Cavenett v Commonwealth of Australia
[2005] VSC 333
•24 August 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 7911 of 1996
| JOHN ROBERT CAVENETT | Plaintiff |
| v | |
| COMMONWEALTH OF AUSTRALIA | Defendant |
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JUDGE: | GILLARD J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7-10, 14-17, 20-22 June 2005 | |
DATE OF JUDGMENT: | 24 August 2005 | |
CASE MAY BE CITED AS: | Cavenett v Commonwealth of Australia | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 333 | |
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TORT – Collision between ships – Personal injuries – Alleged post-traumatic stress disorder – Duration – Damages - Limitation of Actions Act 1958 – Claim statute barred – Whether s.5(1A) applied – Burden of proof – Knowledge of injuries – Subjective test – Plaintiff had knowledge – Cannot rely on s.5(1A).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The Hon. Mr J. Kennan, S.C. with Mr K. Mueller | Hollows |
| For the Defendant | Mr T. Casey, Q.C. with Mr R. Dyer | Australian Government Solicitor |
TABLE OF CONTENTS
Parties
Basic Facts
Issues
Facts
Factual issues
Alleged injury and the factual issues concerning it
Plaintiff’s credibility
Experts
Did the Plaintiff suffer PTSD?
Exposure to traumatic event
Criteria B - F
Economic Loss
Limitation Defence
Conclusion
HIS HONOUR:
The plaintiff in this proceeding, instituted by writ, seeks damages for personal injuries arising out of a collision at sea and loss of earning capacity. His alleged injuries are of a mental nature, namely, post‑traumatic stress disorder (“PTSD”) and depression.
Parties
The plaintiff, John Robert Cavenett (“the plaintiff”) who is now retired and a pensioner, was born on 1 August 1942 and is now aged 62 years. He served in the navy for 20 years and since his discharge some 25 years ago has had a variety of jobs. He ceased work on 22 November 1996. He is in receipt of two pensions, a pension under the Defence Fund Retirement and Death Benefits Act and a 100% Disability Pension due to acute lumbago. He is a married man.
The defendant, the Commonwealth of Australia (“the Commonwealth”) is sued because at all material times the officers and crew of the ships involved in the collision were acting in the course of their service with the Commonwealth as officers and employees of the Commonwealth.
Basic Facts
The basic facts which led to the proceeding can be briefly outlined. On 28 September 1959, when the plaintiff was aged 17 years, he joined the Royal Australian Navy. He successfully completed his training in late 1961. On the evening of 10 February 1964 he was on the naval vessel HMAS Melbourne as a sick berth attendant. On that evening at approximately 8.56pm, a collision occurred between the HMAS Melbourne and the HMAS Voyager upon the high seas about 20 miles south‑east of Jervis Bay. As a result of the collision the vessels were damaged, and the HMAS Voyager suffered substantial damage, eventually sinking. A number of personnel on board HMAS Voyager were killed and many suffered injuries. Immediately after the collision, the plaintiff was engaged in duties as a sick berth attendant. This involved him, inter alia, occupying a small boat on the seas rescuing personnel in the water and on life rafts and providing treatment.
The plaintiff remained in the navy until he was discharged on 14 December 1979. All told he served just over 20 years. At the time of his discharge he had reached the rank of Chief Petty Officer Medical. He had a variety of jobs after his discharge and it was in 1996 that he turned his thoughts to the problems that he had endured since the collision which he thought may have been caused by the collision and its aftermath. He was referred by his general practitioner to a psychiatrist who in October 1996 diagnosed him as having PTSD. On 15 November 1996 he instituted the proceeding in this Court.
Issues
The pleadings have been amended. The amended statement of claim was filed 29 June 1999 and the amended defence on 4 August 1999.
This is a common law proceeding. It is necessary for the plaintiff to prove that the officers and crew of one or other of the ships who were employed by the Commonwealth at the relevant time owed him a duty of care, that a servant or agent of the Commonwealth acting in the course of his engagement was negligent, that the Commonwealth was liable for the negligence, that the negligence was a cause of injuries he suffered. He must prove the damages caused by the injuries suffered and losses and expenses incurred. The amended defence made certain admissions, which relieved the plaintiff from proving that a duty of care was owed by the officers and/or crew of either ship, that the officers and crew were acting in the course of their service with the Commonwealth, that they were negligent and that the Commonwealth was liable for the negligence of the officers and crew.
The plaintiff has to prove that he suffered injury as a result of the negligent conduct, that the negligence was a cause of his injuries, and the quantum of his loss and damage.
The Commonwealth has pleaded that any injury or damage suffered by the plaintiff due to excessive consumption of alcohol and/or tobacco was caused by the plaintiff’s own acts, that in any event the said injuries and damage were too remote and accordingly the plaintiff was not entitled to recover damages for those alleged injuries and damage. In addition, the Commonwealth has pleaded that the plaintiff was guilty of contributory negligence, the particulars of which assert that if he excessively consumed alcohol and tobacco he failed to heed warnings and advice concerning the deleterious effect of excessive consumption of alcohol and/or tobacco.
In addition, the Commonwealth has pleaded that the plaintiff’s cause of action was statute barred by virtue of s.5(1)(a) of the Limitation of Actions Act 1958 (“the Act”). In anticipation that such a defence would be taken, the plaintiff in his amended statement of claim has pleaded that the injuries he suffered were a disorder within the meaning of s.5(1A) of the Act and that the section applied in answer to a defence based on s. 5(1)(a) of the Act. The limitation period of six years from the date the cause of action accrued is made subject to s.5(1A) which if it operates has the effect of postponing the running of time. He went on to assert that he first knew that he suffered his injuries and that they were caused by the collision, in or about April 1996. In its amended defence dated 4 August 1999, the Commonwealth admitted that “post-traumatic stress disorder is a disorder within the meaning of s.5(1A) of the” Act. It otherwise denied that he was suffering from PTSD or any other disease or disorder within the meaning of s.5(1A) of the Act and it otherwise did not admit the allegations made by the plaintiff that the provisions of s.5(1A) of the Act were an answer to the limitation defence raised pursuant to s.5(1)(a) of the Act.
At the outset of the trial, counsel for the Commonwealth sought a ruling as to the effect of the admission made. The Commonwealth had on two occasions in the past attempted to amend the defence to withdraw the admission. The last application was prompted by the Court of Appeal decision of Clark v Stingel.[1] In that case the Court of Appeal by a majority confined the operation of s.5(1A) to a disease or disorder which was contracted at the time of the negligent act or within six years thereafter and which was unknown to the victim. In that case, Eames JA, speaking for the majority, said:[2]
“In my opinion, s.5(1A) is intended only to apply to situations where it was invariably the case that the fact that a person was suffering the disease or disorder could not be known at the moment of its contraction or within, at most, six years of its contraction. Giving s.5(1A) that interpretation provides a fair balance in the legislation between the interests of proposed plaintiffs and defendants. Post‑traumatic stress disorder could arise within a six year period and be known to have been suffered, as indeed might the individual symptoms be known before they combined to constitute post‑traumatic stress disorder. An action within time could then be brought, but where such a disorder did not arise within six years s.23A provided the opportunity for the person suffering the disorder to seek leave to bring an action.”
[1][2005] VSCA 107.
[2]At paragraph 87.
It was contended by the Commonwealth that although it had admitted that the post‑traumatic stress disorder was a disorder within the meaning of s.5(1A) nevertheless they were entitled to argue that the limitation defence was not defeated by s.5(1A) unless the plaintiff proved that the stress disorder occurred within the six year period and was unknown the plaintiff. I ruled that they were bound by their admission.[3]
[3]See ruling given 7 June 2005.
The Commonwealth is entitled to rely upon the limitation defence under s.5(1)(a) of the Act. However, it is open to the plaintiff to defeat the defence by establishing that s.5(1A) applies.
By reason of the admission made by the Commonwealth, the plaintiff is relieved from proving that if he suffered personal injuries, namely, PTSD, it was a disorder contracted by him within the meaning of s.5(1A) of the Act.
Facts
The plaintiff was born on 1 August 1942 in South Australia. His mother was a housewife and his father was employed as an office worker. He was the eldest of five sons. He always had an interest in first aid and joined St John’s Ambulance in 1952. In 1957 he did his Intermediate Certificate year, but failed every subject and left school. The following year he was employed as an invoice clerk in Adelaide for some 12 months, followed by employment as a storeman/packer. On 28 September 1959, at the age of 17 years, he joined the navy. He underwent basic training at HMAS Cerberus at Westernport in this State and after basic training, completed in late 1961, was employed as a sick berth attendant. In the following year he was promoted to sick berth attendant second class and in 1961 he completed an educational test and moral leadership course. In 1962 he underwent a theatre assistant’s course which he passed. A sick berth attendant is in effect a nurse and paramedic and by completing the theatre assistant’s course he achieved a skilled position within the Medical Branch of the Navy. On 22 October 1963 he was posted to HMAS Melbourne as a theatre assistant/sick berth attendant.
On 10 February 1964 a catastrophe occurred when two Royal Australian Navy ships collided.
At about 8.56 pm some 20 miles south-east of Jervis Bay off the coast of New South Wales, an aircraft carrier HMAS Melbourne collided with a destroyer HMAS Voyager. At the moment of collision the plaintiff was in the sick bay on duty as a crash boat medic. The crash boat crew were on duty because of the risk of an aircraft ending up in the sea after attempting to land or take off. The plaintiff felt the collision, went outside, and ascertained that there had been a collision. At that point he thought he saw or heard a metal object going past the Melbourne and scraping it. He returned to the sick bay, and said that he donned foul weather gear. He got into the crash boat, it was launched and moved towards voices that could be heard. He said the seas were very rough, it was very dark and that he was scared. Later evidence which I accept established the swell as a low sea swell of four to five feet, and the weather as a pleasant summer’s night with a slight breeze. He helped to pull injured sailors out of the water into the crash boat or assist them into the boat from a life raft. He said at one point when attempting to move from the crash boat to a raft, he slipped and fell into the water, sank and eventually rose to the surface. He initially thought he would sink and not come up. He stated he started to rise and observed light coming in through the water which guided him to the surface. The crash boat returned to the Melbourne after about 30 minutes. At this stage it was taking water. The plaintiff got back on board and told a superior he did not wish to go back into the sea. He said he was scared, he was not happy, and he was crying at the time. He stated that he felt he had done his duty and that some other sick berth attendant should go back in the crash boat. He was told to do his duty. He stated he took off the foul weather gear and returned to the rescue mission. He was involved in picking up sailors out of the sea and providing medical treatment. He was then transferred to a sea/air rescue launch. This was a much larger vessel than the crash boat. He treated sailors and when the launch returned to the Melbourne the swell was too great to enable the passengers to be off‑loaded. The boat then went to Jervis Bay. He said he was feeling miserable and felt helpless. He said he was totally scared of the water. At Jervis Bay he helped treat survivors and then went to bed. He thought he was in shock.
On 11 February 1964, he was taken to Nowra and then to the Sydney base HMAS Penguin. He was left to find his own accommodation at the base and he felt that he had been abandoned. He said he did not sleep well that night. He stated he had a degree of anger, mostly due to the fact that no one seemed to care, and also because of what had happened. On the following day he went to Garden Island and by this time HMAS Melbourne had returned to Sydney, though in a badly damaged condition. He returned to the ship. He was appointed duty medic which annoyed him because he was told that since he had had a break which was described as a holiday and the others had not, it was appropriate that the others should have leave. He said he complained but was told to do his duty. He said at one point whilst on board HMAS Melbourne he saw a set of brains in a jar and he felt miserable. His anger continued towards the navy because he thought the navy had not done enough. His anger, distress and upset were aggravated by the fact that he and others from the HMAS Melbourne were abused and criticised and called murderers not only by other members of the navy but also the public. He said things got worse to the point where he did not like going ashore. The media was critical of the officers and crew of the HMAS Melbourne. The Royal Commission commenced in March 1964 and for some months those associated with HMAS Melbourne came in for a lot of scrutiny and adverse criticism.
He described that he was having problems. He said he was not sleeping well, waking up after experiencing nightmares, sweating profusely in bed and on occasions screaming out. He said the nightmares appeared to be the same. They comprised two particular subject matters, namely, that he was under the water looking up seeing a halo of light and felt he was drowning, and also seeing something going past and/or scraping the ship. He said that he became terrified of the sea. Sometimes he had dreams that the sea was blood red.
He stated that he commenced to drink heavily. The evidence was that prior to the collision, he was a moderate drinker of alcohol and that he smoked about ten cigarettes a day. He said that after the collision he was drinking pretty heavily all the time and to oblivion. This helped him to sleep.
He was told within the week after the collision not to discuss the collision or the aftermath. This was reinforced after he completed a statement for the Royal Commission on 25 February 1964. He was told not to discuss matters with anyone. Ever since, he has rarely discussed the events of the collision with others or volunteered to anyone that he was involved.
He stated that for the rest of 1964 his nightmares kept recurring. He said he was experiencing them two to three times per week. He felt angry and upset, and he drank to try and cover up. He agreed that his resentment towards the navy still remains today.
The Melbourne was under repair during February to 11 May 1964 and then sailed to Jervis Bay, returned to Sydney on 8 June and on 29 June sailed to and around south‑east Asia until 21 August 1964. The ship returned via Papua New Guinea arriving back in Sydney on 1 September 1964. Between 22 September and 10 November the ship was engaged in exercises and docked in Sydney. The plaintiff was given long leave on 17 December 1964 and on his return to the ship on 10 January 1965 was transferred on 13 January 1965 to HMAS Tarangau, Papua New Guinea. He stated that he was still sleeping badly and suffering from the nightmares.
After transferring to HMAS Tanangau which was on Manus Island, he said his drinking and smoking increased and that he was smoking to 30 to 40 cigarettes per day. He said things improved a little because he was not on water or in a ship. He said he was still having the same nightmares. He stated he became withdrawn. He said that he thought about the collision, he did not want to discuss it, he lacked concentration and was suffering from hangovers. He said his condition got worse when he thought about ships and the sea.
He stated that he did not attribute all the changes in his emotional state to the collision. However, he admitted that by reason of the co-incidence of the collision, the nightmares, especially the same subject matter of the dreams, his mental disturbance, change of sleeping habits and his excess drinking and smoking were caused by the collision and its aftermath.
He remained in New Guinea for a couple of years and returned to a land base in Melbourne. He said the nightmares still continued and he was concerned about being around boats and near to the water. In 1967 he was posted back to Papua New Guinea where he remained for about 14 months, returning to HMAS Penguin in Sydney in April 1968. He spent the next 18 months in Adelaide at a land based appointment, namely, HMAS Encounter. He said that he was still drinking and smoking heavily, and was twice convicted of drunk driving. In July 1970, he went to sea on the HMAS Derwent and remained with that ship for some 18 months. It was a river class frigate which did tours of duty in south-east Asia. He said he became very agitated and frightened, and very scared being on a small ship at sea. He was sleeping badly and had nightmares again involving the same pattern, going down in the sea with a halo of light above and something scraping down the side of the ship. At the end of 1971 he returned to Cerberus for a short period and in June 1972 returned to HMAS Penguin in Sydney where he remained for some three years. Between 1975 to 1979 he was at various land bases throughout Australia.
In late 1979 he resigned from the navy. He told the Court the reason why he resigned was because he was aged 37 years, that although he was a Chief Petty Officer recently appointed, he felt he was at the end of the promotion scale and hence not going anywhere, and he wanted to start out a new life. It was put to him in cross-examination that he left because he had completed the 20 years which entitled him to a pension and, secondly, that he was negotiating the purchase of a business. Initially he disagreed with this suggestion but was shown a letter which he wrote dated 9 November 1979 in which he sought a discharge for two reasons, namely, that he completed 20 years’ continuous service and was currently negotiating the purchase of a business. Another letter was produced which showed that he had sought information concerning receiving a lump sum as part of his superannuation entitlements. He had in fact been promoted to Chief Petty Officer Medical on 23 April 1979. In 1976, the navy had created a new rank, namely, Warrant Officer. This was above Chief Petty Officer but below the rank of Officer. If he stayed in the navy this promotion opportunity would have been available to him.
The evidence showed that many members of the navy leave after 20 years’ service and one officer who gave evidence described that after 20 years service most personnel had had “a gutful” and wanted to move on to do something else.
His attempt to mislead the Court on the reason why he left the navy reflects on his credit as did his vague evidence on when he was entitled to obtain a pension. He said he was unsure and thought it may have been 15 years. I do not believe that he was unsure of the minimum period before he could obtain his pension. He knew it was 20 years.
He did leave the navy in early 1980 and worked for a surgical supply company as a salesman for some 18 months. This involved a lot of travel in a car, and in the end he resigned from that job because he did not want to be a sales representative for life and also found driving for long periods was wearing on his back. He stated that he was still having significant nightmares.
He then undertook work in a real estate agency and this lasted some three months. In 1982 he commenced employment with the Red Cross in New South Wales in charge of first aid training. He remained in that job for approximately ten years and then commenced work at the Hunter Institute of Technology in Newcastle teaching first aid. He ceased that employment in 1996. By this time his low back problem had increased and he found working extremely difficult. By 1996 he had obtained a 90% disability pension which was increased to 100% disability on 3 November 1998. He obtained a gold card which gave him free medical services.
It is necessary to go back in time and summarise the plaintiff’s ranking within the navy. On 28 March 1960 he was promoted to Sick Berth Attendant Class 2 (“SBA”). On 13 August 1961 he was appointed a SBA and on 23 May 1968 he was promoted to Acting Leading SBA.
On 26 June 1969 he was promoted to Leading SBA. On 12 August 1971 he was promoted to Acting Petty Officer SBA, and on 24 August 1972 was promoted to Petty Officer SBA. His title was changed on 1 January 1974 to Petty Officer Medical. On 23 April 1979, he was appointed Chief Petty Officer Medical. The plaintiff said that his promotion prospects were adversely affected by a series of misconduct offences post collision to 1970 and his promotions were delayed. This was not borne out by the evidence. I do not accept his evidence. He received promotion as expected through to 1974. Promotion to Chief Petty Officer was delayed from about 1975. However, there is an explanation for this which I will discuss later.
After the collision, the plaintiff was charged with a number of naval offences. On 20 March 1964, he was charged with absenting himself without leave for one hour 45 minutes and was punished with removal of leave entitlements and the imposition of further duties. On 22 May 1964, he was convicted of negligently failing to perform his duty in that he failed to remove blood from a refrigerator before defrosting. On 3 September 1964 he absented himself again without leave for a period of two hours and ten minutes and it was noted that this was a first repeat offence.
On 27 October 1964, a far more serious transgression occurred. He was in the company of Leading SBA John Ray and they were involved in a drinking binge. They came to the view that they were fed up with the navy and unhappy and did not wish to remain in it. They did not return to their ship but continued drinking. Eventually they sobered up. By this time their ship, the HMAS Melbourne, had left Sydney and the two men hitchhiked to Melbourne to rejoin the ship. All told they were absent some 84 hours without leave. The plaintiff was deprived of one good conduct badge which had taken some four years to obtain, lost a substantial period of leave and was obliged to carry out additional duties. This was a serious offence and one that potentially could have interfered with his prospects of promotion. It did not do so. I will refer to this later.
On 14 August 1966, he was convicted of an offence of behaving towards a superior officer with contempt and again lost leave. On 6 September 1967 when in Papua New Guinea, he was convicted of disorder to the prejudice of naval discipline by creating a disturbance and using insulting language to an Able Seaman. In evidence he told the Court that there had been an incident involving some of the locals in Papua New Guinea which had caused him to become extremely upset. Finally, on 3 August 1970 whilst on the HMAS Derwent, he was convicted of being slack in turning out at 0640 hours. He was admonished. He had no other indiscretions in the following ten years. It is his belief, and it was put on his behalf, that these offences affected his chances of promotion within the navy. I do not accept the evidence or the submission.
The plaintiff gave evidence that he has suffered from his nightmares two or three times per week for most of the last 41 years. He says that they are always about the same topics, namely, the scraping and the fear of drowning in the sea. He stated that he had a real fear of water, and that he was uneasy and unhappy in small ships whilst at sea. In the whole of his 20 years in the navy he was on board ships only for a relatively short period of time. He was on the HMAS Melbourne for about 13 months between October 1963 and December 1964, on HMAS Derwent for about 18 months from July 1970 and on the HMAS Stalwart from 8 March 1976 for 13 months. The HMAS Stalwart was a fairly large ship. It is noted that at the end of his period on HMAS Derwent he was promoted to Acting Petty Officer.
Despite his fear and concern about being on ships, he re‑signed for a further period of three years at the end of his first nine years in the navy, namely, September 1968. He re‑signed for a further period of three years in September 1971, and in 1974 he re‑signed for a further period of eight years. As stated, in the year 1979 he applied for a discharge which was granted although he had at least two years to serve.
It is noted that the plaintiff failed his Year 10 at school in South Australia. He failed all subjects and had a particular weakness in mathematics. It was essential for promotion that he pass a test equivalent to the Intermediate certificate. The navy had its own test called ET1. The plaintiff, on 23 March 1960, at the age of 17 years, failed the test. He eventually passed it on 10 September 1965 at the age of 23 years. The test standard was School Year 10, i.e. about the same standard of the Intermediate test that the plaintiff failed at school. During the period from November 1962 through to November 1969 he passed a number of courses. In November 1972 he failed a course being a section two for promotion to Chief Petty Officer. This contributed to the delay in his promotion to Chief Petty Officer. He eventually passed a number of courses through to 1979 when he was appointed Chief Petty Officer.
He said that he developed a fear of water after the collision. This was made worse when he went to sea. Despite his alleged fear of the water, some four months after the collision he applied for a transfer to the electrical branch as it was reported that he was “not happy as SBA – not enough sea-time and generally uninterested in the work” (emphasis added). The report noted that he had failed his intermediate certificate in all subjects because he said he had messed about. He passed the ET1 after he made the application.
The report went on to say the following:
“General: Seems adequately adjusted in the service and socially, no marriage plans, feels he’s been in SBA branch too long, feels he’d like more technical work but would accept a knock-back”.
On 23 June 1964 a naval psychologist wrote to the captain of HMAS Melbourne and noted that the plaintiff's motivation for transfer was based purely on personal dissatisfaction with the conditions and duties of the SB branch and he concluded that the plaintiff would be a risk in electrical branch training on educational grounds. The letter continued noting that the plaintiff gave no evidence of particular suitability for electrical work and it was recommended that he not be transferred. The important things to note were first, that he wished to transfer because he wanted more sea time and secondly there was no suggestion of having any problems since the collision which impinged upon his application or his ability to perform his duties.
Whilst applying for a discharge in 1979, the plaintiff was pursuing a claim for compensation. He lodged a claim on 29 November 1979 in which he stated that he had a bad lower back and that it was caused by standing on hard decks, lifting patients and heavy equipment. He was partially successful in his application and received a 10% invalidity pension. He renewed his application for a pension and in 1995 the pension was increased to 90% and in 1998 it increased to 100%. By late 1996, he was considered unfit for work and has not worked since.
Some time in 1995 the plaintiff observed an article in a newspaper concerning making claims for mental stress as a result of the collision between the Voyager and Melbourne. On 16 November 1995, he wrote to his present solicitors, Hollows Lawyers of Frankston who over the years have represented many personnel from both HMAS Voyager and HMAS Melbourne in respect to compensation claims.
In the letter he stated the following:
“I am unsure what makes for mental stress and hardship but I was actively involved in rescue operations on that night … This has stayed with me to this day, as I spent time searching and picking up survivors following the collision in the duty motor cutter.”
He then stated that he had served aboard the Derwent and Stalwart and stated that during those postings “was unable to go below decks when we were in company of any ship larger than the one I was currently serving on.” He then stated that although he was a reasonably accomplished swimmer he was now hesitant to swim and was “almost claustrophobic about being caught up in currents and being unable to swim my way out”. He also stated that after the collision he slipped from the boat whilst attempting to move to a life raft and had trouble surfacing.
He concluded his letter as follows:
“This is very brief but can be expanded on if you feel that I would be considered a suitable candidate to lodge a claim.”
There is nothing in the letter about nightmares, excess alcohol or depression. The plaintiff in or about July 1996 made contact with Stephen Walker who apparently holds himself out as a Veterans’ Advocate and who is a totally permanently incapacitated Vietnam veteran. Having made contact with Mr Walker an application was then made to the Commonwealth Department of Veterans’ Affairs for a disability pension. An application form was filled out by Mr Walker on the instructions of the plaintiff who signed the form on 9 July 1996. In that form the disability was alleged to be “post traumatic stress disorder and insomnia” and in response to the question “How did service cause this disability?” the answer is “stress of service”. It was also noted that the plaintiff first became aware of the disability in 1964. The application form was completed on two different dates. The plaintiff completed part of it and signed it on 9 July 1996. Doctor Gobbo, the plaintiff’s treating general practitioner, signed it on 10 July 1996. It was received by the Department of Veterans Affairs on 19 July 1996. However, the part of the document dealing with the psychiatrist Dr Lambeth's treatment is dated 2 September 1996. No explanation was given for this discrepancy. It was Dr Lambeth who told the plaintiff he had suffered and was suffering from PTSD. Another matter which reflects on the plaintiff’s credibility concerns his answer to the following question in the application form –
"22.Have the disabilities (revealed as PTSD) you are claiming affected your employment at any time?"
The yes box has been ticked and the details given were –
"I have had to take numerous days off."
There is no evidence of him losing time at work due to PTSD or any other mental condition. At this stage the plaintiff’s general practitioner was Dr Paul Gobbo who practised in Gwandalan in New South Wales. The evidence revealed that having discussed the matter with Dr Gobbo, the plaintiff was referred by Dr Gobbo to Dr Leonard Lambeth, a consultant psychiatrist. Dr Lambeth first saw the plaintiff on 2 September 1996. Dr Lambeth was of the opinion that based on what he had been told the plaintiff had PTSD which was caused by the events of 10 February 1964. It will be necessary to refer to the medical evidence later.
The plaintiff claims that he was officer material, and but for his involvement in the collision and its aftermath, his career path in the navy would have led to promotion to the rank of Officer. There were a number of avenues open to achieving the rank of Officer. The first concerned the path taken by young men who apply for Officer School in their late teens, secondly, those who go up through the ranks during the course of their career in the navy, and finally those who are recommended during their career in the navy. The plaintiff asserts that he would have, in the normal course of events, been promoted through the ranks and eventually to the rank of Officer. He stated he intended to stay in the navy until at least 55 years of age and retire with the rank of Lieutenant Commander. A number of factors are important and relevant to the course of promotion to Officer. First of all there is the education qualification. As stated, the plaintiff dismally failed his Year 10 at school. He failed the ET1 test in 1960 and eventually passed it in 1966. Secondly, it is important to achieve excellent assessments. Each year the plaintiff was assessed. The efficiency in rating varied from satisfactory through moderate to superior. According to the records for the years ending December 1960-63 (inclusive) the efficiency rating was satisfactory, and it improved to moderate after the collision. Those facts tend to go against any conclusion that he was officer material. In addition, he failed a course to become a Chief Petty Officer in 1972. He left the navy in early 1980, having just attained that rank at the age of 37 years. By this time he would not have been eligible for promotion to Officer. The avenue which was open to him ended when he turned 34 years. A very large monetary claim was made for the lost opportunity. In my opinion, the claim for economic loss due to non-promotion said to have resulted from the collision, the PTSD and consequences was baseless and devoid of merit. I will amplify on this conclusion later. The fact was that the plaintiff was never Officer material. To make such a claim reflects on the plaintiff's credibility.
Going back to the plaintiff’s personal history, in 1973 he met Maxine Joyce. They formed a relationship and on 6 October 1973 they were married. Initially their relationship was a good one but by 1986 it had irretrievably broken down and thereafter for some two years they lived under the same roof but pursued separate lives. In 1988 they divorced. He stated that he then gave up drinking because it was “killing him”. It is to be noted that it is his case that he had been a very heavy drinker for most of the period from 1964 through to 1988 and that he gave up drinking because of his concern about his health and the effect it was having upon his relationships. If in fact he was drinking as a form of self-medication to blot out the recurring nightmares as he suggested, it is strange that he gave up this form of self-medication in 1988 bearing in mind that he said he was still having the disturbing nightmares and flashbacks and that it was not until 1996 that he commenced to take antidepressants. There is no evidence of what he did to self medicate between 1988 and 1996 as a substitute for alcohol. About this time he formed a relationship with a woman named Pamela Robertson and in April 1990 they moved to Lake Macquarie. They moved into his house. This relationship soured and the plaintiff wished to bring it to an end and requested his partner to leave. She refused to do so. He saw a solicitor and handed to his partner a letter from the solicitor demanding that she leave. In late 1990, Pamela Robertson committed suicide by gassing herself in the garage. The plaintiff found her. He was extremely upset at the time.
He subsequently met another woman whom he married in the year 2000. She did not give evidence because she had been involved in a terrible family incident which resulted in the death of a child and she subsequently brought proceedings for mental shock in the Supreme Court of New South Wales, which were settled. She found the court proceedings a harrowing business and hence her absence from the witness box in this trial.
The plaintiff stated that he is still having nightmares and he wants closure. He has been on a variety of antidepressants since 1996. He is still smoking 40 to 50 cigarettes a day despite having had a cancer scare in his throat. Some years ago he also was treated for cancer of the prostate. He suffers from a serious bad back. The evidence showed a man who is now short of temper and at times difficult to converse with.
Factual issues
The defendant has put in issue a number of factual matters. First of all, the involvement of the plaintiff in the rescue operations. It is in issue whether he did fall into the water and feel himself being pulled under and whether he was wearing foul weather gear. Secondly, his drinking habits and whether they are as serious as suggested. In relation to this I note that his former wife, now Mrs Joyce, did not paint the same drunken history that the plaintiff painted. She stated that during weekends both he and she drank solidly and partied a lot. However, she stated during the week, during his navy days he did not come home from work affected by liquor, and nor did they drink each night. Thirdly, it is heavily contested that he did or does suffer from PTSD, and in particular, that he suffers from recurring nightmares of the intensity that he said he did in evidence. Emphases were made in respect to him re‑signing, his gradual promotion over the years demonstrating efficiency in his duties, his failure to discuss any problems with anybody, his feigned fear of the sea bearing in mind his application to transfer to the Electrical Branch and his re-signing on three occasions post the collision, and his lack of receiving any treatment for the alleged PTSD prior to meeting Dr Lambeth in 1996. Much was made of the fact that he met the Veterans’ Advocate who, on his behalf, filled in the form which the plaintiff signed seeking compensation for PTSD before he was so diagnosed and which was lodged with Veterans’ Affairs.
Save for those matters in issue, what I have summarised are the facts. It will be necessary to further refer to the facts as I consider each issue.
Alleged injury and the factual issues concerning it
It is trite law that the plaintiff has the burden of persuading this Court on the balance of probabilities of each element of his cause of action. By reason of the admissions, he does not have to prove a duty of care or negligence in the course of employment by officers and crew serving with the Commonwealth. He has to prove that he did suffer injury as a result of the collision and its aftermath, and that the negligence was a cause of the injury. If he persuades the Court that he did suffer from PTSD as a result of the collision and its aftermath, he would have no difficulty proving that the negligence, which is admitted, was a cause of the injury.
Professor Malcolm Hopwood, a psychiatrist who is involved in treating psychiatric disorders with a focus on PTSD and other anxiety disorders, defined PTSD as follows:
“I consider that post‑traumatic stress disorder is an anxiety disorder, that is a mental health condition involving anxiety and related symptoms sufficient to disrupt normal functioning.”
(Emphasis added).
That definition accords with most accepted definitions of the disorder.
Doctor Leonard Lambeth is a psychiatrist who in addition to his private practice in forensic and general psychiatry, is a consultant psychiatrist to the Australian Defence Force and has had considerable experience in medico-legal matters. His major interests are in the diagnosis and treatment of PTSD, depression and anxiety disorders and he has a special interest in teaching psychiatry. He has treated many veterans of the World War II, Korean War and Vietnam War skirmishes. The plaintiff was referred to him by Doctor Gobbo in September 1996. He saw the plaintiff twice in 1996, twice in 1997 and once in December 1999. He saw him on three occasions in early 2000, and on 20 March 2002 he carried out a psychiatric examination and assessment of the plaintiff. Dr Lambeth gave evidence about PTSD. He stated it was a psychological/psychiatric condition which is a particular type of anxiety disorder. The characteristic symptoms of PTSD develop following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury or other threat to one’s physical integrity. In addition, it may develop as a result of witnessing an event that involves death, injury or threat to the physical integrity of another or learning about an unexpected or violent death, serious harm or threat of death or injury experienced by a family member or other close associate. The doctor added that this is a disorder in which the person responds to an event with intense fear, helplessness or horror. He went on to describe the usual characteristics resulting from an exposure which include persistent re-experiencing of the traumatic event, persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness and persistent symptoms of increased arousal. He noted that PTSD sufferers may have painful guilt feelings about surviving when others did not. Also avoidance patterns typically interfere with interpersonal relationships which may lead to marital conflict, divorce or loss of a job. He further noted that PTSD is very much associated with increased rates of major depression, substance related disorders, panic disorders and other associated phobias.
An important matter that he noted was that by definition PTSD cannot be diagnosed unless the duration of the disturbance is more than one month. If the symptoms last less than three months, the condition is acute but if they last three months or more it is described as chronic. There are times when the onset of symptoms is some six months after the stressor and this is considered to be PTSD with delayed onset.
I interpolate to observe that the case presented on behalf of the plaintiff was that he suffered from the symptoms within a matter of days of the collision. Dr Lambeth stated that denial and avoidance are extremely common and the patient seeks to avoid anything that reminds him of the event, trying to avoid talking about it, and may use substantial amounts of denial with respect to his symptomatology. Often this is seen in the use of alcohol or other drugs. Alcohol use, tobacco use and other substance use are common and it is part of the avoidance and seen as an attempt at self-medication. It is not unheard of to have a lifetime suffering PTSD.
It is trite to observe that it is very easy to allege symptoms of PTSD and difficult to disprove the disorder. PTSD has been a recognised psychiatric injury since about 1980, although it was pointed out by Professor Hopwood that a similar type of mental disorder had been recognised for many, many years. He referred to effects on service personnel during the First World War and earlier. Proof of its existence in a person to a large part depends upon the honesty and accuracy of that person stating what his or her symptoms were and are. The American Psychiatric Association has published a work called “The Diagnostic and Statistical Manual of Mental Disorders.” It has gone through various editions, the current being the fourth edition. It was that work which first described the condition known as PTSD in the 1980’s. This followed a close study and increasing awareness of the problems amongst Vietnam veterans, but since then it has been recognised that similar symptoms could develop following non-combat trauma. Descriptions in early accounts of non-combat related PTSD involved the same symptoms of re-experiencing, hyper-arousal and avoidance as seen in combat related cases. Susbequent study has revealed that generally the same level of stressor is required to produce PTSD in non-combat situations. Paragraph 309.81 of the work deals with post traumatic stress disorder. The work is referred to as “DSM-IV.” That is a reference to the Diagnostic and Statistical Manual fourth edition. It is now accepted as an appropriate and invaluable method of determining whether a person has PTSD. The question is does the person satisfy the DSM-IV criteria?
All medical and psychology experts called in this case have relied upon the DSM-IV test for PTSD to determine whether the plaintiff suffered from PTSD. In a step by step diagnosis, a medical practitioner or psychologist seeks to determine whether certain consequences are present from the exposure to a traumatic event through re‑experience of that event in one or more of a variety of ways, a persistence of the symptoms, evidence of persistent avoidance of stimuli and persistent symptoms of increased arousal, duration of the disturbance for more than one month and whether the disturbance causes clinically significant distress or impairment of social, occupational or other important functioning. The exercise depends to a large extent on the truthfulness and accuracy of the patient in stating his or her symptoms and problems.
There are some tests that psychologists administer which provide some basis to test the genuineness of a patient’s complaints. There is controversy as to the usefulness of the tests. A psychologist, Dr Leah Giarratano on 16 April 1999 administered what is known as the Clinician Administered PTSD Scale (CAPS). The psychologist noted that the plaintiff had scored 48, which was within the range of PTSD patients, and she opined “on clinical interview indicator that he is suffering PTSD.” Although this has been described as the golden test of PTSD, I noted in her cross-examination, in which a number of the questions were revealed, that the questions were to some extent suggestive of a particular answer. Professor Richard Bryant, called by the defendant, an eminent psychologist in the field of PTSD, opined that the test was inappropriate in a compensation situation. His reasoning was that because many of the questions suggested an answer they were inappropriate to test the genuineness of a person claiming compensation for PTSD. He said that the test was a proper one in a non‑compensation situation and had the advantage of focussing the mind of the patient by referring to a particular matter. Whilst I have some concerns about Professor Bryant’s credibility which I will refer to later, I accept his evidence on this question. I place no reliance upon that test result. Professor Bryant was of the opinion that the Minnesota Multiphasic Personality Inventory – Second Edition (MMPI-2), was a more appropriate test to administer. He described the test as the most robustly designed personality test in clinical psychology. It was a test designed in the 1940’s to diagnose psychiatric patients and it has since been developed and extended. Its most common forensic use is its validity scales. The validity scales are the lie scale which measured the degree to which a person is trying to look good in an obvious way, the F scale which measures a degree to which a person’s thoughts are different from those of the general population, and the K scale measuring defensiveness and guardedness. The most commonly used index of malingering on the MMPI-2 is the dissimulation index which is the F score minus the K score. By pursuing this test, it is said that one can ascertain whether a person is malingering. Dr Robert Wu, a consultant psychiatrist, was retained by the plaintiff’s solicitors to consult and assess the plaintiff. Dr Wu saw the plaintiff on 14 August 1997. He administered the MMPI-2 investigation, but came to the conclusion that it was “invalid due to errors in terms of his answering his questions in a relatively indiscriminate way.” The defendant sought to place some reliance upon this as suggesting that the plaintiff was malingering. Unfortunately, Dr Wu has passed on, and accordingly there was no cross examination on his report. I would not be prepared to infer that the result suggested malingering. Professor Bryant stated in his report, dated 19 April 2003, that he administered the MMPI-2 test but later evidence revealed that this was not correct. This reflects on his credibility. Some criticism was made of the application of the MMPI-2 test as being more appropriate for areas of depression, but in light of the evidence that was placed before the Court I am not prepared to infer that it is or is not an appropriate test, nor is there any evidence of the outcome of the test of Dr Wu upon which I can place reliance. It was a contention put on behalf of the Commonwealth that the plaintiff was a malingerer in the sense that he either has made up the evidence of his symptoms or grossly exaggerated them. On the other hand, medical practitioners called on behalf of the plaintiff and Dr Giarratano did not accept that he was a malingerer.
The difficulty that one experiences in resolving conflicts in this area arises because the objective facts which one may rely upon suggesting that the plaintiff is not suffering from PTSD are explained by the psychiatrists as being examples of symptoms experienced with PTSD, that is, a denial of the effect of symptoms and living with them. Added to the difficulties are the question marks concerning the plaintiff’s credibility and the events and circumstances leading to the initial diagnosis of PTSD in 1996.
It is convenient at this stage to set out the PTSD test in DSM-IV.
309.81 Post-traumatic Stress Disorder
A.The person has been exposed to a traumatic event in which both of the following were present.
(1)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.
(2)the person’s response involved intense fear, helplessness or horror.
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. Note: in young children, repetitive play may occur in which themes or aspects of the trauma are expressed.
(2)recurrent distressing dreams of the event.
(3)acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated.) Note: In young children, trauma-specified re-enactment may occur.
(4)intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event.
(5)physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event.
C.Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:
(1)efforts to avoid thoughts, feeling, 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 a foreshortened future (eg. does not expect to have a career, marriage, children, or a normal life span).
D.Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following:
(1)difficulty falling or staying asleep
(2)irritability or outbursts of anger
(3)difficulty concentrating
(4)hyper-vigilance
(5)exaggerated startle response
E.Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1 month.
F.The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Specify if:
Acute: if duration of symptoms is less than 3 months
Chronic: if duration of symptoms is 3 months or more
Specify if:
With Delayed Onset: if onset of symptoms is at least 6 months after the stressor.
(Emphases added).
It is the plaintiff’s case that he commenced to suffer the symptoms of PTSD within a matter of days of the collision. It follows that his case is not concerned with a delayed onset. Given that is his case, I commented during the course of the trial that it was necessary to focus on the events of the two years after the collision and the evidence of the plaintiff, his symptoms and any objective evidence that bore upon his conduct and circumstances during this period. I do have a number of criticisms of the experts called in this case. First, none of them appear to have concentrated to any degree upon the first few years after the collision. Much is made of the plaintiff’s alleged complaints post retirement from the navy and in particular from 1982 to 1996 and following. But in my view one must concentrate on the first few years and some of the expert witnesses agree that it was an important period. The other matter which I wish to note at this stage is category F of the DSM-IV. It is clear that category F must be satisfied before a diagnosis of PTSD can be made. This clear from the definition given by Professor Hopwood set out above and DSM-IV itself. Symptom F provides a means of testing the patient. Criteria B, C and D in the main will depend upon information given by the patient. On the other hand, category F can provide some means of testing the effect of the alleged disturbances. In my opinion, category F is extremely important in the diagnosis of PTSD. The disturbances that arise out of a traumatic event, being symptoms in criteria B, C and D, must cause “clinically significant distress or impairment in social, occupational or other important areas of functioning.” It is not just a question of being exposed to the traumatic event, and having persistent symptoms and persistently avoiding stimuli with increased arousal unless they do in combination cause one or other of the matters in criteria F. It is important to note that the effect must be “clinically significant distress or impairment.” The adjective “significant” adds to the necessity of demonstrating such an effect and the word “clinically” means an observable distress or impairment. Dr Bell, a psychiatrist called by the Commonwealth, produced a paper which concluded that PTSD on its own does not necessarily cause disability. Dr Bell then gave evidence that it was his opinion that if criterion F is not satisfied, then strictly speaking that should eliminate PTSD. He went on to observe –
“It doesn’t because the clinicians who are assessing those cases are looking at the statements of their subjective distress and are disregarding the rest of it.”
He was critical that clinicians do not stick strictly to the terms of the test. Dr Giarratano, the psychologist called on behalf of the plaintiff, said that criterion F would not be met if the patient did not have family function problems or problems making friends or staying in relationships or employment problems. Such a patient would not meet the full diagnosis of PTSD even though they were having flashbacks and nightmares, but as she pointed out it would mean that somewhere along the line one might expect that their functioning would be affected. Dr White was of the view that ‘disability impairments are at the heartland of mental illness that’s where symptoms become a disorder, whether it is washing your hands fifty times or twenty five times but for somebody to be mentally ill you do have to be unable to work, unable to function as a parent, those sorts of things.’”
I would not be prepared to accept that in order for the symptoms to become a disorder one would have to be unable to work, but in my opinion evidence showing significant impairment in functioning is necessary to satisfy criteria F. Professor Bryant stated that the word “clinically” in category F was part of a phrase that one finds at the end of nearly every mental disorder in DSM and the reason it was put there was that people can have all sorts of symptoms and he said -
“……in fact lots of people in the community do, but they don’t actually have mental disorders because it is actually not interfering with their lives…. When DSM was being put together there was a view that the primary issue is impairment that can be observed; social, interpersonal, occupational. There was also the argument that some people may be able to function but they will still be very, very distressed by the symptoms and so they should not be discriminated against if you like by saying they don’t have a disorder just because they are still going to work and they are still maintaining good social relations, etc. There is no operational definition of what clinically significant distress means, but it is fair to say when we are talking about clinically significant distress, we are talking about distress that really is overwhelming the person and is very, very salient. In my experience it is actually unusual to have clinically significant distress without it falling over into some sort of functional impairment.”
I accept the evidence of these experts on the importance of satisfying category F.
The plaintiff gave evidence of the collision between the two ships, the part that he played thereafter in rescuing and administering treatment to seamen who had been thrown into the sea, of falling into the water himself in foul weather gear and feeling that he was going to drown, his fear and his resolve upon returning to HMAS Melbourne not to go back in a boat into the sea, and being ordered to do so. If accepted, it may be said that he was exposed to a traumatic event in which he experienced and was confronted with events which threatened him and others and that his response involved fear. This would meet the first criteria in the step by step process of diagnosing PTSD. His case concerning the other criteria can be summarised as follows:
· That as a result of that traumatic experience he thereafter suffered from nightmares, disrupted sleep and sweating during the night – the dreams had the same subject matter, namely, a fear of drowning and being under the water looking up and seeing a halo of light, and the observance of something passing across the side of a ship and sometimes scraping.
· That he felt that the navy did not look after him once he reached Jervis Bay on the night of the collision and for the next 48 hours when he was basically told to look after himself. Upon returning to HMAS Melbourne, he was told that he had had a break and therefore would go straight back onto duty as a SBA and that others would be given leave. He resented this dismissive‑type treatment bearing in mind the part he played on the night in question and that resentment and anger continues to today.
· That during the month that followed the collision, he was abused verbally by other sailors and members of the public and called names like “murderer” and “killer” because he had been on HMAS Melbourne which had sliced through the HMAS Voyager causing it to sink with the loss of many lives. He found this extremely harrowing and upsetting.
· That he had been a moderate drinker to that time, but thereafter began to consume alcohol in substantial quantities, getting drunk on a regular basis, describing himself as an excess drinker which was the pattern right through to 1988 when he gave up drinking.
· That during the balance of 1964 he was convicted of four misconduct offences, one of which was serious. This was out of character with the previous four and a half years in the navy. At the end of October 1964 he and a leading SBA, John Ray, went absent without leave for a period of 84 hours, having participated in a drinking binge. He was severely punished for what was a very serious offence.
· That in August 1966 he was convicted of an offence of showing contempt to a member of the naval police, in September 1967 he was convicted of disorderly conduct in an outburst against a person whilst in Papua New Guinea, and on 3 August 1970 was convicted of a fairly minor offence of being late for duty.
· He stated that he became fearful of water and was unhappy when serving on a small ship and has a real fear of water today.
· That from 1983 until 1996, he indulged in bossy anti-social behaviour in relation to fellow employees and students, that he had difficulty in relating to other people, was antisocial, was dogmatic and this has been very apparent over the last 15 years.
· That in 1996 he was diagnosed with, and treated for, depression.
·That between 1964 and 1980 when he left the navy, he was promoted through the various ranks up to Chief Petty Officer Medical. He stated that because of his contemptuous attitude to authority post the collision and the convictions that followed, his promotion to higher ranks was delayed. He stated that he left the navy because when he got to 20 years and eligible for the pension, he decided at the age of 37 that he had no future in the navy because he had no chance of promotion to officer rank and it was pointless staying in the navy
·He stated but for the delay in promotions, he would have been a Chief Petty Officer earlier than age 34 years, and would have gone on to become an Officer. A claim is made on his behalf for lost income and lost superannuation benefits in the order of $447,566.
It is put on behalf of the Commonwealth that the plaintiff’s verion of the events of the night of the collision is not correct, that he did not suffer from PTSD as a result of the collision and its aftermath, that if he did it resolved within a matter of months, that his claim has been prompted by publicity of others who made claims and the assistance provided by others who have informed him of the usual symptoms of PTSD and his claim has no merit. It is submitted that if in fact he did suffer from PTSD, he has not persuaded the Court on the balance of probabilities that his career path in the navy would have been any different and accordingly his claim for economic loss is baseless. In addition, it is submitted that in any event his claim is statute barred.
Plaintiff’s credibility
In support of the Commonwealth’s submission, reference was made to a number of matters which raise doubts as to the plaintiff’s honesty and accuracy. They are:
· That he first raised the complaint of PTSD in 1996 some 32 years after the event.
· That prior to 1996 he never sought any treatment for his alleged recurring nightmares and sleep disturbance or his excess alcohol consumption.
· That during his period in the navy attached to the medical branch he had ready access to free medical treatment. His medical records show that he did seek treatment on a regular basis for a variety of problems, and on two occasions in 1973 and 1976 he received medication for anxiety, nerves and mild depression.
· That the objective evidence showed a person who was able to carry out his duties in the navy in an efficient and appropriate manner. There is no evidence in his naval records to show, let alone suggest that the plaintiff was unable to perform his duties as a SBA, duties which required application, consideration, understanding, care and responsibility.
· That between 1964 and 1979 he was promoted through the ranks ultimately to Chief Petty Officer Medical. From at least 1970, when he was appointed a Petty Officer, he was involved in looking after the sailors below him in the medical branch, receiving and issuing orders, and carrying out duties of a sick berth attendant.
· Whilst stating that he was fearful of the water and this was a condition he said he felt very soon after the collision, at the end of his first nine years in the navy which expired in 1968, he re‑signed for a further period of three years and another three years and then eight years. He served at sea for periods in excess of one month after re-signing in 1968.
· That on 17 June 1964, some four months after the collision, he made application to transfer to the electrical branch as he was not happy as a SBA, more particularly because there was not enough sea time and generally he was uninterested in the work. An assessment made at the time was that although he was in a good state of health, overall he was not of adequate ability for the electrical branch, had not given any evidence of an educational standard or industry requirement and accordingly the application was refused. The latter observations are relevant to the claim that but for the collision and the effects upon his health, he would have been an officer.
· Although he re-signed in 1974 for a further period of eight years, he applied for a discharge in November 1979 stating that he had completed 20 years’ service and that he was then negotiating the purchase of a business. This was contrary to his evidence in Court as to his reason for leaving. He initially denied that he was in the process of negotiating the purchase of a business until a letter was produced which contradicted him.
· He was employed from 1980 through to 1996 during which time he apparently performed his tasks efficiently and responsibly. His first employment was for a period of about two years as a salesman in which he travelled a lot in a car. The following three months he was in a real estate agency, and for the next ten years was in charge of first aid training with the Red Cross. The latter job would have involved him organising and planning first aid training. For a period of three years from 1993 to 1996 he was employed as a lecturer which would have involved him lecturing students. There is no evidence to suggest that he did not perform these tasks adequately, responsibly and efficiently. He did say that he had run ins with staff and students but as he told the Court, it was perhaps because being an ex Chief Petty Officer he was used to giving orders and expecting things to be done. This employment history shows that he was functioning normally and efficiently and raises doubts about his level of drinking as he stated it, during 1980 to 1988.
· His evidence that he suffers and has suffered for a period of some 40 years from nightmares some two or three times per week is not borne out by other evidence, is contradicted by what he had told some medical witnesses, and suggests exaggeration, especially as he did not seek any treatment for what had to be on his evidence a harrowing and distressing disorder over a long period of time. He gave histories to some doctors suggesting that there was waxing and waning in the frequency of the nightmares.
· He stated that he was drinking heavily, drinking himself into oblivion on many nights from 1964 through to 1988. This is not borne out by the evidence which comes from a former wife from some notes made in his medical file, his naval history and his promotion. I accept the evidence of Lieutenant Commander Hartcher that drinking to excess was not tolerated on board ship and if he was affected by long term drinking it would have been noticed and dealt with. The evidence shows the plaintiff was conscientious and performed his duties without blemish or criticism. The Lieutenant Commander gave evidence that drinking to excess whilst on a land base would have been noticed, if frequently occurring. The alleged drinking is inconsistent with his work record at the Red Cross. Witnesses from that organisation stated he appeared friendly, co‑operative and efficient. His employment in the early years brought him into contact with many people associated with the Red Cross.
· He first turned his mind to the question of PTSD after seeing an article concerning claims made, and seeing a veterans’ advocate who assisted him to make a claim for PTSD before receiving any medical advice.
· In his letter responding to what would apparently have been an advertisement by his present solicitors, he did not mention the symptoms that subsequently he stated to various medical practitioners and psychologists.
· Having stated that he was fearful of water and unhappy with the navy, in June 1981, some 18 months after leaving the RAN, he made application to the Naval Reserve Training, Canberra to become a member of the Royal Australian Fleet Reserve on a fulltime basis for one to two years. This application was declined.
·The plaintiff stated that he was wearing foul weather gear when he fell into the water, that this dragged him down and he feared that he may drown. The Court asked him whether he was wearing a life vest. Clearly it was a question he was not expecting as evidenced by his flustered response. He said he was not. He was then asked that surely he had been trained in the navy to always wear a life vest when travelling in a small boat. He said he was not so trained and it was not mandatory for him to wear a life vest. Commander Halley gave evidence on behalf of the defendant. He was the Damage Control Officer on the HMAS Melbourne on the night of the collision and approximately 35 minutes after the collision he entered a cutter boat to assist with looking for survivors. He said that they were trained to wear life vests, that life vests were in the motor cutters and that it was a requirement to wear a life vest. Importantly he emphasised that it was part of the training. In cross-examination he accepted that there may have not been enough life vests in the cutter at the time when the plaintiff got into one. Whilst I am suspicious about this incident, I am prepared to accept the evidence of the plaintiff that he was not wearing a life vest but nevertheless I do not accept his evidence that he had not been trained to wear a life vest when travelling in a small boat.
·During evidence‑in‑chief, the plaintiff was asked whether he did during the whole of his naval career from 1964 until 1979 “associate any of the things, that is the drinking, the increased smoking, the nightmares, sleeping problems and so on, did you associate any of that as being caused by the collision?” His answer to that was, “No”. I do not accept that was a truthful answer. In answer to a question by the Court that because the nightmares occurred within a matter of days after the collision, the subject matter of his dreams was much the same, namely, a fear of being dragged under the water and drowning, and something passing across the side of the HMAS Melbourne, and that this had been the pattern for the last 40 years, it followed that the closeness of the symptoms to the incident and the very subject of the nightmares could only have been attributable to the collision. He then admitted that his symptoms were caused by the collision and the aftermath.
·The plaintiff gave evidence that he had a fear of the sea and when he first gave the evidence it was a general statement not attributable to any particular period during his life. In cross-examination he was asked whether he ever applied to transfer to the electrical branch. It was put to him it was in June 1964. He denied that and said that it was back in 1962, before the collision. His answer was, “I didn’t apply for a transfer while I was on the Melbourne”, and that it took some couple of weeks to go through the process and he was refused. He was then shown a document which caused him obvious concern and he became flustered. It was a psychological report dated 23 June 1964 which noted an application for transfer to the electrical branch. This was some four months after the collision. When asked did he remember this he said he did not. He was then asked why he would want to transfer out of the medics to the electrical branch and he stated he had no idea. In my opinion, his reaction to this evidence showed that he was not expecting the line of question and the thrust of the report shown to him was contrary to his evidence that he was fearful of the sea and drowning. I do not accept his evidence. He was asked the question what was his interest in the electrical branch and he stated he had no idea and he could not give any idea why he might want to request a transfer. He was then asked why he thought it might have been back when he was at HMAS Cerberus in his training days and he stated he was interested in being an electrician. He said he had no memory of the application whilst on the Melbourne. The notation in the report stated that the reason why he wanted the change is that he was not happy being a SBA and “not enough sea time”. He denied that the reason why he was applying for a change in occupation was so he could get more sea time. He then adopted the role of the advocate. He said this:
“I just said that because I thought it might get me a change of jobs. But I also here … where there are other mistakes on this document so I’m sorry, I can’t put credence in the documents because it said I failed my ET1. My records show that I passed my ET1.”
He was then challenged on that statement. It is an incorrect statement. He passed his ET1 course on 10 September 1965. In observing the plaintiff give evidence this was a piece of evidence which caught him by surprise. It was also apparent from the reaction of his legal representatives that they were unaware of the report’s existence. However I am quite satisfied that it was discovered but more importantly there is a reference to it in one of the medical reports.
·He gave a reason for leaving the navy that after he was appointed Chief Petty Officer Medical in April 1979, he made a decision later that year to apply for permission to resign because he had reached the end of the promotion ladder and would not progress further. The latter observation was wrong. He could have, if he continued, been promoted to Warrant Officer. I am strongly of the opinion that at no stage was the plaintiff officer material and at no stage did he have any aspirations to reach the rank of Officer. He gave evidence that once he had passed the Test ET1 which he thought was before the collision in 1962 (in fact it was 1965) he was going to do his HSC and apply for a commission. I do not accept his evidence. It is contrary to his conduct and attitude during his naval life. He had to request permission to resign because he had in 1974 re-signed for a further eight years. The Court put to him that there was the attraction of getting a pension and he fudged the answer. He appeared somewhat vague as to the minimum period when one could obtain a pension and initially said 15 years and then subsequently admitted it was 20 years. Defendant’s counsel then put to him in cross-examination a letter which he had written in which he stated the reasons for wishing to resign at the end of 1979, and they were that he had completed “20 years continuous service” and was currently “negotiating the purchase of a business”. The letter revealed that they were the true reasons why he wished to leave. He knew he was eligible for the pension at the end of 20 years in the navy. At the time he sought permission to leave the navy he requested information from the pension authority as to his entitlement to a lump sum. I do not accept that his vagueness as to when he was entitled to a pension was an error of memory and his reasons given in evidence for leaving the navy were false. I do not accept the latter was due to a lapse in memory.
·When giving evidence about the activities post collision, he was asked whether whilst out in the motor cutter could he get his bearings in the sense that he knew where the HMAS Melbourne was. He said he could not because it “was pitch black out there.” He was then asked the question “There must have been a light?” and he answered – “there was about a 30ft swell. We were up and down all the time and you couldn’t get your bearings at all.” This was a surprising piece of evidence bearing in mind the size of the HMAS Melbourne and the strong likelihood that searchlights were being used to light up the collision area. Commander Halley was the Damage Control Officer on the ship on the night of the collision. He described the swell as a low sea swell, something between 4 and 5 ft, and he gave evidence that all the HMAS Melbourne’s ships and boats carried an aldis lantern which is very handy when looking for something in the water and in addition HMAS Melbourne had many lights which were able to highlight and certainly shine on the Voyager’s stern hull. The commander was an extremely impressive witness, and I accept his evidence. I do not accept that the plaintiff’s evidence was due to some memory lapse. He was anxious to paint a very frightening picture of the circumstances post the collision and in particular that the area was pitch black and there was a 30ft swell. The plaintiff’s evidence again reflects adversely on his credibility.
·Before he had been diagnosed by any medical practitioner as suffering from PTSD, the plaintiff signed an application form on 9 July 1996 seeking a disability pension for PTSD. He was asked the question whether the disabilities that he was claiming affected his employment at any time and he said yes and his answer was “I’ve had to take numerous days off.” There was absolutely no evidence to support this contention. In particular, there was no evidence in his naval records which supported this statement. He did not give any evidence himself that he had had many days off. No claim was made on his behalf for any loss of income due to days off. This statement also reflects upon his credibility.
·Allowance must be made for memory loss and the passage of time. However it cannot be overlooked that the plaintiff has had considerable time to think about the issues in the case since 1996. Further at least one expert, Dr Leah Giarratano sent him a copy of her report. Her report set out in tabular form the criteria A – D of DSM-IV and the plaintiff’s responses. I have no doubt the plaintiff was well aware of what had to be established to prove PTSD.
I found the plaintiff an unsatisfactory witness whose credibility was substantially damaged by the matters set out above. His evidence has to be scrutinised with care before acceptance.
Experts
A number of medical experts and psychologists have given evidence in this proceeding. Those called on behalf of the plaintiff gave evidence which generally supported his case whereas those called on behalf of the defendant gave evidence that he did not suffer from PTSD and if he did, it was for a short period.
[12][1942] AC 154.
[13]At p.174.
The plaintiff in this proceeding has asserted in his pleadings that s.5(1A) is an answer to any defence based on s.5(1)(a) of the Act. As he has asserted it, he must prove it.
Secondly, based upon the pleadings, the plaintiff has taken it upon himself to prove the application of s.5(1A). It was not part of his proof to establish the cause of action against the Commonwealth. However, it was pleaded in the amended statement of claim in anticipation of the defence being raised under the Act. By so asserting it in the amended statement of claim, on the face of the pleading the plaintiff is seeking to rely upon the sub‑section. If it had been pleaded as it should have been in the reply, the same result would have followed. Based upon the pleadings the plaintiff carries the burden of establishing that s.5(1A) applies.
Finally, in the appeal of Jeffrey Clark v Carol Stingel,[14] Eames JA, who wrote the leading judgment for the majority, said this:[15]
“Mr Tobin, who appeared as senior counsel for the respondent both before the judge and on appeal, accepted that the onus was on the respondent to establish that she fell within s.5(1A), in particular that the knowledge referred to in paragraphs (a) and (b) was gained by her not more than six years before she issued the proceedings.”
[14][2005} VSCA 107.
[15]At para 37.
No question was raised by the Court as to the correctness of the concession. In my opinion it was a concession properly made.
It follows that the plaintiff has the burden of establishing that s.5(1A) applies in this proceeding as an exception to the defence established by the Commonwealth under s.5(1)(a).
The Commonwealth in its defence admitted that PTSD was a disorder within the meaning of s.5(1A) but otherwise denied the other elements of proof in s.5(1A). I ruled at the beginning of this trial that the Commonwealth was bound by that admission. However, that does not preclude the Commonwealth from putting the plaintiff to his proof that he first knew that he had suffered personal injuries and that they were caused by the negligence of the Commonwealth within six years of the issue of the proceeding.
Section 5(1A) presently relevantly provides:
“(1A) An action for damages for negligence … where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than three years from, and the cause of action shall be taken to have accrued on, the date on which the person first knows –
(a)that he has suffered those personal injuries;
and
(b)that those personal injuries were caused by the act or omission of some person.” (emphasis added)
It is common ground that although the present sub-section refers to three years, at the relevant time the period was six years.
The plaintiff in paragraph 6 of the amended statement of claim asserted:
“(6)As a result of the said collision the plaintiff was injured and has suffered loss and damage.”
Sub-joined to the paragraph were the following particulars:
“Causing, aggravating, accelerating, exacerbating and/or resulting in the future deterioration of the following:
(a)post traumatic stress disorder;
(b)stress, anxiety, nervousness and psychological reaction resulting in alcohol and cigarette addiction and the development of hypertension;
(c)…
(d)depression.“
The defendant did not admit the facts alleged in paragraph 6. The plaintiff’s case at trial was that he suffered PTSD as a result of the collision and his role in the rescue operation, that the symptoms commenced within days leading to the matters pleaded in particular (b) above and later, depression (particular (d)).
In paragraph 8 the plaintiff pleaded:
“8.The injuries referred to in paragraph 6 hereof are a disorder within the meaning of s.5(1A) of the Limitation of Actions Act 1958 and the plaintiff first knew that he suffered such injuries and that they were caused by and resulted from the incident referred to in paragraph 3 hereof in or about April 1996.”
The writ was issued on 25 November 1996.
In its further amended defence, the Commonwealth pleaded:
“8(a)It admits that post-traumatic stress disorder is a disorder within the meaning of s.5(1A) of the Limitation of Actions Act 1958 (Vic):
(b)it denies that the plaintiff is suffering from post‑traumatic stress disorder or any other disease or disorder within the meaning of s.5(1A) of the Limitation of Actions Act 1958 (Vic) as a result of the collision between HMAS Melbourne and HMAS Voyager on 10 February 1964;
(c)it otherwise does not admit the allegations contained in paragraph 8.”
To establish that s.5(1A) applied it was necessary for the plaintiff to prove a number of matters, namely:
(i)that the proceeding is an action for damages for negligence;
(ii)that the damages claimed by the plaintiff consisted of or included damages in respect of personal injury;
(iii)that the personal injuries consist of a disease or disorder contracted by the plaintiff –
(iv)when the plaintiff first knew –
(a)that he had suffered those personal injuries, and
(b)those injuries were caused by an act or omission of the defendant.
If the plaintiff establishes that he acquired the necessary knowledge not more than six years prior to the institution of the proceeding, s.5(1A) will apply provided of course he proves elements (i) – (iii) (inclusive). The cause of action accrues on the date when the plaintiff first knew that he was suffering the personal injuries and that they were caused by the act or omission of some person for whom the Commonwealth was responsible. He had to prove the cause of action accrued after 25 November 1990. If it accrued prior to that date s.5(1A) did not provide an answer to the limitation defence under s.5(1)(a).
There was no contest that the proceeding was an action in damages for negligence in respect of personal injury. The Commonwealth’s admission meant that the plaintiff did not have to prove that the PTSD and its consequences consisted of a disease or disorder contracted by the plaintiff. In the light of the decision of Ashley J (as he then was) in Carl Henning Wright (as executor of the will of Lindsay John Stafford – deceased) v The Commission of Australia [2005] VSC 200, the plaintiff may consider himself fortunate. Ashley J held following Clark v Stingel supra that PTSD was not a disease or disorder contracted by the victim and unknown at the time it was contracted.[16] In that case the deceased had been serving on the HMAS Melbourne at the date of the collision. It is alleged by the plaintiff that he did not know he had suffered from PTSD until told by Dr Lambeth in 1996.
[16]See para.371.
In determining whether or not the plaintiff has established that he did not know he had suffered “those personal injuries” until a date after 25 November 1990 it is necessary first of all to consider and determine the facts bearing on the issue.
At the date of the collision, the plaintiff was aged 21 years. He joined the navy in September 1959 when aged 17 years with the intention of serving in the medical branch. He spent two years on basic training at HMAS Ceberus at Westernport in the State of Victoria. His basic training included training as a sick berth attendant. In November 1962, he completed an operating theatre assistant’s course at the Alfred Hospital, Melbourne. On 22 October 1963, he was posted to HMAS Melbourne as a sick berth attendant. He gave evidence that he was a moderate drinker and smoker and there is no suggestion that he was anything other than a model trainee and later a qualified SBA. Evidence was given in the trial that he was observed by one of the instructors as a relatively immature young man during his training. There is no suggestion in the evidence or the records that he was suffering from nightmares, anxiety, distress of any nature or depression prior to the date of the collision.
The plaintiff stated that on the night of the collision he was in a state of shock and cannot remember whether he had any difficulty sleeping. The following night he was miserable because he felt he was ignored and he stated he did not sleep much that night because he could not sleep properly. He said he had thoughts about his experiences in the collision. He had a degree of anger. This was because he said he was treated “like a leper”. His evidence was that prior to the collision his average consumption of liquor per week was about a half a dozen or so glasses of beer. His consumption of cigarettes was five to ten a day. In the few weeks or month after the collision he stated he was pretty miserable, was angry at the navy and also because members of the Melbourne were copping abuse from other sailors and civilians. He also stated that in the first month or so he was waking up a lot, suffering from nightmares, sweats and screaming out. He said the nightmares were much the same in that they were concerned with seeing something go past the side of the ship and him being underneath the sea looking up in the water up at a halo of light. He had dreams about the sea, that he was going to drown, that the sea was going to take him and he was terrified of the sea. He stated that he began to consume excessive quantities of beer and that he was “drinking myself basically into oblivion every night”. He said during 1964 he was uncertain about staying in the navy and that he felt angry because the navy had not treated him well. He stated his sleeping pattern in the ship in 1964 was the same: “I would sleep some nights, I would wake up with nightmares and that and most times when I was awake in port I would drink so that I could sleep soundly.” During the balance of 1964 he was involved in four misconduct offences, one of which was serious in that he was AWOL for 84 hours in the last week of October 1964. After leaving HMAS Melbourne at the end of 1964 he went to a land base HMAS Tarangau in early 1965. He said he was still angry and depressed but not feeling as bad because he was not around water. He said that his personality changed during the period after the collision into 1965. He said he thought about the collision from time to time. He said he did not want to discuss it with anybody. He said his concentration was affected but he thought that may have something to do with his hangovers. He said things settled down from time to time right up to 1979 but when he was actually seagoing or being reminded of ships he had his problems. He said he certainly did when he went to HMAS Derwent which was in 1970. He stated that he was still continuing to drink heavily when the opportunity presented itself and he was also smoking excessively. I have made my findings in relation to the plaintiff suffering PTSD. In my opinion he suffered it during 1964-5 and 1970-1.
On any view of the evidence given by the plaintiff, there was a marked difference in his mental state and behaviour when compared with his conduct and behaviour prior to the collision.
In 1979, prior to his discharge, he did have some treatment for depression and he stated that he did not think that the treatment and the diagnosis related in any way to the collision. He stated that it was not until he had seen Dr Lambeth a number of times in 1996 that he first knew that he had PTSD. Dr Lambeth told him that it was his opinion that it had arisen from the collision. The plaintiff stated that that was the first time he knew that he had had PTSD arising from the collision. He was asked in cross‑examination, that each time he re‑signed, he had to undergo a medical examination and that on every occasion he ticked the box that said that he was normal mentally. It was put to him that if he was suffering so badly from nightmares and could not control his behaviour he must have understood that the symptoms and cause were of a mental nature. He denied that. But then when asked what did he think was the cause of the recurrent nightmares he said, “Just a thing that I had witnessed and things bringing it back up again.” Whilst he said that he could not see any change in his personality he accepted that he was depressed and getting anxious. He said that he thought his antisocial behaviour and being withdrawn was something to do with being a sailor. He did not think it was any psychological problem. Sometimes he woke up talking and screaming. Nevertheless when pressed the plaintiff did accept that the symptoms and problems were caused by the collision and the aftermath.
He was asked about what he had in mind were the symptoms of PTSD when he first spoke to the veterans’ advocate in July 1996 and filled in a form stating that he was suffering from it. He stated that the veterans’ advocate told him that he was suffering from it. One of the questions in the form asked what he understood the symptoms were. He described his symptoms as:
“Nightmares, intrusion in my sleep, waking up in absolute sweats and fits of crying and being startled quite easily. Not like to be around crowds of people. Socially withdrawn.”
He agreed that the subject matter of the nightmares was always the same and that these symptoms had first occurred after the collision. He was then asked did he accept that the collision must have been the cause and he said:
“I would have to be rather blasé to say no, Your Honour, but the nightmares had to come from the disaster.”
He agreed, comparing his situation prior to the collision and after the collision, that common sense told him that the cause of his problems was the traumatic event. He said that he never sat back and thought about it but agreed that it was obvious. He said, “I had had no idea of what post‑traumatic stress disorder was.” He agreed however that what caused the symptoms would have to have come from the collision.
I find on the evidence that the plaintiff knew that the symptoms that he was complaining about and which commenced very shortly after 10 February 1964 and remained with him on the findings I have made into 1965 and occurred again in 1970 for a period were caused by the collision of the two ships. Indeed, the cause and effect exercise leads to that conclusion and is obvious and beyond doubt. It is clear that the plaintiff was aware of the symptoms. A comparison of his situation and state of mind prior to the collision, with what occurred thereafter, leads to that conclusion. According to him the content of his dreams was always the same, and concerned events which occurred on the night of the collision. He admitted in his evidence that his symptoms were caused by the collision. He stated he did not know he was suffering from PTSD, that is a mental injury.
Has he proven on the balance of probabilities that he did not know that he suffered from a mental injury until after 10 November 1990?
The phrase “personal injuries” is defined in s.3 of the Act as “includes any disease and any impairment of a person’s physical or mental condition”. It was accepted by plaintiff’s counsel that the disease or disorder for which he claims compensation is PTSD. This is a recognised mental injury. The knowledge in question is concerned with a mental injury. The question does arise as to what a plaintiff has to know? Does the plaintiff have to know the symptoms or does he have to know the symptoms together with the fact that he is suffering from impairment of his mental condition? Does he have to know the name of the mental injury?
Counsel referred to a number of cases in respect to other legislation both in this Court and in the New South Wales Supreme Court. However, I derive no assistance from those cases. They were dealing with different legislation.
The definition of “personal injuries” in the Act is not exhaustive. However the definition does give an indication as to what is contemplated as an injury which is not physical, namely injury to, or impairment of, the plaintiff’s mental condition. The definition first appeared in the Act of 1955. As at 1955 and today, the law does not allow damages for mental injury which is not consequent upon physical injury. In Tame v New South Wales[17], Gleeson CJ said at p.329 –
“… save in exceptional circumstances, a person is not liable, in negligence, for being a cause of distress, alarm, fear, anxiety, annoyance, or despondency, without any resulting recognised psychiatric illness.”
The mental injury must be a compensable mental injury and is something more than mere grief and upset caused by a traumatic event. Sometimes it is difficult to draw the line. Hence the assessment of damages is made difficult, but it is necessary to draw a distinction between grief and psychiatric injury; the former is not compensable, the latter is. See Hinz v Berry[18] and Pham v Lawson[19] and Luntz - Assessment of Damages for Personal Injury and Death.[20] In my opinion, in considering the plaintiff’s state of knowledge, where the injury is mental, the knowledge is concerned with a compensable mental injury. It is recognised that PTSD is a compensable mental injury.
[17](2002) 211 CLR 317.
[18][1970] 2 QB 40 at 42-3 and 45.
[19](1997) 68 SASR 124 at pp.150-53.
[20]4th Edition at p.184.
What is the test to determine knowledge within the meaning of s.5(1A) of the Act? Is it an objective test, is it a subjective test or is it a combination of both? In my opinion it is a subjective test. It is the knowledge of the plaintiff which is the relevant knowledge for the purposes of the section. Being a subjective test, the plaintiff’s knowledge includes his knowledge at the relevant time and takes into account his intelligence, knowledge and experience. In this regard the observations made by the courts in relation to mitigation of damages in cases concerning an allegation that a plaintiff failed to undergo medical treatment to mitigate his loss are relevant. I refer to Karabotsos v Plastex Industries Pty Ltd[21] and the High Court decision of Fazlic v Milingimbi Community Inc[22]. In my opinion in determining whether or not the plaintiff has established the date when he first knew he had suffered the personal injuries to his mental condition, the Court takes into account his state of knowledge and experience. In determining that issue, the plaintiff’s knowledge and experience of matters medical equip him with a better understanding of the symptoms and whether the personal injuries he suffered were an injury or impairment to his mental condition. In my view he does not have to know the name of the mental injury. The plaintiff has to prove that he did not know that he suffered an injury to, or impairment of, his mental condition.
[21][1981] VR 675 especially at 683.
[22](1982) 38 ALR 424.
It is clear that the plaintiff has to prove that he did not know he had suffered a mental injury prior to the commencement of the six years’ period. It is therefore important to determine what he did know. I have set out the facts which establish that he had a good knowledge of the symptoms which the experts say lead to the conclusion that he was suffering from PTSD soon after the collision. In determining whether the plaintiff knew that he suffered from a mental injury, I take into account his knowledge, background, experience and qualifications, including his understanding of medical matters. The evidence established that the plaintiff had been trained in matters medical, he had an understanding of medical matters, and he admitted that he had treated RAN personnel for depression and mental‑type problems. He appreciated the differences between physical and mental injuries. He knew that he had undergone a substantial mental change post-collision from his pre-collision situation. In my opinion the only thing he did not know was that he was suffering from a mental injury known as PTSD. On the other hand, the symptoms and the dramatic change in his mental well-being which continued for about 12 months and resurfaced in 1991 led him to a state of knowledge that he was suffering from some mental injury. In my opinion it is not necessary to know the actual mental injury by name. It is sufficient if he has the symptoms which he knows is affecting his mental condition and is suffering from a recognised psychiatric injury. The symptoms were obvious, clearly caused by the collision and the aftermath and lasted for a period in excess of six months. The symptoms affected his mental being. But I do, with some hesitation, find that he did not know he was suffering during 1964-5 with a compensable psychiatric injury. He knew that he had disturbing symptoms during this period but they settled down and the plaintiff put the disturbing events behind him. On the other hand when the disturbing symptoms recurred in 1970 when the plaintiff was on HMAS Derwent, the plaintiff did have knowledge that he was suffering from a mental injury. In my opinion the plaintiff has failed to establish that he first knew that he was suffering from the mental injury after 10 November 1990.
He saw the psychologist, Dr Leah Giarratano, on 16 April 1999. He produced a document to her which was tendered in evidence as Exhibit DEF31. As I have earlier stated, it appears to have been a statement prepared on behalf of the plaintiff. The statement is illuminating. On page 2 appears the following:
“In 1970 I was posted to HMAS Derwent. This was fine except that now I started to suffer from claustrophobia being in enclosed spaces and whenever I slept on board I would try and sleep in the sick bay which was on the main deck. During my time on Derwent I found it very hard to sleep below decks of a night and only would if there was no other place to sleep. The biggest problem for me on the Derwent was when we sailed for service in the SRA. At one stage we had the dental team on board and they used the sick bay for accommodation and I had to sleep forward in the miscellaneous messdeck and this caused me a lot of problems with nightmares associated with getting out if we were involved in a collision. As I was the ‘Medic’ I had access to antidepressants and took Sinequan to help control this without the doctor being aware. During this voyage I started to re-live the fear of the collision when we became involved with being rescue destroyer for allied aircraft carriers during exercises. While we were in company of big ships and exercising I would not go below decks, instead would make myself the ‘duty medic’ and stay on the bridge whilst able to. Once again I was using alcohol as means of coping.” (emphasis added).
In my opinion, that statement reveals that the plaintiff did know that he was suffering from mental-type injuries and he prescribed himself antidepressants to treat his problems. “Antidepressants” are prescribed for mental injury. He prescribed them himself. This was to treat a mental condition.
In my opinion, the plaintiff has not established that he first knew that he had suffered from a mental injury after 10 November 1990. The evidence shows he knew in 1970.
It follows that in my opinion the plaintiff’s cause of action is statute barred and s.5(1A) does not exclude or avoid the defence. It follows that the plaintiff’s claim fails.
Conclusion
In my opinion, the Commonwealth defence based upon s.5(1)(a) of the Limitation of Actions Act 1958 has been made out. The plaintiff’s claim is statute barred. Section 5(1A) does not apply because the plaintiff has failed to prove that it does apply.
If I am wrong in that conclusion, it is my opinion that the plaintiff would have been entitled to recover damages in the sum of $20,000.
Subject to submissions by counsel I propose to make the following orders:
(i) That the proceeding be dismissed.
(ii) That the plaintiff pay the defendant’s costs.
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