Burk v Commonwealth of Australia
[2006] VSC 25
•7 February 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 5597 of 1999
| RODNEY ARTHUR BURK | Plaintiff |
| v | |
| COMMONWEALTH OF AUSTRALIA | Defendant |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8-11, 15-17, 21-23 MARCH; 1, 4-8, 13 & 14 APRIL 2005 | |
DATE OF JUDGMENT: | 7 FEBRUARY 2006 | |
CASE MAY BE CITED AS: | BURK v COMMONWEALTH OF AUSTRALIA | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 25 | |
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Negligence – Melbourne/Voyager disaster – Whether plaintiff suffers from post traumatic stress disorder – Differences between histories given to experts and evidence at trial – Causation.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G. Little SC with Mr C.B. Thomson | Hollows Lawyers |
| For the Defendant | Mr M. Titshall QC with Mr A. Moulds | Australian Government Solicitor |
TABLE OF CONTENTS
The Collision....................................................................................................................................... 1
Other background material.............................................................................................................. 4
The Pleadings..................................................................................................................................... 7
The Evidence Concerning Post Traumatic Stress Disorder..................................................... 10
DSM IV Criteria........................................................................................................................... 10
Exposure to a traumatic event (Criterion A)........................................................................... 13
Persistent re-experiencing of the event (Criterion B)............................................................. 16
(1) Recurrent and intrusive distressing recollections............................................................... 17
(2) Recurrent distressing dreams of the event........................................................................... 19
(3) Flashbacks........................................................................................................................... 24
(4) and (5) Psychological distress or physiological reactivity caused by internal or external cues (“triggering events”).................................................................................................................................... 25
Persistent avoidance and numbing of general responsiveness (Criterion C).................... 30
(1) Efforts to avoid thoughts, feelings or conversations associated with the trauma................. 31
Alcohol consumption as a means of avoidance............................................................... 33
(2) Efforts to avoid activities, places or people that arouse recollections of the trauma.............. 36
(3) Inability to recall an important aspect of the trauma........................................................... 42
(4) Markedly diminished interest or participation in significant activities............................... 44Interest in sport...................................................................................................................... 50
Involvement with greyhounds............................................................................................ 53
Conclusion............................................................................................................................. 57(6) Restricted range of affect..................................................................................................... 62
(7) Sense of foreshortened future............................................................................................... 67
Some additional or expanded thoughts about Criterion C....................................................... 68
Persistent symptoms of increased arousal (Criterion D)...................................................... 70
(1) Difficulty falling or staying asleep....................................................................................... 70
(2) Irritability or outbursts of anger.......................................................................................... 76
(3) Difficulty concentrating...................................................................................................... 81
(4) Hypervigilance.................................................................................................................... 84
(5) Exaggerated startle response............................................................................................... 84
Conclusion............................................................................................................................... 86
Duration of disturbance for more than one month (Criterion E)......................................... 87
Significant distress or impairment in social, occupational, or other important areas of functioning (Criterion F).................................................................................................................................. 88
Final Conclusion.............................................................................................................................. 97
HIS HONOUR:
The Collision
On 10 February 1964, the aircraft carrier HMAS Melbourne, the flagship of the Royal Australian Navy (“RAN”), was engaged in working up exercises off Jervis Bay. These were to be the prelude to a voyage north for the SEATO exercises which were scheduled to commence on 25 May that year. With the flagship was an escort vessel, the Daring Class Destroyer HMAS Voyager.
It was important that ships, equipment and personnel, at all levels, be fully prepared to meet the challenges which the exercises would present. In particular, it was essential that the pilots attached to Squadron 816, who would fly the “Gannet” anti-submarine aircraft which formed part of the flagship’s complement, were qualified to perform night landings at sea. They and HMAS Melbourne were therefore performing “touch and go” exercises. These, as the phrase suggests, required the pilots to fly from HMAS Albatross, their base at Nowra on the New South Wales coast, to HMAS Melbourne, touch down on the flight deck and, before landing, take off immediately to return to base.
In February 1964 Rodney Burk was a Naval Air Mechanic (1st Class) with the Fleet Air Arm. He was 23 years of age, having been born on 28 December 1940 He had already enjoyed two tours of duty on HMAS Melbourne, both of them in 1961. With this experience behind him, and being attached to Squadron 816, he was allocated to the flagship once more as part of the Squadron’s small advance party. He and his colleagues in that select group were present in case any of the aircraft had to make an emergency landing during the “touch and go” routine.
On the evening of 10 February 1964, Naval Air Mechanic Burk had been on the flight deck watching the aircraft perform their manoeuvres. 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 flying was therefore suspended pending the advent of more favourable conditions.
Shortly after 8.30pm, during a lull in activity, Mr Burk 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 was watching some of his colleagues playing cards when he heard what he described as a massive explosion, “like a bomb going off”[1]. Commander George Halley, who at the time of the collision was the Damage Control Officer and Training Officer on HMAS Melbourne with the rank of Lieutenant Commander, initially thought that one of the aircraft during “touch and go” practice had flown into the flagship’s superstructure.
[1]T.86.
It is doubtless impossible for someone who was not there to comprehend the magnitude of that which had then occurred, or its impact on those immediately involved. Mr Burk, 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.
Initially, Mr Burk felt and heard the huge, cacophonous resistance of whatever it was that had confronted HMAS Melbourne’s bows. He thought at first that the ship had run aground, but quickly realised that this was impossible. Then, as he ran forward, he sensed the irresistible force with which his ship tore through its victim with a “terrible metal on metal” sound. Looking through the mess and the adjacent chain locker area to the toilets, he could see broken porcelain lying everywhere. He stopped and “was just sort of staring at it”[2]. It occurred to him that, had there been on board not a small advance party from his squadron, but the unit at full strength, someone would almost certainly have been using the toilets, with tragic consequences, at the time the two ships met. Colleagues ran past to secure the water-tight doors. Mr Burk then climbed the ladder to 3 Deck and ran across to the open weather deck where he saw something that “absolutely startled” him: a red kangaroo. As he remembered it in his cross examination, he thought: “What the bloody hell is that? Why is that there?” He recalls that, while trying to absorb all that had happened and was happening, he recognized that he was looking at the red kangaroo which was affixed to “either the bridge or the chimney” of HMAS Voyager. In his words, “it was just right there, in front of my face”[3]. Although it was dusk, the visibility was still good. The stricken vessel seemed to be almost close enough to touch. He stood staring “like a zombie”[4], “dumbstruck”, feeling helpless. He could hear the sound of steam being forced from the ruptured boilers of HMAS Voyager with a rushing, whistling noise; and he heard the fearful screams of the men trapped below decks. As he watched, the two ships seemed to be drifting at a similar speed, stuck together. HMAS Melbourne slowed. Mr Burke saw men jumping from Voyager into the water;[5] or, as he later acknowledged during cross examination, perhaps into life-rafts.[6]
[2]T.87.
[3]T.88.
[4]T.90.
[5]T.88.
[6]T.207.
Although he cannot now recall doing so, Mr Burk made his way to his emergency station on the flight deck. As the rescue operation proceeded, he remembered “helicopters going everywhere with searchlights” looking for survivors while he helped to distribute blankets and hot chocolate to those who, having been found, were brought to the aircraft carrier’s hangars. The ship’s spotlight was held on what remained of HMAS Voyager until, as midnight approached, it sank.
By early morning, HMAS Melbourne had commenced its return to Sydney. Despite calm conditions, progress was slow. Mr Burk recalls being worried that if the weather got up, the ship might founder. He had a vague memory of being off Wollongong at midday the next day and arriving at Garden Island at about six the day after. At some time he slept but he had little recollection of the return trip. He does remember, however, that two announcements were made over the public address system. One informed the ship’s company that HMAS Melbourne would be taken to the Cockatoo Island Naval Dockyard for repairs. The other, according to Mr Burk, was an order that they were “not to discuss the accident with anybody.” Mr Burk did not take this to mean his shipmates; but he said in evidence that he did believe that it applied to “virtually everybody else”.[7]
[7]T.92.
There was one other incident that remained in Mr Burk’s mind from the trip from Jervis Bay to Sydney: he encountered Rod Layfield, a friend who had been rescued from HMAS Voyager. Layfield was standing on the weather deck with a group of other survivors. Mr Burk greeted him warmly. The response came out of the blue, and left Mr Burk in a state of shock. The entire group, including Layfield, turned their backs on him. As he saw it, the message was brutally forthright: according to Layfield and his Voyager colleagues, the blame for the sinking of their ship lay with HMAS Melbourne and all on board her, including Mr Burk himself. He was therefore to be ostracised; an experience repeated when, having disembarked at Cockatoo Island, he and other members of Melbourne’s crew went to a pub. They were in uniform, and so could be identified by the HMAS Melbourne tally band around their navy hats. A group of civilians were discussing the collision. They had already bestowed upon the aircraft carrier the epithet of “the killer ship”. Mr Burk overheard them. Faced with this hostility, he and his shipmates concealed their hats and quietly disappeared.
Other background material
The plaintiff was born, in Tasmania, on 28 December 1940. He is therefore now 65 years of age. He is the younger of two boys; his elder brother, Raymond, is three years his senior. His education began at the Railton Primary School, Railton being a Tasmanian town dominated by the “Goliath” cement works, where for a time Mr Burk’s father was employed.
The plaintiff completed his secondary education at the Sheffield Area School, where he obtained his Modern School Leaving Certificate. He was academically average, and sports mad; that too was doubtless typical. Cricket, football, tennis and other sports were part of the scheme of things, both at school and in the local community.
Mr Burk’s first job was as an apprentice to a butcher. He then joined Goliath as a “calcinator”, doing shift work. This was followed by a quick promotion to the laboratory, where samples of product were tested to ensure that standards were maintained. He was then 17 years of age, or thereabouts, and (as a shift worker) was on an adult wage although he could not - and did not - consume alcohol because he was under the legal drinking age.
The wider world beckoned, and the plaintiff answered the call. A family friend had been in the Navy during the War, and loved it. His nostalgic wish to recapture his days in the service quickened the plaintiff’s interest in a naval career. On 28 September 1958, being all of 17 years and nine months old, Mr Burk enlisted.
His basic training was completed, in Victoria, at HMAS Cerberus, from which – having passed all his subjects - he graduated in the top half of his class in mid-December 1958. He was drafted into a squadron of the Fleet Air Arm stationed at HMAS Albatross, near Nowra. Life was good. He was young and fit. He enjoyed his work, accepted naval discipline, played much sport, and made friends. For two years he trained in weapons mechanics before joining a sea-going squadron, Squadron 805, in January 1961.
Mr Burk’s first tour of duty at sea began a little later that month. Squadron 805 was attached to HMAS Melbourne, so it was to the Navy’s flagship that the plaintiff was posted. It was, as the plaintiff said in his evidence in chief, a “dream come true”.[8] Once he found his sea legs (though he was never physically seasick) the plaintiff loved it, as he loved his time at HMAS Albatross: “the best time of my life”.[9]
[8]T.71.
[9]T.71.
Shortly before the tour of duty began, the plaintiff met Elaine Thompson. They decided to correspond. It was the beginning of a long romance, enlivened by letters from her to him and from him to the girl he addressed as “Rossie”; letters which she took the trouble to retain. Some of that correspondence formed an important part of the evidence in this case. It is the product of a man who expressed himself well, and of a mind that was fully involved in the pleasure of authorship. The picture is of a young adult male who was easy to like, and who was in love with the woman to whom he was writing. She reciprocated.
Some of the qualities evident in both plaintiff and his (then) future wife during those years of courtship were apparent as they gave their evidence in this case. It could not have been easy for either of them. Much that would ordinarily remain private was, sometimes painfully, revealed; but through it, both retained their dignity. I did not accept all their evidence, although both were, I believe, endeavouring at most if not at all times to be dispassionately accurate. For my part, it was and is my duty to understand, and make allowance for, the stress under which many of those called to give evidence, but particularly Mr and Mrs Burk, were operating while doing so; and to refrain from being judgmental. This case turns on whether or not the plaintiff suffers from a particular disease or disorder; no more and no less.
Rodney Burk and Elaine Thompson were married in February 1965. She was by then a fully qualified nurse, and when the couple moved into naval accommodation at Nowra, Mrs Burk obtained a position at the Nowra Base Hospital. She enjoyed nursing then and has continued to enjoy it since, although she has not always been in continuous full-time paid employment. Indeed, after the couple’s first child (Warwick) was born in October 1966 she was fully engaged with the family for some four years.
A second child, Stephen, arrived in September 1967 - at about the time of Mr Burk’s resignation from the Navy. He then re-joined his former employer, Goliath Cement, where he remained for the next 18 years, until his resignation in 1985. In the meantime, the third and last child, Kelvin, was born in December 1970.
Following Mr Burk’s resignation from Goliath, he concentrated on an interest in greyhounds which until then had been restricted by commitments at work. There is some controversy about whether for a period from 1985 he should properly be described as a professional dog owner and trainer; his involvement with greyhounds finally ceased in 2000. That controversy aside, it is clear that the plaintiff’s career as an employee effectively came to an end when the Goliath connection was severed. But more of that later in this judgment.
The Pleadings
This proceeding was begun by Writ filed, on behalf of the plaintiff, on 28 May 1999. Mr Burk pleads that he was at all material times an enlisted member of the RAN, holding the rank of Naval Airman and employed by the Department of the Navy, being a Department of the Commonwealth. While the defendant admits the first of these allegations, it denies the claim of Departmental employment. Not surprisingly, nothing was made of this at trial.
In response to a plea that Mr Burk was on HMAS Melbourne on 10 February 1964 in the course of his employment with the Commonwealth, the defendant admits that he was so present “during the course of his service” with the RAN, but otherwise denies the allegation. Again, the denial – for what it was worth - was not pressed at trial.
The Commonwealth admits that a collision occurred between HMAS Melbourne and HMAS Voyager on the night of 10 February 1964 at approximately 2056 hours Eastern Standard Time upon the high seas about 20 miles south east of Jervis Bay. It further admits that the officers and crew of the two ships were officers and servants of the Commonwealth acting in the course of their service as such. Importantly, the defendant admits that the collision was caused by the negligence of the officers and crew of the two vessels (although it denies that it failed to ensure that the ships and their equipment were in a seaworthy and safe condition, or failed to ensure all persons on board were properly trained and prepared for the eventuality of a collision or other catastrophe). It denies that other officers and servants of the Commonwealth were negligent. [10]
[10]Paragraph 5(a) to (c) of the Defence dated 10 July 1999.
The plaintiff alleges that as a result of the collision he was injured and has suffered loss and damage. Eighteen particulars of injuries are pleaded, including a claim that the collision caused, aggravated, accelerated, exacerbated and/or resulted in post traumatic stress disorder (“PTSD”).[11] The plaintiff’s case at trial was confined to this injury,[12] which he alleges is a “disorder” within the meaning of s.5(1A) of the Limitation of Actions Act 1958. According to his statement of claim, it was not until 1997 or thereabouts that he first knew of his condition. It was, necessarily, also only then that he was able to attribute the disorder to the collision at sea on 10 February 1964.
[11]Particular (a) to paragraph 6 of the Statement of Claim filed 28 May 1999.
[12]T.1509.
The defendant admits that PTSD falls within the meaning of the expression “disorder” in s.5(1A), but denies that Mr Burk is its victim.[13] Given that denial, the defendant cannot, and therefore does not, admit that the plaintiff first knew of the relevant facts in or about the year 1997.
[13]Paragraph 8(a) & (b) of the defence, dated 10 July 1999.
Evidence was led at trial about particulars of certain injuries that in the end were not pressed by the plaintiff. For example, particular (b) to paragraph 6 of the statement of claim alleges “Stress, anxiety, nervousness and psychological reaction resulting in alcohol and cigarette addiction and the development of hypertension”; and, again, particular (c) refers to “Sleep disturbance involving difficulties falling asleep, staying asleep, restless sleep, nightmares, which has resulted in tiredness, lethargy, listlessness and sweating at night.” Given, however, that the plaintiff alleges PTSD -but no other injury - I will for the purposes of this judgment take it that any evidence led on these topics is relevant only insofar as it points to the existence, or otherwise, of PTSD. I will not, therefore, have regard to evidence about alcohol consumption in relation to any claim now brought by Mr Burk, save to the extent that it might (for example) be a manifestation of what the psychiatrists refer to as “persistent avoidance”: see the discussion at paragraphs [81] et seq. below. It is in consequence unnecessary for the Commonwealth to rely on its pleas that it cannot be held responsible for any injuries or damage suffered by Mr Burk due to excessive consumption of alcohol or tobacco; or that such injuries or damage are too remote or not reasonably foreseeable; or that the plaintiff was guilty of contributory negligence.[14] Those pleas are now irrelevant.
[14]Ibid, paragraph 10(a) & (b).
In his particulars (dated 6 September 2002) of special damage and loss of earning capacity, the plaintiff claims, amongst other things, the future medical expense of 40 psychiatric counselling sessions at $225.00 per session: a total of $9,000.00. In relation to loss of income and loss of earning capacity, he says that it had been his intention to remain in the RAN for at least twenty years. His evidence was that he justifiably expected to be successively promoted from Naval Airman First Class to Leading Airman (Navy) (an acting rank he eventually achieved – but not until 1967, somewhat later than was usual); from Leading Airman to Petty Officer; and finally from Petty Officer to Chief Petty Officer. After twenty years of naval service, it is likely (he claims) that he would on his voluntary discharge from the Navy have obtained a position as paymaster of a business such as the one he I fact joined on discharge: an industrial concern operating in Railton, Tasmania (and perhaps elsewhere) known as “Goliath Cement”. The plaintiff also contends that, but for his injuries, he would have remained in that employment, or in “at least a similar or commensurate employment”, until the age of 65. Instead, he resigned from the RAN in 1967 at the expiration of his initial term of nine years. Although he did thereafter become an employee of Goliath Cement, with whom he remained for the 18 years that followed, he resigned in September 1985 because “[i]n consequence of his psychiatric disorder he felt no longer able to cope with that employment and has since been substantially unemployed.”[15]
[15]Particulars of Special Damage and Loss of Earning Capacity dated 6 September 2002, p.3.
The Evidence Concerning Post Traumatic Stress Disorder
DSM IV Criteria
The parties agreed that it is appropriate, in determining whether Mr Burk is suffering from PTSD, to use the criteria in a Manual published by the American Psychiatric Association in 2000. It is entitled Diagnostic and Statistical Manual of Mental Disorders (4th Edition)(Text Revision), and is sometimes referred to as “DSM-IV-TR”; but for convenience I shall further shorten its title to “DSM-IV”. An extract was, by consent, tendered into evidence.[16] I turn to it in detail below. For the moment it is necessary only to note two things about it. First, it is not to be read as a statute. Secondly, and subject to the above, it sets out the six criteria that are to be met before a patient can properly be diagnosed as suffering from PTSD. These are to be found at pages 467 and 468 of the Manual. In general terms, they can be described as: (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.
[16]Exhibit D6.
As all the expert witnesses agreed, and as DSM-IV itself makes clear, each criterion must be satisfied before a diagnosis of PTSD may be made. DSM-IV states that symptoms - such as “avoidance”, “numbing” and increased arousal - which were present before exposure to the stressor, do not meet the criteria[17]. It is of course incumbent on any plaintiff to establish a causal link between the trauma and the stress.
[17]See commentary in relation to differential diagnosis at p.467.
PTSD may be acute (if the duration of symptoms is less than 3 months), chronic (where symptoms persist for 3 months or more), or occur with delayed onset (if symptoms begin at least 6 months after the initiating traumatic event).
There are difficulties in the diagnosis of the condition. When the symptoms are as vague as, for example, “irritability”, issues of degree and of individual judgment -about which opinions might reasonably differ - come into play. Moreover, many of the indicia of PTSD as listed in DSM-IV are non-specific: they are, in other words, also indicia of other ailments and conditions. Some of these may be mental disorders; others not. The approach to diagnosis may also, it seems to me, legitimately vary - albeit only in its emphasis - depending on whether its purpose is (on the one hand) treatment or (on the other) assessment for compensation.
I should explain. We are here concerned with whether or not the plaintiff has contracted a compensable mental illness the symptoms of which may also be mere indicators of a variety of other things, including one’s habitual way of behaving. The court must of course focus on whether a basis for compensation exists. Where a plaintiff claims to suffer from PTSD as a compensable mental disorder, it is essential to remember that he or she must prove on the balance of probabilities that he or she is suffering from a disorder. It is thus necessary to have regard to the array of symptoms as a whole and determine whether on the balance of probabilities the overall effect is so serious that it will cause “clinically significant distress or impairment” in the relevant areas of functioning.
A medical practitioner seeking accurately to diagnose a patient who may be suffering from PTSD will take the same general approach. In clinical practice, however, the diagnostic process will not be viewed as a necessary prelude to litigation; it will, rather, be seen as essential to the choice of the appropriate treatment. When taking patient histories in these circumstances, and in treatment, forensic concepts such as the burden of proof will be out of place; and treatment may be indicated although the patient suffers from some only of the symptoms that together amount to the disorder with which this proceeding is concerned. A clinician, while exercising commonsense and judgment and being vigilant for inconsistencies, does not cross-examine his or her patient as if in a court of law. Nor, in general, can he or she verify the patient’s history and symptoms – certainly not by hearing from the array of witnesses that form part of the adversarial process. Both the medical and the legal process must be conducted with rigour; but just as the aims and objectives of each differ, so will the care to be taken in achieving the desired ends differ, albeit to a minor degree, in its emphasis.
I mention these points so that the reader may appreciate the general background against which I have approached my task of evaluating the medical evidence.
One of the expert witnesses called before me was Professor Richard Bryant.[18] He is the Scientia Professor of Psychology at the University of New South Wales and Director of the PTSD Unit at Westmead Hospital. I found him to be an impressive witness. It is I think appropriate at this point to refer to his evidence, which I accept, about the diagnosis of PTSD. He was taken by senior counsel for the Commonwealth to the diagnostic criteria set out in DSM-IV, and in particular to criterion F: “The disturbance causes significant distress or impairment in social, occupational or other areas of functioning.” He responded:[19]
“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.”
[18]T.1286 ff.
[19]T.1306-1307.
I now turn to a detailed examination of the evidence given by both lay and expert witnesses in relation to each criterion of DSM-IV. I will attempt to give particular emphasis to any variation between the history given to the experts, and upon which they based their diagnoses, and the evidence given by Mr Burk and others at trial. Discrepancies appear at a number of points. In some instances there are contradictions or inconsistencies between the history and the subsequent evidence; in others, the plaintiff when in the witness box spoke in general terms rather than in the detail to which he referred whilst giving his account to the relevant experts. Yet again, some topics addressed in the histories provided by the plaintiff to those experts were not the subject of Mr Burk’s or his lay witnesses’ evidence before me. In these instances, 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.
There is of course no equivalent in this State of s.60 of the Evidence Act 1995 (NSW). This section provides that the hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation. Nor is there in Victorian law an equivalent of s.72 of that Act, which provides that the hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.
Exposure to a traumatic event (Criterion A)
Criterion A of DSM-IV provides:
“A.The person has been exposed to a traumatic event in which both of the following were present:
(1)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others;
(2)the person’s response involved intense fear, helplessness, or horror.”
There is no doubt that the collision between HMAS Melbourne and HMAS Voyager fell into one or other of these categories. The commentary in DSM-IV describes traumatic events as including “military combat, violent personal assault …, being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp, natural or manmade disasters, severe automobile accidents, or being diagnosed with a life-threatening illness.”[20] Mr Burk was a participant in a manmade disaster unprecedented in Australian naval history - an incident far worse in every sense than any automobile accident, however severe.
[20]Exhibit 6, pp. 463-4
I accept in this context the evidence of Professor Alexander McFarlane, Head of the Department of Psychiatry at the University of Adelaide, Clinical Professor at The Flinders University of South Australia and Senior Visiting Medical Specialist at the Royal Adelaide Hospital. Professor McFarlane said that 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.[21] But on 10 February 1964, Mr Burk and his fellow sailors were confronted by the sudden and totally unexpected destruction of an Australian warship and the death and serious injury which that involved. In the opinion of Professor McFarlane, because this was “an event of major proportions … one of the greatest disasters in the 20th century in Australia”[22], it was in his clinical judgment a “traumatic event”. In the circumstances, this conclusion was inevitable, and in any event was not contentious. I also accept that for presently relevant purposes the “event” is not limited to the actual collision; it may also encompass its aftermath, such as “the rescue and dealing with the immediate disorganization.”[23]
[21]T.507-508
[22]T.489
[23]T.509
According to Professor McFarlane, a person may “witness” an event not only by actually seeing what happened, but also by a combination of sensory experiences at the time and subsequent information about the facts. I accept that that is so. 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. In relation to this point, I accept the opinion expressed by Dr Ian Burges-Watson, a psychiatrist who was called on behalf of the plaintiff, that Mr Burk’s physical proximity to the epicentre of the collision was “significant”.[24]
[24]T.358
Of the two elements of Criterion A, the first (the threat) is therefore readily satisfied. The second (the response) is a little more problematic. Professor McFarlane was of the opinion, based on Mr Burk’s history of being “utterly dumbfounded”[25] and experiencing confusion and fear on the night of the collision, that he felt intense fear and helplessness. The history I accept; but I do not altogether share the conclusion. Doubtless the plaintiff was utterly dumbfounded. Doubtless, too, he did experience both confusion and fear. Indeed, he may well have been intensely frightened, albeit only momentarily, for his own immediate physical integrity. After that he may for a time have wondered whether HMAS Melbourne itself might sink; but he could not rationally have been fearful that, even had there been a further disaster of this kind, he might drown or be injured in that process: there was never any suggestion that the flagship was in imminent danger, or that rescue processes would be less than entirely adequate. And there is in any event no evidence that Mr Burk had any fear for his personal safety should his ship founder. From the witness box, Mr Burk merely recounted his feeling of relief that the weather was calm during the return trip to Sydney, because he was worried that the ship might sink if the weather “got up”.[26]
[25]T.471, 473
[26]T.92.
Next there is the issue of intense feelings of helplessness. Here the evidence falls short of that required if this element is to be made out. Even accepting that the plaintiff’s desire to do more might be a natural reaction, it fell well short of the requisite intensity. Mr Burk agreed, after all, that he was able to help; and the emergency procedures and rescue efforts – to which he contributed - were all performed properly and efficiently. He gave evidence of assisting with the distribution of blankets and hot chocolate, but he did not give a specific description of any distress or helplessness he may have experienced at the sight of the survivors or their injuries.
But if Mr Burk did not experience intense fear or helplessness, I agree with Professor McFarlane that he was a victim of the natural human reaction of intense horror to the events of that dreadful night. In coming to this conclusion, I have had regard not only to the evidence of Professor McFarlane, but also to my own assessment of Mr Burk’s character and to the evidence given by Professor David Horne,[27] Professor of Psycho-Oncology at Queen Elizabeth Hospital in Birmingham and Honorary Professor at the School of Psychology in the University of Birmingham, who was called on behalf of the plaintiff.
[27]T.408.
Another witness is important here, because he was called by the Commonwealth. I have already referred to Professor Richard Bryant, Scientia Professor of Psychology at the University of New South Wales and Director of the PTSD Unit at Westmead Hospital. He shared the view that Criterion A is made out. [28] I accept that this is so.
[28]T.1304.
Persistent re-experiencing of the event (Criterion B)
Criterion B of DSM-IV is described in the 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 …[29]
(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.”
[29]I omit notes applicable to young children
An important point should be made at once. While bearing in mind that Criterion B is not to be read as if it had statutory force, nevertheless it is concerned with persistent re-experiencing, manifested in a number of specified ways, of a traumatic event. With that consideration as background, I turn to each of the specified symptoms.
(1) Recurrent and intrusive distressing recollections
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. Mere memory will not do; and the recollections must be not only recurrent, but so sharp and focussed that they bring the event vividly back to life in an intrusive and distressing way .
According to Dr Burges-Watson, Mr Burk told him that he continually had intrusive memories of the time when he first saw HMAS Voyager after the collision, and of the screams, the shouting and the steam.[30] The plaintiff told Professor McFarlane that until 1975 he found it difficult to “get away from” memories of the collision, but thereafter he became preoccupied with other things and it was only when his mind was not focussed or when he was doing mundane jobs, that the memories would be “troublesome”.[31] At the time of his interview with Professor McFarlane in 2001, the plaintiff reported having daily memories of the collision. These Professor McFarlane attributed in part to being interviewed by many people with the result that he tended to focus on it. The description of the plaintiff being troubled or preoccupied by these memories does not appear to match the language of Criterion B(1) which speaks of “intrusive distressing recollections of the events”. In this context I note the evidence of Professor Bryant that, in an interview with him, the plaintiff did not describe psychological distress in response to reminders of the collision.[32]
[30]T.345.
[31]T.478-479.
[32]T.1309.
In early 1999, Mr Robert Wilks, a Clinical Psychologist called on behalf of the plaintiff, took a history from Mr Burk. This is recorded in a report dated 6 March 1999.[33] Mr Burk told Mr Wilks that by early 1967 he was suffering from a number of symptoms which included “intrusive recollections (which would make him tense and which he would attempt to block out) of images of Voyager sinking”. These symptoms started in late 1964 and built in intensity. According to the history given to Mr Wilks there was a “slow ‘insidious’ continuance and intensification” of the symptoms, including the intrusive recollections, after the plaintiff left the RAN and joined Goliath Cement, culminating in the plaintiff leaving that company in 1985. The symptoms continued through the period 1985 to 1999, although they reduced “a little in intensity as the years went on”. Nonetheless, Mr Burk did not seek treatment for psychological distress as he thought he had done a good job of blocking the Voyager out.
[33]Exhibit P14.
Mr Wilks prepared two further reports. That dated 23 May 2002[34] recorded that in the period 1999 to 2002 the plaintiff experienced daily intrusive recollections of seeing the stricken HMAS Voyager. These at times caused his heart to race. The plaintiff would try to think of something else. Then, in the most recent report (dated 18 February 2005)[35] Mr Wilks includes the following remarks made by the plaintiff:
“’… it can happen any time … it’s a picture … I rush up on to Three Deck and the Voyager is right there in front of my face … it’s happened so many times I’m used to it [that phrase being Mr Burk’s response to being asked if he experiences reactivity to his recollections] … I try and get rid of it as soon as I can … just block it out and focus on something else.”
[34]Exhibit P15.
[35]Exhibit P16.
The history given by the plaintiff to the several expert witnesses who examined him did not always coincide with the evidence at trial. Thus, at trial Mr Burk gave evidence that when he returned to HMAS Albatross at Nowra in late 1964, and for the next two and a half years, he “pushed the collision and everything to the best of my recollection out of my mind, as far as I … possibly could. I didn’t dwell on it, never thought about it, and actually I was looking forward to going back to sea, in ’67, for a while.”[36] Later he said the intrusive recollections of the collision, which he described as “flashbacks”, did not begin until about 1969 or 1970. This was after he commenced his post-naval employment with Goliath Cement.[37]
[36]T.120-121. See also T.130.
[37]T.259.
(2) Recurrent distressing dreams of the event
The commentary in DSM-IV notes that re-experiencing may include “recurrent distressing dreams during which the event can be replayed or otherwise represented”.[38] Mr Burk gave evidence about his experience of this phenomenon. Two dreams in particular began to trouble him in the early 1970s and thereafter persisted for many years. In one, he found himself exposed on the flight deck of HMAS Melbourne as it travelled up a narrow winding river at “a terrible pace”. The ship was rolling so much that eventually he was reduced to “hanging onto the flight deck by my fingernails”[39] as the huge vessel swung from side to side. In the other dream, Mr Burk was trapped underground. He did not associate this second dream with HMAS Melbourne; indeed, he agreed that neither dream replicated the events of 10 February 1964. However, each “used to frighten the life out of me”.[40] Since he started talking about the dreams, approximately six years ago, he has stopped having that which features HMAS Melbourne, but he continues to have the one about being trapped underground. A third dream, experienced over the last couple of years, is of being in a car reversing out of his driveway onto a “massive highway” busy with traffic; as he puts his foot on the brake, the car moves faster. He wakes from this dream with a cramp in his leg caused by “trying to drive the brake pedal through the bed”.[41]
[38]Exhibit D6, p. 464.
[39]T.136.
[40]T.137.
[41]T.138.
It was submitted on behalf of the defendant that the dreams as recounted by Mr Burk could not be described as “[t]he traumatic event [being] persistently re-experienced” through “recurrent distressing dreams” as required by Criterion B. I observe, however, that the commentary in DSM-IV refers to “recurrent distressing dreams during which the event can be replayed or otherwise represented.”[42] (my emphasis). In my view this would allow for account to be taken of dreams that might reproduce the experience of the traumatic event while not exactly reproducing the event itself. I have already noted[43] that the Court should not approach the DSM-IV criteria as if they were incorporated into an Act of parliament. It must always be remembered that they are primarily designed for medical experts exercising professional and clinical judgment.
[42]Exhibit D6, p. 464.
[43]At [48] above.
The Commonwealth submits that Mr Burk’s dream about hanging onto the flight deck of HMAS Melbourne is consistent with an experience recounted by him in a letter written in early June 1961 when on a tour of duty to Hong Kong. It was addressed to the woman who was to become his wife. He said:
“… and at a quarter to eight [we] found ourselves sliding out to sea into the teeth of [a] howling typhoon called Alice. A most unpleasant night and the following day was spent dodging the typhoon. We succeeded in dodging the main blow but we couldn’t get away from the rough seas. Rough is a mild estimate. Some of the waves which hit us were king size. Melbourne really worked up a dazzling rock routine. Which left me with many visions of hanging over the side. But which were conquered like a true sailor? [On] Saturday morning we slipped back into Hong Kong for the remainder of our stay.”[44]
When this passage was put to the plaintiff during cross examination, he said he thought his use of the phrase “hanging over the side” was a reference to feeling nauseous – a feeling he managed to overcome.[45]
[44]Exhibit P3, pp.1003-1004.
[45]T.212.
Dr Burges-Watson was of the opinion that the dream about hanging on to HMAS Melbourne, as well as that in which the sleeper was trapped underground, satisfied Criterion B. It is true that neither involved a collision at sea, or a sea rescue, or damage to vessels, or to anything being sunk. According to Dr Burges-Watson, however, it is uncommon for those who have experienced a traumatic event to later reproduce it in their dreams exactly as it was; instead, they are more likely to have nightmares a central element of which is linked to that experience. In this instance, dreams about hanging from the side of HMAS Melbourne or being trapped underground “so clearly mirror part of his experience that it is reasonable to assume they were Melbourne-related.”[46] Thus, on this theory, the fear of being trapped, which is a feature of the underground dream, is consistent with Mr Burk’s general uncomfortableness about being below decks following the collision.
[46]T.347. See also T.387.
Professor McFarlane shared the view of Dr Burges-Watson. Although Mr Burk’s dreams did not re-create the circumstances of 10 February 1964, they did connect to his fears of being thrown into the sea or killed.[47] The professor therefore thought that the dreams fell within Criterion B. Mr Wilks was of the same opinion. I note, however, that the latter recorded Mr Burk telling him that the dream about being trapped was first experienced at some time between 1964 and 1967.[48] This is not consistent with the evidence given by the plaintiff at trial: which put the first occurrence of the dream in the early 1970s. Mr Wilks also expressed the view that the more recent dream - that of driving the reversing car - related to feelings of guilt held by the plaintiff about surviving the collision when others did not. But the connection, if any, is in my opinion tenuous. I think it would be dangerous to ascribe this dream to the collision, especially given that it has arisen only over the last couple of years.
[47]T.490.
[48]T.927.
Mr Wilks himself conceded that understanding dreams is a “highly inexact art”.[49] I accept that that is so. In this context I note the evidence of Dr David Bell, a psychiatrist called by the defendant. He too expressed reservations about the limits of dream interpretation. At the same time, he could not see any necessary causal connection between the collision and either the dream of being on HMAS Melbourne or the one of being trapped underground. Neither therefore played any part in his assessment of whether Mr Burk suffers from PTSD.[50] Dr Bell was, as I understand his evidence, wary of ascribing such a causal connection unless the dream did conjure up a clear-cut, stereotypical mind-picture of the event. To adopt any other position, Dr Bell suggested, would be to take the material “far beyond its reasonable limits”.[51] In cross examination he explained that in order to fulfil Criterion B(2):
“The dreams, themselves, tend to be straight, plain renditions of what happened in the first few days and weeks. They gradually change with the passage of time. They also diminish in terms of frequency and in terms of intensity as they change. If the history is one that fits that pattern, it is convincing.”[52]
[49]T.928.
[50]T.1356.
[51]T.1381.
[52]T.1382-1383.
The plaintiff told Professor Bryant he “may dream of HMAS Melbourne three times a year.”[53] According to the professor, Mr Burk also gave a history that “he did dream about the collision periodically … several times a year”.[54] It is not clear whether by this latter reference Professor Bryant had in mind the dreams already outlined, or other dreams that reproduce the events surrounding the collision. In any event, Professor Bryant expressed the view that having such dreams several times a year was “not in the ballpark of PTSD where, again, we are talking about recurrent dreams that are going to fuel an ongoing anxiety condition, and that is certainly not the profile here”. He went on to explain:
“… in PTSD, the reason we have nightmares is that I am suffering persistent anxiety, and in my sleeping moments I am going to be dreaming about this event because it is primed in my working memory because of the ongoing threat that it poses to me; so dreaming about it several times a year is something that many people will do about a bad experience. But in PTSD, it would be a lot more recurrent because it is actually something that is dominating their lives.”[55]
[53]T.1300.
[54]T.1305.
[55]T.1305-1306.
The evidence of Professor Bryant is consistent with my reading of the diagnostic criteria for post traumatic stress disorder set out in DSM-IV and, to the extent that the professor speaks of a dream that resurfaces several times a year, accords with what is in my understanding the general experience of people who have encountered a particularly distasteful or distressing event. It must be said, however, that Mr Burk gave a different history of the frequency of these nightmares to Dr Allan White, another psychiatrist called by the defendant. He told Dr White that he had the dream about hanging on to HMAS Melbourne “once a night every two or three nights for ‘years and years’, but had not had it for the last month or so, as of November 1999”. Dr White made the following comment about this history:
“… the significance is that we dream about six or eight times a night, every time we go into rapid eye movement sleep, and so it is possible to have the same dream for a couple of weeks. But having the same dream for months or years just is not consistent with the normal physiology of dreams, and it is one of the … giveaways that people may be exaggerating their symptoms when they complain of the same dream for a very long time.”[56]
He therefore thought that the dream about which he was speaking was an unlikely symptom of PTSD. The same comments would apply to the dream about being trapped underground, which the plaintiff told him ran in conjunction with the HMAS Melbourne dream.
[56]T.1466.
The evidence of Professor Bryant and Dr White about the frequency of particular dreams does not appear to be entirely consistent. Nor does Dr White’s evidence appear to be consistent with that part of Criterion B which refers to recurrent distressing dreams of the event. DSM-IV does therefore seem to contemplate that a symptom of PTSD could be recurrent dreams persisting for longer than a matter of weeks. Perhaps Dr White’s reservation lies in the history of the plaintiff having the same dream as frequently as every two or three nights for years. Here Dr Bell’s comments about the changing nature and diminished frequency of dreams is relevant.
Mr Titshall drew my attention to the absence of any history of dreams given by Mr Burk to Dr Poole, his treating GP between 1997 and 1999. Nor did he mention them to Dr Brigid Nielson, a psychiatrist consulted by him and by his wife in February 1994 in relation to marriage difficulties.
This seems to me to be a significant point. Equally significant, I think, is the fact – of which I take judicial knowledge - that many people who have never suffered from post-traumatic stress disorder have nightmares in which their life appears to be threatened. This being so, the evidence here would in my opinion need to establish a closer relationship between dream and traumatic event before one could conclude on the balance of probabilities that Mr Burk’s nightmares had or have their source in the Voyager disaster. That collision did not, it seems to me, create for Mr Burk a life-threatening situation comparable to anything in his dreams.
(3) Flashbacks
PTSD sufferers may experience - over a few seconds, or perhaps hours or even days – a recurrence of the traumatic event; or, in other words, a dissociative state “during which components of the event are relived and the person behaves as though experiencing the event at that moment.”[57] Often referred to as “flashbacks”, these instances are rare, although they can be associated with prolonged distress and heightened arousal. Triggering events “that resemble or symbolize an aspect of the traumatic event”[58] will at times give rise to intense psychological distress or physiological reactivity. The examples given of such occasions include relevant anniversaries; weather similar to that experienced at the time of the event; or being in a similar physical environment.
[57]Ibid.
[58]Ibid.
Professor McFarlane described “flashbacks” in the following terms:
“When somebody has a flashback they will actually feel like they are almost back there in the event. It is almost like dreaming when you are awake, so they have a sort of dissociative quality to them. That is different from somebody who simply has a vivid or distressing memory or recollection of an event. … If you had been involved in the Melbourne/Voyager disaster and then you heard the scraping of metal, and you suddenly felt that you were back there on the ship, you were confused about whether you were here in the present or back there in time, that is a flashback. Now, that is very different from you hearing a sound and then you in your mind being taken back to an event, because you are still very well aware of the sense of hearing in the present here and now. … They actually are daydreams. It is like having a nightmare but you are actually there in the midst of it.”[59]
[59]T.520.
The plaintiff gave evidence that when he was working at Goliath Cement in the pay office, at the time of the second Royal Commission and when the collision was featuring in the newspapers, he would have what he termed “flashbacks” of the collision. These would occur when performing a mundane task, when he “would waft off” to “the exact moment that I ran out on to the weather deck and saw Voyager in my face”.[60] This was happening on a daily basis. As soon as the “flashback” occurred, the plaintiff would “block it out”. This was one of those problems of life with which, according to Mr Burk, he just had to deal; and so he did - for a long time.[61] During cross examination, he agreed that he found the “flashbacks” “most unpleasant”, but he successfully blocked them out and was able to get on with his work.[62]
[60]T.133.
[61]T.133-134.
[62]T.260.
Given this account, Professor McFarlane formed the view that the plaintiff was not experiencing flashbacks in the technical/medical meaning of that word.[63] This view is shared by Professor Bryant[64] and by Dr White.[65] I am of the same opinion.
(4) and (5) Psychological distress or physiological reactivity caused by internal or external cues (“triggering events”)
[63]T.521.
[64]T.1309.
[65]T.1465
The fourth and fifth symptoms listed under Criterion B of DSM-IV – “intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event” and “physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event” – may be examined together. It is to such an examination that I now turn.
Professor McFarlane gave evidence that he received from Mr Burk a history of symptoms following “exposure to internal or external cues”. These included trigger events which would in turn satisfy Criterion B. For example, memories of the collision would come to the plaintiff when he used the toilet. Initially, Mr Burk did not appreciate that there was here a medically relevant connection with the collision; but, given that the image of smashed porcelain formed a striking centrepiece to the plaintiff’s initial impression of the disaster, Professor McFarlane thought that the link was made out. Indeed, the professor took the point further. The way in which the plaintiff recounted this information was, in the opinion of Professor McFarlane, “a very good indicator of the validity of somebody’s complaint”: he did not believe that this was something that the plaintiff could have easily made up.[66]
[66]T.490
There is, however, a difficulty in my adopting the professor’s reasoning. First, it would appear that of all the medical practitioners and other experts to whom Mr Burk recounted his history, only Professor McFarlane was favoured with this aspect of it. Secondly, the matter was, at trial, given no significant attention. Mr Burk was not asked how frequently he experienced this reaction (although of course he must have paid countless visits to the toilet since the collision) or whether he had “intense psychological distress or physiological reactivity” on any or all of those occasions. 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 physiological reactivity at each toilet stop, 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”.
A second triggering event identified by Professor McFarlane was the sound of “metal on metal”. An example of its effect on the plaintiff was his marked over-reaction following some relatively minor car accidents (according to the professor’s note, these made him “come undone”).[67] Professor McFarlane ruled out these accidents as themselves being a cause of PTSD, although, unsurprisingly, he agreed in cross examination that some sort of emotional response would be the norm in a two-car collision, whether or not a participant had been involved in the Melbourne/Voyager collision.
[67]T.519.
Mr Burk gave evidence about the effect of these accidents. One occurred in Queensland when the side of a taxi in which he was a passenger collided with the side of a bus. In another accident two or three years ago, while on his way to an appointment with Professor Horne, the plaintiff drove his car into the back of a vehicle at a Dandenong Road corner and the metal on metal sound caused him to “go into a bit of a meltdown”[68]. Professor Bryant agreed that breaking down and crying following a minor car accident was more than a normal distress reaction to such an incident.[69] Dr Bell also accepted that such a reaction is a possible indicator that Mr Burk does not have normal fortitude.[70]
[68]T.123.
[69]T.1333.
[70]T.1387.
The clinical judgment of Professor McFarlane was that these triggering events fulfilled this criterion. The Commonwealth by contrast submitted that, while the plaintiff might well have re-experienced the Melbourne/Voyager collision on the two occasions when he heard the metal on metal sound during the car accidents, this was hardly evidence of the persistent re-experiencing required by Criterion B. I agree. While the Court should be slow to put to one side the opinion of an expert witness of the calibre of Professor McFarlane, and while the plaintiff’s reaction to the relevant cue was not inconsistent with Criterion B, nonetheless two incidents only is not for forensic purposes enough to demonstrate such persistence as is necessary to meet that criterion.
A third triggering event described by Professor McFarlane occurred when, in 2001, the plaintiff visited HMAS Vampire. She was, like HMAS Voyager, a Daring Class destroyer; and she now forms part of the display at the Maritime Museum in Sydney. Mr Burk told Professor McFarlane that he did not want to go on board because it triggered memories of the collision.[71] Again, Mr Burk did not give evidence about this at trial. The only other expert witness to whom he mentioned this experience was Mr Wilks, who noted in his report dated 23 May 2002 that the plaintiff told him: “I saw the [Vampire], the sister to the Voyager, in Sydney and I freaked out, had a flashback”.[72]
[71]T.477.
[72]Exhibit P15, p.2.
Mr Titshall on behalf of the Commonwealth submitted that the true position is otherwise. In a letter written on 19 July 1964[73] by the plaintiff while on HMAS Melbourne to his fiancée (now wife), he adverts to the presence not only of HMAS Vampire but also of HMAS Vendetta. He describes these as sister ships to HMAS Voyager, but does not suggest that their presence evoked disturbing memories or associations arising from the proximity of not one but two Daring Class destroyers. On the contrary, he says that their presence in company with another destroyer, HMS Leopold, put to rest any fears about attempted sabotage. This, Mr Titshall submitted, demonstrates that Mr Burk had no difficulty in being in proximity to vessels of the class of that which HMAS Melbourne cut in half.
[73]Exhibit P3, page 1076 at 1078.
I remain reluctant to differ from the clinical judgment of Professor McFarlane. And I have little doubt that the sight of HMAS Vampire in 2001 rekindled in the plaintiff memories of the 1964 collision. Those memories on that occasion may have caused Mr Burk to “freak out”, and even experience a medically relevant “flashback”. Nevertheless, the aftermath of the visit to the Maritime Museum could not of itself constitute evidence of persistent but intense psychological distress or physiological reactivity; and even when coupled with the two motor accidents, the necessary threshold is not in my opinion reached. We are, after all, here concerned with a disorder. That expression, it seems to me, carries with it the notion of something that is evidenced on more than rare occasions.
In a similar vein is the evidence of the plaintiff’s reaction to the Thredbo Ski Lodge collapse in the winter of 1997.[74] Professor McFarlane mentioned this in the context of Mr Burk’s general emotional reactivity, noting that the plaintiff was particularly upset by the incident.[75] Mr Burk did speak of this to Professor Bryant, saying that the news disturbed him, although the latter could not recall who raised it first.[76] Mr Burk did not himself give evidence at trial about his reaction to the Thredbo tragedy.
[74]Professor McFarlane thought this event might have occurred in the winter of 2001, but I take judicial notice of the fact that it took place in August 1997
[75]T.483-484
[76]T.1301
The last point is significant. For the reasons discussed in paragraphs [37] and [38] above, there is a barrier against my use of so much of the material the subject of the above discussion as did not form part of Mr Burk’s own evidence. It cannot be received as evidence of the truth of what was said by him to the medical experts.
Conclusion – Criterion B
My conclusions about the question whether the plaintiff satisfies Criterion B are as follows:
(a)I accept that the plaintiff thinks often about the collision. This generally, if not always, has unpleasant connotations. I also accept that Mr Burk’s decision to leave Goliath Cement was due in part to having what he described as “flashbacks” on almost a daily basis, and that he could not cope. On the basis of the history given to Mr Wilks, I would have found that Mr Burk had intrusive distressing recollections of the event. But the plaintiff’s use of the expression “flashbacks” did not match that of DSM-IV, and his evidence at trial often fell well short of that recounted to Mr Wilks – at trial, Mr Burk spoke of the memories being “troublesome”; he said then that he did not dwell on them, and could “block” them out.
(b)I cannot be satisfied on the balance of probabilities that the dreams constitute a re-experiencing of the collision.
(c)I find that Mr Burk has not - in the technically relevant sense of the term “flashbacks” as that term is defined in paragraphs [65] and [66] above – been a victim of that phenomenon.
(d)I am not in a position to find that the “trigger events” described by Professor McFarlane – going to the toilet, the visit to HMAS Vampire, hearing about the Thredbo Ski Lodge disaster – were, as such, established at trial. I accept that the plaintiff has had a negative reaction to the “metal on metal” sound during the motor vehicle accidents, and that this might amount to a re-experiencing of the Melbourne/Voyager collision; I am unable, however, to conclude that he had such a reaction beyond these isolated events. While I think Mr Burk may at times, but not consistently, during his post-collision time in the RAN have felt uneasy when other ships were alongside, I am not satisfied that this apprehension constitutes “re-experiencing” in the relevant sense. In these circumstances, I find that Criterion B has not been fulfilled.
Persistent avoidance and numbing of general responsiveness (Criterion C)
Criterion C of DSM-IV is described in the Manual as follows:
“C.Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:
(1)efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(2)efforts to avoid activities, places, or people that arouse recollections of the trauma;
(3)inability to recall an important aspect of the trauma;
(4)markedly diminished interest or participation in significant activities;
(5)feeling of detachment or estrangement from others;
(6)restricted range of affect (eg. unable to have loving feelings);
(7)sense of foreshortened future (eg. does not expect to have a career, marriage, children, or a normal life span).”
In the commentary DSM-IV emphasises that, if the symptoms of avoidance and numbing of general responsiveness were present before the traumatic event, then those symptoms do not meet the criteria and may require consideration of other diagnoses.[77]
[77]Exhibit D6, p. 467.
(1) Efforts to avoid thoughts, feelings or conversations associated with the trauma
I have already noted in paragraph [9] above the evidence of Mr Burk that an order was made that they were not to discuss the accident with anybody. As a result, he said, he did not discuss the collision with his family, his friends, his work colleagues at Goliath Cement or with any medical practitioner or other professional. In later years the topic may have been mentioned when his sons discovered newspaper cuttings about the collision and the subsequent Royal Commissions. But until 1999, the plaintiff did not discuss the circumstances of the collision with his wife.[78]
[78]T.614.
Mr Burk’s belief that he was ordered not to speak about the Melbourne/Voyager disaster is not supported by the evidence of Commander Halley who, it may be recalled[79], was Damage Control and Training Officer on HMAS Melbourne at the time of the collision. Although he did not hear the announcement himself, Commander Halley was aware, having read the report provided by Captain Robertson to the Admiral, that later in the afternoon of the day following the collision, after being given directions from Canberra “on how to handle the papers”, the captain “made another broadcast in which he stated that whatever he had said about the collision in the morning, they would have to be careful to avoid repeating that sort of remark to any persistent press men.”[80] This did not amount to a prohibition on private conversations; and so Commander Halley denied that any order was made in relation to communication with the outside world about what occurred on the night of the collision. Such an order would have been documented; and Commander Halley would have received a copy, which he did not.[81] I accept that this was so. If Mr Burk understood that he had been ordered not to speak of the collision or its aftermath, then he was mistaken.
[79]See paragraph [5]above.
[80]T.1205-1206.
[81]T.1206, 1220.
In any event, it was not the plaintiff’s evidence that he avoided talking about the collision because the subject was too painful; and he did in fact have a brief discussion about it with his then fiancée. His evidence, rather, was that “we didn’t really get into any detailed discussion about it at all”[82]. This therefore raises the question whether his failure to have “conversations associated with the trauma” may not be a symptom of PTSD; it may instead have been caused by a mistaken belief that the topic was subject to a Naval prohibition. Indeed, he said that his reluctance to speak about it may have been coupled with his understanding of the order given by Captain Robertson.[83] This is consistent with the evidence given by Mrs Burk, who said that when she met the plaintiff at the dock at Garden Island, the plaintiff said to her: “Don’t ask me any questions because we are not going to talk about it.” The next time she saw him, probably the following weekend, she asked what happened and he said: “I only think I know what happened. We are not allowed to talk about it.”
[82]T.130.
[83]T.327-328.
Evidence was given by the plaintiff’s elder brother, Raymond Burk, that when the brothers met at a family function about nine to twelve months after the event, and Raymond asked the plaintiff about the collision “he didn’t speak much about it at all, other than to say that he was thrown about, which I took was after the jolt of the collision …”.[84] The plaintiff “would never talk about it very much” and when asked, “he just seemed to get irritable about it.” Evidence given by a golfing companion, Mr Roy Fox, was that when Mr Burk spoke of his time on HMAS Melbourne, “quite often he got a little bit discomforted” by the topic and “obviously seemed a little bit touchy about it”, so Mr Fox left it alone.[85]
[84]T.773.
[85]T.767-768.
Dr Burges-Watson noted that some sufferers of PTSD can become workaholics to avoid distressing thoughts about the event; it is when they have nothing to do that the intrusive recollections occur.[86] However, in my view this description does not apply to the present case. Indeed, it is entirely inconsistent with the plaintiff’s position, which was that his career and employment were disrupted by PTSD. Thus, the plaintiff downplayed his involvement with greyhounds, which on one view of the evidence was very time-consuming and demanding, and made no attempt to link these activities with an attempt to avoid remembrance of things past. Moreover, the conclusion to which I have come is that Mr Burk, consistently throughout his naval as well as his post-naval career, was not obsessive about his work (as opposed to his greyhounds). Rather, he was competent, he would do as much as was needed to be done, but in general he was not inclined to do more. Like most of us, what was above and beyond the call of duty remained that way, with occasional exceptions. This was the effect of the evidence of each of Mr Wayne Campbell (a contemporary of the plaintiff’s in the Weapons Ordnance section of the Fleet Air Arm, who on his resignation in 1985 had achieved the rank of Acting Lieutenant Commander) and of Mr Evol Kaine (the Paymaster at Goliath Cement).
Alcohol consumption as a means of avoidance
[86]T.362.
In the history which he gave to Professor McFarlane, the plaintiff recounted how, following his return to HMAS Albatross after the collision, he “would drink alcohol to assist his forgetting.”[87] He would also try to “block” thoughts of the event.[88] This, according to the professor, clearly demonstrated self-medication: Mr Burk drank to “assist with the initiation of sleep” and to “make … intrusive memories less troublesome”.[89]
[87]T.475.
[88]T.531.
[89]T.493.
Professor Horne also recorded a history of very moderate drinking before the collision, a rapid escalation following it, and then - after the wedding in 1965 - an attempt to resume earlier patterns. The plaintiff told Professor Horne that his consumption remained moderate between 1967 and 1969, but thereafter it again increased until, by the mid 1980’s, he was consuming six large bottles of beer each day. There was no evidence that his drinking interfered with his work or induced him to violence. Professor Horne concluded that the plaintiff resorted to alcohol as a means of avoiding thoughts of the collision and to reduce anxiety, and although alcohol abuse had been a “moderately disruptive influence” in Mr Burk’s life, it was not a major problem. [90]
[90]T.411-412, 417.
The evidence given at trial by Mr Burk was not entirely consistent with the history recorded by Professors McFarlane or Horne. He did in this context refer to a voyage which, as part of the Fleet Air arm, he took on HMAS Melbourne in May 1964 – that vessel’s first return to sea following the collision. He now says that, with hindsight, he recognises what until recently was obscure: that he drank excessively at times during that voyage in order to shed the memories of that awful February night some months before, and to unwind when he went ashore.[91]
[91]T.114.
In response to this, Mr Titshall pointed to two letters written by the plaintiff to his then fiancée, one which preceded and one which followed the collision. These, he submitted, showed that Mr Burk was no less capable of enjoying his free time after the collision than he was before. In the first letter, written in about June 1961, Mr Burk refers to failing an exam because it was held the day after the squadron party and he “could hardly remember my name, let alone what makes an aeroplane tick.”[92] Then, in a letter dated 10 July 1964, the plaintiff gives an account of getting drunk when he went ashore; he wrote that “it’s been so long since I have had a bad HO had almost forgotten what they be like.”[93] This, Mr Titshall submitted, was not consistent with a pattern of heavy drinking immediately following the collision. It, in common with the incident of June 1961, was (it was submitted) consistent with a night’s relaxation ashore - either during a period of exams or during the course of a period of arduous service abroad. I agree with this analysis.
[92]Exhibit 3, p.1005.
[93]Exhibit 3, p.1058. The letter is set out at length at paragraph [108] below.
In this context, I have regard to evidence given by (the former Acting Lieutenant Commander) Wayne Campbell. He also spent time with the plaintiff, not only when stationed at HMAS Albatross, but also at sea in 4 Charlie mess on HMAS Melbourne. He did not observe any change in the plaintiff’s drinking habits after the collision: Mr Burk enjoyed a drink; but neither before nor after February 1964 was he an exceptional drinker. Nor was there anything unusual about drinking to excess on the first night ashore after being at sea.[94]
[94]T.1433.
Mr Burk also gave evidence that when stationed at HMAS Albatross he did not get badly drunk, although there were “many occasions” when he “would have had more than I would have wanted to have had”.[95] Shortly before he left the RAN, when he was working at the Chief’s Mess, he might have “a couple of drinks” during working hours, but he denied ever being seriously affected by alcohol during the course of duty while in the RAN. He said that between 1968 and 1985 he used to drink at night to help him get to sleep. [96] But he did not give any evidence that he drank in order to forget about the collision or to avoid intrusive memories. Indeed, apart from the references to unwinding when he went ashore, and references to getting to sleep, Mr Burk proffered no explanation for his drinking; he merely stated that, at times, he drank more than he should, while adding that during the voyage which began in May 1964 he drank more when in port than he had when previously on a tour of duty abroad.[97]
[95]T.115.
[96]T.116.
[97]T.112-115
The plaintiff gave evidence that although he started an accounting course at Devonport Technical College while he was working at Goliath Cement, he abandoned it after three or four months because he could not concentrate. He also added that: “I just couldn't cope being out at nights studying and I, for some reason I just didn't want to do it.” [282] Mrs Burk said that her husband told her that he did not do well at the course “because I was not giving him any support”.[283] I accept this evidence, and note that it is, as I find, indicative of the plaintiff’s (very human) tendency to blame others rather than accept his own responsibility.
[282]T.146.
[283]T.629.
Mr Burk did not give evidence at trial about his problems with reading or driving or watching television. Nor did he give any evidence about problems with concentration – either during the remainder of his time in the RAN following the collision, or during his early years at Goliath Cement. On the contrary, he conceded both that his academic performance in the RAN improved after the collision, and also that he was promoted to the office from the store at Goliath Cement because he was a good, reliable worker. This suggests that his problems with concentration arose some time after the collision.
Mrs Burk said that when she and her husband reconciled in 1995 after their separation he soon returned to a restless, agitated state, where he found he could not settle or finish jobs. She gave the example of starting to mow the lawn but not finishing it because he could not concentrate for long enough.[284]
[284]T.640, 650, 652.
During the course of his evidence the plaintiff on occasion lost concentration, losing the thread of his answer or forgetting the question.[285] I accept that this was genuine. A number of the expert witnesses also noted that during their interviews with him, Mr Burk appeared to lose concentration. By contrast, however, Dr White did not detect any sign of problems with concentration during his first interview with the plaintiff,[286] although he recorded Mr Burk telling him, in a further interview in February 2005, that he had such difficulties.[287]
[285]For example, T.118, 124.
[286]T.1476.
[287]T.1478.
The evidence of Ms Shone in relation to the plaintiff’s greyhound interest, however, does not seem to be consistent with this evidence about poor concentration. She gave evidence that he was well organised and disciplined, working to a schedule to ensure that they arrived at the race meetings on time.[288] He also enjoyed studying books to investigate bloodlines.[289] This suggests that it was the mundane nature of his work at Goliath Cement, performed over many years, that caused him to lose interest, and therefore concentration - rather than it being a manifestation of PTSD. The evidence about the plaintiff’s golf, where he has attained a handicap as low as 13, also points to an ability to concentrate. Indeed, the proper conclusion, in my opinion, is that when he was interested, the plaintiff was capable of focussed attention.
[288]See paragraph [174] above.
[289]See paragraph [144] above.
(4) Hypervigilance
Dr Burges-Watson initially found no evidence of hypervigilance, but later took account of the plaintiff’s (a) restlessness when travelling to the mainland by ferry and (b) concern for the safety of his sons.[290] However, Professor McFarlane did not think Mr Burk demonstrated symptoms of hypervigilance.[291] Likewise, the answers given by the plaintiff to questions asked by Professor Bryant about whether he felt safe or comfortable when he went out, or whether he would be on the lookout for things that might hurt him, showed no evidence of hypervigilance.[292] Nor did the plaintiff give any evidence at trial which would support a conclusion that he was, or is, subject to this condition.
[290]T.350.
[291]T.491.
[292]T.1302.
(5) Exaggerated startle response
Professor McFarlane, speaking to the jury, addressed the concept of “exaggerated startle response” in the following terms:
“… I am sure everybody has an extreme reaction if you are given a fright. I mean, that is quite a normal reflex that we have. But there are several issues about startle response that can differ between people. The first one is the actual amplitude of your response - and I am sure you all will have seen some people who, with a minor threat, will jump much more than most people do. So part of the issue is the amplitude. The second issue is most people, for example, if a door slams once they might startle. But if the door then slams a second time people won't startle in the same way, whereas people who have got post traumatic stress disorder don't have that same phenomena of becoming habituated to stimulus; so, in other words, they keep startling to a greater degree than you would expect in that situation. A part of that is to do with the fact that they don't accommodate. Normally, if you can see somebody, or the door is about to slam and then it slams, you won't startle. People with post traumatic stress disorder don't become as conditioned by any warning. Their startle response is much more reflexive, and that is what we try to elicit when we get the history.”[293]
He later added that people suffering from PTSD often have an intolerance to noise and have trouble excluding their environment.[294] Professor McFarlane was not able to elicit any evidence from Mr Burk during his examinations of him to suggest an exaggerated startle response, but agreed that a propensity for the plaintiff to overreact to the sound of a child’s blocks falling over when they were playing might be indicative of this symptom.
[293]T.481-482.
[294]T.560.
Dr Burges-Watson found no evidence of exaggerated startle response in the plaintiff. Professor Bryant’s experience was the same, save that Mr Burk did mention reacting to a car accident with a degree of intensity that surprised the plaintiff himself. But Professor Bryant could not attribute this to anything more than the kind of isolated emotional reaction that many people will have to such an event.
In his application for a disability pension to the DVA in January 2001, the plaintiff noted that his social life had been affected in that he could not tolerate noise.[295] In cross examination he agreed that this was due to the fact that he suffers from tinnitus.[296]
[295]Exhibit D5, qu.4.
[296]T.302.
Goliath Cement carried out blasting twice a day. This was in each case preceded by a siren which, while loud, was generally ignored by the staff in the office. This might, however, have been expected to elicit an exaggerated startle response from the plaintiff. It did not. At one point, Mr Burk said that he could not recall hearing the explosions.[297] This would explain the evidence of Mr Kaine, who was asked in cross-examination whether he noticed “any particular reaction of Mr Burk, that was out of the ordinary, to the blast … [or] to the siren?” His answer was: “No”; and he gave the same answer to the question: “Did you notice at any stage Mr Burk being easily startled or over-reacting to circumstances which startled him?”[298] At another point, however, the plaintiff - when his absence of reaction to the siren and blasting was put to him in cross examination - said a loud explosion “would bother me.”[299]
[297]T.582.
[298]T.959-960.
[299]T.583.
On the basis of the totality of the relevant evidence, I cannot find that the plaintiff has satisfied this aspect of Criterion D.
Conclusion
The plaintiff has not satisfied me that Criterion D is applicable in his case. My reasons are as follows:
(a)I accept that the plaintiff has over extended periods had difficulty getting a good night’s sleep. The symptom therefore exists – or would exist, were it not for the evidence, in the history given to Professor Bryant, that Mr Burk has always had that difficulty. I proceed on the basis that the history is reliable. I also find that these problems were much less troublesome during the period of his relationship with Ms Shone. There is an additional important point: there is no evidence that Mr Burk could not sleep because disturbing memories, or nightmares, or anything else connected to the collision, intruded. Not only that, but many other factors might have caused him to sleep poorly: crying children, problems at work, the effect of alcohol, the pressure of his greyhound interests, his general unhappiness and despondency about his life. I disregard the evidence which suggests the possibility that the plaintiff was suffering from sleep apnoea. Even putting that evidence to one side, however, I cannot be satisfied on the balance of probabilities that the collision was a cause of Mr Burk’s sleeping difficulties.
(b)There is evidence, which I accept, that - when he wished - the plaintiff could be pleasant and amiable. There is also much compelling evidence that, by general disposition which predates the Melbourne/Voyager collision, he becomes more irritable, and becomes so more readily, than most. It follows that, again, the symptom exists; or rather would exist, were it not for the requirement that it not be present before the trauma. I find that, at varying times, this general disposition came into combination with (a) lack of sleep, (b) tension generated at work or in the family, or both, (c) tinnitus and (d) physical pain from a bad back. The combination produced irritability or outbursts of anger. When that combination was broken, as it was for most of the duration of his partnership with Ms Shone (someone who not only shared and supported his interest in greyhounds, but who admired him), Mr Burk’s capacity to be amiable came to the fore.
(c)I accept that the plaintiff has, and has for a number years had, problems with his concentration. Nonetheless, I cannot be satisfied that this was caused by, or is a manifestation of, PTSD.
(d)There is no evidence of hypervigilance.
(e)There is no credible evidence of exaggerated startle response.
Duration of disturbance for more than one month (Criterion E)
Criterion E of DSM-IV is set out in the Manual in the following terms:
“E.Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1 month.”
It is not clear from the wording of this criterion whether the duration of one month is measured from the date of the traumatic event, or whether it is one month from when the “disturbance” began. The final submissions made on behalf of the Commonwealth appear to be predicated on the former view, while the commentary in DSM-IV would suggest the latter. I proceed upon the latter basis. DSM-IV notes that symptoms of PTSD usually appear within the first three months after the traumatic event. The Manual continues:
“Duration of the symptoms varies, with complete recovery occurring within 3 months in approximately half of cases, with many others having persisting symptoms for longer than 12 months after the trauma. In some cases, the course is characterized by a waxing and waning of symptoms. Symptom reactivation may occur in response to reminders of the original trauma, life stressors, or new traumatic events.”[300]
[300]Exhibit D6, p.466.
I put aside, for present purposes, the question whether Mr Burk’s “symptoms” (or, in other words, “disturbances”) about which he complains are a result of the Melbourne/Voyager collision. The evidence is that most if not all of those symptoms endured for more than one month. Criterion E is in this sense established.
Significant distress or impairment in social, occupational, or other important areas of functioning (Criterion F)
DSM-IV describes this criterion, Criterion F, in the following terms:
“F.The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.”
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.”[301]
[301]T.1306-1307.
However, Professor Bryant did point out that a person suffering from PTSD may still be capable of working:
“I mean, people, some people are resilient enough to do that. So I would not say that somebody can't hold down a job and have PTSD … But depending on the severity of the PTSD, the more severe it is the more it is going to limit my capacity to work, and the scenario you just portrayed, of somebody being very, very highly successful, given the symptoms of PTSD, particularly the impact it has on memory, concentration, those sort of necessary skills to be highly functioning, then that would be surprising.”[302]
[302]T.1307-1308.
The plaintiff asserted that:
“The collision had a marked effect on my life, and the problems that arose from that have had a bad effect on me and the way my life has developed…”[303]
So, but for the collision, he would, he thought, have been a better father. He also thought that: “… the collision put extra pressure on my marriage, and created a situation where my wife and I were in continual disharmony, which in turn made it easy for me to seek company outside the marriage.”[304] He nevertheless agreed during cross examination that his academic performance in the RAN improved after the collision: he attributed this to being married, and to the desire for promotion and the benefits that would bring to his wife and the enlarged family to which he was then looking forward.[305] He further conceded that he did not, during the remainder of his time in the Navy after the collision, have any problems applying himself to his career or to his studies.[306]
[303]T.182.
[304]T.182.
[305]T.183, 228-229.
[306]T.194.
When considering Criterion F, Professor McFarlane did not identify any disturbance or impairment which, having PTSD as its source, resulted in the plaintiff resigning from the RAN in 1967, or which restricted the range of occupations he might follow thereafter. The professor did, however, conclude that Mr Burk decided to end his time at Goliath Cement because he was suffering from those family and work-related problems that Professor McFarlane saw as indicating a match with this Criterion.[307]
[307]T.537.
The plaintiff told Dr Burges-Watson that he left the RAN in 1967 because he did not enjoy being at sea any more, and (as part of this) because he could not stay below decks.[308] The plaintiff in his evidence at trial said that “I knew that I just couldn't cope with being at sea.” He was, he said, unhappy about leaving, particularly because it meant that he would not qualify for a pension; but he felt he “wouldn’t be much value to the Navy”.[309] In cross examination Mr Burk agreed that by 1967 he had grown disenchanted with the RAN and with his colleagues, who he thought were “childish, immature and basically idiots”.[310] This played a part in his decision to resign. I have already referred in paragraph [125] above to a letter written by Mr Burk to his wife in April 1967 in which he expresses a preference to be with her and with his son, and bemoans the long separations which are a necessary concomitant of being at sea.
[308]T.338.
[309]T.130-131.
[310]T.223.
In my opinion, it is significant that the plaintiff continued in his employment with the RAN for some three and half years after the collision, at the end of which he elected not to renew his engagement (although he joined the Reserves), and then remained with Goliath Cement for 18 years. In this context, I accept the evidence of Professor Bryant, who expressed the view that “because he 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.”[311] Moreover, the plaintiff’s evidence was that after starting in the store at Goliath Cement, he moved to the office because:
“… my work ethic at that time was above that of the other people in the store, my service training and everything else, and I came to the notice of my foreman as a good, reliable employee at the time.”[312]
He agreed, as do I, that this reliability enabled him to climb the employment ladder within the Goliath structure.
[311]T.1323.
[312]T.261.
When asked about the reasons for discontinuing his accounting course at Devonport Technical College, Mr Burk said he thought he was coping with it academically but agreed that he had difficulty dealing with the demands of the course while also working full time and being a husband and a father.[313] Many others who have attempted to juxtapose these different and exacting roles have encountered just these problems. I cannot be satisfied that the plaintiff’s failure to see these studies through to a conclusion was the result of clinically significant distress or impairment in an important area of functioning.
[313]T.262.
The plaintiff described his decision to leave Goliath Cement in 1985 in the following terms:
“Well, I had been having flashbacks, and that sort of thing, about the collision virtually on a daily basis at work, and in the finish it just got the better of me and I, I went home from work on this particular night and I said to Elaine, ‘Look, I cannot go back to work any more’; and I said to Elaine on previous occasions that I wasn't coping very well and, like an old trooper of a Prince Alfred nurse, she would say, you know, ‘Pull up your socks and get on with life’ and I tried to do this. And anyhow, I had reached the decision where, where I just could not cope any more, and I went into [Dr] Bedisco's office and I broke down in his office, and he said to me ‘What you are doing is, is a very silly thing’. He said ‘Do you want to take some time to consider it?’ And I said, no, I didn't, and he gave me 14 days' sick leave, which I used as a notice of intention to leave, and never went back to work.”[314]
[314]T.151-152.
Yet in an application for the Job Search/Newstart Allowance made in August 1994 the plaintiff, after identifying his last employment as being with Goliath Cement, in answer to the question “Why did you stop work?” said “Disagreement with employer”. In cross examination he could not explain why he made this entry;[315] but, in an application for employment, it looks better than the explanation put to the court in this trial.
[315]T.290.
The plaintiff addressed the question again in January 2001, when (after the institution of this proceeding) he made the application for a disability pension from the DVA to which I referred in paragraph [195] above. In answer to the question “Did your disabilities stop you working in any way?” Mr Burk said:
“I did clerical work. Back pain prevented me from sitting for long periods. Tinnitus helped make me cranky & made ‘phone calls difficult; also concentration problems.”[316]
[316]Exhibit D5, qu.33.
According to Mr Kaine, Mr Burk was not happy at work during the period which preceded his resignation from Goliath Cement. So much is certain. One issue was the employer’s perceived failure to engage relief support when the office staff went on leave. Mr Kaine said that when he took holidays, Mr Burk would perform the duties of both of them, and vice versa. Mr Kaine did not have any problems performing two roles, acknowledging that “we probably didn’t work quite as hard back in those days.”[317] By contrast, Mr Burk felt aggrieved whenever he had to do two jobs at once. Another issue was the plaintiff’s unhappiness at others in the office being, as he thought, promoted above him. One such person was Mr Graham Moore, who started in the office and, after completing an accounting course, was promoted to Chief Clerk and then to Administration Manager, a position slightly senior to Mr Kaine. Mr Burk was not “real impressed” by Mr Moore’s promotions.[318]
[317]T.952.
[318]T.953.
Mr Burk gave no prior warning of his departure. This did not square with Mr Kaine’s understanding that the plaintiff was having no difficulty performing his work. Concentration was not a problem. It did, however, accord with Professor Bryant’s ex post facto assessment that in 1985 Mr Burk was not coping with his role as an employee,[319] and with Mr Kaine’s impression the plaintiff was unhappy in the job.
[319]T.1334.
The Commonwealth submits that Professor Bryant’s opinion is not at odds with the conclusion, which the Commonwealth argues is the correct one, that the plaintiff’s decision to leave Goliath Cement came about in part because he was feeling under pressure with his involvement in greyhounds, an involvement which engaged his heart and mind in ways his work at Goliath did not. Thus Mrs Burk agreed in cross examination that, in his latter years at Goliath, her husband travelled to Hobart, Launceston and Devonport to indulge his interest, not to say passion. However, she added that only on “very, very rare occasions” would he take time off work: in general, everything would be ready by the time he got home.[320] Mr Kaine said that, in the two or three years before the plaintiff left Goliath Cement, he would - on an intermittent basis - leave early to get his dogs to the Hobart races.[321]
[320]T.660.
[321]T.957.
In this context, I have regard to evidence given by the plaintiff about how he felt in the period between his resignation from Goliath Cement and 1990:
“I just, I felt like I was living this crazy life really. I was running around all over the place with the dogs, and half the time I didn't know what I was doing or where I was going. I was under a fair bit of pressure to try and make the dogs pay for themselves, and my marital relationship with my wife was suffering as a result of all this charging around that I was doing, and I wasn't a very nice person to live with at the time. I was very angry, and for many years I had been very angry, and I wasn't, I never slept well for years and years and I was tired, stressed and tired.”[322]
[322]T.155-156.
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.
The evidence about Mr Burk’s attempts to re-enter the workforce after he left Goliath Cement also suggests that there were factors other than PTSD at play. After he separated from his wife, and after his relationship with Ms Shone broke down, the plaintiff in early 1995 went to Wyong in NSW. For a time while there, he lived with an acquaintance from the greyhound industry. He was then on the dole and looking for work, but “because I couldn't do any heavy lifting, and because I had been out of the workforce for so long, nobody really was interested in me.”[323] Mr Burk described a further attempt to re-engage in employment in 1997, when he worked as a storeman for a company, Websters, under the work for the dole scheme. He found that he could not cope; again, heavy lifting was the problem. He had problems with his back and a hernia and then developed “a bad dose of pneumonia” and gout. As a result, in his three months with Websters, he was off sick for one month. He said “they more or less said that if I performed all right that they would give me a job, and I was really trying hard to put everything out of my mind and, and get on with this job. But it never eventuated when the money ran out, and they wouldn't keep me on any longer.”[324]
[323]T.159.
[324]T.153. I digress to note that, while the plaintiff may not have been able to work himself, when he visited Dr Poole for the first time, he said: “I signed my wife up for some part-time work” (T.160).
I am not persuaded that this history, which is undoubtedly one of impairment in an important area of functioning, is clinically significant when the issue is whether the plaintiff suffers from a mental illness. The impairment at this point was physical.
Mr Burk applied for a service pension in 1999 on the grounds of permanent disability. In evidence he said that: “The reason the DVA gave me for granting of the pension was for a number of medical complaints that I had, and including a nervous condition.”[325] Yet, in an application form signed by him, and dated 8 April 1999, in response to a question: “Do you have an ongoing disability, medical condition, illness or addiction that has made it difficult for you to get a job or that affects your ability to work?” the plaintiff answered “Yes” and listed “hernia, gout, Achilles tendon, bad back”.[326] This application was made not only after the plaintiff had contacted his present solicitor about the possibility of having PTSD, but also after he had attended an interview with Mr Wilks - following which the latter diagnosed him with having that condition. I should note in this context that, according to the evidence given by the plaintiff, he struggles with the idea that he suffers from a mental disorder.[327]
[325]T.167.
[326]Exhibit D4, p.4, qu.17.
[327]T.166.
In the 2001 application for a disability pension the plaintiff makes no mention of PTSD; instead, as I have noted in paragraphs [195] and [245]above, the disabilities to which he refers are a bad back and tinnitus. When this was put to him in cross examination, Mr Burk said that he was advised by an advocate that he could not claim for PTSD on this form and that he should confine himself to his complaints about a bad back and a hearing problem. On being pressed about the absence of any mention of PTSD, Mr Burk said he could not claim for it on this form because this application only related to injuries that were suffered in a war zone. He drew a distinction between a disability pension and a service pension.[328]
[328]T.314-316.
Subsequently, it should be noted, a copy of a claim by the plaintiff for an income support pension from the DVA - undated but stamped as being received on 31 May 1999 - was tendered. When asked in the form of application to list details of treatments received in the last twelve months for the injury or illness for which a claim is being made, Mr Burk included “current psychiatric evaluation”.[329] Attached to that document is a handwritten note, signed by the plaintiff, listing various ailments, including “Currently undergoing psychiatric evaluation re post traumatic stress disorder ongoing untreated 1964”.
[329]Exhibit P20, qu.12.
Dr White said that in his view the plaintiff did not satisfy Criterion F – he did not present as someone with a mental illness. He explained his views in the following evidence:
“… 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 …”[330]
[330]T.1474-1475.
Mr Burk does not, in my opinion, satisfy Criterion F. It follows from this, and from my analysis of the evidence pertaining to the other criteria, that I do not think he suffers from Post Traumatic Stress Disorder. I agree with Professor Bryant in stressing the importance of the distinction between normal mood disturbances, and normal alterations in functioning, on the one hand, and mental illness on the other. I also think it important that those who examine cases such as that of Mr Burk be aware of the temptation to conclude that, because there was a traumatic event, and because someone who, having been caught up in it, later exhibits symptoms of the kind to which the DSM-IV criteria relate, that person must suffer from PTSD.
Many of these symptoms, to adopt the terminology used by Dr Bell in his evidence, are non-specific indicators. It seems to me that, in Mr Burk’s case, none were specific. The nearest he got was in his dreams/nightmares, and in his intrusive thoughts. By their nature, however, the dreams could not be said to be the product of the collision, even though one of them (but only one) incorporated HMAS Melbourne. And the intrusive thoughts did not, in my opinion, move beyond the frequent recollections every single member of the surviving crew of each warship would unavoidably encounter throughout the balance of their lives. It was that kind of disaster. But not every member of each surviving crew suffers from PTSD. In those cases, as in that of Mr Burk, the recollections did not cause clinically significant distress or impairment. In this context, it is significant that neither the dreams, nor the intrusive thoughts, nor any of the other symptoms now put forward as indicating a diagnosis of PTSD, caused Mr Burk himself to make the vital link; in other words, to think that the collision was afflicting his life, wretched though some aspects of that life were. Then, in 1997, Mrs Burk saw a television presentation about victims of the collision. It was not until that moment that it occurred to either the plaintiff or his wife that the evening of 10 February 1964 might explain behaviours and moods that had caused both of them much unhappiness over previous decades.
Final Conclusion
It was doubtless a theory worth exploring. In the opinion of some highly respectable psychiatrists and psychologists, the theory was in Mr Burk’s case made out, as it has been in the case of other members of the crew of HMAS Melbourne. It is no reflection on the professionalism of those witnesses that, given Mr Burk’s particular circumstances, I disagree. They did not have the benefit, as I have had, of the testimony of many others; and of the forensic process, including the submissions of counsel. Nor did they have the advantage of comparing the various histories given, at different times and under different circumstances, by Mr Burk; or the expert reports based on those histories; or those histories with the evidence given before me. It is a careful examination of all that mass of material that has led me to dismiss the claim because I am not satisfied on the balance of probabilities that Mr Burk, while his life has certainly not been free of stress and difficulty, presently suffers - or has in the past suffered - from Post Traumatic Stress Disorder.
The claim must be dismissed. Unless the parties satisfy me to the contrary, the usual order as to cost should follow; namely, that they be paid on a party/party basis by the plaintiff to the defendant.
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