Russell v Commonwealth of Australia [1999] VSC 437

Russell v Commonwealth of Australia [1999] VSC 437 - VSC 1999 case summary — Zoe

[9]

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.

[14]

"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."

[15]

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:

[23]

"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.

[25]

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.

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Judgment (51 paragraphs)

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Legislation Cited (1)

Cases Cited (3)