Brittain v Commonwealth of Australia - [2005] NSWSC 641

CITATION:
Brittain v Commonwealth of Australia [2005] NSWSC 641
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 18/4/05, 19/4/05, 20/4/05, 21/4/05, 22/4/05, 26/4/05, 27/4/05, 28/4/05, 2/5/05, 3/5/05, 6/5/05

JUDGMENT DATE :

6 December 2005

JUDGMENT OF:
Bell J at 1

DECISION:
There will be verdict and judgment for the plaintiff in the amount of $176,676 together with interest on the sum referable to the lost chance of obtaining the DFRDB entitlements. The parties may bring in a minute of judgment with the inclusion of the outstanding interest component or, in the event that they are unable to agree, I will hear submissions on this issue and on costs. The parties may approach my Associate to have the proceedings re-listed on 3 days’ notice.

CATCHWORDS:
Melbourne/Voyager collision - personal injuries - post traumatic stress disorder

CASES CITED:
Brittain v The Commonwealth of Australia [2004] NSWCA 83
Commonwealth v Stankowski [2005] NSWCA 106
Husher v Husher (1999) 197 CLR 138
Medlin v State Government Insurance Commission (1995-1995) 182 CLR 1

PARTIES:
Anthony Winston Brittain (Plaintiff)
Commonwealth of Australia (Defendant)

FILE NUMBER(S):
SC 21248/95

COUNSEL:
G Melick SC / I Butcher (Plaintiff)
R Williams QC / I McLachlan

SOLICITORS:
James Taylor & Co (Plaintiff)
Australian Government Solicitor (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Tuesday 6 December 2005

21248/95 Anthony Winston Brittain v Commonwealth of Australia
JUDGMENT

1 BELL J: The plaintiff was a naval rating on board HMAS Melbourne on 10 February 1964 when it collided with the destroyer, HMAS Voyager, resulting in the loss of the Voyager and of eighty-two lives. At the time of the collision the plaintiff was below decks in the laundry of the Melbourne.

2 The plaintiff commenced proceedings against the Commonwealth of Australia by statement of claim filed on 29 November 1995 alleging that the collision was caused by the negligence of the officers and crew of the Voyager and/or the officers and crew of the Melbourne and that as a result he had suffered a psychiatric injury. His injury was particularised as an acute post-traumatic stress disorder (PTSD), alcohol abuse, anxiousness and depression. It is the plaintiff’s case that as the result of the psychiatric injuries caused by the collision he has been diminished in his occupational and social functioning and that his capacity to earn income has been impaired. He contends that had he not suffered the psychiatric injury he would have completed twenty years’ service in the Navy and retired having attained the rank of chief petty officer with a naval pension.

3 The proceedings are a retrial on all issues, save breach of duty of care, as directed by the Court of Appeal: Brittain v The Commonwealth of Australia [2004] NSWCA 83.

4 At issue is the question of whether the plaintiff has established that he suffered any psychiatric injury as the result of his experience of the collision. Expert evidence that he suffers from Post-traumatic stress disorder was led on his behalf from his treating psychiatrist, Dr Holwill, and from Professor Raphael. Professor McFarlane also gave evidence in his case, which was supportive of the diagnosis made by Dr Holwill and Professor Raphael, albeit in Professor McFarlane’s opinion the plaintiff does not qualify for the diagnosis of PTSD at the present.

The plaintiff’s background

5 The plaintiff was born in Hobart in June 1945. His early life and school years were happy. He enjoyed a good relationship with his parents. He was one of six children. He attended the Bowen Road Primary School where he was a successful pupil. Thereafter he attended the Hobart Technical High School, leaving at the age of fifteen after obtaining his school score A certificate. He enjoyed sport at school and played soccer and hockey. He was the captain of the B grade hockey team.

6 At around the age of twelve the plaintiff joined the Australia Sea Cadet Corps. At the time it was his ambition to join the Royal Australian Navy. He was the youngest cadet to attain the rank of petty officer in the Cadet Corps. He won a trophy for keenness and personal efficiency.

7 The plaintiff applied to join the Navy as an apprentice in 1961. He said that he had not been accepted because he had not met the height requirement. Naval records suggest that his application was unsuccessful for reasons unrelated to his height. Nonetheless, it was the plaintiff’s perception that his height had been an obstacle to his entry and before re-applying he did stretching exercises in an effort to make himself taller.

8 The plaintiff’s second application to join the Navy was successful. He commenced his initial training at HMAS Cerberus in June 1963. After the first three months recruits were posted to sea for a period of twelve-month’s sea training. Recruits from the plaintiff’s intake were posted to either the Melbourne or the Voyager.

9 The plaintiff joined the Navy for a term of nine years. He understood that at the conclusion of that term it would be open to him to sign up for a further nine or twelve year term. He said that he had planned to remain in the Navy for at least twenty years in order to qualify for the pension. The plaintiff enjoyed naval life during his initial training. At the completion of it he was posted to the Melbourne. He was a member of the laundry party.

The plaintiff’s recall of the night of the collision

10 The plaintiff said that he had been having a knock-off beer when the collision occurred. He was thrown off the table on which he had been sitting. The lights flickered on and off and there was general mayhem. Everyone went to emergency stations. The plaintiff said that he had worked all night, including lowing ropes and cutters and pulling men back on board. Generally he had been involved in the safety/rescue operations and in handing out blankets and cups of hot drink. His evidence was that the rescued sailors from the Voyager were pretty distressed.

11 The plaintiff said that he had looked for his friends, Woody and Lehman, who had been part of his recruit intake and who had been on board the Voyager. He later learned that both had died.

12 About three hours after the collision the plaintiff saw the rear section of the Voyager sink. In evidence in chief he volunteered that he and his fellow shipmates had been in fear of their lives because they knew that the Melbourne had a hole in her bow.

The aftermath

13 On their return to port the plaintiff and his shipmates were given shore leave. When they went ashore they were abused and called murderers. The plaintiff had got very drunk. After the first night on shore he started to drink more heavily, finding that it helped him to sleep. He said that he used to have nightmares about the collision, mostly of the rear section of the Voyager going down. Prior to the collision the plaintiff had not been accustomed to drinking alcohol. He put this down to an experience at the age of sixteen when he had been violently ill after drinking too much.

14 The plaintiff remained a member of the crew of the Melbourne after the collision. In May 1964, following the completion of repairs to her bow, he sailed on her on an extended tour of duty to Southeast Asia that included visits to Indonesia, Hong Kong, Singapore and Rabaul.

15 The plaintiff completed his twelve months’ training on board the Melbourne. On 11 December 1964 he was given three weeks leave and in January 1965 he joined the crew of HMAS Sydney.

The plaintiff’s disciplinary record in the Navy

16 Five days before the collision the plaintiff had been dealt with on a charge of skulking, which was an offence against naval discipline. He was not able to recall the details of the incident, but said that he must have been disobeying an order and that it was likely he had been found in the wrong place. He thought he might have been sitting around the corner having a smoke or something of that sort. He was sentenced to extra duty although in the aftermath of the collision the ship’s crew were relieved of all punishments.

17 The plaintiff said that he had become disillusioned with the Navy after the collision and that he was scared of going back to sea. He had commenced a campaign to get out of the Navy later that year and repeatedly breached naval discipline to this end.

18 The plaintiff’s disciplinary record after the collision includes the following entries: 22 October 1964 - absent without leave; 26 March 1965 - drunk at Kings Cross; 15 April 1965 - absent without leave (three days); 24 - 30 April 1965 – absent without leave; May 1965 - drunk on board the Sydney; 7 May 1965 - absent without leave. In all, the plaintiff estimated he had been charged with disciplinary offences on six or seven occasions. His punishments included a period of detention in the cells at HMAS Flinders and sentences of 60 and 90 days respectively, which he served at the Holsworthy Military Corrective establishment.

19 The plaintiff was discharged from the Navy in January 1966. His discharge took effect on his release from Holsworthy on 12 April 1966 on the completion of the 90-day sentence.

20 Prior to his release Lieutenant Carl, a naval doctor, saw the plaintiff. Dr Carl’s report, exhibit 3, records nothing of note.

The plaintiff’s career after discharge from the Navy

21 On 16 May 1966 the plaintiff commenced employment with the Transport Registry Board of Tasmania. The position involved clerical work of an undemanding nature. He attended a public service medical examination in September 1966. On 6 October 1966 he was appointed a clerk with the Department of Land Titles and Registry of Deeds. His probationary appointment was confirmed in May 1967. He remained with the Tasmanian Public Service until mid-1969. He agreed that he had found his clerical duties fairly boring and a bit limiting. In an exit interview he said he was leaving the public service because he had the prospect of obtaining a higher salary in non-clerical work.

22 After leaving the Tasmanian Public Service the plaintiff and his family moved to Western Australia where, for a short time, he obtained work in Kalgoorlie as a rigger. He did not think his wages were very good although be believed that they were better than the wages that he had earned in the public service. The family moved to Perth where the plaintiff managed a car sales yard. His remuneration at the car-yard was higher than he had earned as a rigger. He also worked part-time in a bar and as a cleaner. In an interview with Dr Champion, whom he saw at the request of the defendant, the plaintiff described his life while in Western Australia as “working hard, drinking hard and playing hard” (Report 6 August 2002, p 4).

23 Mrs Brittain was very unhappy during the time the couple spent in Western Australia. After a time she decided to leave the plaintiff. She returned to the east coast bringing the baby with her. The two older children remained with the plaintiff. He was not able to cope and for a short time he placed them in an orphanage. After a matter of weeks he collected the children and returned to Melbourne where he was reunited with his wife and baby. The trip to Western Australia lasted around four months or so.

24 It did not take the plaintiff long to obtain employment in Melbourne as a car salesman. He worked on a base salary of $60 per week, earning commission of $10 or $12 per car sold. In a good week he might have sold four cars. He was employed as a car salesman between 1970 and 1972. After this he moved into real estate sales. He worked for a man named McKenzie Smith for about a year. His remuneration was wholly commission on sales. He said that he probably earned around the same amount as he had earned selling cars, but he considered that there had been the potential to earn more money in real estate. The plaintiff continued to work in sales during the 1970s. There was little evidence about this period of his working life.

25 In the early 1980s the plaintiff moved from real estate sales to finance broking for documentary film projects. This was at a time when substantial income tax deductions were available to investors in Australian films. The plaintiff raised finance for a number of documentary films by marketing the prospectus for the projects to accountants and stockbrokers with a view to having them encourage their clients to invest. He continued in this business for a number of years until a change in legislation reduced the amount of the discount such that it no longer operated as an incentive to investment.

26 Between 1989 and 1991 the plaintiff was involved with a company, Aus Vine, which managed vineyards in the Coonawarra, Padthaway and Pemberton. He marketed the Aus Vine prospectus for a grape-growing venture, which ultimately proved to be unsuccessful.

27 Around 1991 the plaintiff was approached by Brian Jennings, an accountant with whom he had a professional association, in connection with a proposal to obtain a timber concession in Bolivia. The two became directors of a company, International Resources Pty Limited, which was set up to pursue the Bolivian timber concession. It was envisaged that the plaintiff’s role would be to attract investment funds for the venture. The scheme was not successful and the plaintiff did not raise substantial investment funding for it. This was no reflection on the scheme, or on the plaintiff‘s ability, but was acknowledged by both of them to be a product of a worldwide economic downturn at the time.

28 In the early 1990s the plaintiff was placed under considerable strain arising out of an audit of his affairs by the Australian Taxation Office (ATO). As the result of some omission, which was detected in the course of the audit, the plaintiff was required to pay a penalty and interest. The combined sum was more than he was able to raise. Ultimately the ATO presented a creditor’s petition against him in the Federal Court. He defended the proceedings unsuccessfully and was declared bankrupt. He agreed that this had been a distressing period in his life; he had lost his home and he had to start over again.

29 In the late 1990s the plaintiff commenced marketing tax effective plantation investment schemes. He was made an authorised representative of Integrated Tree Cropping (ITC), a company that markets a number of such schemes. He continues to market ITC products. He works with a small number of accountants whose clients have an interest in tax effective agricultural investments. ITC schemes have performed well and in recent years the plaintiff has enjoyed considerable financial success.

The plaintiff’s social life

30 It is the plaintiff’s case that among the symptoms of his PTSD are social avoidance, dislike of crowds, fear of flying and fear of sea travel.

31 The plaintiff moved to Frankston around 1980. At the age of forty-one he started playing golf. He proved to be a good and competitive player and has won trophies in club competitions. He enjoys the game and tends to play when not working. After a game it has been common for him to go to the clubhouse and have a few drinks with his companions. Over the years he has played at a large number of courses around Melbourne and on the Mornington Peninsula.

32 The plaintiff also has a long-standing interest in horseracing. He was a member of the Victorian Amateur Turf Club (VATC) and used to regularly attend race meetings. He has been a member of the St Kilda Football Club for many years. He used to regularly attend games at which St Kilda was playing. He acknowledged that these events attracted large crowds.

33 The plaintiff travelled to Bolivia with Mr Jennings in connection with the timber venture. They spent a couple of weeks in Bolivia and then they flew to Rome. They spent a day sightseeing in Rome and then they flew to Paris, spending a further two or three days sightseeing. Then they caught the Channel ferry to London. The plaintiff cut short his stay in London because he suffered a panic attack. He flew back to Australia, arriving home in December 1991. He did not seek treatment arising out of the panic attack and there is no other evidence concerning the nature or extent of it. Six months later he flew to Tokyo in connection with business. He had a two-day stopover in Singapore. More recently he flew to Western Australia to inspect one of the ITC plantation schemes.

The plaintiff’s evidence of his symptoms

34 The plaintiff said that he had suffered nightmares from the time of the collision until just prior to the first trial. He has not had any nightmares since. The nightmares included dreams in which he saw the aft section of the Voyager sinking and he also recalled a nightmare in which the Melbourne ran aground in the Derwent River. In the period leading up to the first trial he had nightmares a couple of times a month. In the period of two to three years after the collision the nightmares had been fairly constant.

35 The plaintiff said that he had experienced intrusive thoughts of the collision. These would come into his mind from nowhere. They centred on the rear section of the Voyager going down. Other things would remind him of the collision. He had not experienced intrusive thoughts of this kind “for ages”. The plaintiff said that he had thoughts of his two friends who had died on board the Voyager. His ruminations included, “why them, not me”. He also said that he had flashbacks of the collision. These might occur once a month, sometimes a couple of times a month and then none for a month. The flashbacks were accompanied by palpitations, sweatiness and irritability.

36 In 1995 the plaintiff’s attention was drawn to an advertisement placed by James Taylor & Co, Solicitors, inviting members of the crew of the Melbourne to make contact with that firm. The plaintiff contacted Mr Taylor’s firm and was referred to a psychiatrist, Dr Wu. He saw Dr Wu in September 1995. Dr Wu diagnosed him as suffering from a psychiatric injury and told him that treatment was available for it. The plaintiff did not commence any form of treatment over the following seven years.

The reliability of the plaintiffs’ evidence

37 In the defendant’s submission, the plaintiff’s account of his role at the time of the collision and of what it was he saw and felt that night has changed in respects that tell against his credibility.

38 In the aftermath of the collision the plaintiff completed a questionnaire for submission to the Royal Commission of inquiry into the causes of the collision. He recorded his role in the rescue operations as follows, “helped all over the ship handing out kai, blankets clothes from the laundry and helping survivors on board, bearing stretchers.” He stated that he had not seen very much of the rescue operation because he was too busy.

39 After the plaintiff made contact with James Taylor & Co, having read their advertisement, he was sent a questionnaire that he was asked to complete and return. He did so. In the completed document he described his task and location at the time of the collision in this way:

40 Dr Wu, who saw the plaintiff in September 1995, obtained the following history from him:

“Mr Brittain presented as a softly spoken and private person, and was at all times articulate. He did become tearful when we spoke about specific issues regarding the collision between the HMAS Melbourne and HMAS Voyager. He expressed an enormous sense of responsibility.

…

Mr Brittain explained that when he felt the impact of the collision he could not believe it. He recounted that he went to his emergency station and assisted with the rescue. He described being terrified by the injuries and corpses which he saw. He said he was constantly frightened that he had done something wrong or that he could have prevented the accident in some way if he had only remained at the Bosun’s wheel. He expressed at times having the belief that he must have been able to do something which could have prevented the extensive loss of life.

…

Location at the time of the accident

Mr Brittain spoke of being terrified after the collision between the HMAS Melbourne and HMAS Voyager. He blamed himself for the collision and felt extremely guilty. He asserted that he often questioned whether he could have prevented the collision.”

41 In August 1999 the plaintiff swore an affidavit in which he stated:

42 The plaintiff was seen by Dr Knox in 2002. The history that Dr Knox obtained included that the plaintiff was present at a burial ceremony held on board the Melbourne on the day following the collision.

43 The plaintiff did not see any corpses on board the Melbourne in the aftermath of the collision. Three bodies were recovered from the disaster. None of them were brought on board the Melbourne.

44 There was no burial ceremony held on board the Melbourne after the collision. An informal service on the flight deck was conducted by two naval padres the morning after the collision. The crew formed a semi-circle around them and prayers were said. There was no altar, no coffins and no burial.

45 The plaintiff agreed that he had not seen corpses on board the Melbourne. He maintained his belief that there had been a form of burial service the following morning.

46 The plaintiff did not maintain that he had in fact participated in closing down the watertight doors but rather that, “I always thought I had helped in that situation.” He explained his reference in the affidavit to having helped close the watertight doors in this way:

“I worked at the davits during the rescue. But I recall during the night – what I said there – helping, something to do with shoring up the doors or whatever, or the bulkheads. There is just something there and I put it down in the affidavit because that’s what I believed at the time.”

47 I am satisfied that the plaintiff took no part in the work undertaken by the damage control crew in closing the watertight doors or attending to the damage to the Melbourne’s bow. His duties at the time of the collision are likely to have been as he described them in answering the questionnaire for the Royal Commission.

48 The plaintiff acknowledged that he had told Dr Wu of his fears that he had done something wrong and that he may have prevented the accident in some way if he had remained at the Bosun’s wheel. He said, “I always had this idea that I was at the wheel before the collision and therefore I was in some way responsible.” When pressed as to how he could have felt responsible, the plaintiff said this:

“A. I don’t know. I know it sounds – it is just something that I had in my head.

Q. About when in relation to the collision did you believe that you had been at the Bosun’s wheel?

A. The watch before the collision, the dog watch before the collision.

Q. Well, you tell me in your mind what period of time had elapsed between when you were at the Bosun’s wheel and when the collusion occurred?

A. It would have been an hour.

Q. An hour?

A. Yeah, I know.

Q. How could you have done something wrong an hour before the collision?

A. I don’t know. I don’t know.

Q. It is rubbish, isn’t it, Mr Brittain?

A. It sounds like rubbish, but it was in my mind.”

49 In the course of an interview with Dr Champion, whom he saw at the request of the defendant, the plaintiff said that although he had for a long time believed that he had a clear memory that he had been the Bosun’s Mate on the shift before the collision, he was now quite unsure, and wondered whether this was really true. Dr Champion noted that the plaintiff appeared to be surprised by the fact that such a firm recollection at one time could become unclear at another. In his report he said that he had discussed the nature of memory and suggestion, pointing out that human memory is not black and white like a photograph that can be re-examined and is unchanging over time, but is thought to be reconstructed each time with recall (Dr Champion Report, 6 August 2002, p 4).

50 The plaintiff saw Professor McFarlane, at the request of his solicitors, in January 2003 shortly before the first trial. He gave Professor McFarlane a history that on the night of the collision he had been steering the ship as the Bosun’s Mate as part of the training required to obtain his helmsman’s certificate. He remembered that the Melbourne was undertaking night flying exercises at the time, with a squadron from HMAS Albatross. He had been relieved of his watch and was in the laundry at the time of the collision.

51 The plaintiff did not maintain at the trial that he had been at the wheel of the Melbourne at any time on the evening of the collision. Professor McFarlane offered an explanation for how it might be that the plaintiff had a false recall in this respect. He said that it was a matter that required explanation, but it was not a cause of particular concern. He considers that the plaintiff has a number of gaps in his memory relating to the collision and its aftermath. Psychogenic amnesia is not unusual in such cases. People who are highly stressed may be confused in their recollection of the timing of events. Thus, Professor McFarlane observed, the plaintiff may have been at the wheel of the Melbourne at some point in the day or days prior to the disaster or in the period following the disaster. Difficulty in defining the time around the disaster would be an explanation for a false memory. People who suffer psychogenic amnesia may fill in gaps in the memory with imagined facts. I consider that it is likely that the plaintiff had not undertaken any duty at the wheel of the Melbourne prior to the collision. The training to obtain the helmsman’s certificate required that the sailor spend ten hours at the wheel. The plaintiff acquired his helmsman’s certificate on 13 October 1966.

52 Shortly after the collision the plaintiff did not claim to have been on duty at the wheel at any time prior to it. I have taken into account Dr Champion’s evidence that memory is not fixed, and as I understand him, that it has a more ephemeral quality to it. Nonetheless, I consider that there is no satisfactory explanation for the fact that the plaintiff had developed a recall of being at the wheel of the Melbourne by 1995 when, at the request of his solicitors he saw Dr Wu, and that this memory was still present in January 2003 prior to the first trial but that now it has gone.

53 One issue relates to whether the plaintiff satisfies criterion A(2) for the diagnosis of PTSD contained in the Diagnostic and Statistical Manual of Mental Disorders, 4th ed (DSM-IV). This requires that the victim’s response to the traumatic event be one of “intense fear, helplessness or horror”. In his report, dated 28 January 2003, Professor McFarlane recorded:

“When asked about his emotional reaction at the time, he said that he did not think that he was frightened or that he was going to die, but that he had a tremendous sense of sadness and a sense of loss. He feels that he just got on with lowering the cutters. He said that he cannot remember much about what else went on and in particular the journey back to Sydney.”

54 The plaintiff was present during the conduct of his appeal in the Court of Appeal. The defendant brought a cross appeal contending that there had been no evidence that the plaintiff met criterion A(2) since he had not given a history to any of the psychiatrists, nor had he given evidence of experiencing a reaction of intense fear, helplessness or horror.

55 At the trial before me, the plaintiff volunteered that he and his shipmates had been in fear of their lives because of their awareness of the hole in the Melbourne’s bow. In the defendant’s submission this evidence did not sit with the history the plaintiff had given to Professor McFarlane.

56 The plaintiff said that he had probably not given evidence about his fears at the first trial because he had not been asked a question which prompted him to do so. He had been present during the argument in the Court of Appeal, but he had no recall of the defendant raising a point about the absence of evidence that his reaction to the collision had been one of fear. He said there was a lot of legal argument and that he did not remember this submission specifically.

57 Following the second trial the plaintiff attended an interview with Dr Champion in June 2003. After the interview he wrote a letter to Dr Champion in which he stated that he had been extremely fearful for the wellbeing of close mates at times during the night following the collision. The plaintiff was not able to say what had prompted him to write this letter beyond observing that Dr Champion had not asked him about the matter. When asked why it was important to raise it he responded, “I was just being complete in what I was trying to tell him. He was interviewing me and I thought I had not told him all that I could have.”

58 The plaintiff was reviewed by Professor Raphael on 24 August 2004 at the request of his solicitors. She had seen him previously and obtained a history from him of his recollection of the collision. In her report, dated 1 October 2004, which recorded the contents of the subsequent interview, Professor Raphael said:

“He reiterated his memory that he felt shocked and helpless at the time that it happened: that they were “young blokes” just turned eighteen years of age, that they didn’t know what had happened but were terrified and thought they might sink and that they were then involved in the rescue, and in seeing others die, or go down in the sea, and that other young sailors like themselves did die.”

Professor Raphael acknowledged that her use of the work “reiterated” was not apt. The history “that they didn’t know what had happened but were terrified and thought they might sink” was not one that she had previously obtained.

59 It was put to the plaintiff that he had changed his position since seeing Professor McFarlane in January 2003 and that he had deliberately tailored his account to promote his case. The plaintiff said that he would have been too embarrassed to tell Professor McFarlane that he had been frightened for his life. I did not accept that as a frank answer. I am satisfied that the plaintiff understood that an issue in the Court of Appeal related to the absence of evidence that he had been in fear at the time of the collision and that this awareness prompted him to volunteer his account that he and his shipmates feared that they, too, might die.

60 I do not find as a fact that the plaintiff’s reaction to the collision at the time did not include intense fear, helplessness or horror. When he described his sensation of tremendous sadness and loss to Professor McFarlane he was a man of mature years endeavouring to capture his emotional response to an event that had taken place many years earlier when he was a youth. I will return to the question of whether the evidence establishes that he meets the diagnosis of PTSD.

61 I found the plaintiff to be an unsatisfactory witness. I consider that there is force to the defendant’s submission that the accounts that he gave to Dr Wu and to other psychiatrists of his experiences on the Melbourne on the night of the collision have been exaggerated to some degree with a view to bolstering his claim.

62 One aspect of the challenge to the plaintiff’s credibility that I did not accept relates to his evidence that on the night of the collision he was concerned about his friend, Woody. A sailor named Woodward died as the result of the collision. He was a recruit who had grown up in Queensland. The plaintiff did not remember Woodward’s Christian name nor did he recall that Woodward was a Queenslander.

63 John Quirke, was in the same recruit intake as the plaintiff and Woodward. The three of them were part of a small group. He recalled that the plaintiff and Woodward had been on fairly close terms. Woodward was always referred to by his nickname Woody. Mr Quirke was also on board the Melbourne at the time of the collision. Later that night he saw the plaintiff in the hangar with some of the survivors. The plaintiff was looking for Woodward and he was upset and agitated. Photographs of the plaintiff and Woodward are in evidence. I accept that they were good friends. I do not find it improbable that young sailors might be on close terms, but only know one another by their nicknames. I am satisfied that the plaintiff was concerned about Woodward’s fate that night and that learning of his death caused him a good deal of distress.

The plaintiff’s attitude to the Navy

64 It is the plaintiff’s case that he was a keen young sailor who was likely to have pursued his career in the Navy had he not suffered psychiatric injury. His decision to engineer his discharge was said to be caused by his fear of going to sea, which stemmed from his undiagnosed psychiatric condition. In the defendant’s submission contemporaneous records point to the plaintiff’s conduct as the product of his disenchantment with the realities of naval life, his desire to be his own boss and his wish to be with his girlfriend, Pamela, who was living in Tasmania.

65 Naval records include the assessments of the plaintiff carried out by naval psychologists at the time he first applied to join on 1 May 1961 and at the time of his successful application in 1963. In May 1961, when he was aged not quite sixteen years, the plaintiff was described as being “very keen – instructors here speak highly of him.” His educational history was recorded, including that he had attended high school to Fourth Year. He was best in trades subjects and worst at maths. He passed metalwork, woodwork, technical drawing, English and social science and he failed maths and science. The author went on to note:

“Mad keen on the Navy – ASCC [Australian Sea Cadet Corps] is just about his whole life. Very disappointed to learn he was doubtful for NAA – is not volunteering rapidly for JR. Performing at about his intellectual level but maths and science are dead spots. This kid had me grinding my teeth during tests and when the class were waiting for interviews. He kept up attention seeking questions and became a bit rowdy. On hearing the whole story most of it can be put down to anxiety (very goal oriented in this situation) and his ASCC experience which put him a social step ahead of the other lads. Would recommend for JR as a sea. He will have to chew it over. Not worth sending to the NAA Board even.”

66 On 17 July 1963 the plaintiff was again assessed by a naval psychologist. He was recorded as presenting as emotionally immature. The author noted, “could perhaps make good material but there are reservations at this stage because of lack of [indecipherable] but it is felt he is worth the risk.”

67 On 8 October 1964, the plaintiff attended an interview with a naval psychologist, William Morison, who recorded:

“During sea time in the Melbourne interviewed CSRC [Combined Services Recruiting Centre] applicant for COR [Change of Rate] says he does not think he will pass EM [Electrician Mate] does not learn the instruction and has not been able to learn much about other branches. Is not sure that he wanted to stay in – says he feels like being his own boss for four or five years. Immature, lacks a goal, says he thinks he just blundered into the Navy – it seemed logical follow on from his Sea Cadet training. Couldn’t establish want [scil. what] his interests if any are – may arrange further talk in about 1/52 told him to talk over branches with senior rates in the meantime.”

68 Mr Morison had no independent recall of the interview but said that his note “blundered into the Navy” was likely to closely resemble the words that the plaintiff used. I accept that is so.

69 On 9 October 1964 the plaintiff failed his electrical mechanic sea training examination (the EM examination).

70 On 22 October 1964 the plaintiff was convicted of his first post-collision disciplinary offence.

71 On 1 April 1965 the plaintiff again failed his EM examination. Following this he transferred to the communications branch. He passed his examination in communications on 24 May 1965 and was posted to the communications school, which was located at Cerberus.

72 The plaintiff’s service record demonstrates a progressive deterioration in his performance. I have already referred to his disciplinary history. In addition, I note the following further entries recorded in his psychology file. On 4 June 1965 a psychologist recorded:

“Blew in this afternoon (one hour before divisions) stating that he “wanted out”. Was of blustering manner, was the bearer of one black eye and lacerated face (brawling?) and I have doubts that he was a hundred percent sober. Told him to check through his DO is now an ORD/CO working ship whilst waiting to go on course (there is a backlog of some two hundred men in this category). Says he wants to apply to go out before he is kicked out. LAW.”

“Chattered with rugby pie night. Was still keen to be discharged but he has not been referred to us formally. X was well under the weather at this stage.”

73 In the 1960s sailors were assessed on their character and efficiency every twelve months. The plaintiff was assessed in December 1963 as of “very good” character and “satisfactory” efficiency. In December 1964, his character was assessed as “good”, and his efficiency as “satisfactory”. In December 1965 his character was assessed as “indifferent” and his efficiency as “moderate”.

74 Mr Harcher, a former naval officer who is now attached to the Career Management branch of the Department of Defence, explained that the Navy considered all its members to be of “very good” character unless the member had done something wrong. The standard assessment of a sailor as to character was “very good”. As I understood Mr Harcher’s evidence, an assessment of less than being of very good character did not reflect well on the sailor. The standard required for efficiency was “satisfactory”.

75 The plaintiff’s first character and efficiency assessment was carried out within a matter of weeks of his first sea posting when he had been in the Navy for less than six months. It does not provide a sufficient basis for any prediction about whether he was likely to make a successful career in the Navy.

76 The fact that the plaintiff had been convicted of skulking prior to the collision is not without significance in assessing his attitude to the Navy in the relatively brief period of his service before it. Retired Commander Halley, who was serving on the Melbourne at the time of the Collision, gave evidence that in his experience:

“Most sailors when they are charged with an offence, it’s usually not the first time. They have had their pope’s nose in other words. When that happens, you tend to check and see just what the senior sailors are up to when they’re dealing with a chap like this”.

77 The plaintiff applied to join the Commonwealth Public Service as a base grade clerk shortly after his discharge from the Navy. He had no recall of making such an application, but accepted that he had done so. A letter signed by the Commonwealth Public Service Inspector for Tasmania, dated 13 July 1966, recorded the following history:

“Mr Brittain was unable to produce a discharge certificate. This Office became aware that he may have been a deserter from the Navy and in discussions with him, Mr Brittain confirmed this fact, saying that he had on several occasions been absent without leave for periods of up to six days and on one occasion for a period of two months. He also advised that he had served ninety days in the first military corrective establishment. He explained his motives for his actions as a means of obtaining a discharge from the Navy because of his proposed marriage.”

78 In an interview with Professor McFarlane in January 2003 the plaintiff gave a history which included that one of the factors that contributed to his desire to get out of the Navy was that he wanted to be with his girlfriend. The plaintiff did not recall giving such a history. I am satisfied that he did.

79 The plaintiff maintained that he did not meet his wife, Pamela, until July 1965 and that by this time his unsatisfactory conduct which led to his discharge was already evident. Mrs Brittain supported her husband’s evidence in this respect. She gave evidence of her belief that they started going out together in July 1965. Both dated the commencement of their relationship by reference to a photograph. The photograph was not produced. Mrs Brittain recalled that they had met at a time when the plaintiff was on leave. She said that she was aged twenty at the time. She turned twenty in April 1965. Mrs Brittain had a very poor memory for events dating back to their courtship and early married life. I accepted her as a truthful witness but I do not consider her belief as to her age at the date of meeting the plaintiff to be reliable.

80 The plaintiff was on leave between 12 December 1964 and 3 January 1965. He spent his leave in Hobart. He did not have further leave in 1965 at or prior to the time when he dates the commencement of his meeting with Pamela.

81 The probability is that the plaintiff commenced going out with Pamela in late 1964 or early 1965 when he was on leave. In August 1965 he surrendered to the authorities at HMAS Huon, Hobart after a period of absence without leave. It is likely that he travelled to Hobart because he wanted to be with Pamela. He acknowledged so much in cross-examination.

82 Pamela became aware that she was pregnant to the plaintiff around March 1966. They married on 22 April 1966 after the plaintiff’s release from Holsworthy. Their first child, Tracey, was born on 10 September 1966. They had two further children a daughter, Jackie, was born in December 1967 and the third, a son, Paul, in October 1969.

83 I accept Mrs Brittain that there was no discussion of marriage until she became aware of her pregnancy. Nonetheless I consider that at least one factor that influenced the plaintiff in his desire by mid-1965 to leave the Navy was his wish to spend more time with her. This is consistent with his unauthorised trip to Hobart in August 1965 and with the things he said in the interview with the Commonwealth Public Service in 1966 and the history that he gave to Professor McFarlane in January 2003.

The plaintiff’s drinking

84 In his amended statement of particulars the plaintiff claims that he suffers from alcohol abuse. In the defendant’s submission the evidence of the plaintiff’s consumption of alcohol fell short of establishing that he had become addicted to alcohol in the sense that his decision to drink was no longer voluntary. I did not understand the plaintiff to contend to the contrary.

85 The plaintiff’s case was put as one of PTSD with anxiety and depression. The relevance of the evidence of the plaintiff’s heavy drinking was said to be that it was consistent with attempts to self-medicate the symptoms of PTSD.

86 The defendant took issue with the characterisation of the plaintiff’s drinking as a form of self-medication. In the defendant’s submission there was nothing in the plaintiff’s history of drinking after work and golf that was suggestive of self-medication in order to mask the symptoms of psychiatric distress.

87 The plaintiff said that he had started drinking more heavily from the time of the collision; it helped him to sleep and to forget.

88 The plaintiff was at sea on board the Melbourne in the months May to December 1964. After taking three weeks leave he joined the crew of Sydney in January 1965 and sailed with her to Hobart. While at sea the plaintiff was confined to his beer ration (although as a member of the laundry party he was sometimes able to get an extra ration). Nonetheless, in the period following the collision when the plaintiff was at sea he was not in a position to regularly drink to the point of intoxication.

89 After his discharge during the time when he was living in Tasmania the plaintiff put his alcohol consumption as around four to six “pots” of beer, which he would drink after work. His reference to a “pot” is to ten fluid ounces. His drinking did not interfere with the performance of his clerical duties.

90 In the late ‘80’s and early ‘90’s the plaintiff said that he used to go to the pub a lot and that he was drinking fairly heavily. It was uncommon for him to start drinking before 4:30 or 5:00 pm.

91 The plaintiff described his alcohol consumption to Dr Champion when he first saw him in November 1997 as being six to eight stubbies a day. He said that he felt he had had some problems with alcohol since the collision (Dr Champion report, 19 December 1997, p 4).

92 The plaintiff gave the following history of his alcohol consumption to Professor McFarlane when he saw him in January 2003:

“He said in the past his drinking had been a problem and this has been more moderate in the last couple of years where he will drink three to four stubbies a day. He stated that his largest consumption was during the 1980s when he would go down to the hotel at lunch on occasions and stay until 7:00 or 8:00 at night. On these occasions, although living in Cranbourne he would drive 10 kms to the Frankston Hotel. He said that he had never been charged with driving under the influence or fired due to his alcohol consumption, but this was more by luck than good intention. He was drinking ten to twelve glasses of beer per day in the 1980s in a two to three hour session.”

93 In the two or three years prior to giving evidence the plaintiff had moderated his drinking. He described his current pattern of drinking as three or four stubbies of beer each evening together with some red wine on occasions.

94 It appears that in March 2004 the plaintiff lost his drivers’ licence in connection with a drink driving conviction. He told Dr Holwill that his blood alcohol reading on this occasion was recorded as .05.

95 In cross-examination the plaintiff acknowledged that he had given differing estimates to doctors about the extent of his alcohol consumption over the years. This was because it had varied. He acknowledged that whatever the level of his consumption his capacity to provide for and support his family had not been compromised by it.

96 The plaintiff was a cigarette smoker. He gave up smoking at the age of thirty-five years and had not taken it up again. I accept the defendant’s submission that this provides some evidence of the plaintiff’s ability to exercise self-control.

97 A number of witnesses were called in the plaintiff’s case who gave evidence of his drinking habits, aptitude for work and disposition.

98 The plaintiff’s father, Albert Brittain, described the plaintiff as having been an intelligent, bubbly, fun-loving son before he joined the Navy. He had been an excellent student at school and he had not been the cause of any disciplinary problems at home. Mr Brittain would not allow alcohol in the family home and the plaintiff did not drink alcohol before he joined the Navy.

99 Mr Brittain said that the plaintiff had undergone a complete change in personality after the collision. He had become aggressive and argumentative. Mr Brittain considered that the plaintiff drinks to excess; four to six stubbies of beer a night - on occasions he might drink as many as ten or twelve stubbies.

100 Little weight can be placed on Mr Brittain’s opinion that the plaintiff underwent a change in personality characterised in part by excessive drinking from 1964. The fact is that the plaintiff was a somewhat immature teenager when he left home and joined the Navy. The circumstance that he did not drink much alcohol as a youth to my mind does not cast light on whether his subsequent drinking history arises as the result of psychiatric injury suffered by reason of the collision or for reasons unrelated to it. He had only been in the Navy for six months at the time of the collision and some of this time was spent at sea where his access to alcohol was restricted. Mr Brittain’s opportunity to observe his son’s pattern of drinking in the years 1964 to 2000 was limited. Over these years he saw him two or three times a year. For the past five years, following the death of his wife, Mr Brittain has spent more time with the plaintiff.

101 Two former seamen from the plaintiff’s intake at Cerberus gave evidence. John Quirke recalled that prior to the collision the plaintiff had been outgoing with a good sense of humour. His alcohol consumption at that time had been, “nothing out of the ordinary”. He was asked if he recalled anything about the plaintiff’s alcohol consumption following the collision. He replied that, “we may have over indulged to a certain extent initially”. Mr Quirke left the Navy in April 1964. He did not see the plaintiff again for around thirty-five years.

102 Allan Cove was posted to the Melbourne at the same time as the plaintiff. He, too, was assigned to the laundry party. Mr Cove was asked to give an account of the plaintiff’s personality prior to the collision. He said this:

“We were all seventeen. We all knocked around together. I thought he was a pretty good bloke.”

103 Robert Lagettie, the owner of a film production company, worked with the plaintiff on a number of projects from 1982 until the late 1980s. In this time the plaintiff was successful in raising funds for a number of documentary films for Mr Lagettie’s company. Mr Lagettie said that the plaintiff could be difficult to deal with at times. He illustrated this by observing that the plaintiff would be amenable and jovial in telephone discussions of a morning, but a matter of hours later he might be disinterested in the same subject matter. It had been common for the plaintiff to speak to Mr Lagettie by telephone at night when he was apparently affected by alcohol.

104 Brian Jennings described the plaintiff as having been a rather heavy drinker and a bit irrational at times during their trip to Bolivia and Europe. After the failure of the Bolivian venture Mr Jennings maintained social contact with the plaintiff. They were part of a group in Frankston who were acquainted through mutual interests in business and golf. They would get together from time to time and have a drink at a local hotel or a game of golf. Mr Jennings described the plaintiff as a competitive golf player. The plaintiff could be noisy and could come close to being aggressive on occasions when he had too many beers.

105 Trent Burwash has known the plaintiff for around five years. Mr Burwash is the National Relationship Manager for ITC and is responsible for the national distribution of ITC products. Mr Burwash lives in Western Australia but has regular telephone contact with the plaintiff. He spends quite a deal of time in the Melbourne in the three months prior to the end of each financial year and on these occasions he catches up with the plaintiff. He is well disposed towards the plaintiff, whom he affectionately refers to as “dad” in email correspondence. Their association is both business and social. Mr Burwash has never seen the plaintiff compromise his relationships with his clients. He observed that, “his mood swings do swing from time to time when he has had the odd drink or two, but apart from that he seems to be, you know, quite reasonable”. Mr Burwash said that he and the plaintiff attend football games together perhaps once or twice a year and that they play golf on average two or three times a year. When asked to comment on the plaintiff’s drinking, Mr Burwash observed, “he enjoys a drink in the bar, as most of us do”.

106 John Rogers is a chartered accountant and financial planner who has known the plaintiff since the early 1980s. On one occasion Mr Rogers invited the plaintiff to make up the numbers in a team that he had put together for the Victorian Racing Club Golf Day. Their team won the trophy. Afterwards the plaintiff became boisterous and objectionable over a few drinks in the Clubhouse. This caused offence to Mr Rogers’ other clients. Notwithstanding this experience Mr Rogers included the plaintiff in the team in the same event the following year. They played as a group on a further occasion. Mr Rogers agreed with the description of the plaintiff as a persistent and likeable person.

107 Pamela Brittain recalled their early married years as ones in which the plaintiff regularly went out drinking after work. In recent years he had given this up. Now, typically, he drinks four stubbies of beer a night and on occasions a bottle of wine.

108 The plaintiff was seen Professor Raphael on two occasions at the request of his solicitors. In her first report, which is dated 11 June 2002, Professor Raphael recorded the plaintiff’s drinking history as that he had been a social drinker before the collision and that he had progressively become a heavy drinker after the collision. She noted both that “he drank heavily for years” and that “he started drinking heavily and still drinks too heavily”. No further detail of the pattern or the extent of the drinking is given. Professor Raphael recorded a diagnosis that the plaintiff met the criteria for alcohol use disorder in the past and that at the date of the report he indicated patterns of lesser, but still excessive, drinking. Professor Raphael considered that a factor that contributed to the plaintiff’s pattern of heavy drinking was that he had kept to himself showing avoidant behaviours (a criterion of PTSD).

109 Professor Raphael carried out a further assessment of the plaintiff on 24 August 2004. In her report dated 1 October 2004 she expressed the opinion that the plaintiff met the diagnostic criteria for substance use disorder; although of less severity than previously. This opinion does not sit readily with that expressed in the first report.

110 Dr Holwill, the plaintiff’s treating psychiatrist, was unwell at the date of the trial. The evidence that he gave at the first trial was tendered in the plaintiff’s case together with his supplementary report dated 23 August 2004. In that report Dr Holwill, recorded that the plaintiff had been attending him on a regular basis, generally every six weeks. He said that the plaintiff had continued to drink moderately heavily. Dr Holwill concluded that as at August 2004 the plaintiff continued to suffer from chronic PTSD, associated mild to moderate depression and chronic mild to moderate substance abuse (alcohol).

111 It does not appear that either Professor Raphael or Dr Holwill obtained a detailed history that included that the plaintiff had remained a member of the crew of the Melbourne throughout 1964 and that for a significant period following the collision he had been at sea and that his access to alcohol had been restricted. Both appear to have proceeded on an understanding that the plaintiff’s heavy drinking developed in the immediate aftermath of the collision.

112 Dr Champion’s evidence is that the criteria for alcohol abuse and alcohol dependency require, inter alia, clinically significant, maladaptive behaviour or psychological change. He explained that DSM IV gives as an example of such a change impaired social or occupational function. In his report of 21 June 2004 Dr Champion expressed the opinion that the plaintiff may suffer with mild chronic alcohol abuse/dependence, but that there was no indication of the presence of the objective markers that chronic alcohol abuse/dependence of any significance would be expected to produce. He adhered to the opinion, expressed in his report dated 20 February 2003, that there was no clear medical evidence that the plaintiff suffered from chronic alcohol abuse disorder. In this respect Dr Champion noted in the 21 June 2004 report that no clear line of demarcation exists between an individual who suffers with mild alcohol dependence and one who indulges in “heavy social drinking”. Dr Champion did not consider the plaintiff’s possible mild alcohol dependence/abuse to be causally related to his involvement in the collision.

113 It is not possible to establish with precision the level of the plaintiff’s alcohol consumption over the past forty years. It is clear that he has drunk to excess on occasions from at least mid 1965. He has been a regular and heavy drinker of alcohol throughout his adult life. The evidence does not establish that his alcohol consumption has at any time reached the point that his decision to drink was no longer voluntary. I will return to the significance of the histories obtained by Dr Holwill and Professor Raphael when dealing with the question of whether the plaintiff has established that he suffers from PTSD as a result of the collision. For present purposes I record that I do not find that the plaintiff suffers from a discrete psychiatric condition of alcohol abuse occasioned by the collision. This finding is consistent with the way the plaintiff’s case was put in closing submissions. Mr Melick SC, who with Mr Butcher appeared on the plaintiff’s behalf, disavowed any discrete claim based on “alcohol abuse syndrome” (T 570.52 – 571.4). The plaintiff’s claim is for damages occasioned by PTSD with anxiety and depression which are said to have been caused by his reaction to the collision

The medical evidence - PTSD

114 Dr Holwill has experience in the treatment of patients with PTSD. He diagnosed the plaintiff as suffering from PTSD at his initial consultation on 2 April 2002. He has not departed from that diagnosis.

115 The plaintiff described the following symptoms in his initial consultation with Dr Holwill. He experienced recurrent nightmares most nights of the collision and of watching the aft section of the Voyager sinking. As at April 2002 the nightmares were experienced occasionally, two to three times per month. His sleeping was disturbed with initial, middle and late insomnia every night. This was contributed to by prostate difficulties. He had become irritable and aggressive following the collision and he had developed a chronically low mood. About two years prior to commencing treatment with Dr Holwill he had developed panic attacks. He had experienced several of these. There was no precipitant. He described intrusive thoughts of the collision, but these were occurring only occasionally at the time he consulted Dr Holwill. There had been a marked increase in his alcohol consumption and he found it hard to work for other people.

116 Dr Holwill prescribed Zoloft for the plaintiff. This was beneficial and the plaintiff reported a lessening of his symptoms.

117 In cross-examination at the first trial Dr Holwill agreed that the impression he had obtained from his discussions with the plaintiff on 2 April 2002 was that shortly after the collision, within a matter of weeks, everything had changed and the plaintiff had lost all interest in the Navy and set about obtaining a discharge. He agreed that he had understood that the plaintiff had not returned to the Melbourne following the collision. However he had been aware that the plaintiff had returned to sea following the collision.

118 Dr Holwill also obtained an account that the plaintiff had not gone to Vietnam on board the Sydney because he was facing a charge over drinking the night before the ship was due to sail. This latter version of events is not correct. The plaintiff was charged with being drunk on board the Sydney on 30 April 1965. The Report of Proceedings for the Sydney for May 1965 suggests that she sailed for Vietnam on 27 May. The plaintiff was transferred to the communications school at Cerberus following his successful completion of the communications sea training examination on 24 May. It is not clear whether, as the defendant submitted, the plaintiff deliberately sought to paint a more dramatic account of the drinking charge in his consultation with Dr Holwill. It remains that reliable evidence establishes that the plaintiff did come to adverse notice a number of times in the period March – July 1965 for drinking and that his disciplinary history included that by late 1965 – early 1966 he had twice been sentenced to terms of imprisonment at Holsworthy.

119 Professor Raphael is the Director of the Centre for Mental Health with the New South Wales Health Department. She holds a number of academic and other appointments. The latter include that she is a member of the Repatriation Medical Authority and that she chairs the Clinical Reference Committee of the National Centre for PTSD. She has had extensive experience over many years dealing with veterans suffering from PTSD. At the date of her evidence she was the Mental Health Adviser to the Australian Health Disaster Management Policy Committee, which is responsible for oversighting the health response to disasters.

120 Professor Raphael interviewed the plaintiff on 15 May 2002. The plaintiff reported that he had some flashbacks of his experience on the Melbourne; he was on the deck talking to a survivor of the Voyager. He described repeated and frequent guilty ruminations about being at the wheel and about whether he could have done anything. He had thoughts about why he had survived when his mates had not. He gave an account that he had started drinking heavily and that as at the date of the assessment he was still drinking too heavily. He described sleep disturbance and moodiness for many years. He believed that he suffered from nightmares because he wakes up shaking, but he was not able to recall the content of them, apart from images of being on the deck. He described himself as having been “shut off” over the years. He reported irritability, aggressiveness and being easily upset much of the time, as well as being depressed. He had developed panic symptoms several years prior to his assessment and had undergone an ECG, as it was felt that he might have heart trouble. He had been reassured about this, but continued to get palpitations.

121 In her first report Professor Raphael outlined the diagnostic criteria for PTSD:

“Criterion A: Mr Brittain was exposed to a severe and potentially life threatening event, the Melbourne/Voyager collision, where he was exposed to the massive deaths of others. He witnessed and was confronted with such an event and this evoked feelings of intense horror, fear and helplessness.

Criterion B: Traumatic event has been persistently re-experienced.

(i) He has distressing recollection/and preoccupation concerning his experience in the disaster.

(ii) He has some distressing dreams.

(iii) While he has some flashbacks, these are occasional.

(iv) He shows significant distress when discussing his experience.

Criterion C: Persistent avoidance

(i) He demonstrated efforts to avoid thoughts and feelings about the disaster.

(ii) He did not specifically demonstrate avoidance of activities or places.

(iii) He demonstrated some patchy amnesia regarding the experience.

(iv) He did not demonstrate markedly diminished interest or participation.

(v) He demonstrates feelings of detachment and estrangement from others.

(vi) He did not demonstrate restricted affect.

Criterion D: Persistent symptoms of arousal

(i) He described difficulties with sleep and frequent waking from time to time.

(ii) He demonstrated irritability and outbursts of anger.

(iii) He indicated some difficulties with concentration.

(iv) He did not demonstrate hyper vigilance.

Criterion E: Duration of disturbance. These problems have been present intermittently, but influencing the patient’s functioning overall since the time of the Melbourne/Voyager disaster as he reports it.

Criterion F: The patient experiences clinically significant distress and impairment of function. The condition is chronic.

122 Professor Raphael diagnosed the plaintiff as suffering from PTSD. She considered it likely that the plaintiff had met the diagnostic criteria for depressive and anxiety disorders in the past, albeit he did not meet the criteria for either of those conditions as at May 2002.

123 In reporting her conclusions Professor Raphael said this:

“Mr Brittain’s personal history reveals no evidence of psychiatric disorder prior to the collision and in fact gives every evidence of successful development during his adolescent years and no major difficulties.

He appeared strongly and positively committed to a career in the Navy. His experiences on the night of the collision and his strong identification with his mates on the Voyager constituted a major traumatic experience, as did the aftermath. His life showed major change following this with development of antisocial behaviours, heavy drinking, disturbed sleep and a wish to “get out”. His marital problems, multiple jobs and “loner” behaviour fit with the profile of ongoing psychological disturbance and disruption of function, and the ongoing symptomatology of his traumatisation.

It is my opinion on the basis of the history provided by Mr Brittain, and my assessment of him, that he is suffering from post-traumatic stress disorder of moderate severity. It is my opinion that this resulted from his experience in the Melbourne/Voyager collision.”

124 In a supplementary report dated 18 February 2003 Professor Raphael commented on some additional information that had been drawn to her attention. She observed that information provided by the plaintiff’s father (that as a young man he had been well and not shown evidence of psychiatric problems) supported her view that the problems that arose were likely to have been related to the psychological trauma associated with the experience of the collision. She also considered material from the plaintiff’s naval service record reporting apparently psychological and behavioural problems subsequent to the collision were such that it was highly likely that these difficulties were associated with the traumatic experience and were further evidence supporting the development of post-traumatic psychiatric morbidity, including PTSD.

125 In her third report, dated 1 October 2004, Professor Raphael recorded her assessment of the plaintiff based on a further interview conducted on 24 August 2004. She reported that the plaintiff had problems with participation over the years, both with the family and other groups, but that he felt better with his family at the time of the report, more considerate, and that he had a relatively small group of supportive people with whom he worked. Professor Raphael noted that the plaintiff continued to report some distressing dreams, although they were not frequent at the time of the third report. He considered that he had been helped by his talks with Dr Holwill and by Zoloft. He was not at that time experiencing flashbacks. At the date of this report Professor Raphael considered that the plaintiff did not demonstrate detachment from others.

126 Professor Raphael expressed the opinion in her third report that:

“Mr Brittain suffers chronic post-traumatic stress disorder and substance abuse disorder. It is my opinion in terms of my clinical assessment of him on this and previous occasions that his condition is ongoing and significantly impacts on his functioning and quality of life. He is having treatment for this which has improved his symptoms to a degree, but it is still an ongoing condition and one which may worsen as he ages, as well as in relation to the stresses associated with his physical health problems.

It is my opinion in terms of this clinical assessment that I have carried out, that Mr Brittain’s condition was caused by his traumatic experience in the collision of the Melbourne with the Voyager, and the subsequent failure of the system to provide appropriate assessment or treatment for problems which arose. It is in my opinion that his life experience and opportunities, as well as his quality of life have been significantly lessened as a consequence. It is my opinion that the substance use disorders initially commenced as heavy drinking which is highly likely to have been an attempt by Mr Brittain to self-medicate his psychological distress, irritability, anxiety and sleep difficulties which were symptoms of his psychological traumatisation after the incident.”

127 Professor McFarlane gave evidence in the plaintiff’s case. He is the Professor of Psychiatry at the University of Adelaide and has specialised throughout his career on the impact of traumatic events on individuals and PTSD. He has published extensively in peer-reviewed publications on the condition of PTSD. He has maintained a clinical practice in addition to his academic work. Professor McFarlane is a member of the Australian Defence Force Reserve and in this capacity he serves as the adviser in psychiatry to the Defence Force’s Director of Health Services. He is the Director of the Adelaide Centre of Military Veterans’ Health, which is responsible for the conduct of health research for the Australian Defence Force. He is the chairman of a scientific advisory committee that has been appointed by the Department of Veterans’ Affairs to investigate the impact of the Vietnam service on the children of Vietnam veterans.

128 As I have noted, Professor McFarlane interviewed the plaintiff in January 2003. Following this, in a report dated 28 January 2003, Professor McFarlane concluded:

“On the basis of the history obtained, it is my view that Mr Brittain continued to suffer some symptoms of a post-traumatic stress disorder, but did not currently satisfy the diagnostic criteria. In expressing my opinion, I am limited by the fact that I have not seen a number of the relevant documents, particularly referred to in Dr Champion’s first report concerning the disciplinary actions brought against him in the Navy. His current situation is dominated by anxiety symptoms, specifically relating to his impending legal action. This litigation setting does not appear to have led to a specific exacerbation of his post-traumatic symptoms. The symptoms which he clearly described in the past were nightmares relating to the HMAS Melbourne/Voyager disaster and also distressing recollections of the event. His first interview with Dr Champion indicates his psychological distress associated with the recollection of the experience. It appears that with the treatment provided that this distress has decreased significantly. He demonstrated no such emotional disequilibrium at the time of his interview with me.

…

Mr Brittain currently has few intrusive symptoms. He similarly, has few avoidance phenomenon and these appear to be intermittent, in contrast to his attempts to avoid recollections about the disaster. In recent years an example was his initial ability to tolerate part of the film The Titanic, but then needing to leave. He has ongoing startle response. It is difficult to judge the degree of his sleep disturbance in latter years because of his nocturnal frequency due to his enlarged prostate. However, it does appear to be an issue. He does not appear to have any particular symptoms of hyper vigilance. He stated his concentration was problematical. His irritability is an ongoing issue. However, he did not appear to be particularly socially withdrawn and had a continued sense of pleasure. He did not appear to have any emotional numbing.

Against this background, my report appears to differ from that of Professor Beverly Raphael’s in terms of the severity and clinical significance of some of his symptoms. Similarly, the report of Dr Holwill provided a similar history, particularly of the issues of insomnia, nightmares, chronic mild depression and avoidance of thoughts and feelings of the event. Given that I did not examine him at this time, I believe that my report is consistent with that of Dr Holwill and Dr Raphael.”

129 The principal challenge that the defendant makes to the acceptance of the opinions of Dr Holwill, Professor Raphael and Professor McFarlane is that they necessarily depend upon the accuracy of the plaintiff’s history and report of symptoms. Both are in issue.

130 Dr Holwill and Professor Raphael both consider that the plaintiff’s history of sleep difficulty in the period since the collision supports the diagnosis of PTSD. Dr Holwill obtained a history of sleep disturbance with initial, middle and late insomnia every night. He noted that this had been contributed to by prostate difficulties. Dr Holwill did not obtain a more detailed account of the onset of the insomnia.

131 The plaintiff has suffered from a longstanding urinary problem that has caused him to wake during the night. He complained about this problem to Dr O’Collins in 1980. In evidence he acknowledged that his urinary problems (which caused him to wake several times during the night) continued throughout the 1980s and the 1990s. He consulted his general practitioner, Dr Dickman, on several occasions in the late 1980s and early 1990s complaining of waking two or three times a night because of the problem. In 1991 he saw Dr Druitt, a urologist, and gave him a history, including that his urinary problems had caused him to wake frequently during the night for more than fifteen years. He gave a history in 1998 to another urologist, Dr Redgrave, of getting up and voiding every two to three hours throughout the night.

132 In late 2001 the plaintiff underwent a cystoscopy. Shortly after this Dr Redgrave performed a bladder neck incision. Following these procedures the plaintiff reported an improvement in his symptoms and said that for the first time in more than twenty years he was only waking twice a night, instead of eight times.

133 There is a physiological explanation for the plaintiff’s account of initial, middle and late insomnia that dates back to the late 1970s on the history given to Dr Redgrave. Dr Holwill does not appear to have taken a history of the nature and extent of the plaintiff’s prostate problem. There is no evidence of that the plaintiff complained of sleep difficulty to any medical practitioner in the years immediately after the collision. To the extent that Dr Holwill’s opinion relied on the history of insomnia, albeit in the context that it was associated with a prostate problem, it seems to me that I should treat it with some caution.

134 Professor Raphael obtained no history of the plaintiff’s urinary difficulties. This did not cause her to depart from her opinion that the plaintiff suffers from PTSD. As I understood her evidence the plaintiff’s account of suffering from nightmares in the period following the collision was important to her diagnosis. His urinary difficulties that led to the need for frequent night voiding would not explain the nightmares.

135 The question of whether the plaintiff has suffered from nightmares was in issue.

136 I have noted the plaintiff’s account of his nightmares in paragraph [34] above. In cross-examination the plaintiff agreed that he thought he had told Dr Holwill that he experienced nightmares every night. He did not think this was accurate. He put the frequency of his nightmares as maybe two or three times a month.

137 In Professor Raphael’s report dated 11 June 2002 she recorded a history that included:

“He believes he has had some nightmares as he wakes up shaking, but does not recall specifics of these, apart from images related to being on the deck.”

138 In cross-examination the plaintiff maintained that he does have a recall of the content of some of his nightmares. He recalls nightmares in which the he sees the rear section of the Voyager going down and a nightmare in which the Melbourne ran aground in the Derwent river. The plaintiff saw Dr Knox in 2002 at the request of his solicitor and acknowledged that he had given a history to him of having the odd nightmare or flashback of the Melbourne running aground in the Derwent. He recalled having had such a nightmare but he was not able to remember when this was.

139 Mrs Brittain gave evidence that the plaintiff had suffered from nightmares:

“Q. Could you say anything about his sleeping pattern?

A. He had nightmares.

Q. When you say he had nightmares what did you actually observe?

A. Him under the bed screaming and yelling. I had to comfort him and he just used to lay there and go back to sleep. Sometimes he would sit up, scream, it went on for quite a few years.

Q. How frequently was it, how frequently?

A. One to two times a week I should say. I remember because it was ongoing.

Q. When you say it went on for quite a few years are you able to tell us now how many years you are talking about?

A. I am talking thirty years.”

140 Mrs Brittain’s evidence was challenged on two bases. Generally, it was submitted that her recall was so poor as to make her evidence of no value. Her evidence that the plaintiff suffered from nightmares was the subject of direct challenge.

141 Mrs Brittain did not recall that the plaintiff had worked in the Tasmanian Public Service during their early-married years. She did not recall what work he had done in Kalgoorlie, although she thought he must have done some. She was not able to recall whether he had ever smoked cigarettes. The marriage had been from Mrs Brittain’s point of view an unhappy and unfulfilled one for many years. She had been terribly affected by the Western Australia trip, at the time she made the decision to leave the plaintiff and their two older children her weight had dropped to less than 5 stone. I did not find it surprising that Mrs Brittain had little to no recall of the detail of her early-married life. She impressed me as a dignified and honest witness. I do not consider that her evidence that the plaintiff suffered from nightmares over many years should be rejected. I accept that the plaintiff’s nightmares were notable. I am satisfied that from the date of their marriage the plaintiff suffered from recurrent nightmares. The likelihood is that they became less frequent over the years, but that they continued from time to time until the early 1990s.

142 It is true that the plaintiff’s account of his nightmares differs from the description given by his wife. His evidence about them was less dramatic than that of his wife. This difference does not seem to me to be a matter of moment given my acceptance of Mrs Brittain. In this respect I note the evidence of Professor Raphael. She agreed that the history the plaintiff had given to her concerning his distressing dreams was that he suffered from these on and off and that this was unlike the account Mrs Brittain had given of his nightmares in her evidence. Professor Raphael went on to say this:

176 The plaintiff has given accounts of his symptoms including that he has a fear of heights, of flying and of sea travel. His account of these symptoms is to be assessed in the context of the evidence that I have set out at paragraph [33] above.

177 The plaintiff rejected the suggestion that his failure to seek treatment for his symptoms in the seven years after Dr Wu diagnosed him as suffering from a treatable psychiatric condition might be reflective of the extent of them. He said that he had been pigheaded. He was challenged on the footing that he first sought treatment around March 2002 when his claim was being prepared for hearing. He denied that this consideration had motivated him to seek treatment. It was his account that he had finally thought it was time to start getting treatment for his problem. He denied any association between this decision and the preparation of the proceedings for trial. He agreed that in March 2002 his solicitor had arranged for him to attend consultations with both Dr Raphael and Dr Knox for medico legal purposes. He agreed that he had contacted his solicitor’s office in order to obtain the name of a psychiatrist whom he could approach for treatment. He obtained Dr Holwill’s name from his solicitor’s office on 26 March 2002. He attended Dr Maragoudakis, a general practitioner, in order to get a referral to Dr Holwill. This was his only dealing with Dr Maragoudakis. He was asked why he had not sought a referral from his general practitioner, Dr Dickman. He said Dr Dickman was difficult to get to see, one had to wait two to three days on occasions. I considered his evidence in this respect to be unconvincing.

178 Dr Holwill did not consider the fact that the plaintiff had not sought out treatment for his symptoms to be inconsistent with his diagnosis:

“The most common outcome would be that they don’t have treatment and they go on suffering for many years. They often deny the symptoms to themselves. That their quality of life and that of their family is significantly affected, and often they try and control their symptoms themselves by using medications or alcohol or they isolate themselves to try and protect others or protect themselves.” (04/03/03 T 477).

179 This provides an explanation for the plaintiff’s failure to seek out treatment prior to September 1995. It is one thing to accept that although the plaintiff was troubled by nightmares, intrusive thoughts, flashbacks, jumpiness and other symptoms of psychological discomfort that he may not have realised that they were symptoms of a psychiatric condition for which treatment was available. However, it seemed to me to be a somewhat inadequate response to assert that, after he became aware of the diagnosis, it was mere pigheadedness that led him not to seek treatment. Accepting that he was pigheaded, he gave no adequate explanation for why it was in March 2002 he finally decided to commence a course of treatment. The coincidence of the timing with the preparation of his claim for trial is to my mind significant. I think the likelihood is that the plaintiff sought out treatment from Dr Holwill because he considered that his prospects of success in the pending litigation would be improved thereby.

180 The conclusion that I have reached is that the symptoms of the plaintiff’s PTSD have not been, from his point of view, particularly intrusive.

181 It seems to me that the plaintiff’s life has been diminished in the sense that the probability is that he would have had a more fulfilled family life had it not been for his PTSD. He lacks insight into the extent to which the quality of his life in this respect has been impaired. This does not mean that he has not suffered a diminution in the quality of his life as the result of his psychiatric injury.

182 I accept that, for perhaps up to thirty years, he suffered from time to time from nightmares. These have decreased in frequency. He has exhibited other symptoms of his psychiatric condition, including irritability and jumpiness.

183 The touchstone for the award of general damages is one of reasonableness. It is important to take into account the length of time over which the plaintiff has been affected by his psychiatric injury and to recognise that notwithstanding treatment he will continue to suffer some symptoms for the remainder of his life. In assessing an appropriate figure I take into account my conclusion stated at paragraph [180] above.

184 I have determined an appropriate amount of general damages to be the sum of $65,000. I allocate this on the basis that 75% of the sum is referable to the past. The plaintiff is entitled to interest on that part of the award that relates to the past. Interest on 75% of the sum at 2% from the date of the collision amounts to $40,763.

Economic loss

185 It was submitted on the plaintiff’s behalf that his evidence as to his poor concentration and the evidence that he was subject to changeable moods was supportive of a finding that his capacity to earn income had been impaired by his PTSD. In the course of closing submissions, Mr Melick observed that the plaintiff’s present success in marketing ITC schemes comes at a time when he is receiving treatment for his PTSD. He submitted that one inference that is open from the plaintiff’s present high level of income is that, but for his injury, he was capable of having earned substantial sums over the past thirty years. Nonetheless, it was proposed to quantify the plaintiff’s loss by comparison between his actual income for the period 1969 to 30 June 2000 and the income he would have earned had he remained in the Navy until 1983 and thereafter earned average weekly earnings (AWE) (T 621.10-15). No claim for economic loss is made for the period after 30 June 2000.

186 Dr Holwill considered that while the plaintiff had struggled fairly hard to support himself at work, “there has been some impairment to his occupational functioning” (T 05/03/03 T 554. 54-55). In Dr Holwill’s opinion, the plaintiff had to modify his employment to fit in with his chronic psychiatric symptoms, particularly his irritability, aggression and inability to work with others. This had probably permitted him to work episodically (05/03/03 T 554-555). Dr Holwill considered the plaintiff’s present work with ITC was suited to his condition in that it was necessary for him to deal with a relatively small number of accountants.

187 The plaintiff gave evidence that he had difficulty in working with people since the collision and that this had not been a problem before the collision.

188 Professor Raphael considered the plaintiff to be moderately disabled and likely to have substantial difficulties in any work situation that required systematic commitment and concentration. She considered that it is likely that he will require treatment to deal with this condition, probably some form of psychotherapy. The plaintiff’s difficulties in concentration and the longstanding and until recently untreated nature of his condition meant his prognosis should be guarded. As I have noted, the plaintiff’s claim is not for future economic loss.

189 It is necessary for the plaintiff to establish that, by reason of his PTSD, his capacity to earn income has been impaired and that any such impairment in capacity has been productive of actual loss: Medlin v State Government Insurance Commission (1995-1995) 182 CLR 1; Husher v Husher (1999) 197 CLR 138.

190 The plaintiff obtained a public service position shortly after his discharge from the Navy. The evidence does not establish that his capacity to maintain this employment was affected by his PTSD. He explained to Dr Champion that it had been open to him to accumulate his State public service with Commonwealth public service (employment with the ATO before he joined the Navy) and his naval service so as to qualify for long service leave entitlements at the completion of an aggregate ten years’ service. He remained with the Tasmanian Public Service for approximately three years and three months before he chose to resign. At the date of his resignation he had accrued the combined long service entitlements.

191 The evidence of the plaintiff’s drinking is not that it has impaired his capacity to earn income. I do not consider the evidence of the plaintiff’s mood swings to have demonstrated any impairment of capacity to earn income. Mr Lagettie’s evidence did not support a finding of relevant impairment. Their association lasted from the time of their initial contact until the end of the tax incentive regime for investment in Australian films. During this time they had a good deal of contact. The plaintiff was diligent in raising funds for Mr Lagettie’s documentary films. They had some notable successes. Mr Lagettie employed the plaintiff on occasions to do some film production work. The plaintiff proved to be competent.

192 Brian Jennings met the plaintiff in the mid to late 1980s. He approached the plaintiff to join him in the Bolivian timber project because the plaintiff was a person whom he believed to have a lot of contacts in the accounting and finance fields. Mr Jennings again teamed up with the plaintiff after the Bolivian project in connection with some further venture that involved them travelling to Tokyo.

193 Mr Rogers, a chartered accountant and financial planner, has known the plaintiff since the early 1980s. Their first contact was when Mr Rogers was working with Touche Ross. The plaintiff was promoting various tax effective schemes. In the 1980s these were film investment products and in the 1990s they were agricultural investment products. Mr Rogers’ clients tended not to invest in the film investment products. He described the plaintiff as a persistent salesman who was constantly bringing products to him. In the 1990s the regulation of managed investment schemes changed; product rulings were required and schemes were required to be assessed by independent research houses. Mr Rogers considers ITC’s tree investment projects to be an attractive tax-planning alternative for his clients. They have excellent product rulings and are supported by people with experience in the industry. The plaintiff pays Mr Rogers for his professional time in advising his clients in relation to the ITC scheme and assisting them to complete the loan application. Mr Rogers in turn rebates some of the fee to his clients. On two or three occasions Mr Rogers has arranged for the plaintiff to deal directly with his clients. He received negative feedback from his clients on these occasions. He does not consider the plaintiff to be suited to making presentations or decision-making. The plaintiff did not impress Mr Rogers’ clients as being a businessperson; he came across as a salesperson at best. Generally, Mr Rogers said the plaintiff was a person who did not present well physically or verbally. He also described him as a person who was inclined to run hot and cold.

194 Mr Burwash said that ITC offers a fairly sophisticated product. He considered that the plaintiff does not have the ability to grasp the detail of the product disclosure statement and to be able to communicate the contents of it effectively to potential clients. Mr Burwash does the presentations for most of the plaintiff’s clients.

195 The plaintiff has been self-employed as a salesman for most of his working life. This is an occupation for which his background and educational attainments equip him. His limitations in making presentations to clients about the detail of the various tax effective schemes that he has promoted over the years does not evidence impairment of capacity by reason of psychiatric injury. The plaintiff left school at the age of fifteen years and has no qualifications in accounting or financial planning. He appears to have the personal skills and persistence to be a competent salesman.

196 I do not find that the plaintiff’s financial success associated with marketing the ITC product is in any degree to be explained on the footing that since 2002 he has been receiving treatment for his PTSD. His success with ITC commenced prior to the commencement of the treatment. The plaintiff acknowledged in evidence that his approach to marketing the ITC product is the same as the approach that he has adopted with respect to marketing other products. The reason that the plaintiff has enjoyed success in the years since he commenced marketing ITC products is that they are attractive products.

197 I do not consider that the plaintiff has established that his PTSD has impaired his capacity to earn income. I record that I am, in any event, not satisfied that the plaintiff has suffered actual loss (putting to one side the claim for the lost chance of obtaining DFRDB entitlements) by reason of his PTSD.

198 The plaintiff’s case on economic loss was put on the basis that had he not suffered PTSD as the result of the collision it is likely that he would have remained in the Navy until the completion of twenty years’ service, retiring in August 1983 and that thereafter he would have obtained employment earning average weekly earnings (AWE). A comparison between the income actually earned between the date of discharge and 30 June 2000 and his hypothetical military and civilian income was said to demonstrate loss. This is in addition to the claim to compensation for the lost chance that the plaintiff would have qualified for Defence Force Retirement and Death Benefit (DFRDB) entitlements.

199 The plaintiff relied on the actuarial report of Cumpston Sarjeant Truslove Pty Ltd, dated 26 April 2005 together with a supplementary report dated 3 May 2005. The defendant relied on the actuarial report of Lexiq dated 27 April 2005 together with a supplementary report dated 28 April 2005. Mr Sarjeant, the author of the Cumpston reports was called to give short evidence. He was not cross-examined on his reports. The author of the Lexiq reports was not required for cross-examination. Both reports make assumptions as to the plaintiff’s income in the years since his resignation from the Tasmanian Public Service which are substantially dependent on the plaintiff’s instructions.

200 The first Cumpston Report compares the income received in the period 1966 to 2000 (Appendix C) with the earnings that the plaintiff would have received had he remained in the Navy until the completion of twenty years’ service and had he thereafter earned AWE. The Lexiq report favours the selection of the average wage for a clerical employee rather than AWE as the basis for calculating the plaintiff’s assumed loss. It derives the average clerical wage by selecting the minimum and maximum average weekly total wage rates for clerical employees published by the Australian Bureau of Statistics for the financial years 1992 to 1996, 1998 and 2000. The comparison between these figures and the AWE figures that are contained in Appendix D1 indicates the average clerical wage is approximately 90.98% of the AWE. Taking into account the plaintiff’s background and education, I consider that it is reasonable to compare his actual income with the income he might have earned in clerical employment for the purpose of determining his economic loss claim.

201 The defendant submitted that it is artificial to determine the plaintiff’s claim for economic loss at 30 June 2000 without taking into account the “good years”. In its submission the assessment of any loss flowing by reason of the lost chance to have pursued his naval career and qualified for DFRDB entitlements should be viewed as part of the economic consequences of the claim for lost earning capacity: Commonwealth v Stankowski [2005] NSWCA 106 per Hodgson JA at [152] and Bryson JA at [153]. I accept these submissions. In assessing the plaintiff’s claim I have regard to the evidence of his favourable financial position since 1 July 2000.

202 The Cumpston report records the plaintiff’s net after tax income for the period 20 January 1966 to 30 June 1978 as $47, 231 and for the period 1 July 1990 to 30 June 1995 as $39,562. The Lexiq report proceeds on an acceptance of these figures.

203 The Lexiq report calculates the plaintiff’s net after tax income for the period 1 July 1978 to 30 June 1990 and 1 July 1995 to 30 June 2000 on the basis of an analysis of taxation records that were supplied. It calculates total net after tax income for this period in the amount of $173,846. For some of the period in which income tax returns are available the plaintiff engaged in income splitting with his wife. Mr Melick acknowledged that the plaintiff’s income recorded in the partnership returns did not reflect his contribution to the business. He invited me to approach the calculation of the plaintiff’s income by doubling the income figures recorded in Appendix C of the Cumpston report for the years ending 30 June 1979 to 30 June 1988 (T 561-562). This increases the plaintiff’s stated income by a sum of $58,244. The Lexiq report contains an analysis of the plaintiff’s income based on taxation records at Attachment F. The income recorded for these years is somewhat higher than that set out in the Cumpston report. Attachment F to the Lexiq report is more detailed than Appendix C to the Cumpston report. For present purposes I proceed on an acceptance of the figures in it. Doubling the income for the years the subject of the partnership returns increases the plaintiff’s income over that period by $67,696.

204 The plaintiff’s net after tax income for the period from the date of his discharge from the Navy until 30 June 2000 is $328,335. The Lexiq report seeks to bring into account his high income in the years 2001 to 2004. In these years the plaintiff’s actual income exceeded hypothetical clerical earnings by the amount of $108,411.

205 The Cumpston and Lexiq reports both assume that the plaintiff remained in the Navy until completing twenty years’ service and that he thereafter obtained civilian employment. His net military income is estimated at $120,086. The Lexiq report calculates his net civilian income to 30 June 2000 at $346,959. The total is thus $467,045. From this one subtracts the sum of $328,335 being the actual income to 30 June 2000. This produces a figure of $138,710 as the plaintiff’s possible loss of income. When one deducts from this the $108,411 representing the amount by which his income in the recent period has exceeded the hypothetical income one arrives at a figure for possible net loss of income as $30,299.

206 The net loss of income figure above does not include consideration of loss of superannuation benefits had the plaintiff obtained civilian employment in a clerical position in 1983. Lexiq calculates the possible loss of the superannuation benefits during civilian employment as a sum of $28,634.

207 I am not satisfied that the plaintiff has suffered loss upon the assumption that but for his injury he would have remained in the Navy until 1983 and thereafter obtained clerical employment. This is because I am not satisfied that the income figures relied upon in both the Cumpston and Lexiq reports have been established.

208 The Cumpston details the plaintiff’s income from the date of his discharge from the Navy to 30 June 2000 in Appendix C. The sources relied upon for the material in Appendix C are:

(i) a letter from The Department of Primary Industries, Water and Environment dated 24/5/00, relating to income for the years 1966-67 and 1968-69;

(ii) a letter of instructions asking that earnings of $105 gross per week be assumed for the years 1969-70 to 1976-77,

(iii) a letter of instructions asking that earnings of $140 gross per week be assumed for the year 1977-78;
(iv) several taxation returns, a letter of instructions dated 27/2/03 and verbal advice given on 26/4/05 for the years 1978-79 to 1990-00;

209 As I have noted, the plaintiff’s evidence was unsatisfactory in a number of respects. I do not accept the plaintiff’s unsupported evidence of his income over the forty-year period that is the subject of his claim. In coming to this conclusion I have taken into account that on occasions when tested on matters relevant to his income in particular years his evidence was unconvincing.

210 The plaintiff joined the Long Island Golf Club in 1987. The joining fee was approximately $1,000 and the annual subscription was approximately $1,000. The Cumpston report records the plaintiff’s net after tax income for the years ending 30 June 1986, 1987 and 1988 as $6,904, $1,964 and $7,097 respectively. When cross-examined about his decision to join the club at a time when his income was so low the plaintiff said that he had an overdraft facility and that he had expectations of increased earnings in the following year. He acknowledged that having regard to his income in the years prior to 1987 he had no basis for optimism about the prospects for 1988.

211 The plaintiff did not submit tax returns for the years 1993, 1994 and 1995. He put his income in each of these years as falling below the threshold for income tax liability at $5,200. He agreed that he had applied to rejoin the Long Island Golf Club in July 1995. At this time the annual subscription was of the order of $1,200. He said that his wife offered to pay since she wanted him to play golf.

212 Mrs Brittain said that she had worked as a cleaner/domestic at RSL Park in order to supplement the family income. She recalled giving her husband $600 on one occasion in connection with him going away to play golf. The plaintiff had given evidence of a golfing weekend trip. Mrs Britain said that the plaintiff managed the household expenses. He spent money on pleasures for himself. I do not consider that Mrs Brittain’s evidence assisted in determining the plaintiff’s income.

213 In the financial year ended 30 June 2003 the plaintiff’s taxable income was $143,000. His total business income in this financial year was put at $243,730. A facsimile apparently signed by an officer of ITC, Ken Serles, dated 25 February 2003, records the payments made by ITC to the plaintiff between August and December 2002 in the amount of $290,000. If accurate this would be some evidence that ITC had made gross payments to the plaintiff over a period of four months considerably greater that the amount recorded in his return as his total business income for the financial year. Trent Burwash said that Ken Serles would have access to the ITC records of the commissions that had been paid by the company. The plaintiff suggested that the document appeared to contain an error. I am not able to determine whether the document accurately records the payments made. It remains that on one of the few occasions when there was evidence independent of the plaintiff touching on the amount of his income it did not support an acceptance of him.

214 As I have stated, I am not satisfied that the plaintiff’s PTSD has impaired his capacity to earn income. I do not approach the claim based on the lost chance to have remained in the Navy until the completion of twenty years’ service and to have qualified for DFRDB entitlements upon the basis that the assessment should include an amount representing the difference between assumed military/civilian earnings and actual earnings.

215 I turn now to the claim for the lost chance of qualifying for DFRDB entitlements. The plaintiff was discharged from the Navy in January 1966 following repeated convictions for breaches of naval discipline. It is necessary for him to establish that a material cause of his discharge was the psychiatric injury suffered by reason of his experience of the collision. In the event that he does it is then necessary to assess the likelihood that had he not suffered the psychiatric injury he would have completed twenty years’ service in the Navy and qualified for the DFRDB pension.

216 The defendant pointed to the fact that contrary to the impression that Dr Holwill appears to have obtained the plaintiff did not show signs of deteriorating conduct in the weeks and months after the collision. His stated disenchantment with the Navy and his poor disciplinary record both follow his failure to pass his EM examination. This sequence was taken up with Dr Holwill at the first trial:

“BRANSON: Q. Just assume this: that the plaintiff’s evidence is that as October of 1964 he’d lost interest in the Navy by that time. He had become disillusioned and he wanted to get out and he wanted to be his own boss for four or five years, and that apart from a medical discharge the only way he could effect a discharge was to set about disobeying his superiors and that that course of conduct ensured shortly thereafter, as I’ve just read out to you. What I want to suggest to you is that that is a materially different picture from that which was conveyed to you on 2 April 2002 about the onset of any problems that he was having with the Navy in terms of discipline and wanting to get a discharge; do you agree?

A. Not entirely. The history I got was that after the collision he made the decision he wanted to get out of the Navy and then progressively he sought that with an escalating history of disciplinary problems.”

217 Professor McFarlane was asked to comment on the plaintiff’s evidence that after the collision he had started a campaign to get out of the Navy later on that year. He said that this was consistent with behavioural avoidance, which is one of the symptoms of PTSD. In his opinion if there was evidence to establish that the plaintiff’s disciplinary problems emerged to a significant degree after the collision it was consistent with a degree of avoidance.

218 The plaintiff’s disciplinary record does reveal significant problems that emerged after the collision. The fact that they did not emerge immediately in the aftermath of the collision I do not understand to be significant to the diagnosis of Dr Holwill. Professor McFarlane’s evidence was not qualified in this respect. The entries in the psychology file in June and July 1965 and the disciplinary record is eloquent of some disturbance. Given my acceptance of the evidence that the plaintiff was suffering from PTSD and Professor McFarlane’s evidence I have concluded that it is probable that a material cause of the plaintiff’s conduct that brought about his discharge was his PTSD. This conclusion is to my mind supported by Professor Raphael’s report dated 18 February 2003.

219 A table showing the number of sailors who enlisted in the Navy in the years 1957 to 1964 together with the number who attained nine years service and the number who attained twenty years service is in evidence. This shows that 1963 was unusual: 30.69% of the recruit intake in that year attained twenty years service or more. The average length of service in the period for which figures are supplied is less than that. Mr Melick accepted this to be the case. In the course of closing submissions he and Mr Williams were agreed that the figure was around 20% (T 656). In my view the plaintiff’s chances of remaining in the Navy until the completion of twenty years service had he not suffered psychiatric injury are to be assessed as being less than average.

220 I have assessed the likelihood that the plaintiff would have remained in the Navy until the completion of twenty years service at 15%. In coming to this conclusion I have taken into account Mr Harcher’s evidence that in each year there is a significant drop-out rate among recruits during their initial three months’ training and that the plaintiff was not one of these. Nonetheless the plaintiff was a notably immature recruit as attested by the psychologists’ assessments in May 1961 and in July 1963. As I have noted, his conviction on a disciplinary charge prior to the collision is not without significance. His failure to pass the EM examinations is consistent with his poor performance in maths and science at school. While I accept that his undiagnosed PTSD was a material cause of his wish to get out of the Navy, I do not put to one side his statements made to Mr Morison on 8 October as wholly the product of his PTSD.

221 The Cumpston Report, which contains a calculation of the loss of the DFRDB lump sum and retirement pension from 25 August 1983 to likely date of death. The calculation assumes discharge after completion of twenty years service. There is no issue as to the computation of both the lump sum and the amount of the pension. The lump sum would have been $37,470 and the annual indexed pension would have commenced in August 1983 at an annual gross rate of $7,487. These figures assume that the plaintiff would have progressed through the ranks to Chief Petty Officer rapidly and is in this respect based on a favourable assumption.

222 The Cumpston report assumes that on retirement on 1 July 1983 the plaintiff would not have taken his lump sum in cash but that he would have rolled it over into a superannuation fund and not withdrawn it until the end of his working life. This would have preserved certain taxation advantages for him. The Cumpston report includes provision for the interest that the lump sum would have earned from 1983 until the plaintiff attained the age of 65 years by reference to the earnings rate for a balanced fund. In this way the Cumpston report treats the loss of the lump sum of $37,470 as a loss of $473,874 at age 65 years.

223 The Lexiq report takes issue with the assumption that the lump sum would have been rolled over. The Lexiq report states that this approach to the treatment of the DFRDB lump sum has the effect of compensating the plaintiff for a loss of a possible investment opportunity. I accept that to be the case.

224 I understood Mr Sarjeant’s evidence to be that he would have advised a client in the plaintiff’s position to rollover his lump sum in order to benefit from the taxation advantages. These benefits increased with the longer the period of pre-1983 service.

225 The evidence does not establish what the plaintiff would have done had he become entitled to a lump sum payment in 1983. It seems to me to be speculation to assume that he would have rolled the lump sum over in order to take advantage of the taxation benefit. The plaintiff was aged 38 years in 1983. It may be that he would have elected not to defer access to the lump sum until he was aged 65 years. In this respect I note that he is a person who has shown some interest in entrepreneurial schemes such as the Bolivian timber venture, the purchase of property at Orford in Tasmania and its subdivision and borrowing funds in order to invest in an ITC plantation scheme.

226 The Lexiq report calculates the plaintiff’s lump sum entitlement as $25,019 after making allowance for his contributions. I consider that the plaintiff may be properly compensated for the lost chance of obtaining this sum in July 1983 by the award of interest.

227 In the event the plaintiff had completed twenty years’ service and then retired his indexed DFRDB pension would have commenced on 26 August 1983 at an annual gross amount of $7,487. The Lexiq report accepts the accuracy of the Cumpston report as to the calculation of the indexed pension. The Lexiq report makes the assumption that the plaintiff would have worked in a clerical capacity from the date of retirement from the Navy until the age of 65 years. The calculations as to the net after tax pension made on this assumption from 1 July 2001 likely to be favourable to the plaintiff. The figures are given as follows for the net after tax value of the pension:

From 26/8/83 to 30/6/00 $115,162

From 1/7/00 to 30/4/05 $ 50,230

From 30/4/05 to 21/6/10 $53,384
From 22/6/10 to likely date of death $185,385

228 The Lexiq report concludes that the plaintiff’s total loss of DFRDB entitlements including the lump sum and the loss of the pension is $429,180. The author of the Lexiq report discounted this figure by 15% to allow for vicissitudes. I do not consider that it is appropriate to reduce the figure on this account. The only vicissitude would seem to be early death. The calculation of the lost value of the pension assumes the likely date of death by reference to the Australian Life Tables. The evidence is silent on the plaintiff’s life expectancy. The chance of the plaintiff dying on a date earlier than the date predicated on the life tables is no greater than the chance of him living beyond it.

229 It is necessary to adjust the figure of $429,180 to reflect my view that the chance of the plaintiff remaining in the Navy and qualifying for the entitlements is to be assessed at 15%. The adjustment produces a figure of $64,377 as the plaintiff’s loss.

Past put of pocket expenses

230 The past out of pocket expenses are agreed at $782.10 to cover the cost of anti-depressant medication and at $780.80 for the cost of consultations with Dr Holwill.

Future out of pocket expenses

231 The evidence is that the plaintiff will continue his treatment with Dr Holwill. In written submissions filed on the plaintiff’s behalf I was informed that the parties are agreed that the cost of consultations is $60.00 per consultation. The plaintiff was seeing Dr Holwill at a frequency of once every six weeks. There is nothing to assist me with determining for how long the plaintiff might continue his treatment. In the past he was not motivated to seek treatment. He has persisted with it since 2002. I propose to approach the question of future out of pocket expenses in a broad way, awarding $5,000 to cover the cost of ongoing psychiatric care on the basis of six weekly consultations for a period that I estimate to be not more than five years, together with anti-depressant medication for a period somewhat in excess of that.

232 In summary I award the plaintiff damages made up as follows:

General damages $ 65,000
Interest on general damages $ 40,736
Lost chance of DFRDB $ 64,377
Out of pocket expenses $ 1,563
Future medical expenses $ 5,000

233 There will be verdict and judgment for the plaintiff in the amount of $176,676 together with interest on the sum referable to the lost chance of obtaining the DFRDB entitlements. The parties may bring in a minute of judgment with the inclusion of the outstanding interest component or, in the event that they are unable to agree, I will hear submissions on this issue and on costs. The parties may approach my Associate to have the proceedings re-listed on 3 days’ notice.

*****

15/12/2005 - - Paragraph(s)

15/12/2005 - - Paragraph(s) 79

CITATION:	Brittain v Commonwealth of Australia [2005] NSWSC 641 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	18/4/05, 19/4/05, 20/4/05, 21/4/05, 22/4/05, 26/4/05, 27/4/05, 28/4/05, 2/5/05, 3/5/05, 6/5/05
JUDGMENT DATE :	6 December 2005
JUDGMENT OF:	Bell J at 1
DECISION:	There will be verdict and judgment for the plaintiff in the amount of $176,676 together with interest on the sum referable to the lost chance of obtaining the DFRDB entitlements. The parties may bring in a minute of judgment with the inclusion of the outstanding interest component or, in the event that they are unable to agree, I will hear submissions on this issue and on costs. The parties may approach my Associate to have the proceedings re-listed on 3 days’ notice.

CATCHWORDS:	Melbourne/Voyager collision - personal injuries - post traumatic stress disorder
CASES CITED:	Brittain v The Commonwealth of Australia [2004] NSWCA 83 Commonwealth v Stankowski [2005] NSWCA 106 Husher v Husher (1999) 197 CLR 138 Medlin v State Government Insurance Commission (1995-1995) 182 CLR 1
PARTIES:	Anthony Winston Brittain (Plaintiff) Commonwealth of Australia (Defendant)
FILE NUMBER(S):	SC 21248/95
COUNSEL:	G Melick SC / I Butcher (Plaintiff) R Williams QC / I McLachlan
SOLICITORS:	James Taylor & Co (Plaintiff) Australian Government Solicitor (Defendant)