Burk v Commonwealth of Australia
[2008] VSCA 29
•28 February 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 5597 of 1999
| RODNEY ARTHUR BURK | |
| Appellant | |
| v | |
| COMMONWEALTH OF AUSTRALIA | Respondent |
---
JUDGES: | WARREN CJ, CHERNOV and NETTLE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25 June 2007 | |
DATE OF JUDGMENT: | 28 February 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 29 | |
---
TORT – Collision between two ships – Mental injury – Post-traumatic stress disorder – Expert evidence – Competing expert opinions as to satisfaction of diagnostic criteria of DSM-IV.
PRACTICE AND PRODCEDURE – Trial – Mode of trial – Trial commencing as trial before judge and jury – Discharge of jury – Order that trial continue before judge alone – No error in exercise of discretion.
JUDGMENT – Reasons for judgment – Scope and adequacy – Obligation to deal with evidence and submissions – Failure to explain preference for some expert opinions over others – Failure to refer to competing expert opinions and other relevant evidence – Delay – Judgment not pronounced and reasons not delivered until 10 months after trial – No explanation in reasons as to why apparently relevant evidence not referred to – Appeal allowed – New trial ordered.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C B Thomson | Hollows |
| For the Respondent | Mr M R Titshall QC with Mr A J McG Moulds | Australian Government Solicitor |
WARREN CJ:
The appellant was aboard HMAS Melbourne at the time of the collision with HMAS Voyager and brought proceedings before a judge in the Trial Division of the Supreme Court seeking damages for injuries alleged to be suffered in the collision. The claim, after trial, was dismissed. The appellant appeals.
Background
The appellant was born on 28 December 1940. He joined the Royal Australian Navy and he progressed to First Class Naval Airman in 1960. He remained an active individual during his youth, participating in sport, particularly running.
In January 1964 the appellant was posted to HMAS Melbourne for a tour of duty. He was part of an advanced party from his squadron, sent to help ready the ship for embarkation of the rest of the squadron upon completion of some work-up trials which were being undertaken by HMAS Melbourne and also HMAS Voyager.
On the night of 10 February 1964 HMAS Melbourne was in the process of practising “touch and go” operations with squadron planes, with HMAS Voyager attending as escort destroyer in case of any mishap. A collision occurred between the two ships which resulted in the sinking of HMAS Voyager, the loss of 82 members of its crew and significant damage to the bow of HMAS Melbourne.
At the time of the collision, the appellant was off duty, located in 4 Charlie mess, which was in the bow of the ship and just below the waterline. After the collision, the appellant assisted with distributing blankets and hot drinks to survivors of the Voyager as they were brought onboard the Melbourne. He observed internal and external damage to the vessels. He was at the time a Naval Air Mechanic (1st Class), the equivalent of an Able Seaman. Upon completion of rescue efforts at the scene of the collision, some 20 miles east of Jervis Bay, the Melbourne sailed back to Sydney at a slow pace due to her damage and the risk of taking on more water through the gaping bow.
On reaching Sydney, the appellant returned to his shore base of HMAS Albatross near Nowra, south of Sydney, whilst repairs were performed to the Melbourne, including the fitting of a new bow. Upon completion of those repairs the Melbourne put out to sea once more and the proposed tour of duty for 1964 resumed, with the appellant and his squadron aboard.
Later, the appellant married his fiancée, Elaine, in February 1965, and they lived in the married quarters at Nowra. He was drafted for a tour of duty to Vietnam on HMAS Sydney in 1967. In September 1967 he elected not to renew his original nine year engagement (although he joined the Navy Reserve).
The appellant and his wife moved with their baby son to the appellant’s home town of Railton in Northern Tasmania and the couple had two more sons in 1967 and 1970. The appellant obtained employment with the Goliath Cement Works (Goliath) and continued in that employment, ultimately as the assistant pay master, until he resigned in April 1985. He had for some eleven years beforehand been training and racing greyhounds. He continued to do so until 2000. The circumstances of the appellant’s resignation from Goliath and the level of the appellant’s commitment and dedication to his greyhound training and breeding activities were the subject of significant dispute between the parties. The trial judge found that the appellant was far more involved with greyhounds than he portrayed to his medical practitioners; that the appellant had on site at his home various items of capital equipment and a specially modified motor vehicle, together with runs and tracks with fences for his greyhound operation. His Honour found that between 1985 and 1995 it was reasonable to describe the appellant as having successfully run his own rearing, racing and breeding greyhound complex in which he learned self reliance and the ability to take risks and make value judgments in a high risk environment. Mrs Burk described the greyhound activities as ‘all hands to the pumps’ between 1980 and 1985. Later when the appellant cohabited with another woman, Ms Angela Shone, in 1993, they would start work at 6.30am and often not finish until 11.00pm. At the time of his resignation from Goliath and thereafter until approximately 1990, the appellant was stressed and tired for reasons unconnected to the collision. He was travelling to various parts of the State to pursue his interest in greyhounds and rarely taking time off work. Additionally, the appellant was unimpressed by being passed over for promotion at Goliath and he was unhappy in his job.
The appellant’s evidence was that in the early 1990s he commenced a relationship with Ms Shone. They cohabitated for approximately twelve months, until the relationship ended in late 1994. The appellant and his wife subsequently reconciled and thereafter continued living together. Ms Shone gave evidence that the appellant was a casual drinker and always dressed immaculately; had no problems with his libido; was pleasant and very caring towards her; was very disciplined, proud and always very well organised. Ms Shone refused to accept that metaphorically the appellant was “like a volcano waiting to explode”. Ms Shone observed nothing unusual or abnormal about the appellant’s sleeping habits and considered he was punctual and enjoyed studying books to investigate greyhound bloodlines.
The appellant did not work as an employee after his resignation from Goliath apart from two short periods in Commonwealth employment schemes in the late 1990s. The trial judge found that the appellant was unable to continue in those short bouts of employment as a result of physical impairments unrelated to any mental illness.
From 1999 the appellant was in receipt of a service pension on the grounds of permanent disability as a result of a number of medical complaints, including a nervous condition. He played golf twice, sometimes three times, per week and his handicap ranged from 24 to as low as 13. The appellant now has a solitary streak which is considerably more pronounced than it once was but since the collision he has remained capable of forming close relationships that have led to normal social interaction.
The appellant, his wife and their youngest son, Kelvin, all gave evidence of attributes of the appellant’s character which were alleged to demonstrate post-traumatic stress disorder (PTSD) caused by, and arising out of, the collision. These symptoms included: troubling intrusive recollections of the collision; recurrent distressing dreams representing the collision; feelings of the event recurring; psychological distress at cues symbolising the event; physiological reactivity on exposure to cues; symptoms of avoidance and numbing of general responsiveness (such as efforts to avoid thoughts and feelings associated with the trauma, activities, places or people reminding him of the trauma); an inability to recall parts of the trauma; a diminished interest in significant activities; feelings of detachment and estrangement; a restricted range of affect; and a sense of foreshortened future. The appellant also asserted that he suffered from symptoms of increased arousal caused by the collision, including sleeplessness, irritability, difficulty with concentration, hyper vigilance and exaggerated startle response. He alleged that the disorder had caused occupational dysfunction by way of inducing him to give up his career with the Navy, subsequently throw in his job at Goliath and remain unemployed thereafter, apart from pursuing his interest in greyhounds. It was also alleged to have led to his deeply unhappy family and personal life.
In 1998 the appellant saw some publicity concerning proceedings instituted by another sailor involved in the Melbourne-Voyager collision. As a consequence, on 11 February 1999, the appellant contacted a solicitor, Mr Forster. This contact in turn led to the appellant attending a psychologist, Mr Wilks, on 5 March 1999, who had specialised in treating victims of the Melbourne-Voyager collision. On 25 May 1999 the appellant instituted the proceeding in the Supreme Court.
The appellant alleged that, as a result of his involvement in the collision, he suffered from PTSD which led to his early discharge from the Navy, together with an inability to tolerate civilian employment after 1985 and, also, a severely impaired social and domestic life. No other injuries were relied upon at trial.
The respondent admitted that the appellant was aboard HMAS Melbourne at the time of the collision and that he was engaged in its service. It admitted that the collision was caused by the negligence of officers and servants of the two vessels, and it admitted that PTSD was a disease or disorder within the meaning of s 5(1A) of the Limitations of Actions Act 1958. It denied that Mr Burk suffered from any such disorder as a result of the collision. Thus the only issue for determination was whether the appellant suffered from PTSD as a result of the collision and, if so, the damages to be awarded.
The proceeding commenced as a trial by jury on 8 March 2005. It continued for eight days as a jury trial until, on the ninth day of trial, the jury was discharged by consent and the matter thereafter proceeded as a trial by judge alone. Evidence was concluded on 7 April, legal argument took place on 8 April and addresses to the trial judge proceeded on 13 and 14 April 2005. His Honour reserved his decision on 14 April 2005 and handed down judgment on 7 February 2006. He found that the appellant had not suffered PTSD as a result of the collision or at all. He dismissed the appellant’s claim.
Respective Allegations of the Parties at Trial
The plaintiff (the appellant in this instance) alleged that, as a result of his exposure to the collision and the sights and sounds of that night, he sustained PTSD which manifested itself in symptoms of: irritability; phobic avoidance; anxiety; depression; resort to over-use of alcohol in order to suppress memories of the collision; emotional and social detachment and estrangement from others, in particular his family; and markedly diminished interest in significant activities, particularly of a family nature. All of which, the plaintiff alleged, interfered with his occupational history and his social and domestic functioning.
The plaintiff alleged that, prior to the collision he had enjoyed his time in the Navy and had intended to make the Navy his career; however, after the collision, and in particular after returning on board HMAS Melbourne in May 1964, he developed an incapacity to cope with being at sea and resigned from the service in September 1967. He thus missed out on the benefits available to a serviceman who serves at least twenty years by way of a lifetime indexed pension.
The plaintiff also alleged that his PTSD was the effective cause of him abruptly giving up employment in 1985 and having no gainful employment thereafter, save for a couple of short spells in Commonwealth employment schemes in the late 1990s. Whilst he trained and raced greyhound dogs from an initial interest in the 1970s until 1995, and owned greyhounds until 2000, the plaintiff maintained that this was no more than a stimulating hobby.
The defendant alleged that the evidence either failed to establish, or was in direct contradiction to, the requirements of the various criteria (A to F inclusive) set out in the Diagnostic and Statistical Manual of Mental Disorders (4th Edition) (test revision), or “DSM-IV”. In particular it alleged that:
(a)any dreams or nightmares suffered by the plaintiff were unconnected with the collision and were not recurrent;
(b)the “flashbacks” described by the plaintiff did not satisfy Criterion B;
(c)there was no evidence that the plaintiff’s reference to porcelain toilet bowls in a history given to an expert, Professor McFarlane, constituted “triggering events” within the meaning of Criterion B, and that the evidence otherwise fell short of establishing other triggering events causing psychological distress or physiological reactivity;
(d)the plaintiff did not avoid talking about the collision as a result of PTSD;
(e)the plaintiff’s post-collision alcohol consumption (both in terms of quantity and timing) was inconsistent with PTSD having been materially contributed to by the collision;
(f)there was no effort to avoid activities, places or people that aroused recollections of the trauma such as to support a diagnosis of PTSD;
(g)there was no psychogenic amnesia suffered by the plaintiff;
(h)there was no post-collision restricted range of affect or emotional numbing – quite the opposite in respect of his extra-marital relationship in the early 1990s;
(i)the evidence failed to establish that the plaintiff suffered from any sleep difficulties or that any such sleep difficulties were materially contributed to by the collision;
(j)any irritability or angry temperament of the plaintiff was not materially contributed to by the collision;
(k)the plaintiff had little or no difficulty concentrating or focusing his attention on particular tasks when he was interested;
(l)the plaintiff did not suffer from any hyper vigilance or exaggerated startle response; and
(m)any “disturbance” suffered by the plaintiff did not cause clinically significant distress or impairment in social, occupational or other important errors of functioning.
Discharge of the Jury
On the ninth day of trial, the respondent raised an argument concerning the admissibility of the appellant’s expert evidence as to economic loss. The learned trial judge responded to those concerns, then raised with the parties a concern he had as to whether the matter should continue before the jury, or whether the jury should be discharged and the trial continue before the trial judge alone. Both parties consented to an order that the jury be discharged and agreed that the learned trial judge should hear the balance of the evidence and decide the matter on the basis of all of the evidence.
Grounds of Appeal
The grounds of appeal essentially fall into three broad categories. Firstly, grounds concerned with the approach taken by the trial judge to the evidence. These include a contention that the trial judge’s conclusion was against the evidence and the weight of the evidence, that the trial judge was in error in accepting the evidence of some expert witnesses for the respondent when it was apparent that the witnesses were partisan, and that the trial judge was in error in determining that the appellant had not satisfied a number of the criteria of DSM-IV. Secondly, grounds concerning an allegation that the trial judge denied the appellant natural justice by discharging the jury and proceeding to determine the matter as a trial before a judge alone, without informing the parties of his views as to whether the appellant was likely to succeed in establishing liability. Thirdly, there was a complaint as to an alleged delay in the delivery of reasons for judgment such as to deprive the trial judge of the capacity to record and recall recollections of the demeanour of witnesses.
Background matters to the grounds of Appeal
It is apparent from the evidence and the reasons for judgment that the appellant was a man with limited secondary schooling and who, when he first entered the Navy, was an angry individual and unmotivated. After the collision, his attitude and performance apparently improved and he acquired promotion. Both the appellant and his wife attributed his improvement as an individual within the Navy to his being married in January 1965. The appellant was generally unenthusiastic about the Navy after the collision as described by the trial judge. His pattern of life differed little from his time in the Navy until he became involved with greyhounds. He was described as having normal mood swings, being an angry type but pleasant if desired, not particularly unfriendly and a normal socialiser. The appellant was a keen sportsman in the Navy before and after the collision and stopped playing sport either because he was at sea or due to injury. His drinking habits were not unusual or excessive. He suffered from irritability at home which was prompted by tiredness and impatience with his children after work. The appellant was an active member of the Navy Reserve after he left the Royal Australian Navy and attended Returned Services League facilities occasionally. Later when he left his employment with Goliath he committed himself with high motivation to developing his greyhound business. In that respect he travelled, paraded before crowds at greyhound meetings, competently made acceptance speeches to crowds and volunteered for committee membership of the Devonport Greyhound and Racing Club. His one time partner, Ms Shone, described the appellant as one who was very disciplined, hard working, successful and well known Australia wide as a greyhound trainer.[1]
[1]Transcript of Proceedings, Burk v Commonwealth (Supreme Court of Victoria, Harper J, 5 April 2005) T1235-1256.
These were the background matters to the grounds of appeal.
The nature and constraints of the Appeal
In relation to the first and third categories of grounds of appeal, the alleged errors are of a factual nature. In considering an alleged factual error, it is necessary to distinguish between an appeal on a question of fact which depends upon a view taken by the trial judge of conflicting testimony,[2] and an appeal which depends on inferences drawn by the trial judge from uncontroverted facts.[3] As will be explained, this distinction is not always clear. This appeal involves a combination of both these types of questions.
[2]Such as Abalos v Australian Postal Commission (1990) 171 CLR 167 (‘Abalos’) and Devries v Australian National Railways Commission (1993) 177 CLR 472 (‘Devries’).
[3]Such as Warren v Combes (1979) 142 CLR 531; with respect to the existence of such a distinction, see Brunskill & Anor v Sovereign Marine & General Insurance Co Ltd & Ors (1985) 59 ALJR 842, 844 (‘Brunskill’).
With respect to the former type of appeal, one of the more recent High Court statements lies in Fox v Percy.[4] In that case, Gleeson CJ, Gummow and Kirby JJ refer to the ‘trilogy’ of cases[5] which are to be seen as ‘the instruction of [the High Court] to appellate decision making throughout Australia’[6] and ‘a reminder of the limits under which appellate judges typically operate when compared with trial judges.’[7]
[4](2003) 214 CLR 118 (‘Fox’).
[5]Jones v Hyde (1989) 63 ALJR 349, 351-352 (‘Hyde’); Abalos (1990) 171 CLR 167, 179 and Devries (1993) 177 CLR 472, 479, 482-483.
[6]Fox, above n 4, 127.
[7]Ibid.
The first of the trilogy, Jones v Hyde,[8] emphasises two things: first, the readiness with which an appellate court should infer that a finding of fact was premised on a witness’ credibility; and secondly, the restraint an appellate court should exercise in overturning such findings of fact. In Hyde, McHugh J remarked that:[9]
‘When a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour cannot be overlooked. It does not follow that, because the learned judge made no express reference to demeanour and credibility, they played no part in his conclusion.’
[8](1989) 63 ALJR 349.
[9]Ibid 351-2.
In the second case of the trilogy, Abalos v the Australian Postal Commission,[10] there was contradictory evidence of two expert witnesses. The trial judge relied mainly on one of the witness’ evidence and made a finding of fact contrary to the evidence of the other witness, without making reference to that evidence. The New South Wales Court of Appeal overturned the decision, relying on the evidence of the ‘contradicting’ witness. The High Court reversed that decision. Drawing upon earlier authority,[11] McHugh J referred to the general rule that given the advantageous position of the trial judge to observe witnesses, appellate courts should not reverse the trial judge’s findings ‘unless it can be shown that he has failed to use or has palpably misused his advantage’. His Honour continued that:
‘Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied "that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion"[12].’
[10](1990) 171 CLR 167.
[11]SS Hontestroom v SS Sagaporack [1927] AC 37, 47.
[12]Watt (or Thomas) v Thomas [1947] AC 484, 488 (emphasis added).
In the third case of the trilogy, Devries v Australian National Railways Commission,[13] the trial judge found for the appellant in an action for negligence against his employer, having accepted the appellant’s oral evidence with respect to the particular incident in which the injury to the plaintiff occurred. The judge did this despite a prior inconsistent statement that the plaintiff made when first injured. The Full Court of the South Australian Supreme Court overturned the decision, holding that the trial judge’s faith in the oral evidence of the appellant was contrary to certain ‘established facts’ in the case. The High Court upheld the original decision of the trial judge on the basis that, in the circumstances, the trial judge was perfectly justified in accepting the evidence of the plaintiff. The majority stated:[14]
‘More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against — even strongly against — that finding of fact.[15] If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage"[16]or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable"[17].’
[13](1993) 177 CLR 472.
[14]Devries , above n 13, 479 (Brennan, Gaudron and McHugh JJ).
[15]See Brunskill (1985) 59 ALJR 842; Hyde (1989) 63 ALJR 349; Abalos (1990) 171 CLR 167.
[16]SS Honestroom v SS Sagaporack [1927] AC 37, 47.
[17]Brunskill (1985) 59 ALJR 842, 844.
The case of Fox, which referred to the ‘trilogy’ of the above cases, involved conflicting witness evidence. The trial judge accepted one explanation of events and, in overturning that decision, the Court of Appeal did not consider that that explanation was plausible and accepted the other.
An appeal to the High Court was dismissed. In the decision, the majority considered the nature of a ‘rehearing’ by an appellate court. Such a rehearing ‘does not involve a completely fresh hearing by the appellate court of all the evidence’.[18] Furthermore, whilst the court is ‘obliged to "give the judgment which in its opinion ought to have been given in the first instance",[19]
‘it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record.[20] These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share.[21] Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.[22] … If, making proper allowance for the advantages of the trial judge, [courts of appeal] conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
…
In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable"[23] or "contrary to compelling inferences" in the case.[24] In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses.’
[18]Fox (2003) 214 CLR 118, 125-29 (Gleeson CJ, Gummow and Kirby JJ); see also Pledge v Roads and Traffic Authority (2004) 78 ALJR 572, 581-582 where much the same passage is quoted by Callinan and Heydon JJ.
[19]Dearman v Dearman (1908) 7 CLR 549 at 561. The Court there was concerned with s 82 of the Matrimonial Causes Act 1899 (NSW) which provided that "on appeal every decree or order may be reversed or varied as the Full Court thinks proper": see Dearman v Dearman (1908) 7 CLR 549 at 558.
[20]Ibid at 561. See also Scott v Pauly (1917) 24 CLR 274 at 278-281.
[21]Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637, per Lord Scarman, with reference to Joyce v Yeomans [1981] 1 WLR 549 at 556. See also Chambers v Jobling (1986) 7 NSWLR 1 at 25.
[22]State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 at 330 [89]-[91] (‘SRA’), citing Lend Lease Development Pty Ltd v Zemlicka& Ors (1985) 3 NSWLR 207 at 209-210; Jones v The Queen (1997) 191 CLR 439 at 466-467.
[23]Brunskill (1985) 59 ALJR 842 at 844. See also e.g., Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599 [15]-[16]; SRA (1999) 73 ALJR 306.
[24]Chambers v Jobling (1986) 7 NSWLR 1 at 10 (emphasis added).
Hence the authorities reveal there is an expansion of the exceptions to the general rule that an appellate court may not impugn a factual determination of the judge below based on witness demeanour; that is, in addition to the exceptions of ‘incontrovertible’ and ‘glaringly improbable’, an appellate court may so impugn such a determination where the determination is ‘contrary to compelling inferences.’ Also, the exception where the trial judge ‘has failed to use or has palpably misused his advantage’ appears to have fallen by the wayside. It appears a further exception may be where ‘undisputed and documentary evidence was so convincing that no reliance on the demeanour of a witness could rebut it.’[25] That said, the exceptions to the general rule are clearly not apt to be stated succinctly in a formulaic way.
[25]SRA (1999) 72 ALJR 306; See Fox, above n 4, 147 (McHugh J).
With respect to the second type of alleged factual error, an appeal which depends on inferences drawn by the trial judge from uncontroverted facts, the majority in Warren v Coombes[26] stated:[27]
‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation.’
[26](1979) 142 CLR 531.
[27]Ibid 551 (Gibbs ACJ, Jacobs and Murphy JJ) (emphasis added).
This passage is quoted in Fox by the majority[28] and resonates with the court’s emphasis on intermediate appellate courts properly exercising their fact-finding function. Indeed, Fox has been authoritatively applied to this second type of alleged factual error.[29]
[28]Fox, above n 4, 127.
[29]Also see Kelso v Tatiara Meat Co Pty Limited [2007] VSCA 267 for consideration of limitations of appeals in statutory context and thorough overview of relevant authorities, particularly judgment of Dodds-Streeton JA, [65]-[95]; and, Leeks v XY [2008] VSCA 21, [38] (Redlich JA).
In summary, the authority of Fox, in light of the other abovementioned authorities, is such that an intermediate appellate court cannot simply defer to the factual findings of the trial judge and thereby decline to exercise its fact-finding jurisdiction. The potential breadth of enquiry of an intermediate appellate court in an appeal by way of rehearing is tempered somewhat by its primary concern with the elucidation of some error of the judge below.[30] Nevertheless, the boundaries of this appeal are such that, in determining questions of fact, as well as inferences to be drawn from uncontroverted facts, this Court must weigh the evidence before it, with due consideration to the trial judge’s advantageous position, and give the judgment which in its opinion ought to have been given in the first instance.
[30]Allesch v Maunz (2000) 203 CLR 172, 180; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203-4; Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 547.
The trial judge’s approach to the expert evidence
At trial, the following medical evidence was presented:
(a)the appellant called Dr Ian Burges-Watson, psychiatrist, Professor Alexander McFarlane, psychiatrist, Professor David Horne, psychologist, and Mr Robert Wilks, psychologist. All those medical experts offered opinions that the appellant suffered from PTSD as a result of the collision; and
(b)the respondent called Professor Richard Bryant, psychologist, Dr David Bell, psychiatrist and Dr Allan White, psychiatrist. All those medical experts offered opinions to the effect that the appellant did not suffer from PTSD as a result of the collision.
Grounds 4, 7, 9 and 11 of the appeal are concerned with the approach taken by the trial judge to the expert evidence. Grounds 3, 5, 6, 8 and 10 are concerned with the weight given by the trial judge to the expert evidence. His Honour, in a careful and thorough analysis, considered and assessed each of the experts’ evidence. It was not necessary, or practical, for his Honour to refer in his reasons to every expert’s evidence in relation to every point raised at trial. A trial judge is not required to comment on every piece of evidence, provided the evidence has been analysed and considered. Where there is conflicting medical evidence, the trial judge must, in the absence of a jury, assess the evidence and make a decision, including making an assessment of the witness’ credibility. Here, at the outset, it is helpful to consider by way of an overview the approach taken by the trial judge to the principal medical experts.
With respect to the evidence of Professor McFarlane[31] his Honour said:
“… the relevant test is an objective one; an event does not become traumatic in the presently relevant sense simply because an idiosyncratic individual who experienced it became traumatised.”
[31]Burk v Commonwealth of Australia [2006] VSC 25 at [41].
His Honour accepted the evidence of Professor McFarlane that a person may be affected not only by seeing events occur but also by a combination of sensory experiences at the time and subsequently.[32] His Honour observed[33]:
“In this case, Mr Burk felt the impact as the two ships met. He heard the sound of steam escaping under pressure, the tearing of metal, and the smashing of porcelain, and then saw the stern section of HMAS Voyager at close quarters from the weather deck. He was, relevantly a witness.”
[32]Ibid [42].
[33]Ibid.
His Honour accepted the opinion of Professor McFarlane that Mr Burk felt intense fear and helplessness but rejected that he was rationally fearful of drowning or injury. His Honour considered there was no evidence that the appellant had any fear for his personal safety.[34] There was other evidence given by Professor McFarlane in relation to dreams. His Honour rejected the evidence because it was inconsistent with the evidence given by the appellant himself at trial, namely, putting the first occurrence of dreaming in the early 1970s.[35]
[34]Ibid [43].
[35]Ibid [58].
Significantly, his Honour observed that there were matters relied upon by the expert witnesses, including Professor McFarlane, as to matters raised by the appellant in the course of providing histories to the experts and which were not the subject of evidence by the appellant at trial.[36] Quite properly, his Honour observed that under the law of this State there is no equivalent of s 60 and s 72 of the Evidence Act 1995 (NSW).[37] Therefore, ‘the medical history given by Mr Burk to his doctors is, in general, admissible only to the extent that it was used in the formation of the expert’s opinion.’[38] It could not assume the weight of primary evidence.
[36]Ibid [37], [38] and [79].
[37]Ibid [38].
[38]Ibid [37]
The appellant complained that his Honour did not adequately consider the evidence of Professor Horne. Plainly, the judge did.[39] It appears that Professor Horne’s evidence concurred with, or was similar to, that of Professor McFarlane. Close consideration of the evidence of the two psychiatrists confirms this is so with respect to the assessment of the DSM-IV criteria. The difficulty for the appellant arises from the trial judge’s observations that the appellant did not himself give evidence to make out the relevant criterion. The judge was at pains to clarify that eminent experts based their opinions and assessments on histories given by the appellant to them but which were not given by the appellant in his evidence. Whilst an expert may in effect corroborate the evidence of a party, if that party has not given the evidence in the first place there is nothing to corroborate. Obviously, it is impermissible for the history given to the expert to be elevated to the status of primary evidence. It was for the appellant to present his case. Furthermore, insofar as his Honour may have made limited references to an expert’s evidence, such as Professor Horne, that of itself would not lead to the conclusion that the evidence was not adequately dealt with.
[39]Ibid [45], [89], [90], [119], [138] and [164].
Another important witness for the appellant was Dr Burges-Watson. Plainly this expert’s evidence was considered by the trial judge.[40] Its treatment may be equated with that of the evidence of Professor Horne.[41] It was not essential for the judge to describe and critically analyse, in minute detail, the opinions of Professor Horne and Dr Burges-Watson.
[40]Ibid [42], [50], [57], [87], [203], [219] and [227].
[41]See [42] above.
The grounds of appeal, in substance, asserted that the expert, Professor Bryant, adopted a partisan approach and held a pre-ordained view as to the unlikelihood of the appellant suffering PTSD. The evidence of Professor Bryant was criticised because he did not administer the “CAPS” questionnaire. He had previously examined in the order of thirty-five individuals from HMAS Melbourne and concluded that none of them suffered PTSD.
Professor Bryant administered an MMPI test to the appellant, for the purpose of gauging whether he was likely to be portraying himself in an unduly favourable light, or exaggerating his symptoms, or malingering. Professor Bryant criticised the use of the CAPS test in a forensic setting, as was done by the appellant’s expert psychologist witness, Professor Horne, asserting that the latter test was the “gold standard” in diagnosing PTSD for clinical purposes but was likely to lead to over-diagnosis of the disorder in a forensic setting. Professor Horne vigorously differed.
A further criticism of Professor Bryant was that he had overstated the post-collision occupational history of the appellant. In his evidence, Professor Bryant considered the suitability of cued questions and concluded them as inappropriate in a medico–legal setting.[42] Professor Bryant also gave evidence to the effect that the appellant would have had a ten to twenty percent chance of suffering PTSD in the two year period after the collision but that the prospects of continuing to suffer the condition twenty to thirty years afterwards would be much lower than that percentage.[43] Notably, there was no evidence of the experiences of symptoms by the other individuals from HMAS Melbourne examined by Professor Bryant. A number of times in the course of the judgment his Honour preferred the evidence of Professor Bryant to Professor McFarlane. But this course was open to his Honour. In choosing one expert’s evidence over another, it was necessary for his Honour to make an assessment of the conflicting evidence and the credibility of the expert witnesses. This he did and it cannot now be said that because he, at times, preferred the evidence of Professor Bryant that the credibility of Professor Bryant was not taken into account.
[42]Transcript, above n1 T1290.
[43]Ibid T1334.
There was also criticism by the appellant of the acceptance by the trial judge of the evidence of Dr White. It was open to the judge to assess the weight to be given to all the experts’ evidence, however, Dr White was not singled out for special treatment or focus by his Honour in the analysis of the expert evidence. Essentially the evidence of Dr White was relied upon where it coincided with other expert evidence. Largely the complaint of the appellant turned on the rejection of the evidence of Dr White in another Voyager-Melbourne case.[44] That, of itself, is not a basis to find error. Dr White’s evidence was, and is to be, assessed in the context of this case. It was appropriately considered by the trial judge.[45]
[44]See Cavenett v The Commonwealth [2007] VSCA 88, [4] and [120].
[45]See Burk, above note 31 [61], [62], [68], [223] and [256].
On an analysis of his Honour’s reasons it is clear that he did consider all the evidence and took into account the credibility of the expert witnesses. The trial judge’s decision did not fall into any of the exceptions outlined in Fox.
The DSM-IV criteria
The parties agreed to the use of the Criteria in DSM–IV. There was no issue that Criterion A was satisfied by the appellant. It was held by the trial judge that Criterion E was satisfied and that conclusion is not challenged in the Appeal. There was dispute as to whether the appellant suffered any of Criteria B, C, D and F. The trial judge held that it behoved the appellant to establish a causal link between the consequences of experiencing the collision and the post traumatic stress from which he said he suffered thereafter. I turn then to his Honour’s assessment with respect to each of the Criteria other than Criteria A and E.
Criterion B
Criterion B is concerned with persistently experienced recollections manifested through “recurrent and intrusive distressing recollections”, “recurrent distressing dreams of the event”, “acting or feeling as if the traumatic event were recurring”, “intense psychological distress” and “physiological reactivity on exposure to internal or external cues”.[46] His Honour considered that Criterion B should not be interpreted or applied as if it was a code or statute and recognised that it is concerned with persistent re-experiences.
[46]Diagnostic and Statistical Manual of Mental Disorders (4th Edition) (Text Revision) (‘DSM–IV’) Criterion B, 467-8.
In relation to Criterion B, his Honour analysed the evidence but did not accept that of Professor Horne, Dr Burges-Watson or Professor McFarlane. His Honour based this decision on five reasons:
1. the appellant gave histories or different histories to the experts on various topics but not in his evidence about memories[47] and dreams;[48]
[47]See descriptions of Professor Bryant, Dr Burges-Watson and Professor McFarlane, Burk, above n31 [50]; Mr Wilks [51], and [52] and Dr White [61] and [62].
[48]See descriptions of Professor Bryant and Dr White Burk, above n 31 [61], [62]; see Dr Poole and Dr Neilson (treating doctors) Burk, above n 31 [63].
2. the limits of dream interpretation as described by Dr Bell and Professor Bryant as compared with Professor McFarlane, Dr Burges-Watson and Mr Wilks;[49] one of the key dreams (of holding onto the flight deck of a fast travelling HMAS Melbourne upriver) was a reproduction of an experience not the reproduction of the event itself;[50]
[49]Burk, above n 31 [59] and [61].
[50]Ibid [55].
3. the insufficient connection between the dream(s) described and the traumatic event of the collision itself.[51] The appellant did not suffer flashbacks in the technical/medical meaning of the expression (a view shared between Professor McFarlane, Professor Bryant and Dr White);[52]
[51]Ibid [64].
[52]Ibid [68].
4. the appellant did not respond to the necessary triggers or cues, and this was not dealt with by the experts, save Professor McFarlane. The topic was given no significant attention at trial and the evidence was insufficient to prove the allegation:[53] Regarding the evidence as to:
[53]Ibid [71] and [74].
a. particular toilet visitations, the cue was not persistently re-experienced for the purposes of Criterion B;[54]
[54]Ibid.
b. the particular metal on metal sounds cue, Professor McFarlane did not accept the two incidents of the sound operating as a cue, rather as a normal reaction;[55]
[55]Ibid [72].
c. a single experience and reaction upon visiting HMAS Vampire, this was not sufficient to provide evidence of persistent, intense psychological distress or psychological reactivity, it was at most a rare experience.[56]
5. The appellant did not give evidence of critical factors, such as the visit to HMAS Vampire[57] or the Thredbo disaster.[58]
[56]Ibid [77].
[57]Ibid [75].
[58]Ibid [78].
His Honour considered that Criterion B (1), concerned with recurrent and intrusive distressing recollections, was only met if the recollections are recurrent, intrusive, distressing and so sharp and focused that they recall the event vividly.
The evidence of Professor McFarlane as to the experience of flashbacks was accepted by the trial judge.[59] Importantly, the evidence of Professor McFarlane with respect to the history of symptoms, in particular, the visions allegedly conjured up of smashing porcelain, was noted as an indicator of the validity of the complaint. His Honour observed that there was no evidence by the appellant (he not having been asked) how frequently he experienced the visionary reaction or whether he suffered as a consequence.[60] His Honour observed:
“The most that Professor McFarlane’s account reveals is that the plaintiff’s use of the toilet triggered memories of the night of 10 February 1964. I have no doubt that, at times, it did. But Criterion B is concerned with much more than mere memories. Had that traumatic event resulted in it being persistently re-experienced with consequent intense psychological distress or psychological reactivity at each toilet, the effect on Mr Burk would have been profound. He could not have remained ignorant of his condition for all the years he says he was. In these circumstances I must disregard this part of the plaintiff’s case as constituting a relevant “cue”.
[59]Ibid [68].
[60]Ibid [71].
Professor McFarlane also gave evidence, with respect to meeting Criterion B as to re-experiencing the collision on two occasions when the appellant heard the sound of metal on metal during two car accidents. His Honour considered that, of itself, the evidence was insufficient for the persistent re-experiencing required by Criterion B. His Honour considered that two incidents alone were not sufficient for forensic purposes to demonstrate the necessary level of persistence as required by the Criterion.[61] Further, Professor McFarlane relied upon the reaction of the appellant upon visiting HMAS Vampire in 2001 – a Daring Class destroyer like HMAS Voyager. The appellant had apparently told Professor McFarlane that he did not wish to board the vessel because it triggered memories. His Honour found that the appellant did not give evidence about this matter.[62] His Honour also found that the memories with respect to HMAS Vampire did not constitute, of itself, evidence of persistent and intense psychological distress or psychological re-activity as the episodes were isolated.[63] There was also consideration in course of the reasons for judgment as to the appellant’s reaction to the Thredbo Ski Lodge collapse. Professor McFarlane noted that the appellant was particularly upset by the incident. However, his Honour found that there were difficulties in accepting this factor because it did not form part of the appellant’s evidence at trial.[64]
[61]Ibid [74].
[62]Ibid [75].
[63]Ibid [77].
[64]Ibid [78] and [79].
Dr White, for the respondent, gave evidence concerning the frequency of particular dreams of the appellant including one of hanging on to the vessel HMAS Melbourne. His Honour considered the evidence of Dr White to be inconsistent with Criterion B in relation to recurrent distressing dreams of the event. He appeared to prefer the evidence of the psychiatrist for the respondent, Dr Bell, that the relevant dream should conjure up “a clear-cut, stereotypical mind-picture of the event.[65] His Honour considered other evidence relating to the dreams and concluded[66] that the evidence would need to establish a closer relationship than it had at trial between the dream and the traumatic event before a conclusion could be reached, on the balance of probabilities, that the dreams had their source in the collision.[67]
[65]Ibid [59].
[66]Ibid [64].
[67]Ibid [64].
Analysis of the medical evidence, in the context of DSM–IV Criterion B, together with the evidence of the appellant, does not reveal that the conclusions of the trial judge were contrary to the evidence, glaringly improbable or contrary to compelling inferences. Plainly, his Honour had the benefit of observing each of the medical experts and most importantly, the appellant himself and his family members. In my view, an interference with the judge’s conclusion would not constitute a Warren v Coombes[68] situation but something more akin to the appellate approach criticised in Whisprun v Dixon,[69] namely, reformulating a different case, with different emphasis, to that run at trial. I am not satisfied any error occurred with respect to the assessment under Criterion B.
[68]Above n 26.
[69](2003) 200 ALR 447, [45] – [51].
It follows that in my view grounds 3 through 11 are not made out with respect to Criterion B.
Criterion C
Criterion C is concerned with persistent avoidance of stimuli associated with the trauma and raises the topics of avoidance, inability to recall, diminished interest, estrangement, restricted emotion and sense of foreshortened future. It is apparent from his Honour’s reasons that he did not regard the Criterion as satisfied. His Honour considered, firstly, that the appellant’s reluctance to discuss the incident may have been due to his understanding of a naval direction not to speak about the collision other than to service personnel; secondly, despite the evidence of Dr Burges-Watson that some sufferers of PTSD become workaholics in order to avoid distressing thoughts, the appellant was not a workaholic; and thirdly, that the appellant resorted to alcohol to block out thoughts and memories of the incident did not support that he increased his consumption because of recollections of the event.
The appellant complained that the judge perpetrated error by not taking account of evidence of avoidance. It was said that the evidence not considered was: his decision to leave Goliath due to flashbacks and his inability to cope; his evidence that he did not want to talk about the collision, notwithstanding the Navy order to that effect; whenever the appellant had memories he attempted to block them; that the appellant engaged in thought avoidance of the collision; the evidence of the appellant’s wife that he did not discuss the incident with her until 1999, that is, over 35 years after the event; if the appellant spoke about the collision he became irritable; evidence of a friend that the appellant remained reluctant to discuss the collision; the opinion evidence that the appellant immersed himself in his greyhound interest in order to avoid recollections of the collision; and the expert medical evidence provided on behalf of the appellant in relation to Criterion C.
In my view, the appellant’s criticisms of the judgment are misconceived. His Honour made a finding of fact that, if the appellant understood he was ordered not to speak about the collision or its aftermath, he was mistaken.[70] Further, his Honour made a finding of fact that it was not the appellant’s evidence that he avoided the topic, rather that it was not spoken of.[71] His Honour found that, at most, the fact that the appellant did not discuss the collision may have been caused by a mistaken belief that the topic was prohibited by the Navy. Furthermore, it is clear from the reasons for judgment that his Honour did consider the evidence of the brother of the appellant, Raymond Burk, and also a friend, Roy Fox, to the effect that the appellant did not discuss the collision. This was not a case of the trial judge failing to consider the evidence as submitted by the appellant. Indeed, quite the contrary.
[70]Burk, above n 31 [84].
[71]Ibid [85].
So far as the expert evidence of Dr Burges-Watson concerning avoidance by workaholic behaviour, his Honour made a finding of fact that the subject did not arise in the appellant’s case because he did not fall into that category.[72] In relation to alcohol consumption, again his Honour gave careful consideration to the evidence and as to whether or not it was used as a means of blocking thoughts of the event. The judge considered the evidence of Professor McFarlane and Professor Horne but noted that the evidence of the appellant was not fully consistent with the history that was provided by him to the medical experts. The judge considered letters written by the appellant to his then fiancé, including one after the collision. His Honour concluded from the letters that the appellant enjoyed occasions of heavy drinking but not as a result of the collision.[73] These were matters of fact open to the judge to find. Furthermore, his Honour considered the evidence of a companion of the appellant, Mr Wayne Campbell, to the effect that there was no observable change in the appellant’s drinking habits after the collision.[74] In particular, the judge gave consideration to the behaviour of the appellant over his employment history and the evidence of his wife. Ultimately, his Honour concluded, as it was open to him to do on the evidence, that a change in the appellant’s drinking and its effects on him started to become more noticeable in the latter part of his employment at Goliath. Furthermore, his Honour took account of the evidence of Ms Shone and the appellant himself that he did not drink excessively, rather responsibly, during his involvement with greyhound racing.
[72]Ibid [87].
[73]Ibid [91].
[74]Ibid [92].
His Honour also considered the evidence of Professor McFarlane concerning the appellant’s limited memory of the events. Professor McFarlane expressed the view that stress may disrupt the memory.[75] Professor McFarlane gave evidence that the appellant indicated psychogenic amnesia.[76] However, another expert, Professor Bryant, expressed a different view, namely, that the appellant’s memory operated in the normal way in that some matters are forgotten and others are recalled. His Honour preferred the evidence of Professor Bryant:[77]
“While I have great respect for Professor McFarlane, on this aspect of the case I prefer the opinion of Professor Bryant because it seems to me that the plaintiff’s evidence at trial disclosed patterns of recall which were consistent with it. Mr Burk could remember where he was and what he was doing at the moment of collision and what he saw, heard and felt; he could remember seeing part of HMAS Voyager from the weather deck and, again, could bring to mind the sounds of the disaster; he could remember parts of the rescue operation – the lights, the helicopters, the men jumping into the life rafts, the victims being brought aboard, taking them blankets and hot chocolates; he had some memories of the return trip to Sydney – being off Wollongong, attempting to speak to Rod Layfield, the announcements made by the Captain, being afraid the ship might sink. Those portions he cannot recall were not, it seems to me, of great importance. He has no memory of his arrival at his emergency station or of how he spent his time on the return trip the following day; but this is neither surprising nor significant.”[78]
[75]Ibid [113].
[76]Ibid [112].
[77]Ibid [115] – [122] and [124] – [127].
[78]Ibid [115].
Professor McFarlane also gave evidence as to the emotional reactions of the appellant to the events. Another expert, Professor Horne, considered the appellant had a core stable personality and did not suffer from any (emotional) numbing.[79] His Honour carefully considered the evidence of the appellant’s experiences whilst in the Navy and his attitude towards life in the Navy.[80] Ultimately, his Honour concluded that the shift of the appellant’s attitude from one of enthusiasm to dissatisfaction amounted to the loss of novelty of sea life and connections with his new wife and child.[81] Professor McFarlane also gave evidence concerning sleep disturbance allegedly suffered by the appellant. There was difficulty for the Professor in light of the history provided by the appellant.[82] Ultimately, his Honour assessed the evidence of Professor McFarlane on the basis that the appellant did not give direct evidence of these matters concerning sleep disturbance at trial.[83]
[79]Ibid [119].
[80]Ibid [120].
[81]Ibid [122].
[82]Ibid [201].
[83]Ibid [202].
Otherwise, the appellant criticised the treatment of his expert witnesses by the judge in relation to satisfying Criterion C in the same terms as with respect to Criterion B. In my view, the same observations apply as previously stated.[84] His Honour carefully and thoroughly considered the evidence upon which the appellant relied to establish the necessary three of the seven components of Criterion C. There was consideration, analysis and assessment of the appellant’s avoidance of conversations associated with the trauma;[85] consumption and treatment of alcohol;[86] avoidance behaviours;[87] the suffering of psychogenic amnesia;[88] diminished interest in activities;[89] the feeling of estrangement;[90] and the suffering of a sense of foreshortened future.[91]
[84]See [56] above.
[85]Burk, above n 31 [83] – [86].
[86]Ibid [88] – [96].
[87]Ibid [97] – [111].
[88]Ibid [115].
[89]Ibid [117] – [146].
[90]Ibid [147] – [175].
[91]Ibid [176] – [177].
In my view it was open to his Honour to make the findings he did with respect to Criterion C. I do not accept that the appellant’s grounds, so far as they relate to Criterion C, are made out.
Criterion D
Criterion D is concerned with “persistent symptoms of increased arousal” indicated by difficulty in sleeping, irritability, difficulty in concentrating, hyper-vigilance or exaggerated startled response.
The appellant criticised the treatment by the trial judge of the evidence concerning the appellant’s difficulty in sleeping. His Honour noted that Professor Bryant recounted the appellant’s comment during interview that he “had been ‘a born insomniac’”.[92] There was no evidence by the appellant himself or indeed by any other expert to that effect. Ultimately, Professor Bryant concluded that the appellant suffered difficulty sleeping. The judge found that the statement by the appellant to Professor Bryant constituted a declaration against interest. The appellant submitted that such an approach was inconsistent with, or contradicted: the evidence given by the appellant’s brother as to the appellant’s history of sleeping as they were growing up; the appellant seeking medical help for sleeplessness in 1965 and, further, his evidence that he had suffered difficulty sleeping for thirty-five years. His Honour concluded that the appellant suffered difficulties sleeping but not because of disturbing memories, nightmares or anything connected with the collision. However, the expert evidence of Professor Bryant was that the sleeping difficulties commenced within the period following the collision and, as such, he concluded that this component of the Criterion was met. Hence, there was evidence of a link between the appellant’s sleeping difficulties and his experiences following the collision. Notwithstanding this, his Honour found that there was no evidence to establish the connection. Such conclusion was erroneous on the evidence. However, it was but one aspect of Criterion D and it was necessary for the appellant to have established more than one aspect. For the reasons that follow the appellant did not succeed in that regard.
[92]Ibid [185].
Turning to the subject of irritability or outburst of anger, his Honour accepted that the appellant had a general disposition to irritability that pre-dated the collision. His Honour held that it arose from various factors in combination namely, lack of sleep, work or family generated tension, tinnitus and back pain.[93]
[93]Ibid [216].
Consideration of the reasons reveals that his Honour gave careful attention to the post-collision behaviour and demeanour of the appellant. His Honour carefully considered the evidence of the appellant, his wife and others as to the appellant’s behaviour and demeanour. The evidence considered covered the appellant’s irritability with his children when they were young, his nickname, “snapper”, because he was easily wound up, and his behaviour towards his wife when treating or dealing with greyhounds. His Honour concluded[94]:
“The Commonwealth submits that factors other than PTSD are the more likely reason for the plaintiff’s irritability. This is, I think, the correct conclusion. One begins with personal proclivity and, increasingly over time, the pain and discomfort of physical ailments like a troublesome back and tinnitus. To this, one adds the normal pressures of family life. These are felt by most parents some of the time, and by many much more frequently than that – especially those parents who, like Mr Burk, are not naturally comfortable with children. A sad consequence is that, unless things are handled with a care and sensitivity which few of us can manage, the relationship between the parents deteriorates. So it was, I think, with the plaintiff and his wife. This caused pain to them both; on the plaintiff’s part, pain which was reflected in his irritability, which in turn caused more pain and greater irritation.
The situation was not helped by the move to Tasmania, a State in which Mrs Burk had never previously lived and with which she was therefore relevantly unfamiliar. Mr Burk doubtless expected much from the move, but instead found himself – at an important time in his marriage and in his role as a father – in a job to which he was not temperamentally well suited. His interest and involvement in greyhound racing were, perhaps unfortunately, stimulated by this; but if that provided some respite from the drudgery, and demands of work at Goliath Cement, it added to the financial and personal stresses on the family. Mrs Burk was interested in neither greyhounds nor greyhound racing. Neither, except perhaps spasmodically, were the children. But, from a sense of loyalty as well as subjugation to the plaintiff’s will, they became actively involved. It is fair to say that they were not well rewarded; and it is necessary to say it, because that was a further cause of tension within the family. The regular income that Mrs Burk brought in from her employment as a nurse became the family’s financial bedrock, with her husband’s irregular income from prize money and training or breeding fees sometimes providing a bonus more often merely covering costs.”
[94]Ibid [216]-[217].
Ultimately, his Honour concluded that the irritability of the appellant was not connected to the collision. This conclusion was open to him.
Turning to the other factors arising under Criterion D, the appellant gave histories of difficulty in concentrating to the medical experts, Mr Wilks and Dr Burges-Watson. However, he did not give evidence at trial about the problems he described to the experts in reading, driving or watching television.[95] Also, he did not give any evidence about problems with concentration during his time in the Navy following the collision or during his early years of employment at Goliath. Mrs Burk gave evidence that after 1995 the appellant had difficulty in settling and finishing jobs. She gave the example of him starting to mow the lawn but not finishing it. The trial judge observed that the one time partner of the appellant, Ms Shone, gave evidence that he was well organised and disciplined. Ultimately, his Honour concluded that “when he was interested, the plaintiff was capable of focused attention.” This was a finding open to the judge on the evidence and it is not for that finding to be disturbed.
[95]Ibid [221].
The next criterion of hyper-vigilance was not made out on the expert evidence or the evidence of the appellant himself. It was not seriously challenged that the only evidence in this respect was from Professor Horne. Importantly, the appellant did not give evidence at trial to support the conclusion that he suffered from the condition. I would not disturb the finding of the trial judge.
Turning to the final factor, exaggerated startle response, the evidence of Professor McFarlane was that he was unable to elicit any evidence to suggest such a condition. Likewise, Dr Burges-Watson found no evidence of the phenomenon. At the same time the appellant, after he left the Navy, worked in an environment at Goliath where blasting occurred twice a day. The blasting was preceded by a loud siren and the evidence was to the effect that the appellant was not disturbed by these noises.
Ultimately, his Honour concluded that Criterion D was not made out on the basis that:
1. considering all the expert evidence and that of the appellant his Honour could not be satisfied that the collision was a cause of the appellant’s sleeping difficulties;
2. there was evidence, pre-dating the collision, demonstrating irritability on the part of the appellant and that other factors, when combined together, led to his irritable disposition when it occurred;
3. accepting that the appellant had problems with concentration, his Honour was not satisfied that it was caused by PTSD;
4. there was no evidence of hyper vigilance; and
5. there was no credible evidence of exaggerated startle response.
Accordingly the trial judge did not find in favour of the plaintiff in this regard. In my view there is no basis to disturb the findings of his Honour.
Criterion F
Criterion F is concerned with clinically significant distress or impairment.
Professor McFarlane concluded that the appellant ended his employment at Goliath because he was suffering from family and work-related problems and this indicated a match with Criterion F. However, Professor McFarlane did not find a match with Criterion F regarding the appellant resigning from the RAN in 1967, or any future restriction to the range of occupations he might pursue. [96] The trial judge did not accept Professor McFarlane’s evidence with regard to finding a match with Criterion F.
[96]Ibid [239].
After careful analysis of the evidence, including evidence given by the appellant himself, his Honour placed emphasis in his findings upon the continuation by the appellant of his employment with the Navy for some three and a half years after the collision and his subsequent employment with Goliath for eighteen years. His Honour accepted the evidence of another expert, Professor Bryant, that because the appellant had worked successfully for a long period after the trauma he did not have impairment as a result of PTSD symptoms.[97] After considering the evidence of the appellant as to his busy life in working, running his greyhound operation and the stress on his marital relationship, his Honour concluded:[98]
“ I have no doubt that Mr Burk felt stressed and tired. I have no doubt that this adversely affected his relationship not only with his wife, but also his employer. But I am not satisfied that the Melbourne/Voyager collision was a cause of these “disturbances”. Nor am I satisfied that they, in turn, caused clinically significant distress or impairment in important areas of Mr Burk’s functioning. Of course they caused distress. Certainly, the plaintiff’s ability to function as a loving husband and a good employee, settled in his job and enjoying good working relationships with his colleagues at work, was impaired. But their clinical significance as symptomatic of a recognisable mental illness has not in my opinion been established.”
[97]Ibid [241].
[98]Ibid [250].
As observed by the trial judge, the appellant informed Dr Burges-Watson that he left the Navy because he did not enjoy being at sea anymore and because he could not stay below deck.[99] However, as his Honour observed,[100] the appellant remained with the Navy for three and a half years after the collision, including a tour of duty to Vietnam, then elected not to renew his engagement but joined the Navy Reserve. Thereafter, he remained at Goliath for eighteen years. On that basis, the trial judge accepted the evidence of Professor Bryant that the appellant’s employment history was suggestive of the fact that he did not have impairment as a result of PTSD symptoms. Furthermore, the appellant gave evidence himself of his work ethic and his reliability. His Honour concluded that that reliability enabled him to be successful at Goliath. The appellant gave evidence that he left Goliath because he was having flashbacks, could not cope with work and was emotional at the workplace. However, as his Honour observed,[101] when the appellant was asked, “why did you stop work?” in a Job Search/Newstart Allowance application made subsequently, he answered “disagreement with employer” [at Goliath]. He was unable to explain the entry under cross examination. His Honour referred to the evidence of the appellant as to the “crazy life” he was leading at the relevant time given his involvement with greyhounds and its associated activities. His Honour concluded:[102]
“I have no doubt that Mr Burk felt stressed and tired. I have no doubt that this adversely affected his relationship not only with his wife, but also with his employers. But I am not satisfied that the Melbourne/Voyager collision was a cause of these “disturbances”. Nor am I satisfied that they, in turn, caused clinically significant distress or impairment in important areas of Mr Burk’s functioning. Of course they caused distress. Certainly, the plaintiff’s ability to function as a loving husband and a good employee, settled in his job and enjoying good working relationships with his colleagues at work, was impaired. But their clinical significance as symptomatic of a recognisable mental illness has not in my opinion been established.”
[99]Ibid [240].
[100]Ibid [241].
[101]Ibid [244].
[102]Ibid [250].
In my view, the conclusion was open to the trial judge. It was a finding of fact on the evidence and it should not be disturbed. I am of the same view as for the reasons stated with respect to Criteria B, C and D. Grounds 3 through 11 are not made out.
Discharge of the Jury
Grounds 1 and 2 are to the effect the trial judge was in error in discharging the jury and that in so doing the appellant was denied natural justice. These grounds are shortly disposed of. The appellant consented to the discharge of the jury and the trial continuing before a judge alone. In so consenting, absent any substantiative or procedural error, and none is alleged, the appellant is bound by the consent. The appellant elected to proceed with the matter before the judge alone and for his Honour to proceed on the basis of the evidence to that point and thereafter. There was no obligation to declare or indicate his judicial disposition or inclination at that stage. There is no basis now to appeal the discharge of the jury. Grounds 1 and 2 are not made out.
Delay in the Delivery of Judgment
Under grounds 12 to 14, the appellant complains that the period from 14 April 2005[103] to 7 February 2006[104] for the delivery of the judgment was too long and thereby rendered the judgment unsafe and unjust. The trial lasted 18 sitting days and was heard over a period of five weeks. There was a full transcript of all addresses and evidence. The medical evidence was complicated but well presented on both sides. DSM–IV is a detailed but comprehensive document. The technical side of the trial was capable of consideration, revisitation and analysis over some months by the judge as might be necessary. The evidence of the appellant and the lay witnesses were not unusually symptomatic of any particular context of a PTSD
case or a Voyager-Melbourne case for that matter (of which there have been a number).
[103]Date of reservation of judgment.
[104]Date of delivery of judgment.
Clearly, the judgment was one that took time to write. In the context of a busy Trial Division and the usual burden carried by a trial judge there was nothing untoward in the time taken to deliver the judgment. Judges always do their best to deliver judgments within three months of the end of a matter. Sometimes the workload of an individual judge, and a court as a whole, render such ambition impossible. Generally, trial judges are not in a position to stop everything at the end of a trial and do nothing but write the judgment just reserved. Usually, there are other cases to be heard shortly, even immediately thereafter. Here, where the reasons ran to almost 100 pages in length, there was nothing unusual or untoward about the time taken to deliver judgment. Each case will be different and no uniform rule is attracted. That said, after the requisite careful scrutiny,[105] nothing has been disclosed in this appeal to suggest that the trial judge had forgotten evidence, lost perspective as to the credibility or assessment of expert witnesses, or misunderstood the evidence or the law. All in all, the reasons for judgment were thorough and careful. I am not persuaded as to any specific error or unsafe outcome.[106] In my view, grounds 12, 13 and 14 are not made out.
[105]NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 367, [161].
[106]NAIS v Minister for Immigration (2005) 80 ALJR 367, [7], [85], [161].
It follows that none of the grounds of appeal has succeeded in my view and, therefore, the appeal ought to be dismissed.
CHERNOV JA
NETTLE JA:
This is an appeal from a judgment given in the Common Law Division dismissing the appellant’s claim for damages for personal injury in the nature of Post
Traumatic Stress Disorder (“PTSD”) alleged to have been suffered by reason of the appellant’s involvement in the collision of HMAS Melbourne and HMAS Voyager on 10 February 1964.
As the judge found the facts to be, at the time of the collision the appellant was a Naval Air Mechanic (1st Class) with the Fleet Air Arm of the Royal Australian Navy. He was 23 years of age, having been born on 28 December 1940, and he had already completed two tours of duty on HMAS Melbourne. As at 10 February 1964 he was attached to Squadron 816 and allocated to HMAS Melbourne as part of the Squadron’s small advance party. He and other members of his squadron in that party were present on board in case any of the squadron aircraft had to make an emergency landing during the “touch and go” routine. During the evening of 10 February 1964 he was on the flight deck of the ship watching the aircraft perform their manœuvres. As twilight descended, however, the calm conditions and light wind meant that the aircraft could not achieve sufficient lift, despite HMAS Melbourne increasing her speed to about 22 knots. From time to time, therefore, flying was suspended pending the advent of more favourable conditions.
Shortly after 8.30pm, during a lull in activity, the appellant descended below deck to the mess positioned at what was known as “4 Charlie” (Deck 4, position C; position A being closest to the bow). He there was watching some of his colleagues play cards when he heard what he described as a massive explosion “like a bomb going off”. As the judge said, it is impossible for someone who was not there to comprehend the magnitude of what had occurred, or its impact on those immediately involved. In his Honour’s words:
“…[The appellant] together with his colleagues among the officers and men of the two warships, had been caught in the maelstrom of the worst peace-time disaster in Australia’s military history. The bow of HMAS Melbourne had struck HMAS Voyager amidships. The smaller vessel was not merely damaged; it was cut in two. Its bow section sank within minutes. Its captain, Lieutenant-Commander Duncan Stephens, together with another 81 members of its crew, were killed. The accident was the subject of extensive press coverage and two Royal Commissions. As this litigation attests, the consequences continue to reverberate across more than 40 years. Many claims have been brought against the Commonwealth of Australia by men from both vessels. This proceeding is one of them. It will doubtless be some years yet before the last page is turned.”
Nevertheless, after a trial which lasted more than 19 sitting days, the judge held that he was not satisfied on the balance of probabilities that the appellant “presently suffers – or has in the past suffered – from Post Traumatic Stress Disorder” and that the appellant’s claim should therefore be dismissed.
Grounds of appeal
The bulk of the appellant’s grounds of appeal are concerned with the way in which the judge interpreted the evidence. It is contended that the judge’s conclusion was against the evidence and the weight of the evidence. As part of that overall contention, the appellant submits that the judge erred in particular respects in deciding that the appellant had not satisfied a number of the criteria of Diagnostic and Statistical Manual of Mental Disorders (4th Edition) (Text Revision) (“DSM-IV”). It is further contended that the judge denied the appellant natural justice by discharging the jury (and thus proceeding with the matter as a trial before judge alone) without first informing the parties of his views as to whether the appellant was likely to succeed in establishing liability; further, that the judge erred in accepting and acting upon opinion evidence given by some of the expert witnesses called by the respondent in circumstances where it was apparent that the witnesses were partisan; and further that the judge caused a miscarriage of justice by so delaying in the preparation of his reasons for judgement as to deny himself the ability to record and apply his recollections of the demeanour of the witnesses.
It is convenient to begin with the contention that the judge’s findings were against the evidence and the weight of the evidence.
DSM –IV
At the outset of his consideration of the evidence the judge noted that the parties were agreed that it was appropriate to use the criteria in the Manual published by the American Psychiatric Association in 2000 (“DSM-IV”). It sets out six criteria that must be met before a patient can properly be diagnosed as suffering from PTSD. They are: (A) exposure to a traumatic event; (B) persistent re-experiencing of the traumatic event; (C) persistent avoidance of stimuli associated with the trauma, together with numbing of general responsiveness; (D) persistent symptoms of increased arousal; (E) the duration for more than one month of the symptoms described in criteria B, C and D; and (F) clinically significant distress or impairment, caused by disturbance in social, occupational or other important areas of functioning. As the judge further observed, symptoms – such as “avoidance”, “numbing” and “increased arousal” – which were present before exposure to the stressor, do not meet the criteria and it was incumbent on the appellant to establish a causal link between the trauma of having experienced the Voyager collision and the stress from which he was alleged to suffer.
There was no issue that the appellant satisfied Criterion A but it was disputed that the appellant satisfied any of the other criteria. The judge thus began his consideration of the evidence by reference to Criterion B, noting to begin with that Criterion B is described in the DSM-IV Manual in the following terms:
“B.The traumatic event is persistently re-experienced in one (or more) of the following ways:
(1)recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions …
(2) recurrent distressing dreams of the event ...
(3)acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated).
(4)intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.
(5)physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.”
His Honour added that Criterion B was not to be read as if it had statutory force and that it was important to keep in mind that it is “concerned with persistent re-experiencing, manifested in a number of specified ways, of a traumatic event.”[107]
[107]His Honour’s emphasis.
Criterion B(1) Recurrent and intrusive distressing recollections
Beginning then with Criterion B(1), the judge observed that recurrent and intrusive distressing recollections do not fall within Criterion B merely because they are recollections; they only meet that criterion if they are recurrent, intrusive and distressing. According to his Honour, therefore, mere memory will not do and the recollections must be not only recurrent but so sharp and focused that they bring the event vividly back to life in an intrusive and distressing way .
His Honour turned then to a consideration of some of the evidence given by the expert witnesses called by the appellant: Dr Burgess-Watson, Professor McFarlane and Mr Robert Wilks, and some of the evidence given by the appellant, and his Honour appears to have concluded from that evidence that the appellant had not established that he satisfied Criterion B(1). We say appears to have concluded because the judge did not say in terms what his conclusion was. Rather, he observed that the Professor McFarlane’s description of the recollections of the appellant:
We do not accept those submissions as such. The aspects of the reasoning to which counsel referred were only some of the considerations that led the judge to his decision concerning Criterion D(2). By far the larger part of his Honour’s analysis of the point was directed to the respondent’s submission that factors other than PTSD were responsible for the appellant’s irritability. As his Honour explained, he was persuaded that was so because:
“The Commonwealth submits that factors other than PTSD are the more likely reason for the plaintiff’s irritability. This is, I think, the correct conclusion. One begins with personal proclivity and, increasingly over time, the pain and discomfort of physical ailments like a troublesome back and tinnitus. To this, one adds the normal pressures of family life. These are felt by most parents some of the time, and by many much more frequently than that - especially those parents who, like Mr Burk, are not naturally comfortable with children. A sad consequence is that, unless things are handled with a care and sensitivity which few of us can manage, the relationship between the parents deteriorates. So it was, I think, with the plaintiff and his wife. This caused pain to them both; on the plaintiff’s part, pain which was reflected in his irritability, which in turn caused more pain and greater irritation.
“The situation was not helped by the move to Tasmania, a State in which Mrs Burk had never previously lived and with which she was therefore relevantly unfamiliar. Mr Burk doubtless expected much from the move, but instead found himself - at an important time in his marriage and in his role as a father - in a job to which he was not temperamentally well suited. His interest and involvement in greyhound racing were, perhaps unfortunately, stimulated by this; but if that provided some respite from the drudgery, and demands, of work at Goliath Cement, it added to the financial and personal stresses on the family. Mrs Burk was interested in neither greyhounds nor greyhound racing. Neither, except perhaps spasmodically, were the children. But, from a sense of loyalty as well as subjugation to the plaintiff’s will, they became actively involved. It is fair to say that they were not well rewarded; and it is necessary to say it, because that was a further cause of tension within the family. The regular income that Mrs Burk brought in from her employment as a nurse became the family’s financial bedrock, with her husband’s irregular income from prize money and training or breeding fees sometimes providing a bonus but more often merely covering costs.”[185]
[185]Reasons, [216], [217].
If we may say so, with respect, there is also a good deal to be said for the view that the symptoms which the appellant claims to be the result of PTSD were the consequence of other matters of the kind to which the judge referred. But for the errors to which we have earlier referred, it may be that the judge’s conclusion as the satisfaction of Criterion D(2) would not be open to doubt.
That said, however, it seems to us to be impossible to exclude the risk that the judge’s reasoning on Criterion D(2) was to some extent informed, consciously or sub-consciously, by his Honour’s conclusions concerning the earlier criteria in respect of which we consider that error has been shown. Accordingly, while we are not persuaded that his Honour made any error as such in the consideration of Criterion D(2), we take the view that the determination of Criterion D(2) was sufficiently bound up with Criterion D(1), and possibly other criteria in respect of which error has been established, to mean that they should stand or fall together.
Criterion E: Duration of disturbance for more than one month.
The judge held that Criterion E was satisfied and that conclusion is not disputed.
Criterion F: Significant distress or impairment in social, occupational, or other important areas of functioning
Criterion F is as follows:
“F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.”
The judge held that he was not satisfied that the appellant had suffered from significant distress or impairment in social, occupational, other important areas of functioning. As appears from his Honour’s reasons, he came to that view in large part because he accepted the opinion of Professor Bryant that a disturbance is not clinically significant for the purposes of DSM-IV unless it is highly distressing to the patient or interferes with his or her capacity to function in the workplace or the family or inter-personally. As the judge put that part of his reasoning:
“I referred at paragraph [36] above to Professor Bryant’s opinion about the diagnostic importance of clinically significant distress or impairment. I repeat here the quotation I there set out, because it seems to me that his evidence was, in the context of this case, very important. He said:
‘You will find [those words] virtually in every mental disorder in DSM; and the reason for that is that we need to distinguish between normal mood disturbances – or normal alterations in functioning – and disorders; because if we look at most of the population, most people have symptoms, most people will have irritability and nightmares and be depressed. This is very common. The point of DSM is that we need to distinguish between what is a disorder and what is just having normal symptoms, because we don’t want to over pathologise a normal state. The way DSM does this is really focussing on the stress [the patient] is having. Is it very significant; is it highly distressing to the patient or ... interfering with [his or her] capacity to function, maybe in a workplace, maybe in family, maybe inter-personally? But in these major ways [the patient] is not able to function because his or her symptoms are at such [an elevated] level’.”
The judge noted the opinion of Professor McFarlane that the appellant had decided to end his time at Goliath because he was suffering family and work-related problems which met the requirements of Criterion F. But the judge said that he preferred the view of Professor Bryant that “because he [the appellant] had worked successfully for 20 years after the trauma, I would argue that that suggests that he did not have impairment as a result of PTSD symptoms.”[186]
[186]Reasons, [241].
The appellant complains about the judge’s reliance on Professor Bryant’s opinion and says that Professor Bryant adopted a partisan approach dominated by a preconception that the plaintiff would not be likely to have suffered PTSD. Counsel for the appellant submitted that so much was apparent from the fact that, although Professor Bryant acknowledged that the “CAPS” questionnaire is the “gold standard” for diagnosing PTSD for the purposes of treating a patient, he refused to use it in a forensic setting because he said that he considered that it was too prone to suggest answers to the examinee, and, therefore, tended to overdiagnose the conditions.[187] That evidence was to be contrasted, counsel submitted, with the testimony of Professor Horne that the CAPS questionnaire is a checking device to support the clinical assessment from examining the claimant, and that the questions are not particularly suggestive, merely raising individual matters or symptoms without indicating the expected answer.[188] Professor Horne emphasised the extensive research into its use as a validating measure, including a research article published just a few months before the trial.[189]
[187]T.1318.
[188]T. 441.
[189]T.433, 442-3.
Counsel for the appellant further castigated the judge’s reliance on Professor Bryant’s opinion on the basis of Professor Bryant’s acknowledgement that he had examined some 35 crewmen aboard the Melbourne at the time of the collision and concluded that not one of them suffered PTSD despite an expectation that, on average, perhaps 10-20% of those most exposed to the impact would proceed to develop PTSD;[190] that Professor Burke’s opinion was initially based upon an erroneous assumption that that the appellant “… has worked continually for most of his life, and there is no evidence that he has suffered impairment as a result of PTSD symptoms”;[191] that Professor Bryant was compelled to qualify that view in cross-examination [192] and yet still maintained that there was insufficient evidence to link the admitted impairment in 1985 with the collision; and because of Professor Bryant’s flat refusal to accept that reported symptoms could be linked to the collision and the possible development of PTSD.
[190]T.1320, 1325, 1334.
[191]T.1322; C434.
[192]T.1322.
In counsel’s submission it was also remarkable and threw doubt on Professor Bryant’s opinion that the symptoms which he recorded in the history which he took of the appellant’s suffering were so much fewer and less troubling than those recorded in the appellant’s evidence at trial and in the histories taken by the other medical experts. Counsel submitted that since Professor Bryant had a less than full history of the appellant’s symptoms, it was obvious that he was not in as good a position as other experts to make a diagnosis.
In our view there is some force in that complaint. Evidently, this was a case which depended to a considerable extent on choosing between expert opinions, and it is clear that some of the expert opinions, particularly Professor Bryant’s opinion, were heavily challenged in cross-examination. The transcript of cross-examination leaves no doubt that the appellant attacked Professor Bryant as a partisan professional witness who made it his practice not to recognise signs and symptoms of PTSD and who chose to interpret the facts and effect of tests in order always to support the rejection of claims. Plainly, that attack needed to be considered and weighed in the balance when choosing between opinions, and yet there is nothing said about it in the reasons for judgment. Maybe it is implicit in the reasons that the judge accepted Professor Bryant’s opinion because it accorded with his Honour’s view that someone who suffers PTSD could not work for 18 years. If so, however, it is not immediately apparent why the judge should have taken that view when, earlier in the reasons, his Honour appeared to have accepted that people with PTSD can work and that some people with PTSD become workaholics in order to suppress the effects of PTSD. In any event, given that the attack on Professor Bryant’s reliability was as pointed as it was – in effect the appellant was asking the judge to reject Professor Bryant as a partisan professional witness – the appellant was entitled to expect something more by way of explanation of the choice of Professor Bryant’s opinion than a passing reference to consistency between it and the judge’s lay perception of the effects of PTSD.
The reasons for judgment suggest that the judge found added support for his conclusion in the appellant’s evidence that his work ethic and service training had come to the notice of the foreman when the appellant was working in the store at Goliath, and it was that which led to his move to the office; the appellant’s agreement with the proposition in evidence that he had the reliability which enabled him to climb the employment ladder within Goliath; the fact that, whereas in his evidence [and in giving his history to the expert witnesses] the appellant said that his reason for leaving Goliath was because he was having flashbacks and he could not go back to work any more, he had filled out a Job Search/Newstart Allowance application in 1994 in which he had given as his reason for leaving Goliath: “Disagreement with employer”; and the fact that in January 2001 after the institution of the proceeding he applied for a DVA pension and put in the claim form that back ache and tinnitus (as opposed to flashbacks and distress) had been responsible for preventing him from working more than 20 hours a week. The judge also mentioned as a possibility, although without apparently expressing a view about it, that another reason for the appellant leaving Goliath was because of the pressure and stress associated in trying to fit his greyhound activities around his job at Goliath. His Honour thus concluded that:
“I have no doubt that Mr Burk felt stressed and tired. I have no doubt that this adversely affected his relationship not only with his wife, but also with his employer. But I am not satisfied that the Melbourne/Voyager collision was a cause of these ‘disturbances’. Nor am I satisfied that they, in turn, caused clinically significant distress or impairment in important areas of Mr Burk’s functioning. Of course they caused distress. Certainly, the plaintiff’s ability to function as a loving husband and a good employee, settled in his job and enjoying good working relationships with his colleagues at work, was impaired. But their clinical significance as symptomatic of a recognisable mental illness has not in my opinion been established.”[193]
[193]Reasons, [250].
The judge then went on to add that he considered that the appellant’s attempts to re-enter the work force in 1995 suggested that there were “factors other than PTSD at play”, such as an inability to engage in heavy lifting, hernia, gout and pneumonia, which the judge described as physical impairments as opposed to being clinically significant for the purposes of assessment of mental impairment. The judge also referred to evidence given by Dr White that:
“... mental health is pervasive, 24 hours a day. So if you were depressed, you are feeling depressed through the entire interview. If you are anxious, you are anxious through the entire interview. It is just, that is how you are, so that is the entire presentation for the interview.
Q: You say, over the page, that it is obvious, even to the casual observer that the person with PTSD is severely distressed. Is that always the case?
A: Well, I believe so ... Mental illness is a brain disease and people look sick ...”
Thereupon his Honour stated that: “Mr Burk does not, in my opinion satisfy Criterion F”.
The appellant complains about that process of reasoning; in particular about the judge’s reliance on the comments of Dr White. Counsel for the appellant submits that Dr White’s comments were not put to any of the plaintiff’s expert witnesses; were not endorsed by any other of the respondent’s expert witnesses; defied the need established by other expert witnesses for “gold standard “ psychological testing (in order to “assess certain disorders”);[194] and were in conflict with other reputable evidence in the case, including in particular the evidence of Dr Burges-Watson that PTSD is a “phasic disorder” and that a person suffering from PTSD cannot cope with stress, as stress leads to distressing reminders of the trauma;[195] Professor McFarlane’s evidence that as with any disorder, there can be a range of severity and the symptoms over time can fluctuate[196], and that a feature of PTSD is that traumatic memories drive a conditional fear response:
“…reminders that bring back that (traumatic) memory will obviously further increase your anxiety and fear associated with that pattern of reaction, and their sensitisation is, in fact, one of the things that differentiates people who develop post traumatic stress disorder from people who don’t.”,[197]
and Professor Horne’s evidence that the condition becomes chronic because of
“the avoidance behaviours … with trauma, the person has to be able to re-experience the trauma and come to terms with it, rather than avoiding, blocking it out, if they are going to make significant progress and adjust themselves … the avoidance behaviours … alcohol … helps to sort of numb the horrible feelings, the intrusive nightmares, the feelings that he has … self-perpetuating pattern of behaviour … The avoidance gives immediate reduction in tension and anxiety, so the behaviours … produce a momentary reward, that is, feeling better. But … it then restricts life … so the person becomes more and more trapped, more limited in their lifestyle.”[198]
[194]Professor Bryant T1319, Professor Horne T416, 432-438;
[195]Dr Burgess-Watson, T388;
[196]T.575.
[197]T.497.
[198]T.416-7.
In our view there is also force in those submissions. Despite the judge’s reference to and stated reliance upon a range of considerations leading to the conclusion set out above at [162], it is we think fair to say that Dr White’s opinion appears to have played a pivotal or essential role among the range of considerations that led the judge in the end to hold that Criterion F had not been established. Yet, as counsel for the appellant has argued, Dr White’s comments were gratuitous in the sense that (so far as can be told) they did not appear in Dr White’s expert report, and so did not emerge until oral evidence; they were not put to the other expert witnesses for comment; in essential respects they were opposed to the opinions of the bulk of the other expert witnesses, even Professor Bryant’s opinion; and, on at least one view of the matter, they were opposed to the assumptions inherent in DSM-IV. In those circumstances, as counsel for the appellant put it, one might suppose that the judge would have preferred the weight of professional opinion or at least something nearer the median, and that his Honour should not have done otherwise without explaining his reasons for adopting that course.
As counsel for the appellant points out, there was also an attack made on Dr White’s professional credibility for what was submitted to be “evident and dogmatic partiality”;[199] and that he had been caught out as having made “gross and inexplicable errors” such as assuming that the appellant “did not witness the accident” (or impact) and was not in the zone of danger; and that he had attempted to film his second interview with the appellant without the appellant’s permission and contrary to what Dr White knew to be the appellant’s wishes.[200] Yet there is no mention of any of that in the reasons for judgment and even less of why the judge did not regard it as influential. In our view the conflict of expert evidence in this case was too important to be ignored or left to an Abalos[201] inference.[202]
[199]T.1480-1.
[200]T.1485-1489.
[201]Abalos v Australian Postal Commission (1990) 171 CLR 167; cf Fox v Percy (2003) 214 CLR 218.
[202]Hadid v Redpath (2001) 35 MVR 152, [32] and [53] (Heydon JA).
Disposition of the appeal
If we are correct that the judge was in error in the respects which we have identified in relation to Criteria B(1), C(1), (5) and (6), D(1) and (2) and F, it follows that the findings concerning those criteria are vitiated and the exercise must be performed afresh. Other things being equal, we would be disposed to undertake that exercise ourselves on the basis of the transcript and the exhibits and so many of the expert reports as were tendered in evidence. In the event, however, we do not consider that it is appropriate to do so.
We have referred already to the judge’s reference to the fact that the appellant filled out the DVA application for pension form in January 2001 in which he attributed his sleeping difficulties to a back disorder and tinnitus. His Honour noted later in his reasons that there was another DVA application form which was undated but stamped as received on 31 May 1999 in which the appellant had listed among details of treatments received in the last twelve months for the injury or illness for which a claim was being made “current psychiatric evaluation”, and that attached to the form was a handwritten note signed by the appellant listing various ailments including “Currently undergoing psychiatric evaluation re post traumatic stress disorder ongoing untreated 1964”. The judge appears to have taken the view that the 2001 form reflected on the appellant’s credibility and with respect we take a similar view. The appellant was cross-examined extensively about the matter and admitted in the course of that exercise that on 8 April 1999 he applied for a war service disability pension for Achilles tendon, gout, osteoarthritic back and tinnitus, and that those impediments so much affected him that he was unable to work at least 20 hours a week. One of the questions asked in the application was whether there were “any other factors you think that may affect your ability to work, obtain work or to look for work”, to which he had answered “No”. [203] Then, on 16 January 2001, nearly two years after he had been diagnosed by Mr Wilks as suffering from PTSD and more than a year after he instituted this proceeding, he completed the form to which the judge referred and claimed in it that he was “often tense and irritable, don’t sleep well, often get cranky from pain, moody and irritable most of the time” and in response to a question of: “How do you believe your disabilities caused the above problems?” he had answered: “Back stops me getting comfortable” “together with tinnitus” “keeps me awake” “makes sleep very difficult”. Further in response to a question of: “Do your disabilities affect your social life?” he had answered: “Yes. Very little social life. Can’t stand noises” and “Back pain reduces enjoyment”. Further in response to a question: “Does your medication affect your family or social life?” he had replied that he was taking celebrex, trammel and aspirin for his back pain and that the medication made him depressed and irritable when the painkiller wears off and caused him headaches which reduced his enjoyment of life. He claimed further in the form that the back pain meant that he could no longer walk with weights and that he had had to give up “golf” and “bushwalking”.[204] There was, however, evidence that the appellant in fact played golf multiple times a week and had done so since 1996 with a handicap that had varied from 24 down to 13, and there is video-tape evidence showing the appellant playing golf with friends in April 2002 without any apparent impediment.
[203]Exhibit D4, C342; T. 298.25-300.6.
[204]Exhibit D5
Pressed on the disparity between those facts and the claims made in the pension application forms, the appellant said that there were periods where he had had to give up golf entirely and that the period when he filled out the latter pension application was one of those.[205] He was however unable to say when exactly was the period in which he was not playing golf.
[205]T. 303.3-.28.
Within the application form there was also this question: “Did your disability [ie, Achilles tendon, gout, osteoarthritic back and tinnitus] stop you working in any way?”, to which the appellant had responded: “Yes” “I did clerical work. Back pain prevented me from sitting for long periods. Tinnitus helped make me cranky and made phone calls difficult. Also concentration problems”. Pressed in cross-examination upon that response, he was asked the following questions to which he gave the following answers:
“[COUNSEL]: Quite specifically, just as you had at the beginning of this form, you mentioned back pain and tinnitus; is that not so? --- Yes.
[COUNSEL]: And that was the basis upon which you were making this claim, was it not? --- Yes, I couldn’t - - -
[COUNSEL]: They were the injuries, they were the ill-health that you were referring to, as putting a stop to your working back in 1985? - - - (No answer)
[COUNSEL]: Is that right? --- As I tried to explain to you before, I had an advocate who was trying to help me with this form, and when he asked me why I had left Goliath I tried to explain to him that I couldn’t work there any more because of, stress problems, and he said to me that ‘This claim that you are putting in is for your back’, and it was for tinnitus and hearing problems and tinnitus as well. He said ‘I cannot claim for any other problems on this particular form.‘ So he said “My best advice to you is to say that it was your back’. And I didn’t like it, but I took his advice on the subject.[206]
[206]T.314. 8 - .26.
…
[COUNSEL]: Well, by that stage, you had a diagnosis from Mr Wilks, the psychologist, that told you that you were suffering from PTSD? --- That’s correct.[207]
[207]T. 315.29 -.31.
…
[COUNSEL]: What you were prepared to do, to get a disability pension, was to say that you were incapable of work, and had been for some time, because of a back injury, isn’t that so? --- The claim was for a back injury, yes.
[COUNSEL]: Yes. And whether you suffered from other things, or not, you were stating, with the support of your doctor, that you were unable to work because of a low back problem; isn’t that right? --- Unable to work – yes, I said that on here, I think - - -
[COUNSEL]: Yes? --- M’mm.
[COUNSEL]: Now, albeit that this form was dated January 2001, you are saying, in it, that you have been incapable of doing work you have been disabled because of this injury, from way back to the time you left Goliaths. That is what you say here, isn’t it? --- I tried to explain that to you to the best – that is the only way I can answer that.
[COUNSEL]: Which is that? --- That I explained to you; that my advocate said in order to present the best possible case, it is his advice, it was his advice, that I should say that. As I said, I didn’t like doing it, but I did it.
[COUNSEL]: Why didn’t you like doing it? --- Because I knew that I had put a claim for, against the Commonwealth, and I knew that I would be in the situation that I am now.
[COUNSEL]: You knew it was a lie; is that what you say? --- I don’t consider it an absolute lie, no.
[COUNSEL]: Well, do you consider it something other than an absolute lie; some other sort of lie? --- Well, I have a bad back.
…
[COUNSEL]: Did that stop you working? --- Not that time, no.
[COUNSEL]: At any time? --- No, no - - -“[208]
[208]T.317.8 – 318.7.
In our view the effect of that cross-examination was to cast considerable doubt on the credibility of the appellant’s testimony. Prima facie, it showed him to be someone who was prepared to say whatever he thought to be necessary in order to obtain a pension benefit, even though he knew that what he said was false in material respects. Subject to seeing and hearing the appellant give his evidence, we would doubt the truth of what he told the expert witnesses who examined him for the purposes of this litigation, and doubt what he said in his evidence about the cause and effect of the PTSD from which he is alleged to have suffered.
If the judge had reached a similar view we should have been disposed to dismiss the appeal. In effect, the case would have been one like Whisprun Pty Ltd v Dixon[209] where, if a plaintiff’s evidence as to his symptoms is not credible, there is no basis for the expert opinions as to his illness and therefore no basis for a judge to find that his illness has been established. But, as it appears to us from the reasons for judgment, the judge took the view that it was unnecessary to pass upon the appellant’s credibility as a witness and therefore that his Honour did not do so. In those circumstances, we do not think it is appropriate to try and fill the gap on the basis only of the transcript.
[209](2003) 77 ALJR 1598.
As Heydon JA (as his Honour then was) said in Hadid v Redpath,[210] in our system of oral trial it is not customary to disbelieve witnesses whom the court has not had the opportunity of seeing and hearing. The appellant’s case may be weak or strong, but it has not yet been properly considered because of the miscarriage of the trial. That miscarriage could not be cured by a flawed reconsideration of the issues by this court without the advantages of a trial court in observing the witnesses. The only course as we see it is to order that a new trial be had.[211]
[210](2001) 35 MVR 152, [58].
[211]CSR Pty Ltd v Maddelena (2006) 80 ALJR 458, [1], [79]-[87] and [114].
Other grounds of appeal
In the view of the matter which we take, it is unnecessary to consider the other grounds of appeal.
Conclusion
The appeal should be allowed. The judgment below should be set aside, and it should be ordered that there be a new trial before a different judge of the Common Law Division.
- - -
19
0