Russell v Commonwealth of Australia [1999] VSC 437

5. Young Robin was a bright and happy boy. His family was loving and close knit. He was close to his parents and his sisters. His father suffered from cancer which required an operation inside his mouth. Robin was dux of primary school and of more modest performance at secondary. He was active in sports, an altar boy, a cadet. In the Nuriootpa High School Annual Magazine for 1962 he wrote enthusiastically of the year's cadet activities, concluding "The year's training was well worth the effort for the two bivouacs". But his heart was beyond the lovely, though limiting, vales and hills of the Barossa; it was at sea. In the Nuriootpa High School records of 1960, 1961 and 1962 his first choice of occupation was Navy. When he had commenced at the high school in February 1959 he completed the school form thus:

"5. What sports do you play? - Football, cricket, tennis, swimming. 6. Do you belong to any organisations? - Sunday School, cricket club, swimming club, youth club. READING: magazines, sea travel. 11. What do you wish to be? - A Naval Officer."

And so on 7 January 1963 young Robin Russell bade farewell to his family and departed from Adelaide Railway Station bound for the Junior Recruit Training Establishment, HMAS Leeuwin, south of Perth.

10. Recruit Russell's year at Leeuwin was routine and uneventful. He enjoyed it. When he went home on leave he enthused about it. He changed little during the year. During the training year he chose the communications branch of the Navy as a career path. In 1963 that comprised radio operators and signalmen or tactical operators. Either subcategory involved significant time at sea. Upon completion of training at Leeuwin, Junior Recruit (First Class) Russell went home for Christmas. Then on 13 January 1964 he travelled to Sydney for his first sea posting. It was to be aboard H.M.A.S. Melbourne. On 6 February 1964 H.M.A.S. Melbourne steamed from harbour with Ordinary Seaman (Communications) Russell aboard. It was his first time at sea. His life was about to change irretrievably.

13. On the night of Monday, 10 February 1964 the Melbourne was engaged in exercises 20 miles south-east of Jarvis Bay. AT 2056 hours a collision occurred between H.M.A.S. Melbourne and H.M.A.S. Voyager. The terrible events of that night are well known and I shall not repeat them. Of the 314 persons on board the Voyager, 232 survived and 82 lost their lives.

16. Commander Bate, then a sub-Lieutenant and the officer of the watch on the Melbourne gave evidence before me. He commenced watch about 1940 hours that night. Shortly prior to the collision the Voyager appeared on the starboard side in a "ghostly format". Sub-Lieutenant Bate was on the bridge behind a considerable amount of glass. There was a starboard wing, open to the elements and which was over the water. The Captain came in from the starboard wing where he had been and ordered full astern both engines and broadcast to the ship's company collision stations. Commander Bate stated that there was nothing further which could have been done: "in horror we just stood there and watched it happen". When the collision occurred it felt as if the Melbourne went over a speed hump. There was a large volume of smoke and steam and sparks. Melbourne's speed reduced remarkably but not to a complete stop. The stern of the Voyager could be felt grinding down the starboard side of the Melbourne. After the collision the Melbourne slowly turned to starboard and stopped. Lights from the Melbourne were used to search the sea for survivors and to illuminate the stern of the Voyager to assist in rescue operations. Helicopters and boats sought to rescue survivors. Oil-covered survivors rescued from the water were brought onto the Melbourne on the port and starboard sides. Reports concerning the safety of the Melbourne and the damage suffered by it were made to the bridge. On the starboard wing was a repeat loudspeaker which transmitted all bridge instructions and messages received. Repairs to the Melbourne bulkhead were required. Concern about the safety of the Melbourne existed and messages audible to the starboard wing concerning damage control and rescue operations were sent from the bridge. Melbourne left the scene after midnight at a slow speed because of fears that the collision bulkhead might not hold against the pressure of water. While proceeding back to Sydney the crew was instructed by the captain to be circumspect about discussing the disaster until a chance had occurred to gather evidence from each individual. It took 30 hours to return to Sydney. The majority of the Voyager survivors were on the Melbourne.

19. Into that terrible scene had entered a young innocent on his first sea duty. It was his fate to be on starboard lookout that night. He had done but one hour of lookout duty before. He commenced his lookout this night two minutes before the collision.

22. In a supplementary statement made on 6 April 1964 by the plaintiff to counsel or legal officer for the Navy, the plaintiff stated:

"I was to go on lookout at 9.00 pm. This was the first time I have been to sea and I cannot judge distances over water... I had only been on lookout two minutes up to the collision. I am not necessarily sure of the two minutes, in fact, I may have been a bit late getting to the bridge... I do not know how late I may have been. I judged the time I had to go up on the bridge from previously asking someone what the time was and when I thought it was time to go up, I went. I stood by the pelorus on the starboard wing of the bridge, that is the forward part of the wing. When I got there Voyager appeared to be going from port to starboard, across Melbourne's bows. I cannot give the relative bearing of Voyager when I saw it coming back to port but it was closer than the first time."

26. In a typed statement, undated but made in February 1964 (and after 25 February as it refers to a questionnaire completed on 25 February) the plaintiff stated:

"I could not estimate accurately how far away she was but she certainly was closer than she had been when she appeared to cross our bows a minute earlier with her starboard side, towards us. It did not register with me on this occasion what lights may have been showing on Voyager and her speed didn't register with me either. As soon as I realised Voyager was crossing our bows I stepped into the bridge and said to an officer whom I understood to be the officer of the watch `Voyager crossing our bows from starboard Sir'. I did not wait to see whether he heard me or not but returned immediately to my lookout post. I can't tell exactly how long after but it seemed less than half a minute to me. I heard what appeared to be a commotion in the bridge and realised that something seemed to be wrong and the next thing we hit Voyager. I don't recall feeling much impact from the collision and I remember that I was not even thrown off my feet. Just then the Captain of Melbourne Captain Robertson and some other officers whom I don't know came out of the bridge into the starboard lookout post. They did not speak to me and I did not see what they did or hear anything they might have said to each other. They went almost immediately back into the bridge again. At about this time the stern section of Voyager with the forward section missing from about the position of the bridge forward was passing very close up and slowly down the starboard side of Melbourne. I remember that the stern section was in darkness and I recall seeing someone flashing a torch round what I think would have been the quarterdeck. There were all sorts of pipes being made and I recall that one was away all sea boats or something of that nature. The stern section of Voyager seemed to drift away behind to our stern and out of my vision and the launching of the rescue boats was out of my vision also. Consequently I could not say how long it was from the time of the collision until the first boats were in the water but they did seem to have them in the water very quickly to me, and also although it's hard to estimate time accurately in a case like this it did seem to be only about ten to fifteen minutes before the first boat was back alongside Melbourne crammed full of survivors. Of course I could only see what was going on on the starboard side. I did not leave my starboard lookout position for roughly four hours after the collision. Other than as I have described the only part I saw or took in the rescue operations was that periodically at short intervals some ratings on the flight deck were sweeping the water with a search light and I followed the sweep of the search light with my binoculars over the water looking for survivors. I did not see any."

In a questionnaire completed on 25 February 1964 the plaintiff stated that on the starboard wing he was using binoculars. Commander Bate gave evidence that at that time lookout binoculars were not night vision binoculars but were night capable. In evidence before me (and in statements made in the 1990s) the plaintiff stated that at collision he saw a massive shower of sparks, steam and oily smoke and that the Melbourne rode up over the Voyager. He did not say that in 1964 in the documents produced. However the questionnaire was very directional: the plaintiff's answer to "What did you see?" (of the collision) stops at a point before the collision and picks up again with rescue operations. The hiatus is marked "tape". Presumably what he said was taped. It is not now produced. The plaintiff's two statements clearly were made to investigators (legal or otherwise) and are running documents which do not reveal the questions asked. It is not clear whether the plaintiff after saying in the February 1964 statement "... the next thing we hit Voyager" was asked what he saw or what he felt of the impact. However that may be, he proceeded with what he felt of the impact and of the activity on the bridge. Given the evidence of Commander Bate of the "large volume of smoke and steam and sparks" that he saw and that the plaintiff was in a better position to see (not being behind glass and being on the starboard wing) it would be most unlikely that the plaintiff did not see the sparks explode into the dark night sky. I do not consider the plaintiff has added the "massive shower of sparks, steam and oily smoke" to improve his case. It is highly likely that is exactly what he saw. The recalcitrance of the 1964 records of him on this matter is explained by the directional and derivative nature of the records, which in any event are incomplete on their face. Exhibit 87 in the 1964 Royal Commission (see its transcript, p. 1096) was a handwritten statement made by the plaintiff two days after the collision and signed on 14 February 1964. It (or its typed version) has not been produced before me. In examination at the Royal Commission on 14 April 1964, the plaintiff stated that he saw the impact (p.1110). Not unnaturally, the examination at the Royal Commission concentrated on the period immediately preceding the collision. The plaintiff was not examined in terms as to what he saw at impact. Plainly, examination at the formal and high profile Royal Commission would have been ordeal for the plaintiff. He was then 17 years 3 months of age. He was questioned closely. Counsel assisting was moved to say "You have nothing to fear" after three successive answers of "I don't know" (p. 1109). The plaintiff at one stage was called "sonny". And at the very outset of examination, the following exchange took place:

"His Honour: Do you remember what time you were to go on duty? --- About ten to nine. Mr Smyth: Were you on time? --- No, I do not think so, not quite. How late were you? --- I do not know. His Honour: Would it be a minute or two minutes? --- I do not know.

The plaintiff's self-perceived lateness in no way contributed to the naval collision but it contributed to his trauma.

So there it was: a seventeen year old, on his first sea duty, on his second hour's lookout, unable by reason of inexperience to estimate distance over sea at night, late onto lookout, and within two minutes, lookout to an horrific naval collision in which 82 men died, publicly and closely questioned by Sir John Spicer and Mr J.W. Smyth QC in the proper exercise of their onerous function. Small wonder that even thirty one years later, on 21 October 1995 at Sydney Airport upon first interview by his solicitor, when asked "How did you find the experience before the Royal Commission? What was that like?", the plaintiff replied: "Terrible. Terrible". No team of psychiatrists is needed to establish that that youth had undergone major trauma on 10 February 1964 and immediately thereafter.

34. And there is another commonsense measure. What was the cheerful, optimistic youth who on 13 January 1964 had set off to see the world, like when he first returned home after 10 February 1964? "It was like having a ghost in the house". So said his sister.

37. The plaintiff's claim is for loss and damage suffered by him as a consequence of the negligence of the defendant in the naval collision on 10 February 1964. Essentially the plaintiff's claim is for post-traumatic stress disorder and economic losses consequent thereon. The defendant admits liability. The matter is an assessment. The defendant says that the plaintiff suffered merely transient trauma, no psychiatric condition, and no economic loss from its admitted negligence.

40. Proceedings were issued in this Court on behalf of the plaintiff on 10 November 1995 - nearly 32 years after the naval collision. The defendant takes no point as to late issue under s. 5(1)(a) Limitations of Actions Act 1958 and concedes that the proceedings are capable of being brought. That is because the defendant says that no information was conveyed to the plaintiff that the psychiatric illness from which he claims to suffer was caused by the act or omission of the defendant, its servants or agents until 1995. The proceeding is not statute-barred but is facilitated by s. 5(1A) of the Act.

43. The plaintiff was not physically injured in the naval collision. His claim is based upon post traumatic stress disorder ("P.T.S.D."). P.T.S.D. is an anxiety disorder. It occurs consequent upon exposure to trauma. The authoritative diagnostic and Statistical Manual of Mental Disorders (4th edition) - known as DSM-IV - of the American Psychiatric Association (Washington, D.C., 1994) defines the diagnostic criteria for P.T.S.D. thus:

"Diagnostic criteria for 309.81 Posttraumatic Stress Disorder 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. Note: In children, this may be expressed instead by disorganized or agitated behavior. B. The traumatic event is persistently reexperienced in one (or more) of the following ways: (1) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. Note: In young children, repetitive play may occur in which themes or aspects of the trauma are expressed. (2) recurrent distressing dreams of the event. Note: In children, there may be frightening dreams without recognizable content. (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). Note: In young children, trauma-specific reenactment may occur. (4) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. (5) psychological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. 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 (e.g., unable to have loving feelings) (7) sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span) D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following: (1) difficulty falling or staying asleep (2) irritability or outbursts of anger (3) difficulty concentrating (4) hypervigilance (5) exaggerated startle response E. Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1 month. F. The disturbance causes clinical significant distress or impairment in social, occupational, or other important areas of functioning. Specify if: Acute: if duration of symptoms is less than 3 months Chronic: if duration of symptoms is 3 months or more Specify if: With Delayed Onset: if onset of symptoms is at least 6 months after the stressor.

47. I accept the plaintiff as a witness of truth. I have had the benefit of listening to and observing him over time. I find him an accurate and honest witness. The plaintiff has the good fortune to be related to some very good women. The plaintiff's mother, Mrs Aileen Russell, whose evidence was received from South Australia by video link, impressed me considerably. Her evidence was balanced, firm and clear. I accept her evidence. The plaintiff's younger sister, Ms Midge Tanith, shares her mother's characteristics. I accept her evidence likewise. The plaintiff's partner, Ms Colleen Windle, was especially impressive. Her evidence was fair and balanced. She is an insightful and impressive woman. Each of those three female witnesses shared a commendable restraint in their evidence. I accept each of them as honest and reliable witnesses. The plaintiff's case rests in significant part upon their evidence and that foundation is a strong one.

50. The emotional withdrawal of the plaintiff following the naval collision was particularly evident to his family. His sister said that from the first visit home his presence, far from the harmonious and lively spirit it had been, was "like a wet blanket". He stayed in his room a lot. Thereafter, communication with him, once so easy, became difficult. It became "like talking with a stranger most of the time. He'll talk about his dogs, his garden, but its - there's nothing there, there's no actual contact between us emotionally". The plaintiff's mother said that after the naval collision he did not go out, that he always has been a considerate son and that he covers up his feelings of depression out of consideration for her. Back in Sydney the plaintiff commenced to drink alcohol heavily. He had not drunk before and did not come from a family of drinkers. It is not unusual for young men with new income and new freedom from the restraints of home, to commence drinking and often to excess. However the plaintiff's drinking was continuously excessive. He gave evidence it was to dull feelings of guilt and shame he had from the naval collision and its aftermath. The plaintiff sailed on the Melbourne through the Pacific and points north between May and October 1964. He felt uneasy at sea. He did not discuss the collision at all. After completion of his tour of duty on the Melbourne he was posted to H.M.A.S. Cerberus for further training in communications. His excessive drinking continued. He had nightmares and visions of the collision. Initially, the nightmares were about the impact; later, about being trapped in pipes filled with water. He had waking spontaneous recollections; initially without external triggers but later more from external stimuli. A month after his posting to Cerberus the plaintiff was required to choose a sub-branch within communications. By this time, data operations had been introduced into naval communications. The plaintiff was progressively developing an urge to avoid sea duty. He chose data operations because it involved significantly less sea duty than the other sub-branches of communications, namely tactical operator and radio operator. The plaintiff performed well in data operations - his work performance indeed being better after the collision than before, when officers had noted (October 1963) "has not worked particularly well - certainly not up to expectations" and (December 1963) "has not worked to capacity" and "if he is to succeed in the Service to the extent that his capabilities will allow he will have to start showing a more determined and mature approach to his training". At the conclusion of the Cerberus training he was posted to H.M.A.S. Harman, a shore base in Canberra, and continued in data operations. After a period he was one of four (out of sixty) chosen to undertake training in computer operations. He continued to perform well. He met his first wife at Harman. They married on 25 November 1967. The plaintiff was still drinking excessively, albeit less at the request of his wife. In 1967 he had been involved in a motor vehicle accident in which he suffered a crushed vertebrae and his then fiancee a punctured lung. The accident occurred after he had been drinking. He continued to be withdrawn emotionally and socially, playing sport but not mixing. He continued to work successfully. In March 1968 a commission warrant for the supplementary list was raised in relation to him. Such a pathway to rank involved a return to sea. The candidature was withdrawn in December 1968 by the plaintiff. The first child of the marriage was born on 15 November 1969 (and the second on 10 June 1972). By June 1969 closure of the data operations branch was being contemplated. By then the plaintiff was a leading data operator in the computer room and was performing at chief petty officer level. The plaintiff upon the proposed closure of the data operations branch left the Navy with a free discharge on 16 September 1972. His rank at the time was leading data operator. His period of service had been 7 January 1963 to 16 September 1972. The plaintiff transferred to a comparable position in the Department of Defence, taking his superannuation and furlough entitlements, and achieved an increase in pay.

53. The defendant contends that the plaintiff withdrew the commission warrant in December 1968 "because of marriage, the impending birth of his child and the relative and sensibly appraised advantages (referring to a file note of 9 June 1969) of staying on as a data operator". I do not agree. I accept the plaintiff's evidence that he was avoiding going to sea. His wife was not pregnant at the time. By parity of reason the defendant contends that when in September 1972 the plaintiff left the Navy he did so for sensible and positive reasons, namely advancement in his field of interests, computer operations, at increased levels of pay. I do not agree. I accept the plaintiff's evidence that he left the Navy because he could not advance without going to sea for substantial periods and that he could not face the seagoing prospect. He joined the Navy to go to sea. He left the Navy because he could not face going to sea.

56. The plaintiff worked in the Department of Defence in Canberra from 1972 to 1991. In 1974 he was involved in another motor vehicle accident, this time as a passenger. He suffered a head injury and was hospitalised for eleven days. He and his wife separated in 1975 and were later divorced. He had a relationship with another woman from 1977 to 1982. In 1982 he met Ms Windle. In 1983 he and she commenced living together and they remain so. In 1983 the Department of Defence altered its computer operations and the plaintiff transferred to the Department of Social Security in Canberra, the computer operations of which were familiar to him. He left that Department in 1991 and with Ms Windle sought an alternative lifestyle in the Barossa Valley for a couple of years. That was unrewarding and they returned to Canberra and he rejoined the Department of Social Security. When he left it in 1991 his classification was ASO6: upon his return he recommenced at ASO1 (the lowest level) and now is at ASO5 as a probation and parole officer on permanent retainer.

59. There is an amplitude of evidence that the plaintiff has suffered over the years significant emotional dislocation. He has drunk excessively despite the good influence of Ms Windle. His personality has become rigid and obsessive. When he mixes, it is in a detached and emotionless way. He avoids intimacy. He avoids many personal situations. A graphic picture was painted by Ms Windle of a troubled man. He is closed. His sleep pattern is always disruptive. He wakes up often. He has trouble getting back to sleep. When he is distressed in his sleep she wakes him and asks "What are you dreaming about" but he will not respond. Only once has he responded, telling her he was trapped underground in a tunnel (not conveniently in water but on land). In the house the doors must remain unlocked while they are home, spaces kept clear, and doors kept open. He becomes distressed in confined spaces and in crowds and becomes agitated. Likewise with loud noises. He is very restrictive and wants total privacy in their relationship. Ms Windle has tried to get the plaintiff to discuss the naval collision but she cannot "get anything out of him".

62. I accept the plaintiff's evidence that he was burdened by feelings from the naval disaster and that he deteriorated accordingly.

65. The defendant relies upon the recalcitrance of the plaintiff over many years - indeed from 1964 until 1995 - about his feelings from the naval disaster. There were many opportunities and many occasions for the plaintiff to speak and he did not. He attended a local Canberra doctor, Dr Reid, over 15 years from 1975 to the end of 1990 for various more or less routine ailments and problems including the 1974 car accident and marital breakdown. He was depressed after the 1974 accident. He was stressed through infidelity. Dr Reid was a retired naval man and although he and the plaintiff briefly discussed the Melbourne-Voyager disaster, still nothing from the plaintiff. At no time did he discuss or report to Dr Reid his emotional problems from the naval disaster. Dr Reid got on well with the plaintiff in a superficial way (my word, not his) and he said of the plaintiff "you couldn't get through very far, kept his cards close to his chest". In 1988 Dr Reid referred the plaintiff to a Canberra psychologist, Ms van der Schyff, for relationship problems. She was in the process of moving to Adelaide and saw the plaintiff five times in "brief crises intervention". Still nothing from the plaintiff about the naval disaster except one passing mention.

68. I find that the reason the plaintiff reported no trauma to those and other persons was because he had buried it deep within him. It was his guilt and his shame. It was unlikely that he would open up to Dr Reid, a senior, practical, although sympathetic, former Naval man and a busy general practitioner. Or to others. If the supportive, perceptive Ms Windle could not "get anything out of him" over 18 years, no-one else would. Far from the plaintiff's recalcitrance about the naval disaster being evidence that he was not traumatised, I consider it is evidence that he was. The expression by the plaintiff of his trauma was not verbal; it was behavioural - rigidity, closure, alcohol, sleep disturbance - and affective.

71. In April 1995 the plaintiff saw television reports of a media release by the then Commonwealth Attorney-General, Mr Lavarch, concerning outstanding claims by victims of the naval disaster and announcing a new course by the Commonwealth Government. The plaintiff spoke to his supervisor in Corrective Services who was a lawyer and who referred the plaintiff to a Canberra firm of solicitors. Because of the specialist nature of the claim the plaintiff was referred on to his present solicitors. This took some months. The plaintiff attended a local seminar on P.T.S.D. on 16 June 1995. On 21 October 1995 the plaintiff first met his present solicitor, at Sydney airport. There is a tape recording and a transcript of that interview in evidence. The affect of the plaintiff was flat, consistent with his presentation to his sister after the naval collision and his presentation even now. Over time the shock has transformed to recalcitrance. The plaintiff's solicitor issued proceedings in this Court within three weeks - on 10 November 1995. He referred the plaintiff to a Canberra psychiatrist, Dr W. Knox, who first examined the plaintiff on 29 November 1995. A comprehensive and careful history was taken. Dr Knox diagnosed P.T.S.D. deriving from the naval disaster. That was the first communication to the plaintiff of that condition. Thus the concession by the defendant concerning s. 5(1A) Limitations of Actions Act 1958.

74. There is a substantial body of evidence both oral and documentary in this case, elicited by both plaintiff and defendant, concerning the existence and validity of P.T.S.D. itself and its application to the plaintiff.

77. The plaintiff first called Professor Alexander C. McFarlane, head of the Department of Psychiatry at the University of Adelaide. Professor McFarlane is a most distinguished psychiatrist and an expert on P.T.S.D. He examined the plaintiff on 5 May 1999. He reviewed the history. He addressed the diagnostic criteria of P.T.S.D. and concluded that the plaintiff suffered from chronic P.T.S.D. deriving from the naval disaster and with secondary alcohol abuse. The plaintiff had distressing images and nightmares, avoidance, emotional numbing, social withdrawal, hypervigilance and alcohol abuse. Professor McFarlane reviewed the longtitudinal nature of post traumatic psychopathology. The aetiology of P.T.S.D. is to be understood from a phasic perspective. P.T.S.D. emerges out of the pattern of acute distress caused by the traumatic event. There is a series of stages: the acute stress response, the chronic response and finally the individual's adaptation to having to endure it. There is a progression from distress to disorder. The plaintiff's history followed this well-established path. The disorder fluctuates over time; it waxes and wanes. Professor McFarlane stated that the plaintiff had mild to moderate P.T.S.D. Of the diagnostic criteria for P.T.S.D. cited previously, he said the plaintiff satisfied A(1) and (2); B(1), (2), (4) and (5); C(1), (2), (3) and (4); D(1), (2) and (4); E and F. Professor M McFarlane said that the plaintiff may have had an acute stress disorder immediately following the disaster which caused psychogenic amnesia. He has P.T.S.D. He has a co-morbid condition of alcohol abuse.

80. Dr William Knox, consultant psychiatrist, of Canberra gave evidence before me. He examined the plaintiff on 29 November 1995. He reviewed the history, addressed the diagnostic criteria and diagnosed P.T.S.D. arising from the naval collision. He found that the P.T.S.D. existed for some years following the collision, was dormant for some years, and reasserted itself. That is consistent with the nature of P.T.S.D. Dr Knox further examined the plaintiff on 26 and 29 June 1999. Dr Knox again addressed the diagnostic criteria and confirmed P.T.S.D. of varying severity. He continued to rate it as moderate intensity chronic P.T.S.D. It is likely that much of the plaintiff's heavy use of alcohol over the years has flowed from his P.T.S.D. Dr Knox has done much veterans' work. He said the vast majority of P.T.S.D. sufferers work quite successfully until later in life, when alcohol, marriage break-up or age catch up with them. Work takes their mind off P.T.S.D. but eventually it finds them out. P.T.S.D. has long arms (my expression, not his).

83. Associate Professor David J de L Horne, a highly qualified psychologist, gave evidence before me. Associate Professor Horne is Associate Professor and Reader in Medical Psychology at the University of Melbourne and holds the degree (amongst others) of Ph.D. in neuropsychology. He first examined the plaintiff on 18 February 1999. He reviewed the history, addressed the criteria and diagnosed P.T.S.D. deriving from the naval collision. On 29 July 1999 he again examined the plaintiff. There were no significant changes and the consultation was essentially for clarification. On each occasion he also briefly saw Ms Windle separately from the plaintiff. Associate Professor Horne said that the process of facing things, which the plaintiff had commenced with the assistance of a psychologist, Ms K Ott, was beneficial and would continue to be so. Associate Professor Horne said that a signal feature of the plaintiff's P.T.S.D. over time had been avoidance.

86. I was especially impressed with the specialist evidence called by the plaintiff. Professor McFarlane was a most knowledgable witness. The defendant submits that he pushed the barrow of P.T.S.D. I do not agree. He was highly informed and not partial. Dr Knox was a most experienced person in the relevant field. Associate Professor Horne was highly qualified. All three were careful, thoughtful and impressive.

89. Finally, a most senior psychiatrist, Professor R.B. Ball, was called by the plaintiff. He is a renowned expert in the field of alcohol and trauma. He demonstrated that the connexion between trauma and alcohol abuse was well known in 1964. P.T.S.D. - a description introduced in 1980 - like the rose, was known by other names previously.

92. The defendant called in evidence two distinguished psychiatrists, Dr Allan White and Dr David Bell.

95. Dr White, of Newcastle and Sydney, is a consultant psychiatrist who has practised for 15 years and has been a psychiatrist for 20 years. He is conjoint lecturer in the Faculty of Medicine and Health Sciences at the University of Newcastle. Dr White examined the plaintiff in Sydney on 17 June 1998. He reviewed the history and documentation. Dr White concluded that the plaintiff "does not and never has fulfilled the criteria for P.T.S.D. or any other psychiatric disorder" and that "the focus of clinical concern should be on his alcohol consumption". Alcohol was the plaintiff's problem, not P.T.S.D., and it was not a result of the naval collision. On 28 September 1998 and 23 December 1998 Dr White was provided with further documentation. His opinion remained constant. On 23 December 1998 he reported: "One can say with reasonable medical certainty that Mr Russell does not and never has suffered from a mental illness at any stage in his life... One can say with even more medical certainty that he has never suffered from P.T.S.D. which can be reasonably attributed to the collision". I consider Dr White's views, having accorded them full respect, rather too robust and categorical in the light of the long history of the plaintiff's affliction. Analytically, I consider Dr White has given significantly too little attention to the developmental and fluctuating nature of P.T.S.D. It waxes and wanes. It has long arms. Importantly, I consider Dr White in error in strongly relying upon the plaintiff's work history as counter-indicating P.T.S.D. As the plaintiff's specialist witnesses demonstrated, P.T.S.D. and successful work can go hand in hand over long periods.

98. Dr David Bell of Mosman, New South Wales, a most experienced psychiatrist was also called by the defendant. His experience in general psychiatry commenced in 1959 and has been in private practice since 1971. From 1963 to 1970 he held the post of Psychiatrist in Charge of Psychiatric Research Unit, Sydney. He has served as director of a number of distinguished bodies on alcoholism and drug dependence. He is Editor of the Australian Journal of Forensic Sciences. Dr Bell examined the plaintiff on 23 April 1999. Ms Windle was present. Dr Bell reviewed the history and the documentation. Dr Bell concluded that the plaintiff did not suffer from P.T.S.D. and never had; that the naval collision "could not" cause his excessive use of alcohol; and that there is no residual psychiatric disability in the plaintiff deriving from the collision. Dr Bell noted "The collision could cause P.T.S.D., but only to people who have been subjected to life-threatening circumstances or great personal suffering. Mr Russell did not have that experience". I consider this latter factual statement to be wholly inadequate. It does not objectively comprehend what the plaintiff has experienced. Further, Dr Bell exhibited a narrow and judgmental view of P.T.S.D. He regarded P.T.S.D. as self-serving and tautological and with spurious validation. I regret to say that, while Dr Bell was experienced intelligent and charming in full measure, I did not find his evidence objective.

101. Faced with a difference of specialist opinion, I clearly prefer that called on behalf of the plaintiff. It was more considered, comprehensive and objective than that called on behalf of the defendant.

104. Part of the defendant's case was that P.T.S.D. as an entity has not been established. It has. There is a substantial body of qualified and reputable medical opinion in support of its existence and integrity. The fact that the criteria in DSM-IV were finalised after lobbying by the American Vietnam Veterans Association is inconsequential if the entity and its incidents are shown to be valid. The entity and its incidents, like most in psychiatry, are subject to debate and to change. Else we would never advance.

107. A number of well qualified witnesses were called, by both parties, as to career paths in the Navy: for the plaintiff, Commander Bate and Dr Thomas R. Frame; and for the defendant, Commander R.W. Bates, Chief Petty Officer J.J. Hart and also Mr K. McLackland. I must say how favourably impressed I was with the calibre and professionalism of those personnel. Our community is well served by them.

110. The possible career paths open to the plaintiff at 1964 and thereafter were articulated in evidence by those witnesses. There is no need to reproduce the myriad permutations which can be spelt out. Judging as at February 1964 what would be likely to have been the career path of the young 17 year old is not free from difficulty. On the one hand he was intelligent, had the aim to be a naval officer, and was committed to a life in the Navy. On the other hand, he had started to show signs that he was underperforming and not fulfilling his potential as the file notes previously cited show. His later good work history can partly be called in aid; but paradoxically one of the Janus-like characteristics of P.T.S.D. is that its victims often work hard to escape that very condition. Having considered all the evidence as to career paths and demographic and collateral performance, in the end I am not satisfied that the plaintiff has proved on the balance of probabilities that he was likely to have achieved commissioned rank. Life is full of uncertainties. I am affirmatively satisfied that but for the naval disaster and its sequelae, the plaintiff over time would have achieved the rank of Warrant Officer.

113. To the foregoing findings of fact I apply the law as stated in Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549; Mt. Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383; and Commonwealth of Australia v McLean (1997) 41 NSWLR 389. The relevant principles are well known and need no rehearsal by me. I find that the negligence of the defendant directly caused the plaintiff to suffer P.T.S.D., with secondary alcohol abuse. P.T.S.D. although not called such in 1964, was known and was reasonably foreseeable as was alcohol abuse. The negligence of the defendant caused the plaintiff to abandon his longheld ambition of life in the Navy and caused the plaintiff substantial private pain and grief over decades. At last having faced his ghosts, the plaintiff now is on the road to recovery.

116. I accept that the plaintiff will need further rehabilitative treatment. I accept the Cumpston Sarjeant Pty Ltd actuarial calculations. I deduct 10% therefrom for vicissitudes, much time now having passed since the naval disaster.

119. Accordingly, I assess the plaintiff's damages as follows:

Past and future economic loss including loss of superannuation and of pension entitlements on the basis of Cumpston Sarjeant scenario G less 10% for vicissitudes.

124. In the event, I award the plaintiff damages in the sum of $546,518.

127. Unless there is any impediment I shall order that the defendant pay the plaintiff's costs of this proceeding.