It was the beginning of a long romance, enlivened by letters from her to him and from him to the girl he addressed as "Rossie"; letters which she took the trouble to retain. Some of that correspondence formed an important part of the evidence in this case. It is the product of a man who expressed himself well, and of a mind that was fully involved in the pleasure of authorship. The picture is of a young adult male who was easy to like, and who was in love with the woman to whom he was writing. She reciprocated.
18 Some of the qualities evident in both plaintiff and his (then) future wife during those years of courtship were apparent as they gave their evidence in this case. It could not have been easy for either of them. Much that would ordinarily remain private was, sometimes painfully, revealed; but through it, both retained their dignity. I did not accept all their evidence, although both were, I believe, endeavouring at most if not at all times to be dispassionately accurate. For my part, it was and is my duty to understand, and make allowance for, the stress under which many of those called to give evidence, but particularly Mr and Mrs Burk, were operating while doing so; and to refrain from being judgmental. This case turns on whether or not the plaintiff suffers from a particular disease or disorder; no more and no less.
19 Rodney Burk and Elaine Thompson were married in February 1965. She was by then a fully qualified nurse, and when the couple moved into naval accommodation at Nowra, Mrs Burk obtained a position at the Nowra Base Hospital. She enjoyed nursing then and has continued to enjoy it since, although she has not always been in continuous full-time paid employment. Indeed, after the couple's first child (Warwick) was born in October 1966 she was fully engaged with the family for some four years.
20 A second child, Stephen, arrived in September 1967 - at about the time of Mr Burk's resignation from the Navy. He then re-joined his former employer, Goliath Cement, where he remained for the next 18 years, until his resignation in 1985. In the meantime, the third and last child, Kelvin, was born in December 1970.
21 Following Mr Burk's resignation from Goliath, he concentrated on an interest in greyhounds which until then had been restricted by commitments at work. There is some controversy about whether for a period from 1985 he should properly be described as a professional dog owner and trainer; his involvement with greyhounds finally ceased in 2000. That controversy aside, it is clear that the plaintiff's career as an employee effectively came to an end when the Goliath connection was severed. But more of that later in this judgment.
The Pleadings
22 This proceeding was begun by Writ filed, on behalf of the plaintiff, on 28 May 1999. Mr Burk pleads that he was at all material times an enlisted member of the RAN, holding the rank of Naval Airman and employed by the Department of the Navy, being a Department of the Commonwealth. While the defendant admits the first of these allegations, it denies the claim of Departmental employment. Not surprisingly, nothing was made of this at trial.
23 In response to a plea that Mr Burk was on HMAS Melbourne on 10 February 1964 in the course of his employment with the Commonwealth, the defendant admits that he was so present "during the course of his service" with the RAN, but otherwise denies the allegation. Again, the denial - for what it was worth - was not pressed at trial.
24 The Commonwealth admits that a collision occurred between HMAS Melbourne and HMAS Voyager on the night of 10 February 1964 at approximately 2056 hours Eastern Standard Time upon the high seas about 20 miles south east of Jervis Bay. It further admits that the officers and crew of the two ships were officers and servants of the Commonwealth acting in the course of their service as such. Importantly, the defendant admits that the collision was caused by the negligence of the officers and crew of the two vessels (although it denies that it failed to ensure that the ships and their equipment were in a seaworthy and safe condition, or failed to ensure all persons on board were properly trained and prepared for the eventuality of a collision or other catastrophe). It denies that other officers and servants of the Commonwealth were negligent. [10]
25 The plaintiff alleges that as a result of the collision he was injured and has suffered loss and damage. Eighteen particulars of injuries are pleaded, including a claim that the collision caused, aggravated, accelerated, exacerbated and/or resulted in post traumatic stress disorder ("PTSD").[11] The plaintiff's case at trial was confined to this injury,[12] which he alleges is a "disorder" within the meaning of s.5(1A) of the Limitation of Actions Act 1958. According to his statement of claim, it was not until 1997 or thereabouts that he first knew of his condition. It was, necessarily, also only then that he was able to attribute the disorder to the collision at sea on 10 February 1964.
26 The defendant admits that PTSD falls within the meaning of the expression "disorder" in s.5(1A), but denies that Mr Burk is its victim.[13] Given that denial, the defendant cannot, and therefore does not, admit that the plaintiff first knew of the relevant facts in or about the year 1997.
27 Evidence was led at trial about particulars of certain injuries that in the end were not pressed by the plaintiff. For example, particular (b) to paragraph 6 of the statement of claim alleges "Stress, anxiety, nervousness and psychological reaction resulting in alcohol and cigarette addiction and the development of hypertension"; and, again, particular (c) refers to "Sleep disturbance involving difficulties falling asleep, staying asleep, restless sleep, nightmares, which has resulted in tiredness, lethargy, listlessness and sweating at night." Given, however, that the plaintiff alleges PTSD -but no other injury - I will for the purposes of this judgment take it that any evidence led on these topics is relevant only insofar as it points to the existence, or otherwise, of PTSD. I will not, therefore, have regard to evidence about alcohol consumption in relation to any claim now brought by Mr Burk, save to the extent that it might (for example) be a manifestation of what the psychiatrists refer to as "persistent avoidance": see the discussion at paragraphs [81] et seq. below. It is in consequence unnecessary for the Commonwealth to rely on its pleas that it cannot be held responsible for any injuries or damage suffered by Mr Burk due to excessive consumption of alcohol or tobacco; or that such injuries or damage are too remote or not reasonably foreseeable; or that the plaintiff was guilty of contributory[14]egligence.14 Those pleas are now irrelevant.
28 In his particulars (dated 6 September 2002) of special damage and loss of earning capacity, the plaintiff claims, amongst other things, the future medical expense of 40 psychiatric counselling sessions at $225.00 per session: a total of $9,000.00. In relation to loss of income and loss of earning capacity, he says that it had been his intention to remain in the RAN for at least twenty years. His evidence was that he justifiably expected to be successively promoted from Naval Airman First Class to Leading Airman (Navy) (an acting rank he eventually achieved - but not until 1967, somewhat later than was usual); from Leading Airman to Petty Officer; and finally from Petty Officer to Chief Petty Officer. After twenty years of naval service, it is likely (he claims) that he would on his voluntary discharge from the Navy have obtained a position as paymaster of a business such as the one he I fact joined on discharge: an industrial concern operating in Railton, Tasmania (and perhaps elsewhere) known as "Goliath Cement". The plaintiff also contends that, but for his injuries, he would have remained in that employment, or in "at least a similar or commensurate employment", until the age of 65. Instead, he resigned from the RAN in 1967 at the expiration of his initial term of nine years. Although he did thereafter become an employee of Goliath Cement, with whom he remained for the 18 years that followed, he resigned in September 1985 because "[i]n consequence of his psychiatric disorder he felt no longer able to cope with that employment and has since been substantially unemployed."[15]
The Evidence Concerning Post Traumatic Stress Disorder
DSM IV Criteria
29 The parties agreed that it is appropriate, in determining whether Mr Burk is suffering from PTSD, to use the criteria in a Manual published by the American Psychiatric Association in 2000. It is entitled Diagnostic and Statistical Manual of Mental Disorders (4th Edition)(Text Revision), and is sometimes referred to as "DSM-IV-TR"; but for convenience I shall further shorten its title to "DSM-IV". An extract was, by consent, tendered into evidence.[16] I turn to it in detail below. For the moment it is necessary only to note two things about it. First, it is not to be read as a statute. Secondly, and subject to the above, it sets out the six criteria that are to be met before a patient can properly be diagnosed as suffering from PTSD. These are to be found at pages 467 and 468 of the Manual. In general terms, they can be described as: (A) exposure to a traumatic event; (B) persistent re-experiencing of the traumatic event; (C) persistent avoidance of stimuli associated with the trauma, together with numbing of general responsiveness; (D) persistent symptoms of increased arousal; (E) the duration for more than one month of the symptoms described in criteria B, C and D; and (F) clinically significant distress or impairment, caused by disturbance in social, occupational or other important areas of functioning.
30 As all the expert witnesses agreed, and as DSM-IV itself makes clear, each criterion must be satisfied before a diagnosis of PTSD may be made. DSM-IV states that symptoms - such as "avoidance", "numbing" and increased arousal - which were present before exposure to the stressor, do not meet the criteria[17]. It is of course incumbent on any plaintiff to establish a causal link between the trauma and the stress.
31 PTSD may be acute (if the duration of symptoms is less than 3 months), chronic (where symptoms persist for 3 months or more), or occur with delayed onset (if symptoms begin at least 6 months after the initiating traumatic event).
32 There are difficulties in the diagnosis of the condition. When the symptoms are as vague as, for example, "irritability", issues of degree and of individual judgment -about which opinions might reasonably differ - come into play. Moreover, many of the indicia of PTSD as listed in DSM-IV are non-specific: they are, in other words, also indicia of other ailments and conditions. Some of these may be mental disorders; others not. The approach to diagnosis may also, it seems to me, legitimately vary - albeit only in its emphasis - depending on whether its purpose is (on the one hand) treatment or (on the other) assessment for compensation.
33 I should explain. We are here concerned with whether or not the plaintiff has contracted a compensable mental illness the symptoms of which may also be mere indicators of a variety of other things, including one's habitual way of behaving. The court must of course focus on whether a basis for compensation exists. Where a plaintiff claims to suffer from PTSD as a compensable mental disorder, it is essential to remember that he or she must prove on the balance of probabilities that he or she is suffering from a disorder. It is thus necessary to have regard to the array of symptoms as a whole and determine whether on the balance of probabilities the overall effect is so serious that it will cause "clinically significant distress or impairment" in the relevant areas of functioning.
34 A medical practitioner seeking accurately to diagnose a patient who may be suffering from PTSD will take the same general approach. In clinical practice, however, the diagnostic process will not be viewed as a necessary prelude to litigation; it will, rather, be seen as essential to the choice of the appropriate treatment. When taking patient histories in these circumstances, and in treatment, forensic concepts such as the burden of proof will be out of place; and treatment may be indicated although the patient suffers from some only of the symptoms that together amount to the disorder with which this proceeding is concerned. A clinician, while exercising commonsense and judgment and being vigilant for inconsistencies, does not cross-examine his or her patient as if in a court of law. Nor, in general, can he or she verify the patient's history and symptoms - certainly not by hearing from the array of witnesses that form part of the adversarial process. Both the medical and the legal process must be conducted with rigour; but just as the aims and objectives of each differ, so will the care to be taken in achieving the desired ends differ, albeit to a minor degree, in its emphasis.
35 I mention these points so that the reader may appreciate the general background against which I have approached my task of evaluating the medical evidence.
36 One of the expert witnesses called before me was Professor Richard Bryant.[18] He is the Scientia Professor of Psychology at the University of New South Wales and Director of the PTSD Unit at Westmead Hospital. I found him to be an impressive witness. It is I think appropriate at this point to refer to his evidence, which I accept, about the diagnosis of PTSD. He was taken by senior counsel for the Commonwealth to the diagnostic criteria set out in DSM-IV, and in particular to criterion F: "The disturbance causes significant distress or impairment in social, occupational or other areas of functioning." He responded:[19]