Aussems v Commonwealth of Australia

[2005] NSWSC 217

CITATION:	Gillis Pierre Francois Aussems v Commonwealth of Australia [2005] NSWSC 217
HEARING DATE(S):	25 Oct - 4 Nov 2004, 24 March 2005
JUDGMENT DATE :	13 April 2005
JUDGMENT OF:	Dunford J
DECISION:	Judgment for the plaintiff for $228,198 plus costs

CATCHWORDS:	Damages for personal injury - assessment of - PTSD - plaintiff in employment or running own business for many years - assessment of loss of earning capacity
LEGISLATION CITED:	Common Law Procedure Act 1898 Supreme Court Act 1970
CASES CITED:	Brittain v Commonwealth of Australia [2004] NSWCA 83 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Medlin v State Government Insurance Commission (1995) 182 CLR 1
PARTIES:	Gillis Pierre Francois Aussems v Commonwealth of Australia
FILE NUMBER(S):	SC 20843/96
COUNSEL:	A G Melick SC / W D Walsh - Plaintiff P J Jones / I McLachlan - Defendant
SOLICITORS:	James Taylor and Co - Plaintiff Australian Government Solicitor - Defendant

LOWER COURT JURISDICTION:

- 20 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DUNFORD J

THURSDAY 24 MARCH 2005

20843/96 GILLIS PIERRE FRANCOIS AUSSEMS v COMMONWEALTH OF AUSTRALIA

JUDGMENT

1 HIS HONOUR: This is a claim by the plaintiff, Gillis Pierre Francois Aussems against the Commonwealth of Australia for damages allegedly suffered by him as a result of the collision of HMAS Melbourne with HMAS Voyager on 10 February 1964. The defendant has admitted breach of duty, but does not admit that the plaintiff suffered any damage as a result of such breach.

2 The plaintiff was born on 20 May 1945 in Holland and was accordingly aged 17 at the time of the collision and is now 59 years old. He arrived in Australia with his parents in June 1954 and the family settled in Melbourne where he was educated to Intermediate Certificate level, leaving school in November 1961.

3 On leaving school, he worked for some months as a salesman at the Melbourne Sports Depot, and in the meantime, having been unsuccessful in an application to join the Royal Australian Air Force, he applied to join the Navy in the hope of being allocated to the Fleet Air Arm. He was accepted and commenced a 9-year enlistment in the Royal Australian Navy on 4 June 1964. At the time he was aged 17, and saw the Navy as a long-term career, offering security with good conditions and the opportunity to travel.

4 He did his basic training (6 weeks) at HMAS Cerberus at Cribb Point in Victoria and was then posted to HMAS Albatross, the Fleet Air Arm base near Nowra, New South Wales as a Naval Airman Mechanic where he did his specialist training. Witnesses who knew him at that time described him as happy go lucky, friendly, outgoing, talkative and, apart from one incident where he drank to excess at about the age of 15 at the time he joined the Navy he was only an occasional light-drinker and a light to moderate smoker of cigarettes.

5 He was posted to HMAS Melbourne on 6 January 1964 and assigned to the aircraft control room on the edge of the flight deck. The vessel was then engaged in training exercises and on the evening of 10 February 1964, was preparing to take on aircraft which were coming on board from HMAS Albatross, and for this purpose was cruising off Jervis Bay.

6 The plaintiff did not see the Voyager prior to the collision but said that there was a shudder through the ship, he saw people running up the gangplank under the stairway and out on to the deck, and then someone told him that the ship had hit the Voyager. Everyone was told not to panic but they ran around confused. He was told by one of the officers to grab a mobile microphone device and go with him across to the other side of the deck to the port side. When he did so, he saw the front of the Voyager “scraping down” the side of the Melbourne and sinking as it did so, and he also heard the screams of the men on board.

7 He did not know what was going on, but was terrified for his life and felt sick. He does not recall too much of what happened afterwards but at a later stage, some of them were told to go and clean up the flight deck and remove the debris in order to take on helicopters. Whilst engaged in that operation, he saw one of the other ratings with an officer’s hat in his hand with some human body matter inside the hat; and a few hours later, a number of them, including himself, were standing at the aft end of the flight deck watching the rear end of the Voyager sinking. This, he said, had a profound effect on him. He believes he helped with the survivors but had no real recollection of doing so.

8 The plaintiff became quite emotional in the witness box whilst describing these events and also on a later occasion when shown Ex E (a photograph of the bow of the Melbourne after the collision). The emotion appeared to be spontaneous and involuntary.

9 He recalled the slow voyage of the Melbourne up the coast to Sydney. He said he was terrified all the way because he feared it was going to sink, as he assumed there would be a lot of damage to the Melbourne as well. The vessel arrived in Sydney on the morning of 12 February and was put into dry dock at Cockatoo Island. The crew stayed on board for a short time before going on leave and were told by their superiors not to talk about the Melbourne/Voyager disaster, particularly to the press or to the public, and a reference was made to the Official Secrets Act. After going on shore, he went and got drunk at a nearby hotel.

10 After more time on the Melbourne, which was still in dry dock, he went on leave from 29 February to 22 March and returned to his family home in Melbourne. During this period, he had difficulty sleeping, with constant dreams of the disaster, particularly of the bow end of the Voyager passing by the Melbourne. He drank a lot during this time and the drinking helped him sleep. He did not talk about the collision to anyone, family or otherwise. Family members and a friend (Mrs Doefler) noticed a change in him. He was not talkative, and his sister (Mrs Hick) said he reminded her of a “frightened rabbit”; he could not look you in the eye, and was very edgy and nervous.

11 He returned to HMAS Melbourne on 23 March 1965 at which time he not only had difficulty sleeping but he also had difficulty concentrating and on reading his eyes started flickering and went blurry. He had not had this problem before and it was noted on an Outpatient medical card on 9 April 1964, which also noted that no ocular cause for the symptom was detected. His difficulties with concentration continued throughout the 1970’s and 1980’s.

12 After being repaired, the HMAS Melbourne returned to sea, being engaged in exercises with other nations and visiting Hong Kong, Singapore, Rabaul and Subic Bay near Manila. It returned to Australia towards the end of 1964.

13 Whilst at sea, the plaintiff continued to have difficulty sleeping unless he had been drinking, otherwise he found he woke up and sweated a lot. He did not like being in the bunk rooms which he found claustrophobic, so he bought himself a portable cot and slept out on the gun turret or in the aircraft control room. He had a feeling he did not like being on board and his alcohol consumption was still high, swapping his cigarette rations for large cans of beer, and regularly drinking 2-4 cans a night.

14 On 8 December 1964, the plaintiff went on leave from HMAS Melbourne and on 7 January 1965, commenced a new posting at HMAS Albatross where he remained until 16 September 1966 when he was re-posted to HMAS Cerberus. At both of these postings, he was working on fire crews, driving trucks, buses and articulated tankers and re-fuelling aircraft. During this time where he passed a number of naval examinations and generally received good assessments for his work.

15 Meanwhile, he had met his future wife in May 1963, they became engaged in December of that year and were married on 19 December 1964. They have had three children, a son born in 1966, another son born in 1971 with Down’s syndrome, who died shortly after birth, and a daughter born in 1973. They remain married and at the time of the hearing of this case in November last year were shortly to celebrate their 40th wedding anniversary.

16 He continued to have difficulty sleeping particularly if he saw anything in the newspapers or on billboards about any naval or sea disaster. He did not talk about the collision and did not join any naval associations. He and his wife still took part in social functions but the plaintiff was drinking more. He did not like holding conversations with other people and his temperament became more aggressive and he became more easily upset. He continued having dreams of seeing the bow of the Voyager frequently, but not every night.

17 Towards the end of his service on the Melbourne in late 1964, he fell down a ladder and subsequently had pain in his back as a result of a lumbar strain, although in February 1996 in the naval medical records, Dr Ellis noted that the pain was not severe enough to keep him awake at night, but was worse after a day’s work, although it did not interfere with his shooting, swimming, golf etc. He was involved in a motor vehicle accident in 18 January 1967 as a result of which he suffered multiple lacerations to his face and for a time was on light duties.

18 On 28 September 1968, he was re-posted to HMAS Melbourne. This was his first sea posting since leaving the ship at the end of 1964 after the Melbourne/Voyager collision. He said that whilst he was at Albatross and Cerberus, he was quite happy in the Navy, he felt that everything would go along quite well and he would do his time plus some more, but when he was told he was going to be posted back to the Melbourne, he tried to get a change of posting as he felt terrified of going back to the ship. Whilst he was on board, he felt shocking, he did his duties, his back was aching a little bit and he “sort of flowered it up a little bit”. He felt very unsafe and had a feeling that something else was going to happen.

19 He was transferred to the hospital base, HMAS Penguin for investigation of his back condition on 3 March 1969. Apart from investigation of his back, he was also seen by Dr McGeorge, psychiatrist, to whom he expressed dissatisfaction with naval life. He said he could not account for his change in attitude but believed the separation from his wife was interfering with family life resulting in quarrels between them. His wife in her evidence denied that she was complaining of the separation and said she was encouraging him to stay in the Navy. She said he really did not want to go back on the Melbourne, was stressed out and talked about getting out of the Navy. About this time he was also becoming disillusioned with service life generally, particularly the regimentation and exercise of authority by his superiors.

20 He also told Dr McGeorge he was feeling depressed and the doctor doubted that his depression would respond to treatment whilst his present anxiety persisted. He therefore recommended his discharge on account of anxiety and depression. In the meantime, he had seen his local doctor, Dr McNeill, in Melbourne on 2 February 1969 who had noted “anxiety state etc”. Dr McNeil had previously on 9 January 1967 noted in respect of the plaintiff “pain in back – bruising – very nervous – can’t sleep, etc”.

21 The plaintiff was discharged from the Navy on 6 May 1969 as medically unfit on the grounds of “anxiety depression”. The Navy did not consider this to be related to his naval service or aggravated by his naval service.

22 After the leaving the Navy, he was employed briefly as a driver and sales representative and from 1969-1972, worked for Melbourne Port Emergency Services where he remained for about 2 years. He ceased working there because he got anxious and had a couple of arguments with another person and once again, he did not like what he regarded to be regimentation; but in addition, other things happened which reminded him of the Melbourne/Voyager disaster and brought him flashbacks of that disaster, in particular, a tug sank and another vessel rolled over in the Yarra River and then the Westgate bridge collapsed. These matters caused him to “freak out”, as had reports of the Melbourne colliding with VSS Frank E Evans a couple of years earlier.

23 He said that up until about 1970 he had nightmares of seeing the bow section of the Voyager nearly every night and he also had “flashbacks” during the day if something prompted such a reaction. He did not talk about the collision at all, even if asked. His dreams about the bow of the Voyager continued into the 1980’s and 1990’s although not as frequently. He also continued drinking excessively during that time.

24 Whilst he was still working for Port Emergency Services, he commenced going to car auctions, buying cars, cleaning and tuning them up and re-selling them. In 1972, he opened his own used car business, Gillis Motors at Essendon which he transferred to Pascoe Vale South in 1975 and the business continued until 1981. Since then he had worked mainly in relation to the buying and selling of used motor vehicles either on his own account or as an employee. There was a period from 1986 to 1989 when he and his wife operated the Kangaroo Ground General Store and from 1989 to1992 when they conducted the Kinglake Hardware and Produce Store. The last mentioned business was unsuccessful and resulted in them losing money. The plaintiff was unemployed from July 1992 to June 1993 but apart from that has been in regular employment since his discharge from the Navy and currently runs his own business called Great Cars and a subsidiary Auss Auto Rentals at Montmorency near Melbourne. From 1988 to 1991 he served on the Eltham Shire Council.

25 Although the plaintiff described his businesses as reasonably successful, his wife did not so regard them, and Mr Koenen at once stage invested some money in Gillis Motors as a silent partner, but became concerned on account of the way the plaintiff was conducting the business, in particular he felt he was drinking too much, having too many long lunches. His wife said that he became very enthusiastic with each new business but would then get stressed when things started to get tough and borrowings were high. In 1979 due to his excessive drinking and aggressive conduct towards his wife, they separated and about that time he was also being unfaithful. However, after about six months they were able to affect reconciliation and since then, he has generally cut down on his drinking and has remained faithful.

26 In 1996, he was diagnosed with diabetes and that further caused him to reduce his drinking but at the same time it did not help with his sleep, which continued to be interrupted. In the late 1980’s, he lacked confidence and felt worthless and did not believe he would amount to anything. He said that during the 1960’s, he considered self-harm on a number of occasions but always changed his mind, although on one occasion when depressed, he got so far as to put a .22 rifle into his mouth.

27 The plaintiff and those of his family and friends who gave evidence impressed me as honest and truthful witnesses subject only to the possible blurring of details as to dates, which would be expected after this length of time. I did not detect any apparent exaggeration and if witnesses did not recall some incident or did not know of it, they were prepared to say so.

28 From 1994 to 1998, the plaintiff worked for Fiske Bros Motors Pty Ltd in Ringwood and whilst there, his employer sent him to a self awareness seminar, the Landmark program. He said the program was very intrusive but whilst there, he realised that the Melbourne/Voyager incident kept recurring. Shortly afterwards, his wife saw an advertisement in the paper by the plaintiff’s solicitor, Mr Taylor, whom he contacted and who referred him to Dr Wu, a psychiatrist, who went through all his life with him and the plaintiff said that was the first time he really talked about what he felt. Dr Wu (who has since died) told him he was suffering Post-Traumatic Stress Disorder (PTSD). Then between October 1999 and January 2001, he had 22 sessions with Ms Paula King, psychologist, in the course of which she referred him to Dr John Cooper, psychiatrist, who first saw him on 8 December 1999 and who remains his treating psychiatrist.

29 Dr Cooper furnished two reports of 6 October 2000 and 19 September 2004 and was not required for cross-examination. The history the plaintiff gave Dr Cooper concerning his symptoms and reactions over the years was substantially the same as he gave in court, and which I have accepted. Dr Cooper’s initial assessment was that the plaintiff was suffering from PTSD caused by his exposure to the trauma of the Melbourne/Voyager collision.

30 His impression was that the plaintiff had had problems consistent with PTSD for approximately 30 years and that his diagnosis fulfilled the DSM IV diagnostic criteria. He also considered that secondary to the PTSD, the plaintiff suffered from depression and was also suffering an alcohol abuse disorder then partially in remission. He recommended that the plaintiff continue ongoing counselling with Ms King specifically directed at helping him with his PTSD and commenced him on psychotropic medication, namely Efexor.

31 The plaintiff returned to see him in February 2002 reporting an excellent response to the medication, he was less anxious and irritable and was generally coping better and his mood had stabilised. However, he reported sexual dysfunction as a side effect of the medication and consequently the medication was changed to Auroix which the plaintiff has continued on to this time.

32 Dr Cooper continued to treat the plaintiff and in his subsequent report of 19 September 2004, concluded that he continued to suffer PTSD caused by his involvement in the Melbourne/Voyager collision, that his condition fluctuated between mild and moderate in severity, and he continues to suffer significant, intermittent symptoms of depression with occasional escalation of his alcohol abuse; but he considered that the worst aspect of his medical health problems had been improved by the continuing use of anti-depressant medication and occasional reviews which he anticipated would need to be continued for the foreseeable future.

33 Both the plaintiff and his wife affirmed that since being treated by Dr Cooper, he is much better, he is not drinking as much and provided he takes the medication, his moods are much better. He is more sociable and more settled, more at ease with himself and he feels his concentration is better. His interaction with other people is a lot better, including with his wife. He said that since he has been receiving treatment, he does not think so much about the Melbourne but it still arises from time to time.

34 On 3 April 2001, he was seen by Associate Professor Louis Irving, respiratory physician, to whom he gave a long history of disturbed sleep. He said that in the past, this was associated with distressing dreams but more recently, there was no obvious cause for wakening but he sometimes experienced a choking sensation. Professor Irving referred him for a sleep study which revealed that he had significant obstructive sleep apnoea. He has subsequently been supplied with a nasal CPAP that he now uses and this has resulted in an improvement in this sleep patterns.

35 The main psychiatric issue in the trial was between Professor Alexander McFarlane (on behalf of the plaintiff) and Dr Rod Milton (on behalf of the defendant). There was also a report from Dr F Roldan, clinical psychologist, but after the exclusion of that part of his report relating to psychometric assessment of emotional/personality functioning and symptom report validity, Dr Roldan was not required for cross-examination.

36 Apart from Dr Wu (who has died) the plaintiff was also seen by Dr Holwill, psychiatrist, who furnished reports to the plaintiff’s solicitor which were served, but Dr Holwill has since suffered a debilitating stroke and is permanently unfit to give evidence. In these circumstances objection was taken to the tender of Dr Holwill’s reports and they were not pressed. The plaintiff was also examined by Dr John Phillips on behalf of the defendant but no report from Dr Phillips was served on the plaintiff’s solicitor. I infer that Dr Phillips’ evidence would not have assisted the defendant.

37 Both Professor McFarlane and Dr Milton are psychiatrists of the highest standing with extensive experience and expertise, both saw the plaintiff once and both were extensively cross-examined. Both of them were given a history similar to that given in Court, both had access to the prior psychiatrists’ reports and Dr Milton also had access to the plaintiff’s naval records. Although Professor McFarlane did not have access to these at the time of his first report, he did at the time of his second report.

38 Professor McFarlane noted (at p 12) that given the setting of his assessment, the issues of the veracity of his history and any propensity for exaggeration were considered. He formed the view that his history appeared to be internally consistent and noted that the plaintiff was careful to give both negative and positive responses to questions according to his attempts at accurate self reflection; as it turns out, similar to my assessment of the plaintiff’s evidence.

39 He concluded on the basis of the history he obtained that the plaintiff suffers from a chronic Post-Traumatic Stress Disorder in partial remission, the diagnosis being made according to the DSM IV diagnostic criteria. He considered he also has a co-morbid major depressive disorder also in remission and that he had suffered from alcohol abuse. In particular, he observed that the Melbourne/Voyager disaster was an event that satisfied criterion A of DSM IV, noting that at the time the plaintiff experienced a profound sense of fear both for his own safety and that of others, and that he had subsequently experienced intrusive and distressive recollections of the event (criterion B).

40 In relation to the Group C criteria, he noted a pattern of significant avoidance of his distressing thoughts and recollections about the event and a degree of psychogenic amnesia about what had occurred on the evening of the collision. He went on to consider other symptoms, including a significant degree of social withdrawal. He expressed the view that the symptoms had been present for many years although they had fluctuated in intensity and had been an important source of disability and handicap, and that since his treatment by Dr Cooper, his condition had improved.

41 He also observed that the pattern of multiple changes in employment is a pattern not uncommonly seen associated with PTSD. He considered the aetiological issues in some detail and said that it is well recognised that alcohol is specifically related to trauma exposure and PTSD as a means of dealing with the hyperarousal and distress. He cited a large number of authorities and sources for his opinions.

42 Dr Milton, on the other hand, considered that the plaintiff was not suffering from PTSD or any other psychiatric condition referrable to the Melbourne/Voyager disaster. He considered that his symptoms of difficulties with authority, frequent changes of employment, excessive drinking and difficulty sleeping were all related to the plaintiff’s errant personality.

43 He was particularly cautious because of the process whereby the plaintiff had come to the realisation that his difficulties related back to the Melbourne/Voyager disaster through the Landmark program, then being told by Dr Wu that he had PTSD as a result of the collision and then discussing it in detail with Ms King over many sessions. His opinion was that a person could not suffer a psychiatric disease for 30 years without being aware of the fact.

44 He also placed reliance on the fact that the naval records contained no reference to the plaintiff complaining of nightmares or depression relating to the disaster, and the fact that on a number of occasions he had not avoided situations which Dr Milton considered he would have avoided if he had been suffering PTSD as a result of the collision.

45 Professor McFarlane dealt with Dr Milton’s reservations in his second report of 13 October 2004, by which time he had access to the plaintiff’s naval records. In particular, he drew attention to the fact that there were entries in the medical records indicating anxiety and depression on the part of the plaintiff prior to him seeing Dr Wu, particularly the diagnosis of depression by Dr McGeorge at the time of his discharge in 1969. He also referred to the entries by Dr McNeill noted above and that in April 1973 Dr McNeill referred the plaintiff to Dr Cunningham for depression and a possible underlying alcohol problem (Ex 2), although these notations did not relate the symptoms to the Melbourne/Voyager collision. As regards Dr Milton’s concern that the plaintiff had been able to be employed throughout most of his adult life, Professor McFarlane said that was in keeping with his assessment of the severity of his disorder, which had not been grossly disabling or of the more severe type.

46 In relation to the lack of avoidance phenomena relied on by Dr Milton, Professor McFarlane said that it is possible to obtain a diagnosis of PTSD without having any avoidance phenomena and indicated how this is so (at p 12 of his second report).

47 Dr Milton, when cross-examined, expressed some reservations in general with what he described as the over diagnosis of PTSD and reiterated the need for avoidance behaviour, saying at one stage that avoidance behaviour is essential to satisfy the DSM IV diagnosis, but conceded that if the plaintiff’s desire for a discharge from the Navy came about when he was re-assigned to the Melbourne, that could be evidence of avoidance behaviour. In cross-examination (at T 584-597), a number of pieces of evidence from the plaintiff and his witnesses were put to Dr Milton and he agreed that, if accepted, the symptoms described fulfilled the diagnostic criteria for PTSD, and further, that on the assumptions put whatever psychiatric conditions he had were attributable to the Melbourne/Voyager collision (T 613).

48 On the other hand, a number of matters were put to Professor McFarlane which it was said indicated that the plaintiff did not have PTSD. Professor McFarlane conceded that they were proper matters to be taken into account but emphasised that he did not make the diagnosis of PTSD on the basis of a single symptom or series of symptoms, but on a combination of all the symptoms including an initial stressor incident. He said it was not essential that particular matters e.g. flashbacks, were not mentioned or referred to by the plaintiff until 30 years later.

49 I am satisfied that there were a number of “avoidance incidents” e.g. his refusal to discuss the collision even with his immediate family shortly after the collision or subsequently, the claustrophobia when he first returned to serve on the Melbourne resulting in him sleeping in the gun tower or on the flight deck, his difficulty watching the film, “Titanic”, his desire to quit the Navy coinciding with his re-posting to the Melbourne and service on that ship, his reluctance to stay overnight below deck on the Doeflers’ yacht on the Sunshine Coast.

50 Having regard to the whole of the evidence, the “avoidance incidents” referred to, in the light of the references to anxiety, depression, and insomnia in the plaintiff’s medical records over a number of years from shortly after the collision, and bearing in mind also Dr Milton’s admitted personal scepticism concerning over diagnosis of PTSD, I am satisfied on the balance of probabilities that the plaintiff has suffered and continues to suffer from PTSD to a mild degree associated with conditions of depression, anxiety and excessive use of alcohol as a result of his experiences at the time of the collision. Since the commencement of his treatment by Dr Cooper and his reduction in alcohol use, these conditions are in partial remission. The condition is permanent but is presently well controlled by the medication and such position is likely to continue.

51 Concerning the plaintiff’s excessive use of alcohol, he would not be the first young man to start drinking excessively at age 19, and excessive use of alcohol is by no means unknown in the Navy and in the community generally amongst persons who have never been in a collision at sea. However, the collision does appear to have been the trigger for his excessive drinking particularly as its inception was tied up with helping him to sleep when he was initially having flashbacks in the period shortly after the collision, and Professor McFarlane said alcohol abuse is often related to PTSD. I am not satisfied that the collision was the sole cause of his alcohol abuse but consider it probably played a contributory part to its inception and development.

52 The plaintiff’s PTSD and his co-morbid conditions of anxiety depression and alcohol abuse, all arising out the collision have been of a mild to moderate degree, and are presently in remission. They have not destroyed his life by any means but have diminished its enjoyment to a degree. The defendant’s admitted breach of duty has caused damage to the plaintiff and he is entitled to judgment.

53 I assess the plaintiff’s general damages at $80,000 of which, in view of his age and the condition being in remission, I apportion $70,000 to the past, and I allow interest on this latter amount for 41 years at 2% per annum, namely $49,200.

54 The plaintiff also claims damages for loss of earning capacity on account of his leaving the Navy and the difference between what he could or would have earned if he had stayed in the Navy, and what he in fact earned in civilian occupations.

55 The plaintiff enlisted in June 1962 for a period of 9 years and was discharged in May 1969 after almost 7 years. For reasons already given, I am satisfied on the balance of probabilities that his PTSD and depression resulting from his experiences at the time of the Melbourne/Voyager collision was a causative factor in his loss of enthusiasm for the Navy and his decision to actively seek a discharge: Medlin v State Government Insurance Commission (1995) 182 CLR 1, Brittain v Commonwealth of Australia [2004] NSWCA 83, particularly as the trigger for this change of attitude was, his re-posting to HMAS Melbourne. There were however other factors involved, including his disenchantment with authority and regimentation, which was probably more a result of age and growing maturity. I do not consider that any kind of entrepreneurial desire to start his own business played a part because after leaving the Navy, he worked in paid employment for a number of years and appears to have started dealing in cars originally as a hobby a few years later.

56 Accordingly, I consider it likely that were it not for the Melbourne/Voyager collision, he would have seen out the whole of his initial 9 year engagement; but he was not progressing up the ranks at any significant rate, he was developing the disenchantment with authority so I consider it almost certain that he would not remained in the Navy for 20 years so as to qualify for the substantial pension to which such service would have entitled him. He may however have continued beyond the 9 year initial enlistment, and applying the approach set out in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, I assess the prospect of him serving between 12 and 15 years at about 10%.

57 The difficulties in assessing the plaintiff’s loss of earnings as result of his leaving the Navy when he did are twofold: firstly, at times he was earning more in civilian pursuits than he would have earned if he had remained in the Navy; and secondly, when he was carrying on his own businesses, which was for substantial periods of time, the businesses were conducted through the family trust and the income earned by his endeavours was, not improperly, spread through members of his family as beneficiaries of the trust, so that his income tax returns, as opposed to those of the trust, do not provide a fair assessment of his earning capacity.

58 Notwithstanding that although his businesses, except for Kinglake Hardware and Produce Store, have been moderately successful in that they have provided a living for himself and his family (although his wife worked independently at times), I am satisfied that as a result of his PTSD and its symptoms, particularly his excessive use of alcohol, his businesses would probably have been to a degree more successful than they in fact were, but to what degree it is almost impossible to say.

59 I indicated to counsel that I would be prepared to hear further submissions on these issues after making preliminary findings, which I have now done; but subject to such submissions my tentative view is that in respect of loss of earning capacity to date and for the future (the plaintiff being now aged almost 60 years) including loss of superannuation benefits and interest, I should simply award a lump sum as a “cushion”.

60 Out of pocket expenses to date are agreed as $1957.50 for the psychiatrist and $865.30 for pharmacy costs, a total of $2822.80, and I allow this amount. That leaves outstanding future out-of-pocket expenses, which appear to have been overlooked.

61 I therefore intend to stand the matter over so that the parties can consider my findings and then make further submissions on the outstanding issues and also on any question of costs.

WEDNESDAY 13 APRIL 2005

62 An application was made by the plaintiff to reopen his case to tender a letter containing evidence of the current salaries of persons employed in the used car business.

63 The hearing of the case was concluded in November. I delivered judgment in March and it was stood over to today to enable the parties to make submissions on economic loss in light of my findings. My findings are primarily contained in paras [56] to [58] of my judgment of 24 March 2005. It is not appropriate to admit any further evidence at this stage. Such evidence should have been led at the original hearing if it was considered relevant, and in any event, the plaintiff is not working as an employee in a used car business but running his own business. I reject the application to reopen the case.

64 In this matter I delivered judgment on 24 March 2005 when I found for the plaintiff and assessed his general damages at $80,000. I apportioned $70,000 of this to the past and allowed interest in that latter amount for forty-one years at two per cent per annum, namely, $49,200.

65 It has since been drawn to my attention that the practice in these cases is only to award interest from 1 July 1972, the date of the commencement of the Supreme Court Act 1970, and I note that the previous legislation, namely ss 140 and 141 of the Common Law Procedure Act 1898, did not provide for the awarding of damages in actions for negligence. The correct amount for interest should therefore only be awarded for 22.7 years which, it is agreed, amounts to $31,780.

66 In my earlier judgment I made findings as to the probable future career path and the possible loss of earning capacity past and future of the plaintiff (see particularly paras [56] to [59]) and I stood the matter over to hear further submissions on what amounts should be allowed in that regard in light of my findings of fact.

67 On behalf of the plaintiff it was initially submitted that I should have regard to his earnings in 1994 to 1996 of approximately $62,000 to $65,000 per year when he was working for Fiske Bros Motors as an employee, compared with the present time when he is earning $40,000 to $45,000 per year in his own business, and that the past loss should be calculated by reference to this difference allowing, of course, for the fact that the value of money has decreased over the years. I regard this as an inappropriate approach in the light of my findings of fact.

68 It was next submitted that except for the period 1971 to 1972 he has earned substantially less than he would have earned in the Navy or in civilian employment if he had not suffered from PTSD and the symptoms of excessive drinking. I reject this submission also. My findings do not go that far.

69 In particular, I did not find that the occasions when he left employment in civilian life were due to his PTSD as opposed to his general personality. Moreover, I did not find the failure of the business at Kinglake was occasioned by the PTSD or drinking or other symptoms.

70 Ultimately it was submitted that I should allow $15,000 a year, including interest and superannuation, over the last nine years, and $10,000 a year for the period 1983 to 1993 and $5,000 a year for the period 1972 to 1983, such figures to be reduced by twenty-five per cent for contingencies and deemed to include interest and superannuation. This submission would amount to an allowance of $213,750 and I do not consider that this is an appropriate figure.

71 I am not satisfied that his losses were the amounts indicated in view of the fact that he has at times worked for himself, that there has been a family trust in existence, although a lot of the time his wife has also worked and no doubt contributed to the family trust, and at other times he has been an employee earning good money.

72 I have ultimately come to the conclusion that it is impossible in the circumstances of this case, and in light of my findings of fact, to calculate any specific sum. I take consolation in the proposition that the assessment of damages for personal injuries is not an exact science and never has been.

73 Taking all these factors into account, I consider that it is appropriate to allow a lump sum for loss of earnings to date, which includes an allowance for interest and loss of superannuation benefits during those times when he has been an employee. As I say, the sum cannot be calculated and can only be in the nature of a “cushion”. I assess that amount at $100,000.

74 As to the future, he is now 60 years old. He will, no doubt, work for a number of years, possibly five, possibly longer if he continues in his own business, and his symptoms are presently much reduced because he has been receiving treatment and medication from Dr Cooper. Once again, I do not consider it appropriate to try and calculate a weekly sum and for loss of future earning capacity I allow $10,000.

75 For future out of pocket expenses, including pharmacy and 6 future appointments with Dr Cooper (without capitalising the latter), I allow an amount of $3,595.

The various heads of damages can be summarised as follows:

General damages $ 80,000
Interest on past general damages $ 31,780
Past out-of-pocket expenses $ 2,823
Loss of earnings to date, including
interest and superannuation where appropriate $100,000
Loss of future earning capacity $ 10,000
Future out of pocket expenses $ 3,595

76 These figures total $228,198. I therefore direct the entry of judgment in favour of the plaintiff for $228,198. I order the defendant to pay the plaintiff’s costs of the proceedings.

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