Plaintiff v Defendant

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]

"You will find [those words] virtually in every mental disorder in DSM; and the reason for that is that we need to distinguish between normal mood disturbances - or normal alterations in functioning - and disorders; because if we look at most of the population, most people have symptoms, most people will have irritability and nightmares and be depressed. This is very common. The point of DSM is that we need to distinguish between what is a disorder and what is just having normal symptoms, because we don't want to over pathologise a normal state. The way DSM does this is really focussing on the stress [the patient] is having. Is it very significant; is it highly distressing to the patient or ... interfering with [his or her] capacity to function, maybe in a workplace, maybe in family, maybe inter-personally? But in these major ways [the patient] is not able to function because his or her symptoms are at such [an elevated] level."

37 I now turn to a detailed examination of the evidence given by both lay and expert witnesses in relation to each criterion of DSM-IV. I will attempt to give particular emphasis to any variation between the history given to the experts, and upon which they based their diagnoses, and the evidence given by Mr Burk and others at trial. Discrepancies appear at a number of points. In some instances there are contradictions or inconsistencies between the history and the subsequent evidence; in others, the plaintiff when in the witness box spoke in general terms rather than in the detail to which he referred whilst giving his account to the relevant experts. Yet again, some topics addressed in the histories provided by the plaintiff to those experts were not the subject of Mr Burk's or his lay witnesses' evidence before me. In these instances, the medical history given by Mr Burk to his doctors is, in general, admissible only to the extent that it was used in the formation of the expert's opinion.

38 There is of course no equivalent in this State of s.60 of the Evidence Act 1995 (NSW). This section provides that the hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation. Nor is there in Victorian law an equivalent of s.72 of that Act, which provides that the hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.

Exposure to a traumatic event (Criterion A)

39 Criterion A of DSM-IV provides:

"A. The person has been exposed to a traumatic event in which both of the following were present:

(1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others;

(2) the person's response involved intense fear, helplessness, or horror."

40 There is no doubt that the collision between HMAS Melbourne and HMAS Voyager fell into one or other of these categories. The commentary in DSM-IV describes traumatic events as including "military combat, violent personal assault ..., being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp, natural or manmade disasters, severe automobile accidents, or being diagnosed with a life-threatening illness."[20] Mr Burk was a participant in a manmade disaster unprecedented in Australian naval history - an incident far worse in every sense than any automobile accident, however severe.

41 I accept in this context the evidence of Professor Alexander McFarlane, Head of the Department of Psychiatry at the University of Adelaide, Clinical Professor at The Flinders University of South Australia and Senior Visiting Medical Specialist at the Royal Adelaide Hospital. Professor McFarlane said that the relevant test is an objective one; an event does not become traumatic in the presently relevant sense simply because an idiosyncratic individual who experienced it became traumatised.[21] But on 10 February 1964, Mr Burk and his fellow sailors were confronted by the sudden and totally unexpected destruction of an Australian warship and the death and serious injury which that involved. In the opinion of Professor McFarlane, because this was "an event of major proportions ... one of the greatest disasters in the 20th century in Australia"[22], it was in his clinical judgment a "traumatic event". In the circumstances, this conclusion was inevitable, and in any event was not contentious. I also accept that for presently relevant purposes the "event" is not limited to the actual collision; it may also encompass its aftermath, such as "the rescue and dealing with the immediate disorganization."[23]

42 According to Professor McFarlane, a person may "witness" an event not only by actually seeing what happened, but also by a combination of sensory experiences at the time and subsequent information about the facts. I accept that that is so. In this case, Mr Burk felt the impact as the two ships met. He heard the sound of steam escaping under pressure, the tearing of metal, and the smashing of porcelain, and then saw the stern section of HMAS Voyager at close quarters from the weather deck. He was, relevantly, a witness. In relation to this point, I accept the opinion expressed by Dr Ian Burges-Watson, a psychiatrist who was called on behalf of the plaintiff, that Mr Burk's physical proximity to the epicentre of the collision was "significant".[24]

43 Of the two elements of Criterion A, the first (the threat) is therefore readily satisfied. The second (the response) is a little more problematic. Professor McFarlane was of the opinion, based on Mr Burk's history of being "utterly dumbfounded"[25] and experiencing confusion and fear on the night of the collision, that he felt intense fear and helplessness. The history I accept; but I do not altogether share the conclusion. Doubtless the plaintiff was utterly dumbfounded. Doubtless, too, he did experience both confusion and fear. Indeed, he may well have been intensely frightened, albeit only momentarily, for his own immediate physical integrity. After that he may for a time have wondered whether HMAS Melbourne itself might sink; but he could not rationally have been fearful that, even had there been a further disaster of this kind, he might drown or be injured in that process: there was never any suggestion that the flagship was in imminent danger, or that rescue processes would be less than entirely adequate. And there is in any event no evidence that Mr Burk had any fear for his personal safety should his ship founder. From the witness box, Mr Burk merely recounted his feeling of relief that the weather was calm during the return trip to Sydney, because he was worried that the ship might sink if the weather "got up".[26]

44 Next there is the issue of intense feelings of helplessness. Here the evidence falls short of that required if this element is to be made out. Even accepting that the plaintiff's desire to do more might be a natural reaction, it fell well short of the requisite intensity. Mr Burk agreed, after all, that he was able to help; and the emergency procedures and rescue efforts - to which he contributed - were all performed properly and efficiently. He gave evidence of assisting with the distribution of blankets and hot chocolate, but he did not give a specific description of any distress or helplessness he may have experienced at the sight of the survivors or their injuries.

45 But if Mr Burk did not experience intense fear or helplessness, I agree with Professor McFarlane that he was a victim of the natural human reaction of intense horror to the events of that dreadful night. In coming to this conclusion, I have had regard not only to the evidence of Professor McFarlane, but also to my own assessment of Mr Burk's character and to the evidence given by Professor David Horne,[27] Professor of Psycho-Oncology at Queen Elizabeth Hospital in Birmingham and Honorary Professor at the School of Psychology in the University of Birmingham, who was called on behalf of the plaintiff.

46 Another witness is important here, because he was called by the Commonwealth. I have already referred to Professor Richard Bryant, Scientia Professor of Psychology at the University of New South Wales and Director of the PTSD Unit at Westmead Hospital. He shared the view that Criterion A is made out. [28] I accept that this is so.

Persistent re-experiencing of the event (Criterion B)

47 Criterion B of DSM-IV is described in the Manual in the following terms:

"B. The traumatic event is persistently re-experienced in one (or more) of the following ways:

(1) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions ...[29]

(2) recurrent distressing dreams of the event ...

(3) acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated).

(4) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.

(5) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event."

48 An important point should be made at once. While bearing in mind that Criterion B is not to be read as if it had statutory force, nevertheless it is concerned with persistent re-experiencing, manifested in a number of specified ways, of a traumatic event. With that consideration as background, I turn to each of the specified symptoms.

(1) Recurrent and intrusive distressing recollections

49 Recurrent and intrusive distressing recollections do not fall within Criterion B merely because they are recollections. They only meet that criterion if they are recurrent, intrusive and distressing. Mere memory will not do; and the recollections must be not only recurrent, but so sharp and focussed that they bring the event vividly back to life in an intrusive and distressing way .

50 According to Dr Burges-Watson, Mr Burk told him that he continually had intrusive memories of the time when he first saw HMAS Voyager after the collision, and of the screams, the shouting and the steam.[30] The plaintiff told Professor McFarlane that until 1975 he found it difficult to "get away from" memories of the collision, but thereafter he became preoccupied with other things and it was only when his mind was not focussed or when he was doing mundane jobs, that the memories would be "troublesome".[31] At the time of his interview with Professor McFarlane in 2001, the plaintiff reported having daily memories of the collision. These Professor McFarlane attributed in part to being interviewed by many people with the result that he tended to focus on it. The description of the plaintiff being troubled or preoccupied by these memories does not appear to match the language of Criterion B(1) which speaks of "intrusive distressing recollections of the events". In this context I note the evidence of Professor Bryant that, in an interview with him, the plaintiff did not describe psychological distress in response to reminders of the collision.[32]

51 In early 1999, Mr Robert Wilks, a Clinical Psychologist called on behalf of the plaintiff, took a history from Mr Burk. This is recorded in a report dated 6 March 1999.[33] Mr Burk told Mr Wilks that by early 1967 he was suffering from a number of symptoms which included "intrusive recollections (which would make him tense and which he would attempt to block out) of images of Voyager sinking". These symptoms started in late 1964 and built in intensity. According to the history given to Mr Wilks there was a "slow 'insidious' continuance and intensification" of the symptoms, including the intrusive recollections, after the plaintiff left the RAN and joined Goliath Cement, culminating in the plaintiff leaving that company in 1985. The symptoms continued through the period 1985 to 1999, although they reduced "a little in intensity as the years went on". Nonetheless, Mr Burk did not seek treatment for psychological distress as he thought he had done a good job of blocking the Voyager out.

52 Mr Wilks prepared two further reports. That dated 23 May 2002[34] recorded that in the period 1999 to 2002 the plaintiff experienced daily intrusive recollections of seeing the stricken HMAS Voyager. These at times caused his heart to race. The plaintiff would try to think of something else. Then, in the most recent report (dated 18 February 2005)[35] Mr Wilks includes the following remarks made by the plaintiff:

"'... it can happen any time ... it's a picture ... I rush up on to Three Deck and the Voyager is right there in front of my face ... it's happened so many times I'm used to it [that phrase being Mr Burk's response to being asked if he experiences reactivity to his recollections] ... I try and get rid of it as soon as I can ... just block it out and focus on something else."

53 The history given by the plaintiff to the several expert witnesses who examined him did not always coincide with the evidence at trial. Thus, at trial Mr Burk gave evidence that when he returned to HMAS Albatross at Nowra in late 1964, and for the next two and a half years, he "pushed the collision and everything to the best of my recollection out of my mind, as far as I ... possibly could. I didn't dwell on it, never thought about it, and actually I was looking forward to going back to sea, in '67, for a while."[36] Later he said the intrusive recollections of the collision, which he described as "flashbacks", did not begin until about 1969 or 1970. This was after he commenced his post-naval employment with Goliath Cement.[37]

(2) Recurrent distressing dreams of the event

54 The commentary in DSM-IV notes that re-experiencing may include "recurrent distressing dreams during which the event can be replayed or otherwise represented".[38] Mr Burk gave evidence about his experience of this phenomenon. Two dreams in particular began to trouble him in the early 1970s and thereafter persisted for many years. In one, he found himself exposed on the flight deck of HMAS Melbourne as it travelled up a narrow winding river at "a terrible pace". The ship was rolling so much that eventually he was reduced to "hanging onto the flight deck by my fingernails"[39] as the huge vessel swung from side to side. In the other dream, Mr Burk was trapped underground. He did not associate this second dream with HMAS Melbourne; indeed, he agreed that neither dream replicated the events of 10 February 1964. However, each "used to frighten the life out of me".[40] Since he started talking about the dreams, approximately six years ago, he has stopped having that which features HMAS Melbourne, but he continues to have the one about being trapped underground. A third dream, experienced over the last couple of years, is of being in a car reversing out of his driveway onto a "massive highway" busy with traffic; as he puts his foot on the brake, the car moves faster. He wakes from this dream with a cramp in his leg caused by "trying to drive the brake pedal through the bed".[41]

55 It was submitted on behalf of the defendant that the dreams as recounted by Mr Burk could not be described as "[t]he traumatic event [being] persistently re-experienced" through "recurrent distressing dreams" as required by Criterion B. I observe, however, that the commentary in DSM-IV refers to "recurrent distressing dreams during which the event can be replayed or otherwise represented."[42] (my emphasis). In my view this would allow for account to be taken of dreams that might reproduce the experience of the traumatic event while not exactly reproducing the event itself. I have already noted[43] that the Court should not approach the DSM-IV criteria as if they were incorporated into an Act of parliament. It must always be remembered that they are primarily designed for medical experts exercising professional and clinical judgment.

56 The Commonwealth submits that Mr Burk's dream about hanging onto the flight deck of HMAS Melbourne is consistent with an experience recounted by him in a letter written in early June 1961 when on a tour of duty to Hong Kong. It was addressed to the woman who was to become his wife. He said:

"... and at a quarter to eight [we] found ourselves sliding out to sea into the teeth of [a] howling typhoon called Alice. A most unpleasant night and the following day was spent dodging the typhoon. We succeeded in dodging the main blow but we couldn't get away from the rough seas. Rough is a mild estimate. Some of the waves which hit us were king size. Melbourne really worked up a dazzling rock routine. Which left me with many visions of hanging over the side. But which were conquered like a true sailor? [On] Saturday morning we slipped back into Hong Kong for the remainder of our stay."[44]

When this passage was put to the plaintiff during cross examination, he said he thought his use of the phrase "hanging over the side" was a reference to feeling nauseous - a feeling he managed to overcome.[45]

57 Dr Burges-Watson was of the opinion that the dream about hanging on to HMAS Melbourne, as well as that in which the sleeper was trapped underground, satisfied Criterion B. It is true that neither involved a collision at sea, or a sea rescue, or damage to vessels, or to anything being sunk. According to Dr Burges-Watson, however, it is uncommon for those who have experienced a traumatic event to later reproduce it in their dreams exactly as it was; instead, they are more likely to have nightmares a central element of which is linked to that experience. In this instance, dreams about hanging from the side of HMAS Melbourne or being trapped underground "so clearly mirror part of his experience that it is reasonable to assume they were Melbourne-related."[46] Thus, on this theory, the fear of being trapped, which is a feature of the underground dream, is consistent with Mr Burk's general uncomfortableness about being below decks following the collision.

58 Professor McFarlane shared the view of Dr Burges-Watson. Although Mr Burk's dreams did not re-create the circumstances of 10 February 1964, they did connect to his fears of being thrown into the sea or killed.[47] The professor therefore thought that the dreams fell within Criterion B. Mr Wilks was of the same opinion. I note, however, that the latter recorded Mr Burk telling him that the dream about being trapped was first experienced at some time between 1964 and 1967.[48] This is not consistent with the evidence given by the plaintiff at trial: which put the first occurrence of the dream in the early 1970s. Mr Wilks also expressed the view that the more recent dream - that of driving the reversing car - related to feelings of guilt held by the plaintiff about surviving the collision when others did not. But the connection, if any, is in my opinion tenuous. I think it would be dangerous to ascribe this dream to the collision, especially given that it has arisen only over the last couple of years.

59 Mr Wilks himself conceded that understanding dreams is a "highly inexact art".[49] I accept that that is so. In this context I note the evidence of Dr David Bell, a psychiatrist called by the defendant. He too expressed reservations about the limits of dream interpretation. At the same time, he could not see any necessary causal connection between the collision and either the dream of being on HMAS Melbourne or the one of being trapped underground. Neither therefore played any part in his assessment of whether Mr Burk suffers from PTSD.[50] Dr Bell was, as I understand his evidence, wary of ascribing such a causal connection unless the dream did conjure up a clear-cut, stereotypical mind-picture of the event. To adopt any other position, Dr Bell suggested, would be to take the material "far beyond its reasonable limits".[51] In cross examination he explained that in order to fulfil Criterion B(2):

"The dreams, themselves, tend to be straight, plain renditions of what happened in the first few days and weeks. They gradually change with the passage of time. They also diminish in terms of frequency and in terms of intensity as they change. If the history is one that fits that pattern, it is convincing."[52]

60 The plaintiff told Professor Bryant he "may dream of HMAS Melbourne three times a year."[53] According to the professor, Mr Burk also gave a history that "he did dream about the collision periodically ... several times a year".[54] It is not clear whether by this latter reference Professor Bryant had in mind the dreams already outlined, or other dreams that reproduce the events surrounding the collision. In any event, Professor Bryant expressed the view that having such dreams several times a year was "not in the ballpark of PTSD where, again, we are talking about recurrent dreams that are going to fuel an ongoing anxiety condition, and that is certainly not the profile here". He went on to explain:

"... in PTSD, the reason we have nightmares is that I am suffering persistent anxiety, and in my sleeping moments I am going to be dreaming about this event because it is primed in my working memory because of the ongoing threat that it poses to me; so dreaming about it several times a year is something that many people will do about a bad experience. But in PTSD, it would be a lot more recurrent because it is actually something that is dominating their lives."[55]

61 The evidence of Professor Bryant is consistent with my reading of the diagnostic criteria for post traumatic stress disorder set out in DSM-IV and, to the extent that the professor speaks of a dream that resurfaces several times a year, accords with what is in my understanding the general experience of people who have encountered a particularly distasteful or distressing event. It must be said, however, that Mr Burk gave a different history of the frequency of these nightmares to Dr Allan White, another psychiatrist called by the defendant. He told Dr White that he had the dream about hanging on to HMAS Melbourne "once a night every two or three nights for 'years and years', but had not had it for the last month or so, as of November 1999". Dr White made the following comment about this history:

"... the significance is that we dream about six or eight times a night, every time we go into rapid eye movement sleep, and so it is possible to have the same dream for a couple of weeks. But having the same dream for months or years just is not consistent with the normal physiology of dreams, and it is one of the ... giveaways that people may be exaggerating their symptoms when they complain of the same dream for a very long time."[56]

He therefore thought that the dream about which he was speaking was an unlikely symptom of PTSD. The same comments would apply to the dream about being trapped underground, which the plaintiff told him ran in conjunction with the HMAS Melbourne dream.

62 The evidence of Professor Bryant and Dr White about the frequency of particular dreams does not appear to be entirely consistent. Nor does Dr White's evidence appear to be consistent with that part of Criterion B which refers to recurrent distressing dreams of the event. DSM-IV does therefore seem to contemplate that a symptom of PTSD could be recurrent dreams persisting for longer than a matter of weeks. Perhaps Dr White's reservation lies in the history of the plaintiff having the same dream as frequently as every two or three nights for years. Here Dr Bell's comments about the changing nature and diminished frequency of dreams is relevant.

63 Mr Titshall drew my attention to the absence of any history of dreams given by Mr Burk to Dr Poole, his treating GP between 1997 and 1999. Nor did he mention them to Dr Brigid Nielson, a psychiatrist consulted by him and by his wife in February 1994 in relation to marriage difficulties.

64 This seems to me to be a significant point. Equally significant, I think, is the fact - of which I take judicial knowledge - that many people who have never suffered from post-traumatic stress disorder have nightmares in which their life appears to be threatened. This being so, the evidence here would in my opinion need to establish a closer relationship between dream and traumatic event before one could conclude on the balance of probabilities that Mr Burk's nightmares had or have their source in the Voyager disaster. That collision did not, it seems to me, create for Mr Burk a life-threatening situation comparable to anything in his dreams.

(3) Flashbacks

65 PTSD sufferers may experience - over a few seconds, or perhaps hours or even days - a recurrence of the traumatic event; or, in other words, a dissociative state "during which components of the event are relived and the person behaves as though experiencing the event at that moment."[57] Often referred to as "flashbacks", these instances are rare, although they can be associated with prolonged distress and heightened arousal. Triggering events "that resemble or symbolize an aspect of the traumatic event"[58] will at times give rise to intense psychological distress or physiological reactivity. The examples given of such occasions include relevant anniversaries; weather similar to that experienced at the time of the event; or being in a similar physical environment.

66 Professor McFarlane described "flashbacks" in the following terms:

"When somebody has a flashback they will actually feel like they are almost back there in the event. It is almost like dreaming when you are awake, so they have a sort of dissociative quality to them. That is different from somebody who simply has a vivid or distressing memory or recollection of an event. ... If you had been involved in the Melbourne/Voyager disaster and then you heard the scraping of metal, and you suddenly felt that you were back there on the ship, you were confused about whether you were here in the present or back there in time, that is a flashback. Now, that is very different from you hearing a sound and then you in your mind being taken back to an event, because you are still very well aware of the sense of hearing in the present here and now. ... They actually are daydreams. It is like having a nightmare but you are actually there in the midst of it."[59]

67 The plaintiff gave evidence that when he was working at Goliath Cement in the pay office, at the time of the second Royal Commission and when the collision was featuring in the newspapers, he would have what he termed "flashbacks" of the collision. These would occur when performing a mundane task, when he "would waft off" to "the exact moment that I ran out on to the weather deck and saw Voyager in my face".[60] This was happening on a daily basis. As soon as the "flashback" occurred, the plaintiff would "block it out". This was one of those problems of life with which, according to Mr Burk, he just had to deal; and so he did - for a long time.[61] During cross examination, he agreed that he found the "flashbacks" "most unpleasant", but he successfully blocked them out and was able to get on with his work.[62]

68 Given this account, Professor McFarlane formed the view that the plaintiff was not experiencing flashbacks in the technical/medical meaning of that word.[63] This view is shared by Professor Bryant[64] and by Dr White.[65] I am of the same opinion.

(4) and (5) Psychological distress or physiological reactivity caused by internal or external cues ("triggering events")

69 The fourth and fifth symptoms listed under Criterion B of DSM-IV - "intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event" and "physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event" - may be examined together. It is to such an examination that I now turn.

70 Professor McFarlane gave evidence that he received from Mr Burk a history of symptoms following "exposure to internal or external cues". These included trigger events which would in turn satisfy Criterion B. For example, memories of the collision would come to the plaintiff when he used the toilet. Initially, Mr Burk did not appreciate that there was here a medically relevant connection with the collision; but, given that the image of smashed porcelain formed a striking centrepiece to the plaintiff's initial impression of the disaster, Professor McFarlane thought that the link was made out. Indeed, the professor took the point further. The way in which the plaintiff recounted this information was, in the opinion of Professor McFarlane, "a very good indicator of the validity of somebody's complaint": he did not believe that this was something that the plaintiff could have easily made up.[66]

71 There is, however, a difficulty in my adopting the professor's reasoning. First, it would appear that of all the medical practitioners and other experts to whom Mr Burk recounted his history, only Professor McFarlane was favoured with this aspect of it. Secondly, the matter was, at trial, given no significant attention. Mr Burk was not asked how frequently he experienced this reaction (although of course he must have paid countless visits to the toilet since the collision) or whether he had "intense psychological distress or physiological reactivity" on any or all of those occasions. The most that Professor McFarlane's account reveals is that the plaintiff's use of the toilet triggered memories of the night of 10 February 1964. I have no doubt that, at times, it did. But Criterion B is concerned with much more than mere memories. Had that traumatic event resulted in it being persistently re-experienced with consequent intense psychological distress or physiological reactivity at each toilet stop, the effect on Mr Burk would have been profound. He could not have remained ignorant of his condition for all the years he says he was. In these circumstances I must disregard this part of the plaintiff's case as constituting a relevant "cue".

72 A second triggering event identified by Professor McFarlane was the sound of "metal on metal". An example of its effect on the plaintiff was his marked over-reaction following some relatively minor car accidents (according to the professor's note, these made him "come undone").[67] Professor McFarlane ruled out these accidents as themselves being a cause of PTSD, although, unsurprisingly, he agreed in cross examination that some sort of emotional response would be the norm in a two-car collision, whether or not a participant had been involved in the Melbourne/Voyager collision.

73 Mr Burk gave evidence about the effect of these accidents. One occurred in Queensland when the side of a taxi in which he was a passenger collided with the side of a bus. In another accident two or three years ago, while on his way to an appointment with Professor Horne, the plaintiff drove his car into the back of a vehicle at a Dandenong Road corner and the metal on metal sound caused him to "go into a bit of a meltdown"[68]. Professor Bryant agreed that breaking down and crying following a minor car accident was more than a normal distress reaction to such an incident.[69] Dr Bell also accepted that such a reaction is a possible indicator that Mr Burk does not have normal fortitude.[70]

74 The clinical judgment of Professor McFarlane was that these triggering events fulfilled this criterion. The Commonwealth by contrast submitted that, while the plaintiff might well have re-experienced the Melbourne/Voyager collision on the two occasions when he heard the metal on metal sound during the car accidents, this was hardly evidence of the persistent re-experiencing required by Criterion B. I agree. While the Court should be slow to put to one side the opinion of an expert witness of the calibre of Professor McFarlane, and while the plaintiff's reaction to the relevant cue was not inconsistent with Criterion B, nonetheless two incidents only is not for forensic purposes enough to demonstrate such persistence as is necessary to meet that criterion.

75 A third triggering event described by Professor McFarlane occurred when, in 2001, the plaintiff visited HMAS Vampire. She was, like HMAS Voyager, a Daring Class destroyer; and she now forms part of the display at the Maritime Museum in Sydney. Mr Burk told Professor McFarlane that he did not want to go on board because it triggered memories of the collision.[71] Again, Mr Burk did not give evidence about this at trial. The only other expert witness to whom he mentioned this experience was Mr Wilks, who noted in his report dated 23 May 2002 that the plaintiff told him: "I saw the [Vampire], the sister to the Voyager, in Sydney and I freaked out, had a flashback".[72]

76 Mr Titshall on behalf of the Commonwealth submitted that the true position is otherwise. In a letter written on 19 July 1964[73] by the plaintiff while on HMAS Melbourne to his fiancée (now wife), he adverts to the presence not only of HMAS Vampire but also of HMAS Vendetta. He describes these as sister ships to HMAS Voyager, but does not suggest that their presence evoked disturbing memories or associations arising from the proximity of not one but two Daring Class destroyers. On the contrary, he says that their presence in company with another destroyer, HMS Leopold, put to rest any fears about attempted sabotage. This, Mr Titshall submitted, demonstrates that Mr Burk had no difficulty in being in proximity to vessels of the class of that which HMAS Melbourne cut in half.

77 I remain reluctant to differ from the clinical judgment of Professor McFarlane. And I have little doubt that the sight of HMAS Vampire in 2001 rekindled in the plaintiff memories of the 1964 collision. Those memories on that occasion may have caused Mr Burk to "freak out", and even experience a medically relevant "flashback". Nevertheless, the aftermath of the visit to the Maritime Museum could not of itself constitute evidence of persistent but intense psychological distress or physiological reactivity; and even when coupled with the two motor accidents, the necessary threshold is not in my opinion reached. We are, after all, here concerned with a disorder. That expression, it seems to me, carries with it the notion of something that is evidenced on more than rare occasions.

78 In a similar vein is the evidence of the plaintiff's reaction to the Thredbo Ski Lodge collapse in the winter of 1997.[74] Professor McFarlane mentioned this in the context of Mr Burk's general emotional reactivity, noting that the plaintiff was particularly upset by the incident.[75] Mr Burk did speak of this to Professor Bryant, saying that the news disturbed him, although the latter could not recall who raised it first.[76] Mr Burk did not himself give evidence at trial about his reaction to the Thredbo tragedy.

79 The last point is significant. For the reasons discussed in paragraphs [37] and [38] above, there is a barrier against my use of so much of the material the subject of the above discussion as did not form part of Mr Burk's own evidence. It cannot be received as evidence of the truth of what was said by him to the medical experts.

80 My conclusions about the question whether the plaintiff satisfies Criterion B are as follows:

(a) I accept that the plaintiff thinks often about the collision. This generally, if not always, has unpleasant connotations. I also accept that Mr Burk's decision to leave Goliath Cement was due in part to having what he described as "flashbacks" on almost a daily basis, and that he could not cope. On the basis of the history given to Mr Wilks, I would have found that Mr Burk had intrusive distressing recollections of the event. But the plaintiff's use of the expression "flashbacks" did not match that of DSM-IV, and his evidence at trial often fell well short of that recounted to Mr Wilks - at trial, Mr Burk spoke of the memories being "troublesome"; he said then that he did not dwell on them, and could "block" them out.

(b) I cannot be satisfied on the balance of probabilities that the dreams constitute a re-experiencing of the collision.

(c) I find that Mr Burk has not - in the technically relevant sense of the term "flashbacks" as that term is defined in paragraphs [65] and [66] above - been a victim of that phenomenon.

(d) I am not in a position to find that the "trigger events" described by Professor McFarlane - going to the toilet, the visit to HMAS Vampire, hearing about the Thredbo Ski Lodge disaster - were, as such, established at trial. I accept that the plaintiff has had a negative reaction to the "metal on metal" sound during the motor vehicle accidents, and that this might amount to a re-experiencing of the Melbourne/Voyager collision; I am unable, however, to conclude that he had such a reaction beyond these isolated events. While I think Mr Burk may at times, but not consistently, during his post-collision time in the RAN have felt uneasy when other ships were alongside, I am not satisfied that this apprehension constitutes "re-experiencing" in the relevant sense. In these circumstances, I find that Criterion B has not been fulfilled.

Persistent avoidance and numbing of general responsiveness (Criterion C)

81 Criterion C of DSM-IV is described in the Manual as follows:

"C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:

(1) efforts to avoid thoughts, feelings, or conversations associated with the trauma;

(2) efforts to avoid activities, places, or people that arouse recollections of the trauma;

(3) inability to recall an important aspect of the trauma;

(4) markedly diminished interest or participation in significant activities;

(5) feeling of detachment or estrangement from others;

(6) restricted range of affect (eg. unable to have loving feelings);

(7) sense of foreshortened future (eg. does not expect to have a career, marriage, children, or a normal life span)."

82 In the commentary DSM-IV emphasises that, if the symptoms of avoidance and numbing of general responsiveness were present before the traumatic event, then those symptoms do not meet the criteria and may require consideration of other diagnoses.[77]

(1) Efforts to avoid thoughts, feelings or conversations associated with the trauma

83 I have already noted in paragraph [9] above the evidence of Mr Burk that an order was made that they were not to discuss the accident with anybody. As a result, he said, he did not discuss the collision with his family, his friends, his work colleagues at Goliath Cement or with any medical practitioner or other professional. In later years the topic may have been mentioned when his sons discovered newspaper cuttings about the collision and the subsequent Royal Commissions. But until 1999, the plaintiff did not discuss the circumstances of the collision wi[78] his wife.78

84 Mr Burk's belief that he was ordered not to speak about the Melbourne/Voyager disaster is not supported by the evidence of Commander Halley who, it may be recalled[79], was Damage Control and Training Officer on HMAS Melbourne at the time of the collision. Although he did not hear the announcement himself, Commander Halley was aware, having read the report provided by Captain Robertson to the Admiral, that later in the afternoon of the day following the collision, after being given directions from Canberra "on how to handle the papers", the captain "made another broadcast in which he stated that whatever he had said about the collision in the morning, they would have to be careful to avoid repeating that sort of remark to any persistent press men."[80] This did not amount to a prohibition on private conversations; and so Commander Halley denied that any order was made in relation to communication with the outside world about what occurred on the night of the collision. Such an order would have been documented; and Commander Halley would have received a copy, which he did not.[81] I accept that this was so. If Mr Burk understood that he had been ordered not to speak of the collision or its aftermath, then he was mistaken.

85 In any event, it was not the plaintiff's evidence that he avoided talking about the collision because the subject was too painful; and he did in fact have a brief discussion about it with his then fiancée. His evidence, rather, was that "we didn't really get into any detailed discussion about it at all"[82]. This therefore raises the question whether his failure to have "conversations associated with the trauma" may not be a symptom of PTSD; it may instead have been caused by a mistaken belief that the topic was subject to a Naval prohibition. Indeed, he said that his reluctance to speak about it may have been coupled with his understanding of the order given by Captain Robertson.[83] This is consistent with the evidence given by Mrs Burk, who said that when she met the plaintiff at the dock at Garden Island, the plaintiff said to her: "Don't ask me any questions because we are not going to talk about it." The next time she saw him, probably the following weekend, she asked what happened and he said: "I only think I know what happened. We are not allowed to talk about it."

86 Evidence was given by the plaintiff's elder brother, Raymond Burk, that when the brothers met at a family function about nine to twelve months after the event, and Raymond asked the plaintiff about the collision "he didn't speak much about it at all, other than to say that he was thrown about, which I took was after the jolt of the collision ...".[84] The plaintiff "would never talk about it very much" and when asked, "he just seemed to get irritable about it." Evidence given by a golfing companion, Mr Roy Fox, was that when Mr Burk spoke of his time on HMAS Melbourne, "quite often he got a little bit discomforted" by the topic and "obviously seemed a little bit touchy about it", so Mr Fox left it alone.[85]

87 Dr Burges-Watson noted that some sufferers of PTSD can become workaholics to avoid distressing thoughts about the event; it is when they have nothing to do that the intrusive recollections occur.[86] However, in my view this description does not apply to the present case. Indeed, it is entirely inconsistent with the plaintiff's position, which was that his career and employment were disrupted by PTSD. Thus, the plaintiff downplayed his involvement with greyhounds, which on one view of the evidence was very time-consuming and demanding, and made no attempt to link these activities with an attempt to avoid remembrance of things past. Moreover, the conclusion to which I have come is that Mr Burk, consistently throughout his naval as well as his post-naval career, was not obsessive about his work (as opposed to his greyhounds). Rather, he was competent, he would do as much as was needed to be done, but in general he was not inclined to do more. Like most of us, what was above and beyond the call of duty remained that way, with occasional exceptions. This was the effect of the evidence of each of Mr Wayne Campbell (a contemporary of the plaintiff's in the Weapons Ordnance section of the Fleet Air Arm, who on his resignation in 1985 had achieved the rank of Acting Lieutenant Commander) and of Mr Evol Kaine (the Paymaster at Goliath Cement).

Alcohol consumption as a means of avoidance

88 In the history which he gave to Professor McFarlane, the plaintiff recounted how, following his return to HMAS Albatross after the collision, he "would drink alcohol to assist his forgetting."[87] He would also try to "block" thoughts of the event.[88] This, according to the professor, clearly demonstrated self-medication: Mr Burk drank to "assist with the initiation of sleep" and to "make ... intrusive memories less troublesome".[89]

89 Professor Horne also recorded a history of very moderate drinking before the collision, a rapid escalation following it, and then - after the wedding in 1965 - an attempt to resume earlier patterns. The plaintiff told Professor Horne that his consumption remained moderate between 1967 and 1969, but thereafter it again increased until, by the mid 1980's, he was consuming six large bottles of beer each day. There was no evidence that his drinking interfered with his work or induced him to violence. Professor Horne concluded that the plaintiff resorted to alcohol as a means of avoiding thoughts of the collision and to reduce anxiety, and although alcohol abuse had been a "moderately disruptive influence" in Mr Burk's life, it was not a major problem. [90]

90 The evidence given at trial by Mr Burk was not entirely consistent with the history recorded by Professors McFarlane or Horne. He did in this context refer to a voyage which, as part of the Fleet Air arm, he took on HMAS Melbourne in May 1964 - that vessel's first return to sea following the collision. He now says that, with hindsight, he recognises what until recently was obscure: that he drank excessively at times during that voyage in order to shed the memories of that awful February night some months before, and to unwind when he went ashore.[91]

91 In response to this, Mr Titshall pointed to two letters written by the plaintiff to his then fiancée, one which preceded and one which followed the collision. These, he submitted, showed that Mr Burk was no less capable of enjoying his free time after the collision than he was before. In the first letter, written in about June 1961, Mr Burk refers to failing an exam because it was held the day after the squadron party and he "could hardly remember my name, let alone what makes an aeroplane tick."[92] Then, in a letter dated 10 July 1964, the plaintiff gives an account of getting drunk when he went ashore; he wrote that "it's been so long since I have had a bad HO had almost forgotten what they be like."[93] This, Mr Titshall submitted, was not consistent with a pattern of heavy drinking immediately following the collision. It, in common with the incident of June 1961, was (it was submitted) consistent with a night's relaxation ashore - either during a period of exams or during the course of a period of arduous service abroad. I agree with this analysis.

92 In this context, I have regard to evidence given by (the former Acting Lieutenant Commander) Wayne Campbell. He also spent time with the plaintiff, not only when stationed at HMAS Albatross, but also at sea in 4 Charlie mess on HMAS Melbourne. He did not observe any change in the plaintiff's drinking habits after the collision: Mr Burk enjoyed a drink; but neither before nor after February 1964 was he an exceptional drinker. Nor was there anything unusual about drinking to excess on the first night ashore after being at sea.[94]

93 Mr Burk also gave evidence that when stationed at HMAS Albatross he did not get badly drunk, although there were "many occasions" when he "would have had more than I would have wanted to have had".[95] Shortly before he left the RAN, when he was working at the Chief's Mess, he might have "a couple of drinks" during working hours, but he denied ever being seriously affected by alcohol during the course of duty while in the RAN. He said that between 1968 and 1985 he used to drink at night to help him get to sleep. [96] But he did not give any evidence that he drank in order to forget about the collision or to avoid intrusive memories. Indeed, apart from the references to unwinding when he went ashore, and references to getting to sleep, Mr Burk proffered no explanation for his drinking; he merely stated that, at times, he drank more than he should, while adding that during the voyage which began in May 1964 he drank more when in port than he had when previously on a tour of duty abroad.[97]

94 According to the Commonwealth, a proper analysis of the evidence shows that any increase in the plaintiff's drinking occurred not immediately following, but a number of years after, the collision. Indeed, there was nothing abnormal about the plaintiff's consumption of alcohol between 1965 and 1980. Problems only arose towards the end of this period, and then principally because of the plaintiff's irrational jealousy, rather than as a result of drunkenness. Nor (the submission continues) does the evidence support a finding of relevant (that is, PTSD-induced) alcoholic self-medication in the period after the collision: the relevant symptoms - intrusive thoughts and nightmares - did not occur until after the plaintiff left the RAN.

95 I agree with this submission. It is consistent with Mrs Burk's evidence that, while she was aware that her husband occasionally drank after work at the base at Nowra, she did not see anything abnormal in it. He did not, in those years, drink at home. After they moved to Tasmania, he might have had a bottle (or two or three) of beer; but Mrs Burk, who generally was a non-drinker herself, did not regard this as excessive.[98] She agreed in cross examination that the plaintiff's drinking and its effects on him started to become more noticeable in the latter years of his time at Goliath Cement,[99] although Mr Kaine, the company's paymaster, said that he did not ever observe Mr Burk arriving at work affected by alcohol or hung over.[100]

96 Ms Angela Shone, with whom the plaintiff had an affair and subsequently a de facto relationship, said that in the period from 1990 to 1994, when she knew the plaintiff, he was no more than a social drinker - "he never went overboard; only probably once, when the dog won the big race at Devonport, he had a few too many. But he was just tipsy ...".[101] The plaintiff himself, in cross examination, agreed that during his active involvement with greyhound racing he spent a considerable amount of time driving to and from race meetings; and so he took a responsible approach, drinking light beer.[102]

(2) Efforts to avoid activities, places or people that arouse recollections of the trauma

97 Mr Burk, when asked by Professor Bryant whether there were things that he did or tried to avoid or stay away from that would distress him because of associations with the collision, denied any avoidance behaviours.[103] On the other hand, he told Professor McFarlane that when he returned to sea after the collision - first on HMAS Melbourne in May 1964 and then on HMAS Sydney in 1967 - he hated to stay below decks. If it came to a choice, he preferred being exposed to the weather. He also spoke of being anxious when other ships manoeuvred alongside - as they did during "jackstay" transfers (when a line would be rigged up between the ships to transfer personnel or mail). Indeed, during cross examination he gave an answer which suggested that "anxious" was not the right description of his emotional state on those occasions. He was "shit-scared" - although he did not admit this to his shipmates.[104]

98 Even today, the plaintiff dislikes lifts or confined spaces, and travels from Tasmania to the mainland on the ferry, Spirit of Tasmania, only if and when he needs to bring his vehicle with him. His anxiety about being below means that, when on the ferry, he spends most of the night walking the decks.

99 I have already mentioned the plaintiff's history of avoiding visiting HMAS Vampire at the Maritime Museum.[105] Despite this history, Professor McFarlane did not think that Mr Burk demonstrated behavioural avoidance to a level that was sufficient to satisfy Criterion C(2).[106]

100 At trial, Mr Burk gave evidence that following the collision he returned to HMAS Albatross at Nowra where he resumed normal duties. He did not think there was any difference in his daily or nightly activities or in the way he felt compared to the situation before the collision.[107] When on 11 May 1964, again initially as part of a small advance party located in the mess at 4 Charlie, the plaintiff returned to HMAS Melbourne before it embarked on a three month tour, he was not conscious of any innate reluctance or apprehension. However, during the trip between Sydney and Jervis Bay he recalls being "extremely frightened".[108] It was a rough night; and the mess, which usually accommodated over one hundred men, included only the four or five members of the advance party. The plaintiff worried that "the bows would fall off". He spent a largely sleepless night, listening to the chains rattling from the empty bunks as the ship rolled and plunged through the heavy seas. He was, he said, sea sick for the first time. Even when crossing from Sydney to New Zealand in 1961, the roughest time he had previously experienced at sea, he had never suffered from such problems as he did that night. And he was not alone. He recalled another man in the next mess who spent the whole night, fully dressed and with his bag packed, sitting on the edge of his bunk.

101 The contents of a letter written by the plaintiff to his then fiancée postmarked 14 May 1964[109] are consistent with the evidence he gave at trial:

"Today we arrived in that all familiar bay of the south coast old Jervis. The trip down can only be described as a nightmare. I can quite truthfully tell you darling that from 10pm last night - 6am this morning the longest stretch of sleep for me was 10 minutes. During that period 10-6 I lay in my bed absolutely terrified. I say that with full meaning and no sense of shame. The sea was very rough and the old barge just lumbered along emitting sickening groans and almighty thumps as she tiredly plunged from one wave to another. To make things worse try and imagine the noise coming from 140 empty bunks as they clang and the chains rattled with each and every sickening lurch. I did not think she was going to see the night out. As I found out this morning every man on board felt the same. Some had even gone to the extremes of getting dressed and sat waiting. I think the worst moment came at around 3 minutes past 12 midnight. That was the grand daddy of them all. It was truly a relieved crew which anchored in J B at midday today. Was quite sea sick this morning but am alright now. I think perhaps a reaction to the night. So darling I ask you not to worry as after last night she proved to me that she can and will stay afloat. Even if she shakes one a little doing so."

102 When this passage was put to Dr Bell (who, it will be remembered, was a psychiatrist called by the defendant) he expressed the opinion that it sounded "like the ordinary experience of a person in that situation" rather than being connected to the collision.[110] Professor Bryant also gave evidence that:

"... what we normally see, after trauma, in people with PTSD, is in the initial re-experience, if you like, of that environment, there is anxiety and distress, and symptoms of them, as such. But then they will subside as the person rapidly learns that these things are 'no longer going to hurt me', or in this case the Melbourne is not going to sink."[111]

103 The defendant submits I should accept the evidence of Dr Bell, and that, after the difficulties of the journey to Jervis Bay, the plaintiff settled down to life at sea during the next few months of 1964. This was a period that saw HMAS Melbourne in the tropics. It accepts that he showed signs of despondency from time to time, but Mr Titshall asked me to find that this was due to homesickness; in particular, the plaintiff was simply missing his fiancée.

104 Mr Little submits that this analysis is far too simplistic. An accurate description of Mr Burk's then psychological state, and an accurate explanation for it, involves much more, he submits, than the defendant allows. For one thing, the Jervis Bay episode was more than a mere case of seasickness; Mr Burk was clearly demonstrating fear at returning to HMAS Melbourne.

105 While the evidence does not support the latter proposition, I accept that he experienced both fear and seasickness during the initial journey to Jervis Bay. This does appear to have induced a recurrence of an intensely frightening experience, doubtless made worse by the misery of seasickness. At the same time, I note that Mr Burk was not alone in feeling apprehensive; and that he agreed that seasickness did not trouble him again during that voyage.[112]

106 Mr Burk gave evidence that, during the remainder of the 1964 voyage to the tropics, he spent whatever time he could, including periods set aside for sleep, in the open, where he could see what was going on. He went below decks only when he had to; and as far as possible he likewise avoided 4 Charlie mess. He was fearful of another collision. At times, he felt very depressed. He also felt apprehensive whenever, for example during procedures such as "jackstay" transfers or when fuel was being transferred to or from the flagship, other vessels were in close proximity. Before the collision, he enjoyed watching these procedures.

107 It was submitted on behalf of the Commonwealth that the plaintiff in his evidence gave an exaggerated account of his 1964 tour of duty. It was the heat, not anxiety about being below decks or having vessels alongside, that provided the true explanation for Mr Burk's behaviour on the voyage in question. Mr Titsall pointed out that Mr Campbell had, in his evidence, said that, there being no climate control below decks, in tropical weather everyone who could slept on either the weather deck or the flight deck. He described it as being like "miners' rights": if you claimed a spot when you first came on the ship, you kept it.[113] The plaintiff did not in the course of his evidence say whether or not, before the collision, he slept on deck when the nights were hot.

108 In support of its denial that Mr Burk sought to avoid activities, places or people that aroused recollections of 14 February 1964, the Commonwealth pointed to several letters written by the plaintiff. The first of these was addressed to his then fiancée and later wife, Elaine ("Rossie") Thompson, on 10 July 1964.[114] Given that each party claims to derive support from it, I will set out the relevant portions at length:

"Tomorrow we arrive at our second port of call, Subic Bay. It seems that we have been at sea for such a long time and it is quite apparent that the majority of the crew will be going ashore to sample the delights of American hospitality. Excluding myself, primarily as Hong Kong is only four days away and also at the moment have neither inclination or interest for anywhere but Sydney.

"On leaving Sydney Rossie I didn't really know what my reactions would be to this trip, especially as I had enjoyed my first trip north so much, when I had even enjoyed life at sea, heat and all discomforts associated with the ship. This time every day as it comes and goes is nothing, something which has come and gone leaving no interest, excitement or even inclination. I cannot ever remember feeling so flat. So Rossie please bear with these lifeless letters of mine. I'm sure you can understand, I guess you know your self, how difficult it is for one to curb these fits of depression at times like this. This week since leaving Manus the delayed action [sic] misery has caught up with me, morale has sunk to its lowest possible depth. I am plumb damned miserable.

"Darling it is now Tuesday and worked myself up into such a state just could not carry on. However have succeeded in casting my miseries aside and am now almost my former self. Receiving your three letters was possibly the greatest boost of my life. For me now, your letters my darling are the food of my life. One lives from letter to letter. Yesterday I changed my mind and stepped ashore with Punchy. We had a bender, so full of booze it was running from our ears. I feel much better for it apart from the terrors of the hangover. It's been so long since I have had a bad HO had almost forgotten what they be [sic] like. We went to a service club called the 'Sky Club' which is sited on the very top of a huge hill over looking Subic Bay. What a glorious view. The club itself was really something. These 'Yanks' sure know how to live. As can be imagined this was one great boat load of heavy heads and short tempers this morning. We were up at 5.30 and sailed an hour later. It's great to be moving again and another day off the calendar.

...

"I too am physically well but have a terrible longing in my heart for one Miss Thompson. I can assure you my darling I am eagerly looking forward to your vigorous welcome.

"Shall retire now to my diabolical stretcher and my wondrous dreams[,] dreams of you my darling."

Mr Burk gave evidence that when he said he was "plumb damned miserable" he meant it. He also accepted that at other times he was "as good as gold".[115]

109 The second letter was written from Hong Kong on or about 12 July 1964. In it, the plaintiff said:

"I have never known such tiring, energy sapping stinking heat. Below decks on the ship with hardly a breath of [word obscured] one feels rather like a rabbit steam cooked in a pressure cooker. I have had enough. I think it well and truly time for me to come home. At the moment would give my left arm for a freezing cold day, log fire, a nice grilled rump steak and a decent cup of tea. I think with those few simple things and the joy of your company to share them I think I would be very much happier."[116]

110 One can relate to the sentiments to which Mr Burk in this passage gave eloquent expression. But they are not, certainly not necessarily, the sentiments of one whose discomfiture arises out of his inability to avoid stimuli associated with a collision which occurred, five months before, in the balmy stillness of a summer evening off the coast of south-eastern Australia. The same can be said, it seems to me, of the next of the passages upon which the Commonwealth relies. It is relevant to Mr Burk's evidence that after the collision he experienced anxiety for his safety when other vessels came alongside.[117] It is to be found in a letter written by Mr Burk to his wife on 19 May 1967 while on HMAS Sydney:

"This morning 'Stuart' came alongside for fuel, she is one of the newer type 12 anti sub frigates. They are quite handsome little ships. Stuart obviously is well cared for and she looked really smart this morning. Wouldn't mind spending a day or two at sea on her, just to get the feel of a little ... [sic]."[118]

Mr Burk was there, as he accepted, expressing interest in, indeed fascination for, another naval vessel; there is no hint of discomfort or fear at its close proximity. He also conceded that "different parts of the life, I was enjoying."[119] This is consistent with the plaintiff's response, described in a letter dated 19 July 1964, to a rendezvous at sea between HMAS Melbourne, HMAS Vendetta and HMAS Vampire, sister ships of HMAS Voyager. I referred in paragraph [76] above to the failure of Mr Burk in that letter to mention that the rendezvous troubled him in any way. Professor McFarlane agreed that if he had been given a history which included these accounts, the picture would not have been of a plaintiff who was anxious [120] fearful.120

111 The plaintiff did not when giving his evidence at trial describe being anxious in lifts. By contrast, he did say that claustrophobia takes the enjoyment out of, although it does not preclude, travel by air.[121] Thus, he agreed in cross examination that, when he performed duties at HMAS Albatross and HMAS Cerberus as part of his service in the RAN Fleet Reserve and the RAN Emergency Reserve after 1967, he was flown from and to Tasmania.[122] He has also flown interstate to Melbourne, Sydney, Adelaide and to Queensland. But he repeated that it gave him no pleasure.[123]

(3) Inability to recall an important aspect of the trauma

112 Professor McFarlane believed that the plaintiff's patchy memory of the events on the night of the collision indicated a diagnosis of psychogenic amnesia. Mr Burk's condition, according to the professor, involved more than merely forgetting some portion of an event that occurred over forty years ago. He was particularly struck by the contrast between the plaintiff's vivid recollection of some, and the absence of any memory of other, aspects of the collision and its aftermath; he thought there was a qualitative difference about Mr Burk's account that he had not seen in any other victim of the collision.[124]

113 Professor Bryant expressed a different view. In his opinion, the plaintiff's memory had operated as memory normally does. Some things are simply forgotten, while others are recalled. He described his position in the following words:

"... forgetting is a normal psychological reaction, and it is very common during trauma that people will selectively encode certain things. Now, in hindsight, I would suggest that the moment of the collision, what I did at that moment, where I was, where I went, the sights that I saw, they would be central events that I would encode and I would retain. Other things that went on subsequently would be peripheral memories that tend not to get encoded under conditions of high stress, because they are not primary. And that is actually the norm in trauma. We know that - even with people who don't develop PTSD. So to call that psychogenic amnesia, I think, is wrong. And let me say that there have been some recent reviews in the literature that have particularly highlighted this point, that people are overly diagnosing amnesia in cases of trauma when, really, all that has happened is people haven't encoded things, or have just forgotten things, which is normal in that trauma."[125]

He went on to note that in his experience of trauma-induced amnesia, patients tend not to remember that part of the event that is most threatening or distressing to them; they are unable to retrieve memories even after they have been encoded. This is consistent with the striking example, recounted by Professor McFarlane, concerning the starboard lookout on HMAS Melbourne at the time of the collision. The lookout was able to give the Royal Commission a detailed account of the incident; yet, when he came to repeat that evidence at the hearing of his own claim for damages, he could not recall a thing. Professor McFarlane put this forward as a good example of how stress can disrupt the memory.[126]

114 Mr Little pointed to what he described as evidence of significant gaps in Mr Burk's memory after he reached his emergency station. Indeed, he retained merely a vague memory of taking blankets and hot chocolate to survivors. In Mr Little's submission, it was astonishing that Mr Burk could not recall the return trip to Sydney; this gap in his memory could only be due to some damage to his psyche.

115 While I have great respect for Professor McFarlane, on this aspect of the case I prefer the opinion of Professor Bryant because it seems to me that the plaintiff's evidence at trial disclosed patterns of recall which were consistent with it. Mr Burk could remember where he was and what he was doing at the moment of collision and what he saw, heard and felt; he could remember seeing part of HMAS Voyager from the weather deck and, again, could bring to mind the sounds of the disaster; he could remember parts of the rescue operation - the lights, the helicopters, the men jumping into life rafts, the victims being brought aboard, taking them blankets and hot chocolate; he had some memories of the return trip to Sydney - being off Wollongong, attempting to speak to Rod Layfield, the announcements made by the captain, being afraid the ship might sink. Those portions he cannot recall were not, it seems to me, of great importance. He has no memory of his arrival at his emergency station, or of how he spent his time on the return trip the following day; but this is neither surprising nor significant.

116 I do not accept that Mr Burk has suffered psychogenic amnesia. It is also my opinion that he does not satisfy Criterion C(3).

(4) Markedly diminished interest or participation in significant activities

117 In the history given by the plaintiff to Mr Wilks, Mr Burk referred to a lack of interest, commencing in late 1964 and persisting until 1967, in the activities he formerly enjoyed. By 1985, he experienced "a total lack of motivation". After he left Goliath Cement, this symptom - together with others - continued; but its intensity lessened as the years passed. When on 6 March 1999 Mr Burk spoke to Mr Wilks, the former felt "washed up ... I don't have any ambitions at all ... I just live day to day."[127] He also reported low libido and lack of interest in activities. He did not mention any past or present interest in greyhounds. Three years later, in May 2000, the plaintiff's position was unchanged: "I lost interest a long time ago ... [and] till now (but) I try to get going".[128] He mentioned that he had kept one greyhound "that being all that is left of a former interest in greyhound racing, in which he was active from the late 1970's to mid 1990's". Overall, he said, he could "just get by daily'".[129] Then in February 2005 Mr Burk told Mr Wilks: "I don't care about anything ... the only thing that keeps me going is a bit of golf."[130] He continued to report a low libido and feeling constantly tired. He had had no involvement in greyhound racing or training since 2000.

118 Professor McFarlane used the expression "emotional numbing" to describe the state in which a person does not "have the same depth of emotional reactivity in a whole variety of circumstances that they would normally expect. So ... life becomes a timeless grey sea ... . Rather than having the normal ups and downs of love, excitement, hatred, fear, it is more being emotionally shut down and unresponsive."[131] He gave evidence that the plaintiff told him that: "He felt 'virtually moribund, totally disinterested, couldn't give a rat's arse about anything'". He agreed in cross examination that if he had been given a history that, having reached his 60's, the plaintiff was "getting on okay with my wife, my kids; I have got a particular interest in a particular sport, [golf], and I play that with my mates", he would not have diagnosed "numbing". [132]

119 Professor Horne said that he thought the plaintiff "has a core stable personality which is actually an asset, and that he didn't have psychic numbing...".[133]

120 The plaintiff gave evidence that following the collision his pleasure in being at sea declined. In 1961, once he got his sea legs, he loved his first sea-going experience: being on the flagship of the Australian Navy, with its complement of jet fighters, was "a dream come true". He continued:

"I mean I couldn't wait to get back to sea again. It was the best time of my life, and I have said that on numerous occasions. I had a wonderful time and I enjoyed every day, and probably every minute of every day, either at sea or ashore, because I was going ashore and seeing places that I had only seen in picture books."[134]

121 By contrast, Mr Burk was, on his account of things, often miserable and depressed during his second voyage on HMAS Melbourne. This, it will be remembered, began in May 1964. Although he had looked forward to going back to sea and "felt okay" about returning to the flagship, the initial trip to Jervis Bay, as described in the letter of 14 May 1964,[135] was traumatic. Then, as the ship travelled from Jervis Bay to Brisbane, the plaintiff "thought he was okay"; but when they began exercises with other ships alongside he started to feel anxious. During cross examination, Mr Burk agreed that despite this anxiety, "at various times" he still enjoyed being at sea.[136] I was referred during the course of his evidence to passages from the letter, written on 10 July 1964 by the plaintiff to his then fiancée, which I have set out at length in paragraph [108] above. The plaintiff said these passages showed that he was unhappy being back at sea. When it was put to him in cross examination that, rather, they demonstrated a wish to rejoin Miss Thompson, Mr Burk replied:

"... as I said, I had periods of despondency. There was parts of the trip I thoroughly enjoyed, as I have said, and parts where I was understandably missing my ... relationship ... with Elaine."[137]

122 In this context, I note that in a letter dated 17 July 1964 the plaintiff urges his fiancée to overcome her misery at their separation and focus on her imminent exams.[138] Although it is clear that he is despondent, I also find that it is he who is encouraging and supporting her; the letter does not read like that of someone struggling with the after-effects of a trauma, but rather as that of a young man in love with someone far away. It was submitted on behalf of the plaintiff that the letters "speak volumes for the fact that there was a dramatic change in his attitude to and enjoyment of life in the navy post-collision."[139] I agree that in the later letters, particularly those written in 1967, Mr Burk shows a change in attitude towards his time at sea: he is often disparaging of his shipmates, of the food, and of the facilities; he speaks of his boredom; he complains about the heat; and he frequently laments his absence from his wife and child. But I do not accept that this is the manifestation of PTSD. Rather, I think it to represent the musings of a man for whom the glamour and excitement of being at sea has abated, especially given his commitments to his new wife and child.

123 Mr Little submitted that the plaintiff's decline in interest in the RAN is reflected in Mr Campbell's evidence about Mr Burk's lack of motivation during the May 1964 trip. Mr Campbell said that the plaintiff would participate when there was a team effort required, but otherwise he did not tend to join in. Consistently with this, he did not (for example) volunteer for extra duties. However, Mr Campbell's evidence was that he formed the view soon after he first met Mr Burk in 1959 that the latter "had to be motivated a lot".[140] He recalled having to speak to the plaintiff a couple of times about him not taking his turn to "do the pre-flights" when on watch. Despite this, Mr Burk did not alter his behaviour. Mr Campbell also observed that the Petty Officers "had to get him off his backside" when work had to be done. Mr Burk's behaviour had not altered during the trip on HMAS Melbourne in May 1964.[141]

124 Mrs Burk described the plaintiff at the time of the birth of their first son in 1966 in the following terms:

"I would say that he was pleased that [I was] pregnant. He was delighted that the baby was a boy. He was particularly chuffed that the baby looked like he did. He seemed to me to be your normal brand-new father."[142]

125 Mr Burk said that his unhappiness and uneasiness arose again when he returned to sea in 1967 aboard HMAS Sydney. His wife confirmed that he told her that he did not want to go: he worried that the ship would sink, he felt seasick, and he disliked sleeping in confined spaces. She agreed in cross examination that her husband would not have been alone in not wanting to go to Vietnam in 1967.[143] When his initial nine year period of service was due to expire towards the end of September 1967, Mr Burk decided that he "could not cope with being at sea".[144] During cross examination, however, the following passage from a letter written by him to his wife in April 1967[145] was put to him:

"It's really quite an amusing life on board at the moment. Imagine some 500 Army bods stumbling around the ship banging their heads on the low deck heads and their shins on dwarf bulkheads and Hey mate! Where's the nearest TOOT! ... Had a pleasant surprise. Yesterday a corporal came up to me and asked was I the chap they called snapper. It appears he played footy against me in '62 not a bad memory eh. He reckons he remembers me because he spent the whole game trying to catch me - thought I was pretty fast ...

"... You can take it for definite I will be getting out in September. It didn't take me long away from you and Warwick [the plaintiff's eldest son] to realise that I could never be happy separated regularly for lengths of time. I'm just not made that way - too sentimental I guess."[146]

The plaintiff agreed that he did have some amusing times on board. He also conceded that the letter expressed how he felt about leaving the RAN at that time.

126 When asked whether her husband ever expressed interest in his job with the RAN, Mrs Burk gave evidence that the plaintiff:

"was very interested in aircraft, he will say, and he was also able to look up and say 'That is such-and-such a plane' or 'That is a such-and-such helicopter' and 'We did this' and 'We did that' and, you know, 'The ejection seats are not this and that on that aircraft', or whatever ..."[147]

127 The plaintiff himself acknowledged that he took "a great deal of interest" in the Royal Commissions into the collision.[148] This included keeping relevant newspaper cuttings. Mrs Burk confirmed this interest, and added that her husband was particularly angry when the first of the Commissions attributed a major share of responsibility not to HMAS Voyager, but to the then captain of HMAS Melbourne, Captain Robertson.[149]

128 After leaving the RAN the plaintiff returned with his family to his hometown of Railton in Tasmania. There he obtained a position with Goliath Cement, the major business in the town. Initially, he began as a storeman. Then, with the assistance of an old school teacher who worked in the office, he moved to the paymaster's office, where he worked as a clerk for a number of years. Over the next 18 years Mr Burk remained in that office, gradually moving through the ranks to that of Assistant Paymaster. There were times when he wondered whether he had been right to leave the RAN; he felt he had lost a career, and instead ended up with a job which was mundane and unexciting - "it certainly didn't have the excitement that Navy life had."[150] Mrs Burk said she did not know that her husband was unhappy with his job as such, but she did think he did not enjoy being "cooped up" in an office all day; and she gathered from the stories he told her that he particularly disliked having to seek out and then chase up debtors.[151] Although she was reluctant to ascribe the plaintiff's irritability and anger to the additional responsibilities that were a concomitant of promotion, she said that they seemed to be the result of a combination of his dissatisfaction with work and "things at home ... building up, the pressure and anxiety."[152]

129 Mrs Burk said that they did not have family holidays, save for one occasion which was "an unmitigated disaster". They had arranged to let a self-contained unit in Nubeena, near Port Arthur, which was close to a tennis court, swimming pool and golf course. They were all looking forward to it. But the plaintiff hurt himself the day after they arrived and then spent the next ten days sitting in a chair unable to walk, "feeling very grumpy". They never repeated the exercise.[153]

130 Evidence was given by Mr Leon O'Donnell, who was in the RAN for 61/2 years and achieved the rank of Leading Airman in the Fleet Air Arm. He knew the plaintiff when the latter was a member of his mess in about 1960. He recalls Mr Burk as being "an effervescent, likeable, enthusiastic, well-presented young guy with ... a great future ... not only in the Navy, but a great future full stop." The plaintiff had "plenty of commonsense" and "was an enthusiastic, honest guy who applied himself to both his Navy job and also socially. He was a good social member."[154] However, he said he was "staggered" by the change in Mr Burk's personality and social attitude when he met him again about eight years' ago after inviting him to join the Tasmanian branch of the Fleet Air Arm Association:

"... he had gone from being a vibrant, bouncy social sort of person - he attended a couple of our Fleet Air Arm meetings, where there is probably a mixed group of 30, 40 people, and he obviously couldn't cope. He couldn't fit in. He was obviously sort of morose and anti-social, I would say, and after attending a couple of meetings he has not been able to attend meetings of the Fleet Air Arm Association."[155]

Mrs Burk said that she attended a few meetings with her husband and found them boring. She said the plaintiff did not enjoy talking about ex-Navy business and went to less than half a dozen meetings.[156]

Interest in sport

131 It is clear that, as a youth, the plaintiff's interest in sport was real, if not passionate. I accept that this interest has since narrowed; Mr Burk maintained in his evidence that this should be attributed to the effects of the collision. At school he had been "sports mad",[157] playing cricket, football and tennis. He continued this interest after he left school and while he worked first as an apprentice butcher and then for about twelve months at Goliath Cement before joining the RAN. In his early days with the RAN he played three or four games of football in between stints at sea and other recruit training. In the period 1962 until January 1964, after his return to HMAS Albatross from his first overseas tour of duty, he was active in inter-service athletics, particularly in sprinting. He also regularly played in the Navy football team against the Army and against the Police, as well as in interdepartmental competitions; indeed, his football included playing five or six games of Australian Rules for South Sydney; as he recollected, this was in 1963.[158] During this time Mr O'Donnell, who was a team mate at South Sydney, remembered that Mr Burk was a very good sprinter and athlete, whom he coached in the HMAS Albatross Australian Rules Football team where he was "a very competent winger and a very neat footballer and ... a team player ..."[159] According to Mr O'Donnell, the South Sydney experience occurred at the beginning of season 1964.[160] He did not discern any change in Mr Burk's attitude towards the sport at this time.[161] Mr Little invited me to find that this was because this contact predated Mr Burk's return to HMAS Melbourne in May 1964, when, according to Mr Little, the onset of serious symptoms began.

132 South Sydney was in 1964 one of the leading Australian Rules football clubs in that part of the world. Doubtless the standard reflected the fact that in those days foreign codes dominated sporting life in Sydney even more than they do today; but Mr Burk is justified in his pride at playing at the level he did. The significant point for present purposes is, as I find, that he reached that level following the Voyager incident.

133 After 1964 the plaintiff said he "sort of didn't do any more athletics ... or play much sport at all" save for golf, which he generally played alone.[162] Mr Burk cannot recall playing any sport in 1966 or 1967, other than golf and perhaps one or two cricket matches as a fill in, because he was "too busy trying to get our house organised."[163] There was some tennis in the late 1980's, after he left the RAN and returned to Railton. He would watch the local football team. Mrs Burk recalled that for a short time he played with the Mersey Valley Cricket Club - "no more than a dozen" games - and once or twice a year he would play cricket with a social team at Goliath Cement - the "top office" playing the "bottom office". He seemed to enjoy these matches. Mrs Burk thought he did not keep it up because "he couldn't be bothered".[164] Evidence was given by Ms Shone that in 1992 she went to football matches with Mr Burk.[165]

134 There is an important indicator that Mr Burk's capacity for committed participation in certain aspects of his life remains vibrant. It is his interest in golf. That sport became a regular pastime for him after his involvement with greyhounds declined and, as a consequence, he had more time for other pursuits. When at Goliath Cement, he would play a social game once or twice a year. Mrs Burk said that her husband played golf infrequently at this time, as also in the period between his departure from Goliath Cement and 1997; he was then heavily involved in greyhound racing, and therefore did not have the time to spend on golf.[166] On 27 August 1999, he told Professor Horne that he only played "the occasional game of golf with a veterans group"[167]. Be that as it may, he now he plays twice, and sometimes three times, a week. His handicap has ranged from 24 to as low as 13.[168] He joined the Thurlston Golf Club about nine years' ago, and then transferred some six years' ago to the Port Sorrell Golf Club. He gave evidence that he finds it very relaxing - "the world gets off my shoulders and I am a human being again"[169] and conceded that it is "a significant part of my life"[170]. One of his fellow golfers, Mr Roy Fox, gave the following evidence of Mr Burk's approach:

"He seemed to be a little bit obsessed with perfection in the game, which is a little bit out of reach for the average club golfer; but he always seemed to want to do, to perform better than he actually could, and when he didn't perform better I had seen him get rather annoyed, being unreasonable about it too."[171]

135 Mr Burk is hardly alone in finding both great pleasure and great frustration in golf. Nor is he alone in his willingness to make sacrifices in his pursuit of golfing excellence. He now has to take anti-inflammatory drugs for his back so that he can continue to play; indeed, back soreness in 2001 compelled him to give up golf for some time[172].

136 It is not clear that Mr Burk enjoys the nineteenth hole with quite the exuberance of some of his fellow golfers. I am satisfied that a natural reserve inhibits unrestricted communion with his colleagues, and enjoyment of their company. At the same time, he is not adverse to a few drinks with other club members after the game. On the course, his cup occasionally overflows with the ecstasy of an unusually triumphal shot. Two surveillance video tapes were tendered on behalf of the Commonwealth: one was taken on 10 April 2002 at the Thurlston Golf Club[173] and the other at Port Sorrell Golf Club on 22 June that year[174]. The second tape shows the plaintiff exhibiting considerable excitement at finding the hole from a bunker. He celebrates by spontaneously breaking into what has been described as a "chainsaw" manoeuvre - and thereby demonstrates that he is capable of experiencing not only the despair but also the triumph that is an inherent part of sport.

Involvement with greyhounds

137 Another area of significant activity relevant to this criterion is the plaintiff's involvement with greyhound breeding and training. The Commonwealth submits that neither in his own evidence at trial nor in interviews with the expert witnesses has Mr Burk been entirely forthcoming about the nature and extent of his involvement with greyhounds. The evidence, it was submitted, demonstrates that Mr Burk approached greyhound racing in a dedicated, professional manner that belied his history of having little or no interest in activities and of being largely isolated and anti-social.

138 The history taken from the plaintiff by Professor Horne led him to express the view that Mr Burk's involvement with greyhounds was "not very stressful" and was simply something to do - "almost his own diversional therapy". According to Professor Horne, it was not a career; nor did it require the plaintiff to put "himself up to be judged."[175] By contrast, the Commonwealth submitted, the evidence given by both the plaintiff and others at trial suggested that, even if it started as a mere hobby, his involvement with greyhounds became all-encompassing and the principal reflection of his anxiety and symptoms.

139 Mr Burk gave evidence that his interest in greyhounds commenced in 1972. He had always loved dogs, he said; and this love was further stimulated when, after seeking advice from his GP about gaining weight, he was told:

"'The best thing you can do, Mr Burk, is get out and walk a dog, and make sure you get some exercise'. I thought that was a good idea, so I thought, well, if I am going to walk a dog I might as well walk a greyhound dog. I didn't mind having a bet, and I thought that might be a, something to take my mind off other things and give me a, a bit of an interest. So I bought a greyhound, well, I didn't buy one, I leased one actually."[176]

140 The plaintiff became registered as an owner of greyhounds and started to enter races in Tasmania, about twice a week. He said he "found it stimulating at the time". By 1982, the plaintiff's wife and three sons were also actively involved; the plaintiff confessed that he "put undue demands on the kids to help me at different times" [177]. Exercising and training the dogs was demanding because it required two people, one to let the dog go for a run and the other to catch it at the other end. Mrs Burk, who is not a lover of greyhounds but is a loyal supporter of her husband, was never very happy about his, or more especially her or the family's, involvement with them. She said that, nevertheless, between 1980 and 1985 "it was all hands to the pumps"[178]; she and the boys were expected to help with the whelping, rearing, training and racing. Their upkeep was funded from her salary as a nurse after the plaintiff left Goliath Cement in 1985, although, at times, prize money made a contribution. Mr Burk told Mr Wilks that when he left Goliath Cement, his interest in greyhounds was "minor" and that he had two 4 1/2 year old bitches and perhaps some pups.[179] At trial the plaintiff said that for the first few years after he left Goliath Cement he "didn't do much at all" with the greyhounds, but from 1987 onwards "I got more and more involved, and bred a lot more dogs and raced a lot more dogs". In cross examination, he agreed that between the early 1970s and the late 1990s greyhounds kept him "pretty busy"[180].

141 The plaintiff said he built his first run for his dogs in about 1976 and continued to add to it over the next ten years. He described these runs as "fairly Gerry-built yards"[181]. At its peak, it appears the plaintiff had four or five 30 metre runs and three or four open paddocks surrounded by wire fences. By the late 1980s or early 1990s he had about fifteen kennels for the pups he bred and then sold or traded for meat and bones. He named the complex "Blackwood Park". He raced greyhounds for himself as well as in partnership with his sons, his wife and some friends. He thought he was a successful owner of greyhounds, but said he trained dogs mainly for his own use. He denied being paid to train greyhounds for others. He stopped training in about 1994 although he still owned some.[182] Mrs Burk confirmed that in addition to holding a licence to train their own dogs, she and her husband for a long time held a licence to train dogs owned by a syndicate.[183] The plaintiff was a member of the Devonport Greyhound Racing Club, a member of its committee for eight or nine years and the Treasurer for "several years". He said that he was "concerned about the welfare of the Club". [184]

142 A resume prepared by Mr Burk in about 1997 with the assistance of a CES employee described this period in the following terms:

"1985-1995 Self employed. Successfully ran my own rearing, racing and breeding Greyhound Complex. Learned self reliance & the ability to take risks and value judgement in a high risk environment."[185]

Mr Burk said that he allowed himself some licence in this description. It seems to me, however, to be essentially true.

143 Ms Shone gave evidence that before she met the plaintiff in 1990 she had heard her then husband speak of the great bloodline in the Blackwood Oscar dogs bred by Mr Burk. He had an Australia-wide reputation as a very good, professional trainer. He "was well known for winning a lot of races" and as a breeder of greyhounds.[186] When she visited Mr Burk and saw his facilities at Tarleton she said she was very impressed - "it was first class" [187]. She was able to compare it with that operated by herself and her then husband - which she said looked a bit "Mickey Mouse" by comparison - and with other facilities she had seen in Tasmania. The standard of the set-up was one of the reasons she decided to invest in the facility with the plaintiff. She described the facilities and equipment they had on site: ultra sound machines, four walking machines, scales, fridges and freezers for bulk supplies of meat, medicines, a multitude of leads, rugs and muzzles, kennels, racing boxes to train dogs to start, an electronic lure devised by the plaintiff, and a Nissan dual cab and specially modified trailers for taking the dogs to races. There were seven hectares of land containing runs and tracks with fences that needed to be maintained. They would start work at 6.30am and often not finish until 11.00pm, or if it was a race night, would not return home until 3.00am. It was "full-on", although they would be able to take breaks in the afternoon.

144 According to Ms Shone, the plaintiff was significantly involved in greyhound breeding: he would send his brood bitches to breed with mainland stud dogs and enjoyed studying the books for quality bloodlines. His knowledge was considerable. She recalled accompanying Mr Burk to a large function in Launceston in 1993 for Greyhound of the Year; one of the plaintiff's dogs, Blackwood Oscar, tied for the award. On occasion Mr Burk travelled interstate to race his dogs.[188] The plaintiff said in cross examination that one of his ambitions was to win a major race on a major track.[189] In 1993 he took out the quinella for the Devonport Cup, with Blackwood Oscar running first and Fairy Princess second.[190] His dogs also won "a lot of graded races"[191] and so he trained "plenty of winners".[192] He had three finalists in the Devonport Cup, one finalist in the Launceston Cup and another in the Hobart Thousand.[193]

Conclusion

145 The question whether the plaintiff meets the criterion postulated in C(4) of DSM-IV admits of no easy answer. On the one hand, it is clear that, over his lifetime so far, his interest in the Navy as a career and his interest in some sports has markedly diminished; in the case of the Navy, to the point of extinction. His participation in those formerly enjoyable endeavours has likewise diminished or ceased. To that extent, criterion C(4) has been made out. But the latter change (diminution or cessation of participation) has been dictated by age; and age or the passage of time has certainly also played a part in the diminution of Mr Burk's interest. The question is whether all the change is entirely divorced from any link with PTSD.

146 I am satisfied that, until at least the mid 1990s, Mr Burk retained the capacity to derive great pleasure from some of the things that life has to offer: landing the ball in the hole from a bunker being merely the least of these. Criterion C(4), however, does not specify a total loss of interest in everything; and the evidence does establish a total or markedly diminished interest or participation in some activities that once played a very significant part in Mr Burk's life. In the end, therefore, it seems to me that this criterion has been met, even if a correct analysis indicates that it has been met only in a technical sense. In other words, I am not satisfied that all the relevant changes are explicable in terms that cannot have anything to do with PTSD.

(5) Feeling of detachment or estrangement from others

147 Mr Little submitted that the plaintiff's involvement with greyhounds was entirely consistent with the pursuit of a hobby deliberately chosen because, through it, he could and did isolate himself by spending many hours with the dogs. In his submission, Mr Burk's conduct was bizarre and therefore financially unsustainable. It was also out of character, explicable only on the basis that his client was a victim of PTSD.

148 There is an immediate difficulty with this submission. Mr Burk has had a lifetime's love of dogs; and an interest in a wager or two preceded, and survived, the Melbourne/Voyager collision. I find that each interest played a significant part in the plaintiff's close involvement over several decades in the greyhound racing industry. Moreover, success in any endeavour in which a large number of others participate will result in unavoidable fraternisation. Mr Burk was very keen to be a successful owner and trainer of greyhounds. If social interaction was a concomitant of that success, then Mr Burk was ready to pay that price.

149 The evidence is that, before the collision, Mr Burk was easy going and enjoyed company. Mrs Burk said that when she first met him in 1961:

"He seemed to me to be a very outgoing, sociable sort of a chappy. He was obviously good looking, and knew it. He seemed as though he enjoyed going out, being social, and he seemed to get on quite well with the group that we went out with."[194]

150 This description is consistent with that, to which I referred in paragraph [130] above, given by Mr O'Donnell: it will be remembered that he there described Mr Burk as effervescent, likeable, enthusiastic and well-presented. It is also borne out by the lively letters written by Mr Burk to his fiancée, the then Mi[195]Thompson,195 which show him to be extremely affectionate, sociable and interested in the places he visited with the RAN.

151 Mrs Burk said that after they were married and were living in Nowra they had a small circle of friends, but there were restrictions on socialising with officers and their wives. They also had some friends from Sydney with whom the plaintiff would play the occasional game of golf. One, a close friend who was also a Tasmanian, had three children with whom they would watch television and, although the plaintiff could not swim, sometimes go to the beach.

152 The close friend returned to Tasmania with his family at about the same time as did Mr and Mrs Burk and their children. Mrs Burk recounted how, in the early 1970's, they would gather with three other families to play cards and have barbeques, while all the children played together. On many occasions the plaintiff would drink enough to "end up being belligerent and cause a fight". Although he would not display his belligerence at the social gathering itself, it was clear "he was obviously building up to ... something, and the tone of the evening would be spoilt for everybody."[196] Mrs Burk agreed that her husband did not get "rolling drunk" on these occasions, but rather that he would get nasty with a drink. He quarrelled with her on the way home, accusing her, without any foundation, of flirting with the other men. He seemed to be preoccupied with this unreasonable jealously. According to Mrs Burk, aspects of this behaviour remain as unresolved issues in her marriage.

153 One incident has about it an air of particular unpleasantness. After the birth of their third child, the plaintiff claimed he was not the father. As I understand it, the claim was baseless. Mrs Burk said that this conduct on the part of her husband led her to feel she could not go out: "I wasn't game enough to look at, to talk to anybody"[197]. They lost touch with good friends as a result.

154 The plaintiff said that in the mid 1970's he would go to the football on Saturdays and on occasions the family would go to the cinema or to a function. They were friendly with a small group of people, including an ex-Navy colleague of his.[198] He gave evidence that he joined the ex-Navalmen's Association in early 1968 or 1969 for a short time and the Fleet Air Arm Association in 1970 or 1971 again for a couple of years, rejoining in the late 1990's.[199]

155 According to Mr Kaine, there was an arrogant streak in Mr Burk's personality. The plaintiff nevertheless, like everyone else in the office, tolerated his colleagues and got on with them. They would play cards together at lunchtime. Mr Kaine said the plaintiff's participation in this activity matched that of his workmates, with whom he socialised normally over the lunch hour.[200]

156 Mrs Burk said that in the early days at Goliath Cement, before her husband moved to the office and when the children were young, they would attend the annual Christmas function put on by the company; but they stopped going to that as the children grew up. At those functions the plaintiff would have "the odd glass" of alcohol with his colleagues. There was nothing unusual about this.[201] She also agreed that Mr Burk would play cards with his colleagues in the office at lunchtime.[202] Indeed, the plaintiff has had an enduring interest in cards that first developed in the RAN. Mrs Burk said that he continues to play after golf, and they have played the occasional game with, for example, their son Stephen and his wife.

157 Ms Shone gave evidence that, when she knew him, the plaintiff was happy to mix. In 1992, as their courtship progressed, they frequently went out together - sometimes in company: to a Chinese restaurant with another couple who were greyhound trainers and breeders, or to the cinema, or to the harness racing, or to a football or a softball match. They also went for Sunday drives and to coffee houses. When they were living together they continued these activities during time off from the greyhounds. The plaintiff exhibited no reluctance to go out. Indeed, he told her that "he spent so much time with the greyhounds, and he needed to get out and socialise a bit more".[203] Nor did he have any trouble speaking in public after his dog won a race; Ms Shone said that he was "very confident", to the point that he at times irritated people because they thought him "stuck up or cocky".[204] But, she said, she never knew him to be impolite. The last time she saw the plaintiff, albeit from a distance, was at Christmas 2003 when he, like her, was at the "Taste of Tasmania" festival in Hobart. He was at a table with two other men and three woman, one of whom Ms Shone thought was his wife.[205]

158 The tenor of the plaintiff's evidence was that the social side of his interest in greyhounds was of a minor nature. However, he agreed in cross examination that he attended dinners when he had a dog in the final of the Hobart Thousand, again when a dog of his was nominated for Greyhound of the Year, and twice when he had a dog in the finals of the Launceston Cup. He also attended the Annual General Meetings of the Devonport Greyhound Racing Club when he was its Treasurer, and doubtless on other occasions, as when he was first elected to office. He was present at a number of different Club functions as well: several Annual Dinners, and (on one occasion) a Club barbeque.[206]

159 Mrs Burk said that her husband is now friendless. They have a very limited social life.[207] The plaintiff gave like evidence: according to him, he rarely goes out and his only activity is golf.[208] He also, however, spoke of often playing four rounds of crib following golf;[209] and video footage of the plaintiff at the bar of the Port Sorrell clubhouse shows him in conversation while drinking wine.

160 Mr Little submitted that the video depicts his client as, if not anti-social, then at least exhibiting a lack of social involvement. I do not entirely agree. In my opinion, this footage is not necessarily consistent with someone who feels detached or estranged from others. It is true that, in the film, the plaintiff remains standing at the bar; but his own evidence was that this was to ease pain in the small of his back by leaning against the bar rail.[210] Moreover, the video demonstrates that, during filming, Mr Burk's conduct was entirely in accord with social norms.

161 At the same time, I accept that the plaintiff's general mood now is not conducive to social conviviality. In this I think there has been a change from the more gregarious young man who joined the Navy in 1961. Mr Burk, I find, always had a solitary streak in his character; but it is now considerably more pronounced than once it was. For at least some time during the post-collision period he also became markedly self-centred, as illustrated by his jealousy of his wife, culminating in the false and, if false, very cruel suggestion that he was not the father of one of her children. This is significant evidence. On the other hand, his involvement with Ms Shone demonstrated that he has since the collision in 1964 remained capable of forming close, indeed intense, relationships that have lead to entirely normal social interaction. This, I think, is decisive against a finding that criterion C(5) has been made out. I agree with Professor Bryant. According to him, it might be somewhat abnormal to have no friends save those with whom one plays golf; but it is not pathological.[211]

(6) Restricted range of affect

162 The letters tendered on behalf of the plaintiff were written by a young man who was, before the collision, ardently courting his fiancée. Following the collision, the correspondence from abroad reflects the thoughts of a loving spouse or prospective spouse who misses his partner very much, and who is anxious to share his experiences with her. In one letter, written in July 1964, he recounts a passionate dream about being with her, full of happiness and laughter; but the dream is rudely interrupted by the collapse of the stretcher on which he is sleeping.[212] Another letter, dated 12 July 1964, is enlivened by his interest in shopping in Hong Kong for things for their life together.[213] There is no significant difference in the tenor of this letter when compared to those written during the 1961 tour; he expresses delight in and appreciation of the variety of beautiful things he sees. By 1967, again writing from sea, the plaintiff continues to express love for his wife and son, saying that he is "dying" to see them again and that his heart is "bursting with love for you and our son. Please take good care of yourself my dearest. I love you so very much."[214]

163 In my opinion, the letters written after the collision do not show a numbing of the plaintiff's capacity to feel or express emotion.

164 Professor Horne formed the view that, while the plaintiff showed some impairment of enjoyment of his social life, "he does not suffer from deep psychic numbing, in that he has loving feelings in relation to his wife and family."[215] Mr Burk gave evidence that he becomes very emotional about his three sons and feels that he has not been a good father to them. His relationship with them was difficult for many years, but in recent times, with the diagnoses of PTSD, it has improved considerably: he now feels he can talk about his problems, especially with those of his sons who are policemen and who have experienced stresses in the course of their own jobs.

165 Evidence was called from the plaintiff's youngest son, Kelvin Burk. He remembers a father who was short-tempered and angry. Kelvin therefore maintained such distance from his father as he could. He could not recall his father showing any affection to his mother; instead, he "would be ranting about something that wasn't being done properly" or demanding to know where things were or why they had not been done. His father would get annoyed at him and his brothers for making a noise while playing and would shout at them. When he was younger, friends would visit - but then the plaintiff would get angry about something. He would remove himself from them, sitting alone, and leaving everyone feeling uncomfortable. The family did not do things together, except where the greyhounds were involved: the dogs "always had preference".[216] The plaintiff did not, for example, come to watch his son play hockey.

166 Kelvin recounted one incident when the plaintiff was working at Goliath Cement. His father had forgotten his lunch, so Kelvin cycled over with it to the office - "a fair journey". When he arrived "huffing and puffing and carrying on, he just walked out and grabbed it and walked back in and didn't say 'Thanks'."[217] As a boy, Kelvin was required to get up about 6.00am to help feed and walk the dogs and clean out their kennels. After school, he also had chores associated with the dogs. His father spent all his spare time "sitting up in the back shed with one of the dogs" doing something with them, usually with a can of beer "on the go". The plaintiff only seemed happy when he was with his greyhounds. When the family went to the races, Kelvin said that if he needed something he would not go to his father in the bar: "I wasn't comfortable approaching him at the best of times, but certainly not at the dogs because he would be that wound up you wouldn't be able to get near him."[218]

167 The picture is that of a very unhappy man. But Kelvin Burk agreed that in the last three or four years his relationship with his father has improved - he is "much better to be around. Things don't seem to aggravate him anywhere near as much"[219]. He also gave evidence that he chanced upon his father playing with his granddaughter. The incident was instructive: " ... when he was alone with her he has been really good with her, really playful and ... tolerant, and give her a cuddle or whatever else; but when I come back into the room it is like he distances himself again, and I just felt that it was a bit odd."[220]

168 The evidence given by the plaintiff about his extra-marital affair suggests that he was not at that point experiencing numbing of general responsiveness. He first met Angela Shone in about October 1990. Mr Burk described the occasion in the following terms:

"I met Angela in Devonport at the dogs one night. She had come down with her husband to the dogs and, I was very taken with her at the time, yes. I think we, we had a mutual clicking, as you would call it. She was very thin at the time, she had lost a lot of weight, and she had beautiful eyes, and I looked into her eyes and I saw a lot of hurt and a lot of pain in her eyes which, which was similar to what I was feeling. So we sort of formed a bond and we talked together. She started - I hadn't seen her at the dogs before, but she started to come a lot after that, and we talked on every occasion that we could, and that eventually led to telephone calls, and eventually we - I was very anxious to have a, an affair with her, and I put a lot of pressure [on] Ang."[221]

169 Each of the two may have shared the same hurt and pain. Hers certainly did not have their origin in a traumatic event in any way comparable with the Melbourne/ Voyager collision. And the bond they formed, and the exchanges which must have resulted from it, did not - it seems certain - reveal to him that his hurt and pain could be traced to that source: it is his case that he did not until much later associate his psychological problems with the incident of 10 February 1964. It is in this context significant that as recently as his time in the witness box the plaintiff could link Ms Shone's mental state with his while his case rests on the proposition that each originated in quite different circumstances. I conclude that, as between the two, each of Ms Shone and Mr Burk attributed their troubles to matrimonial and familial difficulties. For them, at that time, the collision was not part of the hurt and pain upon which their relationship had its foundation.

170 The plaintiff and Ms Shone, together with her children, travelled to Queensland for a holiday. The formal separation between husband and wife followed when Mrs Burk subsequently moved out of the marital home. There followed a time during which Ms Shone spent two or three days a week with the plaintiff, returning to Hobart to be with her children for the balance of the week. The plaintiff described this part of the relationship as "crazy"; and their inability to find mutually acceptable long-term living arrangements was a factor in its coming to an end in late 1994.

171 According to Ms Shone, she met the plaintiff in about October 1990 at the Devonport greyhound Club where she and her then husband were racing their dogs. At the time, Mr Burk was well known as a greyhound trainer and breeder. In the following months she would chat with him in the bar where he would have an occasional drink with another trainer. She said he was a casual drinker. He liked to look smart, and was always dressed immaculately: he wore clean jeans, with polished shoes and a neat jumper. At the bigger races, where the trainers had to dress in tuxedos, he would fully honour established tradition.

172 By July 1992, they had established a sexual relationship. The plaintiff would stay overnight with Ms Shone every Thursday, that being Hobart's evening for greyhound racing. However, just after Christmas 1992 they stopped seeing each other for five or six months, although they continued to speak by telephone. They resumed their intimate relationship shortly after June 1993. Ms Shone moved in about that time and, after selling her own home in November 1993, bought Mrs Burk's share of the house at Tarleton. She then commenced to spend four nights a week at Tarleton and travel to Hobart each week to see her two teenage sons, her brother - who was ill - and her mother, who was in a nursing home. She and the plaintiff lived together until November 1994, when she moved out to return to Hobart. The relationship ended because she said she missed Hobart, where all her family were based, and she "fell out of love with Rodney".[222] She was confused about her life and the plaintiff refused to live in Hobart. She decided that she had had enough.

173 Ms Shone said that the plaintiff had no problems with his libido during his relationship with her. She said that they were both in love and very happy, and they had "a really good time".[223] He was pleasant and very caring towards her, especially as her own marital position was causing her emotional distress. During cross examination she agreed that as at May 1992 she had spent about 12 months in and out of hospital suffering from a nervous breakdown. In July 1992 she left her husband, who had been diagnosed with bi-polar disorder. She denied that she experienced the same illness: the topic was specifically raised with her doctors, who told her she did not have this condition but did have depression. She said that she had another breakdown about five years' ago and was again diagnosed as suffering from depression. Currently she is not on any medication and is working as a registered nurse.

174 Ms Shone described the plaintiff as a very disciplined person who would get touchy about his greyhounds "because he was really proud of his racing and his status as a greyhound trainer, and he was impressed with them performing well."[224] Mr Burk was always very well organised, working to a schedule to ensure everything was ready in time.[225] She said that while she accepted that he was very disciplined, she occasionally disagreed with his treatment of the dogs; he sometimes kicked them or even "made [her] sit on one of his dogs to keep it quiet". This behaviour frightened her. She nevertheless denied that "he was a bit like a volcano waiting to explode".[226]

175 Ms Shone was a credible witness whose evidence I accept. I detected no bitterness or ill feeling towards the plaintiff, at least not such as might infect her objectivity; indeed, she was often complimentary when speaking about him and, it seems to me, retains generally positive memories of the relationship. I also formed the view that she was uncompromising in her attempt to tell it as it was.

(7) Sense of foreshortened future

176 The plaintiff told Professor McFarlane that he does not have any sense or anticipation of a future for himself. By contrast, he did not report any sense of foreshortened future to Professor Bryant.[227] Be that as it may, the account given to Professor McFarlane, even if accurate then, was not accurate in the months and years from February 1964 during which the plaintiff planned and looked forward to his marriage, and to establishing a family - initially in Nowra, and then, after the decision to resign from the Navy, in Tasmania. A period of drift, with no real vision for the future, was then succeeded by plans to train and breed greyhounds, first with the help of his family and then with Ms Shone at his side. The evidence demonstrates that, at successive points since the Melbourne/Voyager collision, the plaintiff has known the pleasure of looking forward to a future of promise.

177 It follows that in my opinion, the evidence adduced from the plaintiff at trial on criterion C(7) of DSM-IV not only falls far short of making it out, but indicates a contrary conclusion..

Some additional or expanded thoughts about Criterion C

178 I accept that Mr Burk did not welcome those occasions on which memories of the evening of 10 February 1964 were brought to mind. When they were, he got rid of them as soon as he could. In this, success may not always have been instantaneous; but the unwanted thoughts were never so intrusive that blocking them became a major problem. Initially, he avoided discussion of the incident. I am of the opinion that Mr Burk's failure to speak about it and about the effect it had on him was due in part, however, to his mistaken - and perhaps to a degree self-induced - belief about the "order" given to the crew of HMAS Melbourne on the return journey to Sydney. Once it became apparent that there was no embargo on him speaking, the plaintiff seemed to have no particular problem in discussing either the collision or its effect. In other words, there was no evidence that, after the self-imposed embargo had been lifted, he struggled to speak of it or found it distressing or confronting to do so.

179 I do not accept that the plaintiff's consumption of alcohol was a means of avoidance; his drinking became problematic only after he left the Navy, although like many sailors, especially when on shore leave during or immediately after a tour of duty, the attraction of a night out was sometimes followed by the consequences of over-indulgence.

180 It is nevertheless established, I think, that Mr Burk's drinking turned nasty after he moved to Tasmania with his family. This was both a symptom and a cause of a deterioration in his relationship with his wife, and a reflection of his inability to establish an appropriately fatherly relationship with his children. His failure to find real fulfilment at work was doubtless another contributing factor. He is a man who had, and continues to have, high and perhaps unrealistic expectations of himself and those around him.

181 While I accept that the plaintiff has had periods of despondency, he has demonstrated that he is capable of maintaining sustained and committed interests. His pursuit of greyhound training and breeding is here relevant, as is - in more recent years - his interest in golf. In my opinion, the evidence shows that Mr Burk was far more involved with greyhounds than he portrayed to his medical practitioners. It is also clear that, following the collision, he continued to enjoy some aspects of life in the Navy although - as is common - his employment was not always congenial. Nor is there is anything abnormal, let alone indicative of a mental disorder, in a young newly married man having second thoughts about being at sea for extended periods of time. Similarly, I do not think that any diminution in his interest and participation in sport was necessarily related to the collision; rather, it seems to me to be entirely consistent with the calls upon his time made by his employment and by a new family.

182 It is nevertheless clear that, over extended periods on and off, Mr Burk (and, through him, his family, especially his wife) has lived with a reservoir of seething anger (with some very inappropriate behaviour being a manifestation of it). This, however, cannot accurately be characterised as an example either of persistent avoidance of stimuli associated with the trauma, or of a numbing of general responsiveness. The question whether the ultimate cause for the anger lies, indeed, in the disaster of the Melbourne/Voyager collision (which, of course, is the ultimate question in this case) is therefore to be further explored elsewhere. It is to that that I now turn.

Persistent symptoms of increased arousal (Criterion D)

183 Criterion D of DSM-IV provides:

"D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following:

"These symptoms may include difficulty falling or staying asleep that may be due to recurrent nightmares during which the traumatic event is relived (Criterion D1), hyper-vigilance (Criterion D2) and exaggerated startle response (Criterion D5). Some individuals report irritability or outbursts of anger (Crierion D2) or difficulty concentrating or completing tasks (Criterion D3)."[228]

(1) Difficulty falling or staying asleep

185 Mr Burk gave no direct evidence about his sleeping patterns before the collision. Professor Bryant, however, recounted the plaintiff's observation, made to the professor, that he "had been a 'born insomniac'."[229] The professor's evidence was not challenged. I therefore receive it as a declaration against interest.

186 Extensive evidence was called to the effect that the plaintiff has since 10 February 1964 experienced much difficulty getting to sleep and, once having attained that most desirable end, remaining soundly asleep for an appropriate time thereafter. Nightmares were not mentioned in this context - indeed, Mr Burk could not recall that anything in particular woke him. At all events, the sleeping problem was in the winter of 1965 of such concern that he saw a doctor about it, as well as for loss of appetite and a resultant weight loss. Mr Burk, however, called no evidence about the genesis of his problems, or about any resultant diagnosis; nor were any medical records tendered in relation to this visit. The failure to produce these records may have been readily explicable, especially given the lapse of time; but the fact is that it was not the subject of any evidence one way or the other.

187 Children became part of the Burk household with the birth of the plaintiff's eldest son, Warwick, in October 1966. His second son, Stephen, was born in September 1967. By 1967 his sleeping had not improved: "It wasn't that bad then, but it wasn't real flash either."[230] From 1970 or 1971 he started to experience a falling sensation as he was dropping off to sleep; but not, so far as the evidence goes, in association with nightmares: "I would be falling and falling and falling, and then I would jump, and sometimes I would nearly jump out of bed." This sensation occurred for "virtually every night for years".[231] It became such a regular occurrence that he was frightened to go to bed. Sometimes he would go to sleep quickly and then wake within minutes with bad dreams (although, it seems, not the same dreams as those recounted to the expert witnesses) and the falling sensation.[232] He once woke to find himself out of bed hanging on to the carpet, "crying and screaming and carrying on". He could not recall what precipitated this episode.

188 Mr Burk said that he often drank alcohol to help him to sleep. Dr Burges-Watson gave the following evidence about the effect of alcohol, which is a tranquiliser:

"It is not a very good hypnotic to help people sleep, because it gets them off to sleep, but then, mid-way through the night they start to get irritable again and wake up; so it is - unless they have an enormous amount to drink, it doesn't really help them get a night's sleep."[233]

189 Mrs Burk, as she recounted in her evidence, remembers that on her honeymoon in February 1965 she was awakened during the night by the plaintiff jolting and calling out. She described it in the following terms:

"I was woken up by this awful jolt. The bed would shake (indicating), and it would make your heart flutter because you were suddenly awake; and as you were waking up, you then heard this funny noise. It was a moan or a 'No'. I am not sure. I still don't know whether he moans or whether he says 'No', and when I said to him "What is wrong?" he said "Nothing. Nothing is wrong".[234]

In cross examination Mrs Burk said that she would wake to find her husband breathing deeply, "as in a panic situation".[235] This behaviour did not occur every night; it happened in spates of two or three, interspersed with nights of normal sleep. On a couple of occasions he woke up crying. Having refused to talk about what was wrong, he went back to sleep. He did not say that he had been awakened by a dream. There has been no change in this pattern since then, although Mrs Burk conceded that after their first son was born she was often so tired that she would sleep through the night; and in later years, having become accustomed to her husband's erratic sleeping behaviour, she is no longer regularly awakened by it. Nor was she able to comment on the plaintiff's sleeping patterns before the collision: they had not shared a bed before their honeymoon.[236]

190 On one occasion in the late 1970's or early 1980's, Mrs Burk woke to find the plaintiff on the floor on his hands and knees "making these funny noises ... like someone trying to talk but ... the words not coming out, just noises coming out."[237] Again, the plaintiff refused to say what was wrong, but rather insisted that he was all right. Mrs Burk recalled that although the family GP, Dr Bedisco, made a visit the next morning, he did not prescribe any medication, but said that if it happened again to see him. It did not, so the plaintiff never consulted Dr Bedisco about this.[238]

191 It was Mrs Burk's evidence that, following her husband's promotion to Assistant Paymaster at Goliath Cement, his sleeping pattern was "terrible". He:

"got more and more testy. He seemed to come home from work absolutely drained and full of anger ... It was almost a nightly occurrence ... he would spend a lot of time out of the bed, out in the kitchen, turning the television on, sitting reading a book - or trying to read a book - and then come back to bed."[239]

192 Looking back on the pattern, Mrs Burk thought that the restlessness depended "a lot on the pressure that Rodney felt at the time."[240] She agreed in cross examination that the sleep disturbance during this period - waking and wandering around at night - seemed different to that which occurred during the honeymoon - waking with a jolt in a panic - although her husband continued to be restless with gasping and excessive leg movements.[241]

193 Ms Shone gave contrasting evidence. She said that, during her relationship with the plaintiff, she did not observe anything unusual or abnormal about his sleeping habits: indeed, he slept better than she did. The only time he got up in the night was when he had a brood bitch that was ready to whelp.[242] Mr Little submitted that the reason the plaintiff slept better at this time was because the affair lightened his depression. While I have no doubt that the relationship induced in Mr Burk a generally positive outlook, I do not accept this submission. The evidence is that PTSD, being a mental disorder, is a condition that is pervasive and persistent; it is not something that fluctuates in neat balance as relationships wax and wane.

194 The plaintiff and his wife separated in 1993, but in 1995 they reconciled and jointly purchased a new home. Mrs Burk said that, initially, things went well; but after six months her husband's sleeping "became just as disturbed. He would spend a lot of the nights walking around the house, even outside, when he should have been in bed...".[243]

195 Apart from Mrs Burk's attribution of many of her husband's sleeping difficulties to "the pressure that Rodney felt at the time", there was little evidence about a possible cause or causes. In January 2001, however, (after the institution of the present proceeding) the plaintiff prepared a form of application for a disability pension from the Department of Veteran Affairs ("DVA"). The form requested a response or responses to a number of propositions about the state of the applicant's personal relationships. One of these propositions was: "You don't sleep well"; and to this the plaintiff gave a tick. The form then asked the question: "How do you believe that your disabilities cause the above problems?" In answer, the plaintiff wrote:

"Back stops me getting comfortable together with tinnitus keeps me awake makes sleep very difficult. Have to try & nap during the day."[244]

196 It is possible that the plaintiff's sleeping difficulties are the result of sleep apnoea, and entirely unrelated to PTSD. That possibility was raised, but in the end not explored, in 1997. By a letter dated 19 December 1997, Mr Burk was referred by his then GP, Dr David Saner, to Dr Jim Markos, a respiratory physician who specialised in sleep disturbance. In that letter, Dr Saner describes the plaintiff's presentation in the following terms:

"The long and short of it is that he wakes up suddenly with violent shaking attacks and is noticeably breathless when he does this. This has been going on for the last eight to ten years, seemingly getting worse, only happens when he is asleep, is aggravated by anti-depressants and sleeping tablets, leaves him feeling absolutely exhausted in the morning and as a result, has to have a sleep in the afternoon where these same events can occur."[245]

Despite this, no consultation with Dr Markos took place. Mr Burk did, in about September or October 2004, attend the sleep clinic run by Dr Markos; but he did not give any evidence about the outcome. Nor was Dr Markos called as a witness.

197 The Commonwealth invites me to draw the inference that, had he been called, the evidence of Dr Markos would not have advanced the plaintiff's case. Mr Little responded that, as the issue of sleep apnoea has been raised by the Commonwealth, Dr Saner is really a witness in the defendant's camp and he could have been called by it; no inference can therefore be drawn. Mr Titshall refutes any such suggestion: the onus lies on the plaintiff to prove his case - it is not for the Commonwealth to prove or disprove anything. Moreover, it would have been improper for the Commonwealth to make enquiries with a doctor in the plaintiff's camp about matters the subject of doctor/patient privilege.

198 Mr Little also submitted that I should accept evidence, given by Mr Burk, that when he first discussed the referral with Dr Saner, the latter remarked: "Personally, I don't think you would get a lot of value from it."[246]

199 In my opinion, the plaintiff has failed to establish that any sleeplessness was caused by PTSD. In these circumstances, I do not need to decide whether or not Mr Burk suffered from sleep apnoea. I have already referred to the commentary in DSM-IV to the effect that sleeping difficulties may be due to hypervigilance or exaggerated startle response. Yet the evidence shows that Mr Burk suffered from neither of these conditions.[247] Nor is there any evidence that Mr Burk's sleeping problems were due to recurrent nightmares. Rather, Mr Burk gave evidence of the fact of sleeplessness without saying what led to it. He did not say, for example, that he could not sleep because he thought continually about the collision, or because he was troubled by "flashbacks".

200 Professor McFarlane, in taking a history from the plaintiff, was told that during the 1964 tour of duty Mr Burk did not sleep as well as he had previously, and was often waiting for something to happen. The problem decreased, however, during the latter part of 1964.[248]

201 Professor McFarlane concluded that Mr Burk's description of sleep disturbance was consistent with Criterion D(1). When asked whether he could be satisfied that it was caused by the traumatic event, however, Professor McFarlane responded that a direct causal attribution is not possible; all he could do was make a judgment about whether it was present before the event occurred.[249] He later agreed that the falling sensation experienced by the plaintiff as he dropped off to sleep could not be attributed to the collision save by speculation.[250]

202 Professor McFarlane's evidence on this point was based upon a history given to him by the plaintiff that was not supported by direct evidence given at the trial. The professor's conclusions must be read in that light.

(2) Irritability or outbursts of anger

203 Dr Burges-Watson explained that irritability or outbursts of anger may be indicative of PTSD because:

"...that is, again, part of the arousal. They react very rapidly to any situation. Where most of us might metaphorically count ten, they never count ten ... They react immediately."[251]

204 Professor Horne attempted to explore, through Mr Burk, whether before the collision the latter exhibited any of the indicia of "an irritable, unpleasant or disagreeable person". The professor did this by enquiring whether Mr Burk had fallen into any trouble with the law, or had had disciplinary action taken against him. The result was negative.[252] Mr Burk's record since the collision is likewise unblemished.

205 Mr Wilks included irritability among the plaintiff's persistent symptoms. In May 2002 the latter told Mr Wilks: "I'm constantly irritable ... I try and keep my temper in control."[253] Then in February 2005 he reported: "I have moments ... mainly with the wife ... verbals."[254] By contrast, Professor Bryant - when asked the leading question, put to him in chief: "And what he says is that his irritability had improved, and he denied it was a problem" - answered: "Yes".[255]

206 Professor McFarlane, like Mr Wilks, noted irritability as one of the plaintiff's complaints. When speaking of it to the professor, Mr Burk identified it as a problem both when he was working at Goliath Cement - indeed, in his opinion it contributed to his leaving that job - and at home.[256] But, for Professor McFarlane, the usefulness of this history was limited because he had no clinically sufficient evidence upon which he could base a comparison between the plaintiff as he was then and the plaintiff as he was before 10 February 1964. It is no surprise that the professor agreed during cross examination that, in the absence of any such evidence, it is not possible to make a direct causal attribution. So too, if he were satisfied that before the traumatic event the patient had a reputation for running on a short fuse and as a consequence had attracted the nickname "Snapper", he might give less weight to post-traumatic irritability as an indicator of PTSD.[257] He also pointed out that while a person might show irritability as a result of such conditions as a bad back or tinnitus, someone with PTSD is likely to have a lower tolerance or pain threshold; it is therefore, again, difficult to make a causal connection one way or the other.[258]

207 Dr Bell was of the opinion that persistent irritability since the collision is not necessarily an indicator of chronic PTSD. He expressed the following view about the role of irritability in diagnosing PTSD:

"It is what would be regarded as a non-specific indicator; in other words it occurs in association with so many different conditions that it doesn't give a specific indication that it is, say, PTSD. So it could be any thing of a wide variety of things, including one's habitual way of behaving."[259]

208 Mrs Burk described her husband as being irritable with their sons after the initial excitement of becoming a father. So, as their first child grew older, the plaintiff became more readily irritated by him. After the birth of their second son, Stephen, Mrs Burk subscribed to the (since disapproved) "controlled crying period" method advocated by Dr Spock. Its message was that the parent should walk away from the crying child, allowing it to cry for a period without intervention. Mr Burk, by contrast, thought that "there had to be something wrong with the child and to fix it, stop him, shut him up virtually."[260] By contrast with the Spock regime, whatever its defects, the plaintiff's attitude, as his wife saw it, simply spread the misery around.

209 Mrs Burk also described the plaintiff as being short-tempered when, arriving home from work, he encountered what she described as "normal domiciliary action". Whatever his problems at work, she too had hers at home, especially in the evening: the inescapable difficulties of preparing meals for everyone while coping with cranky children and managing much else besides. Through all this, the plaintiff would sit in his chair, offering no help but becoming impatient if the boys "were noisy, rowdy, crying [or] cantankerous"; which, since they were "quite competitive as youngsters, trying to outdo each other", was often.[261] In cross examination Mrs Burk agreed that the plaintiff's reaction both to the baby crying and to the chaos on arriving home was not rare or particularly extraordinary for a father. She did, however, maintain that her friends' husbands would help their wives where her husband would not.[262]

210 Other examples, given by Mrs Burk, of the plaintiff's temper included outbursts at greyhound race meetings. She described one incident in the following terms:

"... if I happened to not put the bandage on properly or forget to put it on, or whatever, there would be a real traumatic public display of Rodney's anger, with his shouting and jumping up and down about it. I mean, I can remember one day I was actually leading the dog on the track, and all the people were there, and taking the dog up and he lent over the, over the fence beside me and said 'Where is the f-ing bandage?', you know, in front of everybody; and I mean, that is unreal. He was so angry, full of anger, all the time."[263]

211 Evidence was given by Mr Campbell that, even before the collision, Mr Burk's temper was short. Mr Campbell joined the Fleet Air Arm of the RAN six months before the plaintiff, but spent quite some time in the same squadron in 1959. The two were on HMAS Melbourne together in 1961. Between 1959 and 1963 they socialised together at Nowra. Mr Campbell said that at that time the plaintiff "could be a jovial chap, but ... he could lose it"[264] if things did not go the way he planned. The plaintiff had the nickname "Snap", which Mr Campbell said was appropriate. Colin Alexander was another colleague in the RAN who knew the plaintiff principally between 1959 and 1962. He said he was introduced to Mr Burk as "Snapper"; from his own interaction with him, and from observing his dealings with others, Mr Alexander also thought the nickname was appropriate. He said the plaintiff was:

"... easy to 'wind up'... servicemen would find a deficiency or a weakness in your character, and they would hone in on that, and attack it, in a sense. And Snapper was one of those people that people regularly had a go at, wound up, and he was inclined to come back in an, oh, an angry sort of way. That was obvious from his facial expressions and his body language."[265]

212 Mr Burk agreed in cross examination that he "could fire up when I thought the occasion warranted". However, he said that the "firing up" after the collision differed from that which occurred beforehand. He denied that his nickname "Snap", or "Snapper", which was conferred in 1959, arose because he was a snappy personality; rather, it came from a western novel entitled Snap Burke Passes Thru that was doing the rounds during their training. One of his mess mates repeatedly put it under his pillow; and so the nickname stuck.[266] A copy of a facsimile from a reference librarian at the Victoria University Footscray Nicholson Campus, certifying that a search of the library's electronic resources had revealed that a book of this title existed, was tendered on behalf of the plaintiff.[267] I accept Mr Burk's evidence, and so find that the book played a part in the attribution of the nickname. But there is no necessary inconsistency between this evidence and the evidence of Messrs Campbell and Alexander that, whatever its origins, the nickname was appropriate for the plaintiff. It did indeed, I think, reflect an aspect of Mr Burk's personality.

213 It was submitted on his behalf that the observations of Messrs Campbell and Alexander about him were, more probably than not, of the plaintiff post-collision. Mr Alexander rejected this suggestion. In my opinion he was correct to do so. According to him, he was not a work colleague of the plaintiff's in 1965 because the witness was then attached to HMAS Melbourne and Mr Burk was not; and in 1967 the former was transferred to HMAS Nirimba to undertake his Mechanician course.[268] I accept this evidence. Mr Campbell was not relevantly cross examined about the plaintiff's nickname, and, more particularly, it was not suggested that his impression was post collision. In these circumstances, I find that the evidence relates to Mr Burk's pre-collision disposition.

214 Mr Kaine said that the plaintiff was an arrogant, opinionated man who could have mood swings. These could range from being "an angry type of person to ... if he wanted to be, a pleasant person."[269] If he disagreed with someone he would say so, at times "flying off the handle".[270]

215 In an application made in January 2001 for a disability pension from the Department of Veterans' Affairs, the plaintiff stated that he noticed feelings of depression and irritability when the painkiller he was taking for his sore back, Tramal, started to wear off.[271] In answer to a question about how his disabilities (being his bad back and tinnitus)[272] affected his life with his family he said: "Can only stand them around house for short periods. Grand kid rarely stays o/night as child finds me too cranky."[273]

216 The Commonwealth submits that factors other than PTSD are the more likely reason for the plaintiff's irritability. This is, I think, the correct conclusion. One begins with personal proclivity and, increasingly over time, the pain and discomfort of physical ailments like a troublesome back and tinnitus. To this, one adds the normal pressures of family life. These are felt by most parents some of the time, and by many much more frequently than that - especially those parents who, like Mr Burk, are not naturally comfortable with children. A sad consequence is that, unless things are handled with a care and sensitivity which few of us can manage, the relationship between the parents deteriorates. So it was, I think, with the plaintiff and his wife. This caused pain to them both; on the plaintiff's part, pain which was reflected in his irritability, which in turn caused more pain and greater irritation.

217 The situation was not helped by the move to Tasmania, a State in which Mrs Burk had never previously lived and with which she was therefore relevantly unfamiliar. Mr Burk doubtless expected much from the move, but instead found himself - at an important time in his marriage and in his role as a father - in a job to which he was not temperamentally well suited. His interest and involvement in greyhound racing were, perhaps unfortunately, stimulated by this; but if that provided some respite from the drudgery, and demands, of work at Goliath Cement, it added to the financial and personal stresses on the family. Mrs Burk was interested in neither greyhounds nor greyhound racing. Neither, except perhaps spasmodically, were the children. But, from a sense of loyalty as well as subjugation to the plaintiff's will, they became actively involved. It is fair to say that they were not well rewarded; and it is necessary to say it, because that was a further cause of tension within the family. The regular income that Mrs Burk brought in from her employment as a nurse became the family's financial bedrock, with her husband's irregular income from prize money and training or breeding fees sometimes providing a bonus but more often merely covering costs.

(3) Difficulty concentrating

218 Mr Wilks gave evidence that the plaintiff told him in March 1999 that his concentration was poor in that "he is able to read for a maximum of half an hour, has 'patchy' memory and loses track of conversations."[274] In May 2002 he told Mr Wilks that his concentration was worse and: "I forget things to do ... I haven't read a book in 12 months, if I do read it's a slow process ... I can follow a TV show if I walk around during the commercials, if it's the ABC I lose concentration, I can't sit still for an hour."[275] By February 2005 Mr Burk reported that his concentration continued to be poor, "I read the same page on and off ... I'm very forgetful (in the car) I'm always running on to gravel verges ... I lose track of conversations."[276] Professor Horne also reported that the plaintiff told him that his concentration was "was okay for short periods but difficult to sustain, for example, when reading",[277] while Professor Bryant noted a history of poor concentration and short attention span.[278]

219 In the history that Dr Burges-Watson took from Mr Burk in July 1999, the doctor was told that, in the period leading up to his resignation from Goliath Cement, the plaintiff was having problems with concentration, losing track of which day it was, and found it difficult to handle stress.[279] Professor McFarlane noted that the plaintiff said that when at Goliath Cement "his concentration had been tested by the repetitive nature of what he was involved in."[280] While he agreed that the work being performed by Mr Burk as assistant paymaster could be described as mundane, Mr Kaine said that he did not observe the plaintiff having any problems with concentration. Nor did he have any trouble coping with the work he was required to perform.[281]

220 The plaintiff gave evidence that although he started an accounting course at Devonport Technical College while he was working at Goliath Cement, he abandoned it after three or four months because he could not concentrate. He also added that: "I just couldn't cope being out at nights studying and I, for some reason I just didn't want to do it." [282] Mrs Burk said that her husband told her that he did not do well at the course "because I was not giving him any support".[283] I accept this evidence, and note that it is, as I find, indicative of the plaintiff's (very human) tendency to blame others rather than accept his own responsibility.

221 Mr Burk did not give evidence at trial about his problems with reading or driving or watching television. Nor did he give any evidence about problems with concentration - either during the remainder of his time in the RAN following the collision, or during his early years at Goliath Cement. On the contrary, he conceded both that his academic performance in the RAN improved after the collision, and also that he was promoted to the office from the store at Goliath Cement because he was a good, reliable worker. This suggests that his problems with concentration arose some time after the collision.

222 Mrs Burk said that when she and her husband reconciled in 1995 after their separation he soon returned to a restless, agitated state, where he found he could not settle or finish jobs. She gave the example of starting to mow the lawn but not finishing it because he could not concentrate for long enough.[284]

223 During the course of his evidence the plaintiff on occasion lost concentration, losing the thread of his answer or forgetting the question.[285] I accept that this was genuine. A number of the expert witnesses also noted that during their interviews with him, Mr Burk appeared to lose concentration. By contrast, however, Dr White did not detect any sign of problems with concentration during his first interview with the plaintiff,[286] although he recorded Mr Burk telling him, in a further interview in February 2005, that he had such difficulties.[287]

224 The evidence of Ms Shone in relation to the plaintiff's greyhound interest, however, does not seem to be consistent with this evidence about poor concentration. She gave evidence that he was well organised and disciplined, working to a schedule to ensure that they arrived at the race meetings on time.[288] He also enjoyed studying books to investigate bloodlines.[289] This suggests that it was the mundane nature of his work at Goliath Cement, performed over many years, that caused him to lose interest, and therefore concentration - rather than it being a manifestation of PTSD. The evidence about the plaintiff's golf, where he has attained a handicap as low as 13, also points to an ability to concentrate. Indeed, the proper conclusion, in my opinion, is that when he was interested, the plaintiff was capable of focussed attention.

(4) Hypervigilance

225 Dr Burges-Watson initially found no evidence of hypervigilance, but later took account of the plaintiff's (a) restlessness when travelling to the mainland by ferry and (b) concern for the safety of his sons.[290] However, Professor McFarlane did not think Mr Burk demonstrated symptoms of hypervigilance.[291] Likewise, the answers given by the plaintiff to questions asked by Professor Bryant about whether he felt safe or comfortable when he went out, or whether he would be on the lookout for things that might hurt him, showed no evidence of hypervigilance.[292] Nor did the plaintiff give any evidence at trial which would support a conclusion that he was, or is, subject to this condition.

(5) Exaggerated startle response

226 Professor McFarlane, speaking to the jury, addressed the concept of "exaggerated startle response" in the following terms:

"... I am sure everybody has an extreme reaction if you are given a fright. I mean, that is quite a normal reflex that we have. But there are several issues about startle response that can differ between people. The first one is the actual amplitude of your response - and I am sure you all will have seen some people who, with a minor threat, will jump much more than most people do. So part of the issue is the amplitude. The second issue is most people, for example, if a door slams once they might startle. But if the door then slams a second time people won't startle in the same way, whereas people who have got post traumatic stress disorder don't have that same phenomena of becoming habituated to stimulus; so, in other words, they keep startling to a greater degree than you would expect in that situation. A part of that is to do with the fact that they don't accommodate. Normally, if you can see somebody, or the door is about to slam and then it slams, you won't startle. People with post traumatic stress disorder don't become as conditioned by any warning. Their startle response is much more reflexive, and that is what we try to elicit when we get the history."[293]

He later added that people suffering from PTSD often have an intolerance to noise and have trouble excluding their environment.[294] Professor McFarlane was not able to elicit any evidence from Mr Burk during his examinations of him to suggest an exaggerated startle response, but agreed that a propensity for the plaintiff to overreact to the sound of a child's blocks falling over when they were playing might be indicative of this symptom.

227 Dr Burges-Watson found no evidence of exaggerated startle response in the plaintiff. Professor Bryant's experience was the same, save that Mr Burk did mention reacting to a car accident with a degree of intensity that surprised the plaintiff himself. But Professor Bryant could not attribute this to anything more than the kind of isolated emotional reaction that many people will have to such an event.

228 In his application for a disability pension to the DVA in January 2001, the plaintiff noted that his social life had been affected in that he could not tolerate noise.[295] In cross examination he agreed that this was due to the fact that he suffers from tinnitus.[296]

229 Goliath Cement carried out blasting twice a day. This was in each case preceded by a siren which, while loud, was generally ignored by the staff in the office. This might, however, have been expected to elicit an exaggerated startle response from the plaintiff. It did not. At one point, Mr Burk said that he could not recall hearing the explosions.[297] This would explain the evidence of Mr Kaine, who was asked in cross-examination whether he noticed "any particular reaction of Mr Burk, that was out of the ordinary, to the blast ... [or] to the siren?" His answer was: "No"; and he gave the same answer to the question: "Did you notice at any stage Mr Burk being easily startled or over-reacting to circumstances which startled him?"[298] At another point, however, the plaintiff - when his absence of reaction to the siren and blasting was put to him in cross examination - said a loud explosion "would bother me."[299]

230 On the basis of the totality of the relevant evidence, I cannot find that the plaintiff has satisfied this aspect of Criterion D.

Conclusion

231 The plaintiff has not satisfied me that Criterion D is applicable in his case. My reasons are as follows:

(a) I accept that the plaintiff has over extended periods had difficulty getting a good night's sleep. The symptom therefore exists - or would exist, were it not for the evidence, in the history given to Professor Bryant, that Mr Burk has always had that difficulty. I proceed on the basis that the history is reliable. I also find that these problems were much less troublesome during the period of his relationship with Ms Shone. There is an additional important point: there is no evidence that Mr Burk could not sleep because disturbing memories, or nightmares, or anything else connected to the collision, intruded. Not only that, but many other factors might have caused him to sleep poorly: crying children, problems at work, the effect of alcohol, the pressure of his greyhound interests, his general unhappiness and despondency about his life. I disregard the evidence which suggests the possibility that the plaintiff was suffering from sleep apnoea. Even putting that evidence to one side, however, I cannot be satisfied on the balance of probabilities that the collision was a cause of Mr Burk's sleeping difficulties.

(b) There is evidence, which I accept, that - when he wished - the plaintiff could be pleasant and amiable. There is also much compelling evidence that, by general disposition which predates the Melbourne/Voyager collision, he becomes more irritable, and becomes so more readily, than most. It follows that, again, the symptom exists; or rather would exist, were it not for the requirement that it not be present before the trauma. I find that, at varying times, this general disposition came into combination with (a) lack of sleep, (b) tension generated at work or in the family, or both, (c) tinnitus and (d) physical pain from a bad back. The combination produced irritability or outbursts of anger. When that combination was broken, as it was for most of the duration of his partnership with Ms Shone (someone who not only shared and supported his interest in greyhounds, but who admired him), Mr Burk's capacity to be amiable came to the fore.

(c) I accept that the plaintiff has, and has for a number years had, problems with his concentration. Nonetheless, I cannot be satisfied that this was caused by, or is a manifestation of, PTSD.

(d) There is no evidence of hypervigilance.

(e) There is no credible evidence of exaggerated startle response.

Duration of disturbance for more than one month (Criterion E)

232 Criterion E of DSM-IV is set out in the Manual in the following terms:

"E. Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1 month."

233 It is not clear from the wording of this criterion whether the duration of one month is measured from the date of the traumatic event, or whether it is one month from when the "disturbance" began. The final submissions made on behalf of the Commonwealth appear to be predicated on the former view, while the commentary in DSM-IV would suggest the latter. I proceed upon the latter basis. DSM-IV notes that symptoms of PTSD usually appear within the first three months after the traumatic event. The Manual continues:

"Duration of the symptoms varies, with complete recovery occurring within 3 months in approximately half of cases, with many others having persisting symptoms for longer than 12 months after the trauma. In some cases, the course is characterized by a waxing and waning of symptoms. Symptom reactivation may occur in response to reminders of the original trauma, life stressors, or new traumatic events."[300]

234 I put aside, for present purposes, the question whether Mr Burk's "symptoms" (or, in other words, "disturbances") about which he complains are a result of the Melbourne/Voyager collision. The evidence is that most if not all of those symptoms endured for more than one month. Criterion E is in this sense established.

Significant distress or impairment in social, occupational, or other important areas of functioning (Criterion F)

235 DSM-IV describes this criterion, Criterion F, in the following terms:

"F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning."

236 I referred at paragraph [36] above to Professor Bryant's opinion about the diagnostic importance of clinically significant distress or impairment. I repeat here the quotation I there set out, because it seems to me that his evidence was, in the context of this case, very important. He said:

"You will find [those words] virtually in every mental disorder in DSM; and the reason for that is that we need to distinguish between normal mood disturbances - or normal alterations in functioning - and disorders; because if we look at most of the population, most people have symptoms, most people will have irritability and nightmares and be depressed. This is very common. The point of DSM is that we need to distinguish between what is a disorder and what is just having normal symptoms, because we don't want to over pathologise a normal state. The way DSM does this is really focussing on the stress [the patient] is having. Is it very significant; is it highly distressing to the patient or ... interfering with [his or her] capacity to function, maybe in a workplace, maybe in family, maybe inter-personally? But in these major ways [the patient] is not able to function because his or her symptoms are at such [an elevated] level."[301]

237 However, Professor Bryant did point out that a person suffering from PTSD may still be capable of working:

"I mean, people, some people are resilient enough to do that. So I would not say that somebody can't hold down a job and have PTSD ... But depending on the severity of the PTSD, the more severe it is the more it is going to limit my capacity to work, and the scenario you just portrayed, of somebody being very, very highly successful, given the symptoms of PTSD, particularly the impact it has on memory, concentration, those sort of necessary skills to be highly functioning, then that would be surprising."[302]

"The collision had a marked effect on my life, and the problems that arose from that have had a bad effect on me and the way my life has developed..."[303]

So, but for the collision, he would, he thought, have been a better father. He also thought that: "... the collision put extra pressure on my marriage, and created a situation where my wife and I were in continual disharmony, which in turn made it easy for me to seek company outside the marriage."[304] He nevertheless agreed during cross examination that his academic performance in the RAN improved after the collision: he attributed this to being married, and to the desire for promotion and the benefits that would bring to his wife and the enlarged family to which he was then looking forward.[305] He further conceded that he did not, during the remainder of his time in the Navy after the collision, have any problems applying himself to his career or to his studies.[306]

239 When considering Criterion F, Professor McFarlane did not identify any disturbance or impairment which, having PTSD as its source, resulted in the plaintiff resigning from the RAN in 1967, or which restricted the range of occupations he might follow thereafter. The professor did, however, conclude that Mr Burk decided to end his time at Goliath Cement because he was suffering from those family and work-related problems that Professor McFarlane saw as indicating a match with this Criterion.[307]

240 The plaintiff told Dr Burges-Watson that he left the RAN in 1967 because he did not enjoy being at sea any more, and (as part of this) because he could not stay below decks.[308] The plaintiff in his evidence at trial said that "I knew that I just couldn't cope with being at sea." He was, he said, unhappy about leaving, particularly because it meant that he would not qualify for a pension; but he felt he "wouldn't be much value to the Navy".[309] In cross examination Mr Burk agreed that by 1967 he had grown disenchanted with the RAN and with his colleagues, who he thought were "childish, immature and basically idiots".[310] This played a part in his decision to resign. I have already referred in paragraph [125] above to a letter written by Mr Burk to his wife in April 1967 in which he expresses a preference to be with her and with his son, and bemoans the long separations which are a necessary concomitant of being at sea.

241 In my opinion, it is significant that the plaintiff continued in his employment with the RAN for some three and half years after the collision, at the end of which he elected not to renew his engagement (although he joined the Reserves), and then remained with Goliath Cement for 18 years. In this context, I accept the evidence of Professor Bryant, who expressed the view that "because he had worked successfully for 20 years after the trauma, I would argue that that suggests that he did not have impairment as a result of PTSD symptoms."[311] Moreover, the plaintiff's evidence was that after starting in the store at Goliath Cement, he moved to the office because:

"... my work ethic at that time was above that of the other people in the store, my service training and everything else, and I came to the notice of my foreman as a good, reliable employee at the time."[312]

He agreed, as do I, that this reliability enabled him to climb the employment ladder within the Goliath structure.

242 When asked about the reasons for discontinuing his accounting course at Devonport Technical College, Mr Burk said he thought he was coping with it academically but agreed that he had difficulty dealing with the demands of the course while also working full time and being a husband and a father.[313] Many others who have attempted to juxtapose these different and exacting roles have encountered just these problems. I cannot be satisfied that the plaintiff's failure to see these studies through to a conclusion was the result of clinically significant distress or impairment in an important area of functioning.

243 The plaintiff described his decision to leave Goliath Cement in 1985 in the following terms:

"Well, I had been having flashbacks, and that sort of thing, about the collision virtually on a daily basis at work, and in the finish it just got the better of me and I, I went home from work on this particular night and I said to Elaine, 'Look, I cannot go back to work any more'; and I said to Elaine on previous occasions that I wasn't coping very well and, like an old trooper of a Prince Alfred nurse, she would say, you know, 'Pull up your socks and get on with life' and I tried to do this. And anyhow, I had reached the decision where, where I just could not cope any more, and I went into [Dr] Bedisco's office and I broke down in his office, and he said to me 'What you are doing is, is a very silly thing'. He said 'Do you want to take some time to consider it?' And I said, no, I didn't, and he gave me 14 days' sick leave, which I used as a notice of intention to leave, and never went back to work."[314]

244 Yet in an application for the Job Search/Newstart Allowance made in August 1994 the plaintiff, after identifying his last employment as being with Goliath Cement, in answer to the question "Why did you stop work?" said "Disagreement with employer". In cross examination he could not explain why he made this entry;[315] but, in an application for employment, it looks better than the explanation put to the court in this trial.

245 The plaintiff addressed the question again in January 2001, when (after the institution of this proceeding) he made the application for a disability pension from the DVA to which I referred in paragraph [195] above. In answer to the question "Did your disabilities stop you working in any way?" Mr Burk said:

"I did clerical work. Back pain prevented me from sitting for long periods. Tinnitus helped make me cranky & made 'phone calls difficult; also concentration problems."[316]

246 According to Mr Kaine, Mr Burk was not happy at work during the period which preceded his resignation from Goliath Cement. So much is certain. One issue was the employer's perceived failure to engage relief support when the office staff went on leave. Mr Kaine said that when he took holidays, Mr Burk would perform the duties of both of them, and vice versa. Mr Kaine did not have any problems performing two roles, acknowledging that "we probably didn't work quite as hard back in those days."[317] By contrast, Mr Burk felt aggrieved whenever he had to do two jobs at once. Another issue was the plaintiff's unhappiness at others in the office being, as he thought, promoted above him. One such person was Mr Graham Moore, who started in the office and, after completing an accounting course, was promoted to Chief Clerk and then to Administration Manager, a position slightly senior to Mr Kaine. Mr Burk was not "real impressed" by Mr Moore's promotions.[318]

247 Mr Burk gave no prior warning of his departure. This did not square with Mr Kaine's understanding that the plaintiff was having no difficulty performing his work. Concentration was not a problem. It did, however, accord with Professor Bryant's ex post facto assessment that in 1985 Mr Burk was not coping with his role as an employee,[319] and with Mr Kaine's impression the plaintiff was unhappy in the job.

248 The Commonwealth submits that Professor Bryant's opinion is not at odds with the conclusion, which the Commonwealth argues is the correct one, that the plaintiff's decision to leave Goliath Cement came about in part because he was feeling under pressure with his involvement in greyhounds, an involvement which engaged his heart and mind in ways his work at Goliath did not. Thus Mrs Burk agreed in cross examination that, in his latter years at Goliath, her husband travelled to Hobart, Launceston and Devonport to indulge his interest, not to say passion. However, she added that only on "very, very rare occasions" would he take time off work: in general, everything would be ready by the time he got home.[320] Mr Kaine said that, in the two or three years before the plaintiff left Goliath Cement, he would - on an intermittent basis - leave early to get his dogs to the Hobart races.[321]

249 In this context, I have regard to evidence given by the plaintiff about how he felt in the period between his resignation from Goliath Cement and 1990:

"I just, I felt like I was living this crazy life really. I was running around all over the place with the dogs, and half the time I didn't know what I was doing or where I was going. I was under a fair bit of pressure to try and make the dogs pay for themselves, and my marital relationship with my wife was suffering as a result of all this charging around that I was doing, and I wasn't a very nice person to live with at the time. I was very angry, and for many years I had been very angry, and I wasn't, I never slept well for years and years and I was tired, stressed and tired."[322]

250 I have no doubt that Mr Burk felt stressed and tired. I have no doubt that this adversely affected his relationship not only with his wife, but also with his employer. But I am not satisfied that the Melbourne/Voyager collision was a cause of these "disturbances". Nor am I satisfied that they, in turn, caused clinically significant distress or impairment in important areas of Mr Burk's functioning. Of course they caused distress. Certainly, the plaintiff's ability to function as a loving husband and a good employee, settled in his job and enjoying good working relationships with his colleagues at work, was impaired. But their clinical significance as symptomatic of a recognisable mental illness has not in my opinion been established.

251 The evidence about Mr Burk's attempts to re-enter the workforce after he left Goliath Cement also suggests that there were factors other than PTSD at play. After he separated from his wife, and after his relationship with Ms Shone broke down, the plaintiff in early 1995 went to Wyong in NSW. For a time while there, he lived with an acquaintance from the greyhound industry. He was then on the dole and looking for work, but "because I couldn't do any heavy lifting, and because I had been out of the workforce for so long, nobody really was interested in me."[323] Mr Burk described a further attempt to re-engage in employment in 1997, when he worked as a storeman for a company, Websters, under the work for the dole scheme. He found that he could not cope; again, heavy lifting was the problem. He had problems with his back and a hernia and then developed "a bad dose of pneumonia" and gout. As a result, in his three months with Websters, he was off sick for one month. He said "they more or less said that if I performed all right that they would give me a job, and I was really trying hard to put everything out of my mind and, and get on with this job. But it never eventuated when the money ran out, and they wouldn't keep me on any longer."[324]

252 I am not persuaded that this history, which is undoubtedly one of impairment in an important area of functioning, is clinically significant when the issue is whether the plaintiff suffers from a mental illness. The impairment at this point was physical.

253 Mr Burk applied for a service pension in 1999 on the grounds of permanent disability. In evidence he said that: "The reason the DVA gave me for granting of the pension was for a number of medical complaints that I had, and including a nervous condition."[325] Yet, in an application form signed by him, and dated 8 April 1999, in response to a question: "Do you have an ongoing disability, medical condition, illness or addiction that has made it difficult for you to get a job or that affects your ability to work?" the plaintiff answered "Yes" and listed "hernia, gout, Achilles tendon, bad back".[326] This application was made not only after the plaintiff had contacted his present solicitor about the possibility of having PTSD, but also after he had attended an interview with Mr Wilks - following which the latter diagnosed him with having that condition. I should note in this context that, according to the evidence given by the plaintiff, he struggles with the idea that he suffers from a mental disorder.[327]

254 In the 2001 application for a disability pension the plaintiff makes no mention of PTSD; instead, as I have noted in paragraphs [195] and [245]above, the disabilities to which he refers are a bad back and tinnitus. When this was put to him in cross examination, Mr Burk said that he was advised by an advocate that he could not claim for PTSD on this form and that he should confine himself to his complaints about a bad back and a hearing problem. On being pressed about the absence of any mention of PTSD, Mr Burk said he could not claim for it on this form because this application only related to injuries that were suffered in a war zone. He drew a distinction between a disability pensio[328]nd a service pension.328

255 Subsequently, it should be noted, a copy of a claim by the plaintiff for an income support pension from the DVA - undated but stamped as being received on 31 May 1999 - was tendered. When asked in the form of application to list details of treatments received in the last twelve months for the injury or illness for which a claim is being made, Mr Burk included "current psychiatric evaluation".[329] Attached to that document is a handwritten note, signed by the plaintiff, listing various ailments, including "Currently undergoing psychiatric evaluation re post traumatic stress disorder ongoing untreated 1964".

256 Dr White said that in his view the plaintiff did not satisfy Criterion F - he did not present as someone with a mental illness. He explained his views in the following evidence:

"... mental health is pervasive, 24 hours a day. So if you were depressed, you are feeling depressed through the entire interview. If you are anxious, you are anxious through the entire interview. It is just, that is how you are, so that is the entire presentation for the interview.

Q: You say, over the page, that it is obvious, even to the casual observer that the person with PTSD is severely distressed. Is that always the case?

A: Well, I believe so ... Mental illness is a brain disease and people look sick ..."[330]

257 Mr Burk does not, in my opinion, satisfy Criterion F. It follows from this, and from my analysis of the evidence pertaining to the other criteria, that I do not think he suffers from Post Traumatic Stress Disorder. I agree with Professor Bryant in stressing the importance of the distinction between normal mood disturbances, and normal alterations in functioning, on the one hand, and mental illness on the other. I also think it important that those who examine cases such as that of Mr Burk be aware of the temptation to conclude that, because there was a traumatic event, and because someone who, having been caught up in it, later exhibits symptoms of the kind to which the DSM-IV criteria relate, that person must suffer from PTSD.

258 Many of these symptoms, to adopt the terminology used by Dr Bell in his evidence, are non-specific indicators. It seems to me that, in Mr Burk's case, none were specific. The nearest he got was in his dreams/nightmares, and in his intrusive thoughts. By their nature, however, the dreams could not be said to be the product of the collision, even though one of them (but only one) incorporated HMAS Melbourne. And the intrusive thoughts did not, in my opinion, move beyond the frequent recollections every single member of the surviving crew of each warship would unavoidably encounter throughout the balance of their lives. It was that kind of disaster. But not every member of each surviving crew suffers from PTSD. In those cases, as in that of Mr Burk, the recollections did not cause clinically significant distress or impairment. In this context, it is significant that neither the dreams, nor the intrusive thoughts, nor any of the other symptoms now put forward as indicating a diagnosis of PTSD, caused Mr Burk himself to make the vital link; in other words, to think that the collision was afflicting his life, wretched though some aspects of that life were. Then, in 1997, Mrs Burk saw a television presentation about victims of the collision. It was not until that moment that it occurred to either the plaintiff or his wife that the evening of 10 February 1964 might explain behaviours and moods that had caused both of them much unhappiness over previous decades.

Final Conclusion

259 It was doubtless a theory worth exploring. In the opinion of some highly respectable psychiatrists and psychologists, the theory was in Mr Burk's case made out, as it has been in the case of other members of the crew of HMAS Melbourne. It is no reflection on the professionalism of those witnesses that, given Mr Burk's particular circumstances, I disagree. They did not have the benefit, as I have had, of the testimony of many others; and of the forensic process, including the submissions of counsel. Nor did they have the advantage of comparing the various histories given, at different times and under different circumstances, by Mr Burk; or the expert reports based on those histories; or those histories with the evidence given before me. It is a careful examination of all that mass of material that has led me to dismiss the claim because I am not satisfied on the balance of probabilities that Mr Burk, while his life has certainly not been free of stress and difficulty, presently suffers - or has in the past suffered - from Post Traumatic Stress Disorder.

260 The claim must be dismissed. Unless the parties satisfy me to the contrary, the usual order as to cost should follow; namely, that they be paid on a party/party basis by the plaintiff to the defendant.

[1] T.86.

[2] T.87.

[3] T.88.

[4] T.90.

[5] T.88.

[6] T.207.

[7] T.92.

[8] T.71.

[9] T.71.

[10] Paragraph 5(a) to (c) of the Defence dated 10 July 1999.

[11] Particular (a) to paragraph 6 of the Statement of Claim filed 28 May 1999.

[12] T.1509.

[13] Paragraph 8(a) & (b) of the defence, dated 10 July 1999.

[14] Ibid, paragraph 10(a) & (b).

[15] Particulars of Special Damage and Loss of Earning Capacity dated 6 September 2002, p.3.

[16] Exhibit D6.

[17] See commentary in relation to differential diagnosis at p.467.

[18] T.1286 ff.

[19] T.1306-1307.

[20] Exhibit 6, pp. 463-4

[21] T.507-508

[22] T.489

[23] T.509

[24] T.358

[25] T.471, 473

[26] T.92.

[27] T.408.

[28] T.1304.

[29] I omit notes applicable to young children

[30] T.345.

[31] T.478-479.

[32] T.1309.

[33] Exhibit P14.

[34] Exhibit P15.

[35] Exhibit P16.

[36] T.120-121. See also T.130.

[37] T.259.

[38] Exhibit D6, p. 464.

[39] T.136.

[40] T.137.

[41] T.138.

[42] Exhibit D6, p. 464.

[43] At [48] above.

[44] Exhibit P3, pp.1003-1004.

[45] T.212.

[46] T.347. See also T.387.

[47] T.490.

[48] T.927.

[49] T.928.

[50] T.1356.

[51] T.1381.

[52] T.1382-1383.

[53] T.1300.

[54] T.1305.

[55] T.1305-1306.

[56] T.1466.

[57] Ibid.

[58] Ibid.

[59] T.520.

[60] T.133.

[61] T.133-134.

[62] T.260.

[63] T.521.

[64] T.1309.

[65] T.1465

[66] T.490

[67] T.519.

[68] T.123.

[69] T.1333.

[70] T.1387.

[71] T.477.

[72] Exhibit P15, p.2.

[73] Exhibit P3, page 1076 at 1078.

[74] Professor McFarlane thought this event might have occurred in the winter of 2001, but I take judicial notice of the fact that it took place in August 1997

[75] T.483-484

[76] T.1301

[77] Exhibit D6, p. 467.

[78] T.614.

[79] See paragraph [5]above.

[80] T.1205-1206.

[81] T.1206, 1220.

[82] T.130.

[83] T.327-328.

[84] T.773.

[85] T.767-768.

[86] T.362.

[87] T.475.

[88] T.531.

[89] T.493.

[90] T.411-412, 417.

[91] T.114.

[92] Exhibit 3, p.1005.

[93] Exhibit 3, p.1058. The letter is set out at length at paragraph [108] below.

[94] T.1433.

[95] T.115.

[96] T.116.

[97] T.112-115

[98] T.654.

[99] T.657.

[100] T.961.

[101] T.1248.

[102] T.253.

[103] T.1301.

[104] T.219.

[105] See paragraph [75] above.

[106] T.525.

[107] T.109.

[108] T.110.

[109] Exhibit P3, pp1047 to 1050. Note: although the postmark on the copy is illegible, the information provided by the solicitors for the plaintiff, and accepted by him during cross examination, was to the effect that it was postmarked 14 May 1964 (T.249).

[110] T.1415.

[111] T.1338.

[112] T.250.

[113] T.1433-1434.

[114] Exhibit 3, pp.1055 to 1061.

[115] T.126.

[116] Exhibit P3, pp. 1070-1071.

[117] T.219.

[118] Exhibit P3, pp. 1095-1096.

[119] T.258.

[120] T.524, 556.

[121] T.125.

[122] T.227.

[123] T.579-580.

[124] T.532, 534.

[125] T.1311.

[126] T.533.

[127] Exhibit P14, p.4.

[128] Exhibit P15, p.2.

[129] Ibid, p.3.

[130] Exhibit P16, p.2.

[131] T.521-522.

[132] T.522-523.

[133] T.429.

[134] T.70-71.

[135] See para. [101] above.

[136] T.247.

[137] T.251.

[138] Exhibit P3, p.1075.

[139] Written final submissions, p.2.

[140] T.1431.

[141] T.1432-1433.

[142] T.620.

[143] T.693.

[144] T.130.

[145] Exhibit P3, pp.1088 - 1091.

[146] Ibid at pp. 1090 - 1091.

[147] T.699.

[148] T.97.

[149] T.616.

[150] T.145.

[151] T.699-700.

[152] T.701.

[153] T.633-634.

[154] T.727-728.

[155] T.735.

[156] T.636.

[157] T.61.

[158] T.238.

[159] T.727.

[160] T.735, 749.

[161] T.750.

[162] T.121.

[163] T.239-240.

[164] T.630-631.

[165] T.1241.

[166] T.674.

[167] T.403, 426.

[168] T.242.

[169] T.121.

[170] T.242.

[171] T.769.

[172] T.303.

[173] Exhibit D7.

[174] Exhibit D8.

[175] T.420.

[176] T.146-147.

[177] T.150.

[178] T.638.

[179] T.264.

[180] T.243.

[181] T.273.

[182] T.268.

[183] T.667-668.

[184] T.279.

[185] Exhibit D2.

[186] T.1263.

[187] T.1247.

[188] T.1246-1247.

[189] T.277.

[190] T.270.

[191] T.281.

[192] T.282.

[193] T.285.

[194] T.607-608.

[195] Exhibit P3.

[196] T.657.

[197] T.629.

[198] T.149.

[199] T.243.

[200] T.941, 956.

[201] T.662.

[202] T.677.

[203] T.1245.

[204] T.1256.

[205] T.1264.

[206] T.284-285.

[207] T.652.

[208] T.586.

[209] T.590.

[210] T.594.

[211] T.1331.

[212] Exhibit P3, p.1065-1066.

[213] Ibid, p.1070.

[214] Ibid, p.1098.

[215] T.411.

[216] T.704.

[217] T.705.

[218] T.723-724.

[219] T.710.

[220] T.709.

[221] T.156.

[222] T.1258.

[223] T.1245-1246.

[224] T.1255.

[225] T.1263.

[226] T.1260.

[227] T.1313.

[228] Exhibit D6, p. 464.

[229] T. 1299.

[230] T.117, 121.

[231] T.135.

[232] T.137.

[233] T.353.

[234] T.617.

[235] T.685.

[236] T.684.

[237] T.618-619.

[238] T.687.

[239] T.630.

[240] T.687.

[241] T.689.

[242] T.1244.

[243] T.640.

[244] Exhibit D5, qu.2.

[245] Exhibit D9.

[246] T.576.

[247] See paragraphs [225] to [231] below.

[248] T.477.

[249] T.535-536.

[250] T.563.

[251] T.350.

[252] T.427-428.

[253] Exhibit P15, p.2.

[254] Exhibit P16, p.2.

[255] T.1299-1300.

[256] T.491.

[257] T.536.

[258] T.560-561.

[259] T.1398.

[260] T.620, 691.

[261] T.625-626.

[262] T.691-692.

[263] T.643.

[264] T.1430.

[265] T.1228.

[266] T.223-224.

[267] Exhibit P17.

[268] T.1231.

[269] T.941.

[270] T.956, 961.

[271] Exhibit D5, qu.7.

[272] T.301.

[273] Exhibit D5, qu.3.

[274] Exhibit P14, p.4.

[275] Exhibit P15, p.2.

[276] Exhibit P16, p.2.

[277] T.404.

[278] T.1302.

[279] T.339-340.

[280] T.483.

[281] T.956-957.

[282] T.146.

[283] T.629.

[284] T.640, 650, 652.

[285] For example, T.118, 124.

[286] T.1476.

[287] T.1478.

[288] See paragraph [174] above.

[289] See paragraph [144] above.

[290] T.350.

[291] T.491.

[292] T.1302.

[293] T.481-482.

[294] T.560.

[295] Exhibit D5, qu.4.

[296] T.302.

[297] T.582.

[298] T.959-960.

[299] T.583.

[300] Exhibit D6, p.466.

[301] T.1306-1307.

[302] T.1307-1308.

[303] T.182.

[304] T.182.

[305] T.183, 228-229.

[306] T.194.

[307] T.537.

[308] T.338.

[309] T.130-131.

[310] T.223.

[311] T.1323.

[312] T.261.

[313] T.262.

[314] T.151-152.

[315] T.290.

[316] Exhibit D5, qu.33.

[317] T.952.

[318] T.953.

[319] T.1334.

[320] T.660.

[321] T.957.

[322] T.155-156.

[323] T.159.

[324] T.153. I digress to note that, while the plaintiff may not have been able to work himself, when he visited Dr Poole for the first time, he said: "I signed my wife up for some part-time work" (T.160).

[325] T.167.

[326] Exhibit D4, p.4, qu.17.

[327] T.166.

[328] T.314-316.

[329] Exhibit P20, qu.12.

[330] T.1474-1475.