Errol Frederick Lymbery v Commonwealth of Australia - [2007] NSWSC 183

No judgment structure available for this case.

CITATION: Errol Frederick Lymbery v Commonwealth of Australia [2007] NSWSC 183

HEARING DATE(S): 27,28, 29, 30 November 2006
1, 4, 5, 6, 7, December 2006

JUDGMENT DATE :
9 March 2007

JUDGMENT OF: Patten AJ at 1

DECISION: See paragraph 176

CASES CITED: Medlin v State Government Insurance Commission (1995) 69 ALJR 118
Malec v J C Hutton Pty Ltd (1990) 64 ALJR 316
National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569 at 598;
Thatcher v Charles (1961) 104 CLR 57
Victoria Stevedoring Pty Ltd v Farlow (1963) VR 594
Simonius Vischer & Co v Holt and Thompson [1979] 2 NSWLR 322
Bennett v Jones (1977) 2 NSWLR 355

PARTIES: Errol Frederick Lymbery
Commonwealth of Australia

FILE NUMBER(S): SC 20824 of 2001

COUNSEL: Mr M.Williams SC with Mr A Gemmell - Plaintiff
Mr R. Burbidge QC with Mr D. Brogan - Defendant

SOLICITORS: Hollows Lawyers - Plaintiff
Australian Government Solicitor - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Patten A J

9 March 2007

Errol Frederick Lymbery v Commonwealth of Australia
No: 20824 of 2001

JUDGMENT

INTRODUCTION:

1 The Plaintiff was born on 10 November 1944 at Maleny in Queensland. He grew up in the Sunshine Coast area and was educated at Caboolture High School where, in his teens, he met the woman who subsequently became his wife.

2 About the end of 1961, he decided to make a career in the Navy. To that end, in January 1962, he passed various mental and physical examinations and on 9 February was accepted as a recruit. He was posted to HMAS Cerberus for training. Thereafter, his naval career progressed satisfactorily, as I will relate hereafter in greater detail. By February 1964, he was serving on the aircraft carrier HMAS Melbourne as a member of the arrestor gear party stationed on the flight deck. At that time he was classed as an Engineer Mechanic.

3 On the night of 10 February 1964, the Plaintiff was on board Melbourne, which was engaged with the Daring Class Destroyer HMAS Voyager in night flying exercises, some 21 miles east of Jervis Bay. About 9pm, there was a collision between Melbourne and Voyager, as a result of which some 82 sailors died and Voyager sank. I will, hereafter, simply refer to this terrible event as “the collision”.

4 In these proceedings, which were commenced on 10 October 2001, the Plaintiff claims damages for psychiatric injury and sequelae thereof suffered as a result of the collision. Master Harrison granted him an appropriate extension of time to bring action on 2 June 2005.

5 The Defendant, on the pleadings, admitted liability for the Plaintiff’s claim but denied that he suffered damage causally connected to the collision. The hearing before me largely concerned that issue. He was represented by Mr M Williams SC with Mr Gemmell, and the Defendant by Mr Burbidge QC with Mr Brogan.

THE PLAINTIFF’S EARLY LIFE:

6 The Plaintiff recounted a happy normal childhood and early manhood. He was talented in a variety of sports, particularly cricket at which he subsequently represented the Navy in inter service matches. He was gregarious and outgoing at school and popular with pupils and teachers. He was also popular with his naval colleagues, to whom he displayed the same outgoing personality as attracted him to his schoolmates.

7 His scholastic record at school was also very satisfactory. In some subjects he was top of the class. He was in excellent mental and physical health.

8 All these matters were uncontroversial, the Plaintiff’s own evidence on the subject being corroborated by his wife and his wife’s sister, Helen Thompson who had known the Plaintiff since 1960 when they were at school together, although he was a little older and more in her sister’s group.

THE PLAINTIFF’S TESTIMONY:

9 The Plaintiff entered the Navy soon after leaving school following his seventeenth birthday. He said that he regarded himself as embarking upon a career for life or, at least, for 20 years, after which he would be entitled to a pension and able to consider a career in civilian life. He contemplated that by then, he would hold, at least, the rank of Warrant Officer, if not Lieutenant, or perhaps Lieutenant Commander.

10 In June 1962, he was drafted to HMAS Anzac for training as an engineering mechanic and about 4 months later to HMAS Sydney for further training. In December 1962, he was posted to HMAS Melbourne where he started training for his auxiliary machinery watching certificate. By the end of 1963 he had attained the certificate with a superior pass in all subjects.

11 Following this, he commenced working in the “arrestor party” on Melbourne, a body charged with the duty of ensuring that landing aircraft did not overshoot the runway. He described this as “the best job I had in the Navy”. At this stage, the Plaintiff said that he was very happy in his career. He had passed all the exams he sat for and “thought I had a long term career ahead of me”. He said that he had a big circle of naval friends while retaining his school friends.

12 On 10 February 1964, he went off duty shortly before 8pm, had a shower and lay down on his bunk in 3P Stokers mess, located on the port side of Melbourne, about half way along the ship and on the third deck down from the flight deck. There was an open weather deck both forward and aft.

13 The ship was at flying station. As he lay on his bunk he felt a shuddering sensation, as if the ship had run aground. He jumped to the deck and heard someone shout that Melbourne had collided with Voyager. He then heard a very loud sound of scraping or tearing metal. He hurried to forward weather deck and looked to sea.

14 From this position, he saw the bow section of Voyager about 60 metres away from which men were jumping into the sea, which seemed to be covered by a large oil slick. As he watched the bow section sank with men apparently trapped inside. He heard screams for help and the sound of hissing steam. His feelings were of horror and helplessness. Nobody directed him to any task but he observed that the ship’s boats had been lowered and rescue operations were underway, in a sea illuminated by Melbourne’s floodlights.

15 He watched as survivors were brought on board Melbourne, men covered in oil, some naked, all apparently very distressed. Later, he went to the hangar where survivors were accommodated. They were lying on blankets, some apparently very injured. He then went to the quarterdeck where he saw the aft section of Voyager still afloat some 300 or 400 metres away. It, too, ultimately sank.

16 According to the Plaintiff, he has no further recollection of the night. Nor does he remember the voyage back to Sydney; of seeing his brother-in-law at Garden Island where he worked; or of going for a drive with the woman who subsequently became his wife, although at the time they were not romantically involved.

17 His next recollection, he said, is of being billeted on Melbourne at Cockatoo Dock. While there, he was able to observe the damage caused to its bow by the collision. He also saw newspaper photographs of that damage.

18 In due course, Melbourne was repaired and he returned to sea in her, working in the same capacity as previously. There were voyages to the Far East. He attained a Throttle Watchkeeping Certificate and a Water Attendant Ticket before being posted in August 1965 from Melbourne to HMAS Rushcutter where he was to work in the engine room of the diving boats, Tortoise and Turtle.

19 During this period he said that he began to experience gastric reflux, nightmares and sleeping problems. He also had difficulties of concentration. In the nightmares he would see the bow section of Voyager sinking in front of him; men in the water screaming; people being rescued; oil everywhere while he stood by helpless, unable to do anything. An image of the damaged bow of Melbourne would also appear to him. He said that he woke from these dreams “in a lather of sweat” and feeling very disturbed. He had not had any similar experience before the collision. At first, their frequency of these experiences was of the order of one each 1½ to 2 weeks but, by the time he left Melbourne, the frequency was close to once per week. He developed the habit of waking at 1 or 2 am and then having only broken sleep until the morning.

20 There was testimony concerning his smoking habits. His evidence was that he did not smoke before the collision but, after it, took up smoking and by 1985, when he stopped while awaiting hernia surgery, was smoking 30 cigarettes a day.

21 Gastric reflux was not something he experienced before the collision. He first noticed it after drinking 4 or 5 beers when it was accompanied by a burning sensation in his oesophagus. He took the proprietary product Quick Eze to combat the problem.

22 Towards the end of 1963, he had noticed a tendency for a rash to develop on the inside of his forearms. He could not recall this happening prior to joining the navy. However, the rash responded to prescribed ointment up to the collision. Thereafter, he said it became much worse and was with him all the time. He commenced to scratch his arms during his sleep so that by morning they would be bleeding.

23 In August 1965, when posted to HMAS Rushcutter, he was promoted to Leading Hand. He was also identified as potential officer material. In May 1966, he was posted to HMAS Cerebus, a shore training depot in Victoria in order to complete a short Leading Seaman training course. He was there less than one month.

24 Following this, from July 1966, he attended a 2 year mechanician training course at HMAS Nerimba, Blacktown, near Sydney. Having finished the course at Nerimba in July 1968, he was posted to HMAS Kuttabul for a short time where he was engaged in fleet maintenance, and then to HMAS Sydney where he trained as an engine room mechanician.

25 However, according to his evidence, sleeping problems, “flashbacks”, and hot flushes continued to trouble him and his gastric reflux condition worsened. He saw a naval doctor who prescribed medication. He applied creams for the skin rashes, nightly or more frequently, when needed. He did not, however, speak to the naval doctors about “flashbacks”, nightmares, or sleeping problems, fearing, he said, that it might become common knowledge in his mess that he had psychological difficulties and also possibly affect his career.

26 On Sydney, in the period between September 1968 and October 1970,he made several voyages to Vietnam, ferrying troops and equipment to what was then a war zone. On one of these voyages there was an incident as his ship entered Vung Tau Harbour. The engines, at half astern, stirred up the bottom of the harbour and weed entered condensor intakes, blocking the cooling systems. As a result, the generators and main engine were shut down. At the time he was in charge of the aft engine room where ventilation ceased with engine shutdowns. His evidence on the subject continued:

“I sort of - I was running around trying to organise this; organise that, and then, the divers on the deck started to throw scare charges in the water. The purpose of that is to scare enemy divers that happened to be lurking in the vicinity.

Q. It fractures their eardrums?
A. I am not sure one hundred percent on that, and when you are under the water line in the engine room it is like a mini depth charge going off. At the same time I had a lot of water hammer. Because we didn't have cooling in our condensers the steam was causing water hammer, which was a similar sort of noise to the scare charges going off.

And I just had a flashback to the Melbourne Voyager incident. I just froze. All I could think of was the Melbourne Voyager incident. I froze and I didn't do anything. I just lost it. I didn't know what to do.

By this stage people from the next watch came down because they recognised that we were in trouble. They came down and they relieved me of my duties, sent me up, on the upper deck to get some air and they proceeded to sort out the problems we had.

Q. What was the actual imagery you saw in the Voyager flashback in this instance?
A. It was like me outside my body looking at me looking at the bow section sinking, it is like me looking at myself watching the bow section sinking, doing nothing.

Q. Did that give you - that experience, a realisation about yourself?
A. I think so.

Q. What was that?
A. That I was really worried after that how I would go under other pressure situations that may arise in the future.

Q. And did you make a decision at that time?
A. No I did not.

Q. How long was it after that, that you decided you ought to get out of the Navy?
A. I decided before then. I don't know exactly when that trip was. It was, near one of the last trips we did that I already made up my mind up before then.

27 During this period he obtained a “boiler ticket” and an “engine room ticket” and in June 1969 was promoted to mechanician first class with the rank of Chief Petty Officer. Only 2 exams stood between him and commissioned rank. However, his attitude towards naval service commenced to change, “I started to get anxious when I was working, I got nervous, I was hyper, just hypo all the time, I was prancing around, on edge, just got nervous, I started to lose faith in my abilities”. He said that he thought that sleeping problems and nightmares played a big part in this change of feeling. In the result, he decided to leave the Navy when his current contract expired and the papers which contemplated his promotion to officer rank were cancelled. When he told his wife, Catherine, whom he had married in June 1966, of this decision, he said that she was “very disappointed”.

28 Thus, when his engagement expired on 2 June 1972, he left the navy having concluded his service with a 10 month posting to HMAS Platypus, a shore position where he was engaged in the maintenance of submarine equipment. He had continued to suffer from the various medical problems, identified above, sleeping difficulties, nightmares, skin rashes and gastric reflux.

29 Asked by Mr Williams about alcohol consumption, he said that before the collision he was a “binge drinker” at weekends whenever he was on leave with other sailors. There was some change afterwards in that when he commenced to experience gastric reflux, he reduced his alcohol intake.

30 By the time he left the navy, his daughter, Emily, had recently been born but he said that fatherhood played no part in the decision. The family moved to Queensland and established a home at Strathalpine, a suburb of Brisbane where he set about finding employment. He identified work at an oil refinery as meeting his qualifications and experience but initially was unsuccessful in obtaining such employment. As a consequence, he worked for 18 months as a yard hand in a timber yard. However, in 1974 he secured a position with the Amoco Refinery near Brisbane as a plant operator, a position of some responsibility as errors could be very costly to his employer. He showed aptitude for the work and received promotions to positions of greater responsibility, to the extent “I became very anxious, nervous, when I was operating the panel, I was worried I was going to make a mistake, someone might get injured. I was like a cat on a hot tin roof”.

31 As to health problems, he said that his experiencing of “flashbacks” abated but his poor sleep patterns remained, that is, he tended to wake at 1am or 2 am and only slept fitfully thereafter. However, he was accustomed to go to bed as early 8 pm, which may have accounted for the problem. He continued to experience “nightmares” as before, and said that he was “pretty worn out” by the end of his daily shift at work.

32 He now knows, from what his wife has told him, that he has suffered from sleep apnoea for a very long time but this complaint was only formally diagnosed in the 1990’s since when he has slept with what is known as a CPAP machine, the acronym standing for “continuous positive air pressure”.

33 Symptoms of gastric reflux continued while he was at Amoco but he found that Quick Eze was an effective control. Occasionally he experienced skin rashes but they responded to treatment.

34 He also claimed that the events of 10 February 1964 and their sequelae diminished his libido. However, his evidence in chief on this subject was somewhat unclear, at least in relation to causation, as the following extract from the transcript reveals:

“WILLIAMS: Q. At this stage if I could go to a more personal matter, the physical side of your relationship with your wife, taking the point in time which you have just got to be a panel operator and you are telling us about fatigue and stress and the like, and your night sleep disturbance, what was the condition of the physical side of your relationship with your wife?
A. You mean the sexual side?

35 He left his employment at Amoco after about 5 years. He explained his reason, “I was lacking in self-confidence. I was nervous, agitated. I didn’t want to go to work anymore”. At the time he had the opportunity to adopt an entirely different lifestyle by working on his uncle’s dairy farm at Maleny. He saw this, after discussion with his wife, as a much less stressful job which he could handle and, at the same time, enjoy a better quality of life. Nonetheless, he had misgivings about leaving Amoco as he had progressed well there and believed that having once resigned he would never be re-employed in the industry.

36 The move to the dairy farm with his wife and daughter, then aged 7, occurred in mid 1979. His earnings dropped considerably and he was required to work long hours, starting at 7am, seven days a week. He said that he virtually never left the farm and that if he wanted such things as spare parts for machinery, his wife would go into Maleny to buy them. The only break he could recall was a month’s sojourn in Nambour Hospital for a hernia repair.

37 Moreover, he found that life on a farm did not stop regular “flashbacks” of the collision or improve his sleep problems. Additionally, the somewhat reclusive life style he adopted caused friction with his wife who wanted him “to get back into society”. She kept urging him “to go back and get a real job”.

38 After leaving the Navy, he eschewed contact with other servicemen and discarded his naval uniforms and photographs. He also declined to join any service organisation or club but ultimately, his wife, on his behalf, joined the Vietnam Logistical Support Veterans Association. He remains a member but has taken little part in its affairs having attended only 2 meetings and marched on Anzac Day twice.

39 After about 7 years on the dairy farm, his wife, through one of his former workmates at Amoco, was responsible for him being offered re-employment at the refinery which had, in the meantime, changed hands and was now operated by BP Australia (BP). He returned to work at the refinery on 14 January 1986, starting as an “operator”, a position lower than the one he held previously. He worked on an outside unit under the direction of a “panel operator”.

40 He retired from BP Australia on 16 July 2002. Later he was invited, on several occasions, to work for short periods on a temporary basis. He accepted only one of those invitations for a one month period. The other invitations he declined, “ I didn’t want to go back to the refinery at all. It was just the environment down there. It’s a very dangerous place to be, a lot of hydrocarbons around and I just didn’t want to put myself through the anguish of going back down there again”.

41 He said that he now has few social contacts, “I’m very withdrawn, I'm a loner, very few friends. I’ve only got two friends”. Asked why he has not maintained his connection with the Navy, he answered, “I just didn’t want anything to do with the Navy anymore”.

42 As to the present position with medical problems, he said that the gastric reflux is under control with Somac tablets and his skin rashes “are very good”, with the application of Dermaid Cream about every two weeks. However, he said that he still experiences disturbed sleep and nightmares on average about twice a week. The nightmares are still of the bow of the Voyager sinking in front of him, with men in the water covered in oil and of newspaper clippings of the collision.

43 In recent years he has been under the care of psychiatrist, Dr John Gibson at Greenslopes Private Hospital. So far he has had six consultations with Dr Gibson and has, on his advice, participated in cognitive behavioural group therapy on about 7 occasions up to March 2006. He later undertook a post traumatic stress disorder program in April, May and June 2006, which he found “very beneficial”. Presently, he takes Citalopram, 20mg per day, prescribed by Dr Gibson, and said that subject to financial constraints he intends to undertake any treatment recommended to him.

44 One matter which had particularly concerned him while working at the oil refinery was the danger of electric storms. Lightning, he said, can cause power “dips” which affect the machinery and can also cause fire. Electric storms therefore created the potential for serious financial and other consequences. He said that if he was waiting at home to go to work and saw a storm approaching, he would “curl up in a ball on the lounge chair in a very high stressed state, anxious and nervous about having to go to work”.

45 He gave Mr Williams details of an incident when he was at BP which, so he claimed, demonstrated the stressful nature of his work there and provided a reason for him to resign:

“Q. Can I ask you this: Are you able to give us an instance at the refinery, after you were on the panel, when you experienced such flashback; can you think of one of them?
A. Yes there was one bad incident that I remember.

Q. What happened?
A. I was a shift manager at the time, it was about 2000, it was about 2 o'clock in the morning, everything was nice and calm, all sitting around, taking it easy, and all of a sudden a valve broke on the residue cracking unit.

Q. On the residue cracking unit?
A. Residue cracking unit. The RCU. The panel operator noticed that something was wrong, he had alarms going off, he sung out to me. I was in my office about 10 metres away. I raced out to the control panel, which is all computer operated. I conferred with the panel operator as to what was wrong and how we could fix it. The valve that actually broke - or we didn't know it had broke at that stage, but the valve that was giving us the trouble was the valve that separates the hydrocarbon atmosphere from the oxygen atmosphere, and the two must never mix otherwise you could have an explosion. That valve had jammed shut, which meant that the catalyst was going to carry over into the unit and clog up the whole unit.

At this stage it was panic stations all-around. People were running in and out of the door, and I had to make the decision to shut down the unit. The unit is shut down by flicking a switch which has a protective cover over it. That makes the unit safe under normal circumstances. But in this case we had a broken valve. People were running everywhere.

I just froze in front of the panel. I didn't know what was going to happen next. The other shift manager, a bloke called Frank Claffey, he was also up to speed on this particular unit. He had worked on it. He ran outside with operators to try and fix this valve because this - with this valve open. In the meantime I stood there transfixed, and the Melbourne Voyager thing, me looking out over the side the Melbourne Voyager then come back to my mind. I felt helpless. I didn't know what to do. This feeling lasted for two or three, four, five minutes. I don't know the exact time. And then I gathered myself and tried to carry on with my duties. At this stage the valve could not be opened. It had broken. So we then proceeded to make the unit safe. We proceeded to do adjustments on all the other units which were linked into this unit. And that's about it.

Q. Could you tell the Court, had you had any training for management of emergencies and shutdowns and the like at the refinery, or were these things unexpected and out of the blue?
A. We had training for all sorts of emergencies. Extensive training. We had a computer room where we trained on. But not all instances are the same. So you have to make your own judgments on each incident.

46 He said that his daughter, now a married woman in her thirties, was very close to him as a child and he used to play with her every day. However, at least during the dairy farm years when most of her schooling occurred, he did not attend any of her school or sporting activities, “I didn’t have an involvement in anything off the farm, I never left the farm. I was just a hermit”. Since retirement, he sees his daughter and her family at least fortnightly.

47 About two years ago he was diagnosed with prostate cancer. It has been treated and he said that his prognosis is very good. But sleep is still disturbed and the situation has not changed over the years. Asked by Mr Williams about “flashbacks”, he replied:

“A. I haven't had any daytime flashbacks. I have night-time flashbacks when I wake up after a nightmare. I become fully awake and then I ruminate or think back. I just think back at the bow section sinking, the men in the water. “

48 He was subjected to a detailed and lengthy cross-examination by Mr Burbidge, who made it clear that his credibility was very much in issue. I will need to refer to some parts of that cross-examination. Early in it, he told Mr Burbidge that health problems which he now relates to the collision are post traumatic stress disorder (PTSD), gastric reflux and the worsening over a number of years of his skin rash condition. As to gastric reflux, he agreed with Mr Burbidge that he addressed it by reducing his intake of beer and taking medication to the extent that it is no longer a problem. He told Mr Burbidge that he spends his time in retirement without seeking any remunerative work. He plays bowls regularly and does voluntary work at the bowling club, mowing grass etc.

49 He has found that his skin rashes are much less a problem than before retirement, a circumstance which he attributes to being away from dieseline. In any event, he uses a cream when necessary which he finds effective.

50 He agreed with Mr Burbidge that until comparatively recent times, he had no inkling that he suffered from PTSD. A Mr Turton, who had also been on Melbourne at the time of the collision, first suggested it to him. As a consequence, he came into contact with Mr Turton’s solicitor who arranged for him to consult a psychologist, Mr R Binfield, and a psychiatrist, Dr J Gelb. All this happened in 2000 and 2001. He said that he saw Mr Binfield twice and Dr Gelb once, for about an hour and a half. At some time towards the end of 2001, he also saw a Dr W. Glaser.

51 In relation to his evidence that he has virtually no recollection of what transpired between the collision and the return of Melbourne to Sydney, the cross-examination revealed that probably the only significant event which the Plaintiff has been unable to recall is the Captain’s address to the assembled ships company warning against discussing the collision with any outsider. This, I think, may cast doubt upon the conclusion of Dr Gelb to which I will, hereafter, refer that the Plaintiff suffered, “significant psychogenic amnesia”.

52 Although, as indicated earlier, the Plaintiff said that he baulked at the idea of discussing psychological problems with a naval doctor, he told Mr Burbidge that he did not hesitate about consulting one about other matters and he agreed that his medical records should identify any consultations. Questioned upon the records, it emerged that prior to the collision he had sought treatment for skin complaints, tinea and urticaria rash in 1962, dermatitis in 1963, and weeping eczema over both arms in 1964, before the collision. These problems continued throughout 1964. Pressed about nightmares, there was this exchange:

“Q. Now you told my learned friend yesterday that you started having nightmares. I wonder could I just ask you to just tell us as best you can now when do you say as best you can place it, these nightmares start?
A. After the Voyager collision.

Q. Well yes, but there has been a lot of miles have gone past since that time?
A. Shortly after the Voyager collision.

Q. Well in the context of 40 odd years we have still got a fair bit of room to move, could you give us a better indication than that?
A. Earlier 1964.

Q. Well now, could I understand the nature of the nightmare. You have described it. Would you be so kind to describe it again?
A. Yes. Just give me a moment ... I just have a nightmare of me standing on the deck looking out over the power section seeing men under water, people screaming and running around, oil on the water, people coming up the ladders. The other part of the nightmare is the newspaper photo of the Melbourne on the way back to Sydney.

BURBIDGE: Q. Until the present day?
A. That's correct.

Q. Unvarying?
A. Unvarying.

Q. There is no element of fantasy anywhere within the nightmare. It is, in fact, what actually happened?
A. That's correct.

Q. May I ask then in the nightmare which you've had countless times, what part do you play in the nightmare as opposed to what you've termed flashbacks to which I'll come separately. Where do you fit into the nightmare, if you do at all?
A. Well I'm just standing there looking at all this happening.

Q. So it's an endless replay of what actually happened?
A. Yes.

Q. On the night that you were standing there looking out at the troubled scene in front of you?
A. Yes.

Q. May I ask you a different question, did you think that to be unusual or abnormal that you were having this repeat vision of what had occurred over and over again?
A. Yes, I suppose I did.

Q. Did you make any attempt whatsoever to get any assistance in relation to it?
A. No I didn't.

Q. Did you pass on to anybody at all the fact that you were having these nightmares on such a regular basis?
A. Only to my mess mates.

Q. So your mess mates?
A. Yes.

Q. In particular, which mess mates?
A. I don't remember exactly who.

Q. Wasn't that your concern, that finding out about this situation would lead them to tease you or brand you weak or something of that nature?
A. That's correct.

Q. Then it seems a little odd that you were not prepared to tell the medico who might have helped you because it might get back to your own mess mates that you were prepared to tell your own mess mates directly. Have I misunderstood something?
A. I think you have.

53 Apart from his mess mates in the Navy, the Plaintiff said that prior to 2000, only his wife knew about his nightmares. He said he told her of the content of them about 1980 but the first medical professional to whom he mentioned them was Mr Binfield. He acknowledged that he did not mention nightmares when he was being treated for sleep apnoea and said that it then did not cross his mind, “ I was going there because I was choking off in my sleep and stopped breathing, I wasn’t sent there because I was having nightmares”.

54 However, as Mr Burbidge pointed out, the only relevant reference in Mr Binfield’s notes was “no bad dreams that recall”. He said that he could not recall telling Mr Binfield that and had no explanation why Mr Binfield would record it. According to the Plaintiff he told Mr Binfield about nightmares. As to a distinction between flashbacks and nightmares:

“Q. I'll just ask you about your idea of a flashback. First, in your mind, is a flashback different from a nightmare?
A. With me, I thought a flashback was something where I have a nightmare then I'd wake up and then I'd sort of sit there ruminating about it. And I was calling those flashbacks.

Q. So what you're describing when you've used the word flashback is the thoughts--
A. The thoughts.

Q. --to which your mind goes after wakening from the nightmare that you've described?
A. Yeah, that's what I originally thought flashbacks were, yes.

Q. Have you come to have a different view of what they are or is that your present view?
A. I still believe that, but yeah, I believe I have had flashbacks in a different form.

Q. We'll come to the Vietnam matter in due course but just sticking with your use of the term. We may understand that when you have told the Court of experiencing flashbacks, putting aside the Vietnam matter for the moment, what you are speaking of is the thoughts that come back into your mind when you wake up in the middle of the night?
A. That's correct.

Q. And those flashbacks you've described as a vision of the newspaper with its memorable picture of the front of the 'Melbourne'. Is that right?
A. That's correct, yes.

55 In relation to the incident in Vung Tao harbour, which the Plaintiff indicated occurred after June 1965 and which seems to have occurred about 1969, he agreed that when the engines stopped conditions were oppressive in the extreme, made worse by the fact that “scare” depth charges were being dropped over the side of the ship to deter enemy underwater divers. In that situation, as it appears, when some assistance was forthcoming, he took the opportunity to have a break on deck, after which he returned to duty. There was no suggestion, apparently, that he had deserted his post or that disciplinary action would be taken.

56 At the time the Plaintiff left Amoco he had qualified for appointment to panel operator but had not been appointed to the position. He denied to Mr Burbidge that his decision to resign was dictated by quality of life considerations, rather than work stresses. He agreed, however, that following discussion with his wife, he decided, “that it would be nice to be free of having to make the decisions or any decisions and simply be operating in the somewhat more simple agrarian life”.

57 It emerged during Mr Burbidge’s questioning that he was interviewed by Mr Springthorpe of BP on 5 December 1985, with a view to employment at the refinery. The interview form records Mr Springthorp’s remarks, “He was and still is highly regarded by all operations personnel who knew him as an excellent operative with a good attitude. He has maintained contact with many of the operators and is familiar with a lot of the changes that have occurred in the refinery and should be capable of being retrained quickly to a high level of competency and flexibility”.

58 He told Mr Burbidge that at BP he had to start again as a plant operator but wanted to seek promotion and greater responsibility. However, it was of the order of 8 years before he was promoted to “controller”, the position previously called “panel operator” for which he had qualified at Amoco. In the meantime, he had come under favourable notice as the letter to him dated 7 June 1991 indicates:

Dear Errol,

I would like to commend you on your actions during the HF Acid release on 24 May. Your assistance during the incident helped to minimise the consequences of a very hazardous situation.

The comments from yourself and others involved in the incident have been invaluable and will result in changes to further enhance safety at the Alkylation Unit.

59 In 1996, he received a further promotion to “Senior Controller”, responsible for an area comprising four or five units. After that he was subjected to annual performance reviews, which partly involved a self-assessment. In March 1998, he recorded of himself, “increase process knowledge where possible” and in another part of the document “continually self-training, interested in training others, try to be helpful to others training”. He wrote under the heading “Employee aspirations” the words, “to advance as far as my abilities allow”.

60 He agreed with Mr Burbidge that these comments did not indicate self-doubt and that the comments by his manager on the documents were “very complimentary”, one reading - “Excellent senior controller – definitely shift manager material”.

61 In February 1999 he was promoted to “shift manager”, which carried a salary of $90,000 pa. He accepted the promotion on the day it was offered to him. As Shift Manager, he was in charge of half the units in the refinery. The promotion also represented an elevation to “Staff”, from “award employee”.

62 Mr Burbidge cross-examined about this promotion:

“Q. Mr Lymbery, the time that you took this job which seems to have been the day that it was formally offered to you at least, what do you say is the position about your concerns for your ability to deal with problems as they arose?
A. I was very anxious on the job but I was very good at my job. I'm not saying I couldn't do the job, I could do the job, but it was just my self doubts, my anxieties that was eating away at me.

Q. You say that, but you would not have taken a job which you thought was imperilling your own life and that of others unless you thought you could do it, surely?
A. I did think I could do it.

Q. Not only did you not think you could do it, but you did do it?
A. I did it, yes.

Q. You did it for a considerable period of time?
A. Yes.

Q. Did you do it well?
A. I did.

Q. Were you highly regarded by those around you?
A. I was.

63 Some 5 months after promotion to Shift Manager, he underwent a formal written assessment about which Mr Burbidge questioned him:

“Q. And your assessment of yourself would seem to have been "my knowledge on north end and oil movements areas needs improvement. Man management skills need improvement, maybe with a course. My skills as a shift manager are improving with more time in the job, however, I have a way to go yet. Unit knowledge on south end and alky are okay." That was your assessment was it?
A. Yes.

64 On this assessment, his supervisor wrote, “Errol is understating man management skills. However, will look for course possibilities”. His supervisor also endorsed, “It is easy to forget Errol only started the role early this year. Goals are achievable and would expect Errol to have achieved them by end of 2000”.

65 Those and other remarks on the assessment seem to me to indicate that, by mid 1999, the Plaintiff was highly regarded by his superiors; was coping more than adequately with his staff role; and was under consideration for further advancement.

66 In February 2000, his salary package was again quite significantly increased. By that time, in another formal assessment, he felt able to write, “By month’s end, oil movements knowledge has improved and man management skills have improved. My shift manager skills are improving with more time in the job”. He agreed that this was an indication “of the progression of your own confidence in you own ability to do the various jobs associated with the position you were holding”. However, the document did note, “weaknesses” – “more confidence needed”.

67 The Defendant’s case on this aspect of the matter is largely, I think, encapsulated by the following exchange with Mr Burbidge:

“Q. Now that carries us to the year 2000. Now may we take it that your intent at that time was, as you had earlier indicated, that you wished to continue to raise your skill levels in various management areas?
A. That's correct.

Q. And as a member of staff you enjoyed a different position from the position you had enjoyed as an employed award officer did you not?
A. That's correct.

Q. Did you at any time voice any concern about your ability to do these tasks?
A. (No answer)

Q. Did you voice it to any of your -
A. Yes, Mr Maugham, I raised at that particular meeting -

Q. What did you say?
A. - about confidence.

Q. What do you say you said to Mr Maughan?
A. I can't remember the exact words. It was along the lines of I need more confidence: "I have to get more confidence in the job".

Q. Is that the extent of your reservation was it?
A. Yes.

Q. You see, you have told us on several occasions that refineries are dangerous places because there are hydrocarbons there and other reasons, is that right?
A. That's correct.

Q. You told us of the possibilities of fire and error in sending the wrong fluids down the wrong pipes and so on?
A. That's correct.

Q. Without perhaps stating it baldly, but you have said that you had some fear, did you, that you might get it wrong; is that right?
A. Yes I did.

Q. Well you see, do I follow you on the one hand that you were seeking to improve yourself, and did improve yourself, consistently from the time that you went back to the refinery when it was under BP's control; is that right?
A. Yes.

Q. You sought to improve yourself?
A. Yes.

Q. Sought to get positions of greater responsibility?
A. That's correct.

Q. Culminating with a move from employee status to staff status?
A. That's correct.

Q. On the other hand you say that you were, do you say, bedevilled by fears in the background of which you made no mention?
A. That's correct.

Q. So you felt, did you, that you were prepared to run the risk of some catastrophic event so that you could improve your own financial position; is that what you're asking us to believe?
A. Could you say that again?

Q. You have told us the possibility of catastrophic mistake, millions of dollars a day you told us; correct?
A. That's correct.

Q. And the fact is, is it, that you thought that that might happen with you at the controls?
A. It's a possibility, yes.

Q. Do you say that you were prepared to risk that, you were prepared to risk some sort of catastrophic occurrence because of your own inability to cope?

OBJECTION.

WILLIAMS: I object to that question unless it is put in the time frame, at what stage, because as you know the evidence is he reached a stage where he wasn't prepared to continue. It needs to be put in context chronologically.

BURBIDGE: Q. I will ask you again. Did you at any stage take the view that it was appropriate for you to seek to improve yourself, nonetheless though you might be the cause of a catastrophe?
A. Could you ask the question again?

Q. That is the question. Did you take the view through these years when you were improving yourself, getting yourself into a position where you were in control to some extent, did you take the view that you'd run the risk of being unable to respond appropriately?
A. Yes I did.

Q. Nonetheless though you thought that you might cause a catastrophe?
A. That's correct.

Q. And you ask us to believe that as something we are to accept, do you?
A. I do.

Q. So you discussed this fear of yours with anybody, did you?
A. No I didn't.

Q. So that you kept the fear to yourself, telling neither your employees, your medicos, nor anybody else of them?
A. That's correct.

Q. Mr Lymbery, I suggest to you that you were a very competent operator, both in the navy and in the refinery; are we agreed on that?
A. I agree with that.

68 On 28 September 2000, another formal performance review was carried out by BP. His own assessment on the form was, “I am comfortable with the role of shift manager south end”. He agreed with Mr Burbidge that this indicated that his earlier concerns as to the need to learn more about his position had been satisfied.

69 Moreover, there was an upgrade of the refinery occurring at about that time and the Plaintiff agreed that he had gained a working knowledge of the new units although they did not form part of his direct responsibility. He saw his acquisition of this knowledge as a new challenge, “so I can contribute in the general running and also in emergency situations”. He answered “That’s correct”, to Mr Burbidge’s question:

“Q. So, far from expressing any kind of reservation about your capacity to react to an emergency situation, you were putting yourself forward as willing and likely to be better qualified to help should you do this additional learning of which you spoke? “

70 By the end of 2000, it appears that the Plaintiff’s remuneration package had risen to over $130,000 per annum, which included a superannuation entitlement which he could access after attaining the age of 55. It was also at that time contemplated that the following year he would be sent to a management training course.

71 In February 2001, his salary was again substantially increased to the effect that the salary “package” became about $142,000 per annum. Nonetheless, during the year he decided to resign and, as it appears, made an arrangement with his superior, Mr Thorpe, to take pre retirement leave at the end of which he would formally resign. The proposal that he undertake a management course was abandoned and he did in fact resign by a formal letter to Mr Thorpe dated 5 June 2002, which ascribed no reason for the resignation.

72 The Plaintiff’s evidence in chief as to the reasons which prompted his resignation from BP in 2002 seemed to be confined to the passage I have quoted in paragraph 45 above. He told Mr Burbidge that he discussed retirement with his wife and that with his superannuation and other savings, they decided that following his retirement they would be able to live in financial comfort. By that time his daughter and only child was married and living with her husband.

73 Cross-examined as to any relationship between his resignation from BP and the earlier commencement of these proceedings, there was this exchange with Mr Burbidge:

“Q. Had you been advised that it would be open to you, were you to retire and claim that you had done so by reason of inability to continue, that you could claim the amount of money forgone; did you get that advice from your solicitor?
A. Could you just repeat that again please?

Q. Did your solicitor - I will start with this: How often did you see your solicitor after the first occasion when you met him, I think you told us, in Brisbane?
A. Approximately six monthly.

Q. Did he on any occasion tell you that it was open to you to claim that you had lost moneys by early retirement?

OBJECTION

WILLIAMS: I submit that ought to be put into a temporal context, vis-a-vis the date of retirement.

BURBIDGE: Q. Well did he either, before your retirement, or after your retirement, tell you that it was open to you to claim the difference between say 57 years of age when you retired, and 65?
A. No he didn't.

Q. He didn't claim that on your behalf did he?
A. (No answer)

Q. You know he has claimed that, don't you?
A. I do now, yes.

74 In relation to the history relied on by Dr Gelb, the Plaintiff told Mr Burbidge that he first saw the doctor on 4 January 2001 when he was given what he described as “homework”. This constituted a questionnaire which he subsequently answered in his own time. The answers were forwarded to Dr Gelb, under cover of a letter dated 29 January 2001. Dr Gelb was also provided with statements made by his wife and himself.

75 He agreed with Mr Burbidge that he did not mention the incident in Vung Tau Harbour either to Mr Binfield or to Dr Gelb. There is, however, a reference to the incident in the report of Dr Glaser. He said that it had not occurred to him to mention the incident to Dr Gelb or Mr Binfield, but he told Dr Glaser about it, in response to a specific request regarding his experiences in Vietnam. He agreed with Mr Burbidge that what he told Dr Glaser was that he had a “panic attack” and that, as a consequence, he abandoned his post and that “the resultant shame and loss of self confidence produced by the incident pushed him into resigning from the Navy”.

76 Cross-examined further on this subject, the Plaintiff said, in effect, that the “shame” he was referring to was not the shame of what happened in the harbour in Vietnam, but rather, as I understand the evidence, at least in part the shame or helplessness he felt immediately after the collision.

77 Mr Burbidge cross-examined him upon a statement made to his solicitor in 2001:

“Q. I will read it to you: "I left the navy because I had become disillusioned with my career ambition". There is more. But would you like to tell us something about that first?
A. That was my ambition, to go on and become an officer.

Q. It says because, "I had become disillusioned with my career ambition"; is that correct?
A. Yes.

Q. It's accurate?
A. Yes.

Q. "I had continual hot flushes"?
A. Correct.

Q. "Hot flushes"?
A. Well -

Q. What hot flushes?
A. Well, hot sweats.

Q. It says "I had continual hot flushes"; what does that mean?
A. Hot sweats.

Q. Sorry?
A. Hot sweats.

Q. Hot sweats?
A. Yes.

Q. You see, I had understood you to tell us that you had night sweats on occasion where your neck and your torso was wet with perspiration when you woke?
A. That's correct.

Q. They are hot flushes, are they?
A. Yes.

Q. "I had continual hot flushes and flashbacks, and had problems sleeping after about 1am in the morning"?
A. That's correct.

Q. "I felt a complete career change would be to the benefit of myself and family"?
A. That's correct.

Q. "My wife was disappointed in my decision, as she was apprehensive about starting again. She felt that I had just wasted ten years of my life"?
A. That's correct.

Q. That was the answer when you completed this document was it not?
A. Yes.

Q. We see any mention of the deep shame and the loss of self-confidence engendered by the continual nightmares that you had had and the incident in Vietnam; nothing there?
A. No.

Q. In the course of the statement that you provided to Dr Gelb, from which I take it he was looking to provide a history?
A. That's correct.

Q. What you said on the topic at that time, do you remember what you said to him?
A. No I don't.

Q. What you said was:

“I did six trips to Vietnam, taking troops and equipment to the war zone. During this time I became increasingly disillusioned with the navy and I started to doubt my own abilities, especially when I was under pressure. Although I was qualified to become an officer I started to lose interest, my health problems were no better, and I decided to quit my officer ambition and get out of the navy when my time was up.”

Did you say all that?
A. Yes I did.

Q. No mention there of the incident in Vung Tao Harbour?
A. That's correct.

Q. No mention of any deep sense of shame arising out of that incident?
A. That's correct.

Q. No mention of loss of self-confidence - oh perhaps, "started to doubt my own abilities", I suppose. Right. Now did you go on to say: "I could not understand what was driving me in this direction. That is to quit my officer ambition and get out of the navy"?
A. That's correct.

Q. Is that the fact, that in 2001, January 2001, at least, you did not see yourself in any way as having been driven to get out of the navy by a combination of what happened in Vung Tau Harbour plus some nightmares of some kind, did you?
A. That is referring to what I felt at the time. Late sixties, not 2001.

78 Mr Burbidge returned to the Vietnam incident and questioned the Plaintiff in some detail about it. Towards the end of this section of the cross-examination, the transcript reads:

Q. Could I just ask you at what stage was it that you had this experience that you described for us the other day?
A. When the scare chargers started going off.

Q. What happened?
A. That's when I froze.

Q. What do you mean you froze?
A. Well I had a flashback to the 'Melbourne'/'Voyager'.

Q. Physically, did you stop and stand in one spot?
A. I did.

Q. You did?
A. I looked at the bulkhead which was like looking out the port side in the engine room.

Q. What then happened?
A. That's when I had a flashback of the bow section and the collision.

Q. You've told us rather more than that. You've told us there was some sensation of watching yourself down below, something to that effect, I'll find it. What you said was, page 46, line 56, "It was like me outside my body, looking at me, looking at the bow section sinking"?
A. Yes, that's correct.

Q. And that is, is it, the way that you remember it today?
A. It is.

Q. So that you had some picture of yourself looking at the bow of the 'Voyager'. Is that the position?
A. Can I try and explain it?

Q. Yes please do?
A. I was looking at the bulkhead. I was frozen and I was looking.

Q. You mean the bulkhead of the 'Sydney'?
A. The bulkhead of the 'Sydney'. I'm looking at the bulkhead, the wall, and I was frozen and I could see myself looking out at the bow section of the 'Voyager'.

79 In relation to his decision to leave the Navy, Mr Burbidge put to the Plaintiff the contents of a record of interview in 1969 with a Naval officer which included the statement:

80 He agreed that the quoted passage was accurate. There was then this further questioning:

“BURBIDGE: Q. But now just looking at that part that I've read thus far, it would seem that you had a discussion with the board at that time. Is that correct?
A. No, that was a one-on-one with the Lieutenant.

Q. Then it would seem also that you did indicate that you were minded to sign on for a limited period of time in order to complete 12 years which had two benefits, I suppose, one was it would give you a chief mechanicians qualifying course ticket if you succeeded. Correct?
A. That's correct, yes.

Q. And second benefit was, was there some financial advantage in seeing it through the 12 years?
A. I don't recall, but I don't think there was any incentive, no.

Q. In any event, as you've told us yesterday, the Navy wanted its pound of flesh from you and if they were prepared to educate you up to another level and have you go off and do courses and so on, then it was at the price of you being available to them for a period?
A. That's correct.

Q. And the mathematics of the thing worked out that you needed to knock up, on top of your original commitment, you needed to add on another year and 115 days, I think you told us?
A. That's correct, yes.

Q. And you thought that was a fair price to pay for the obtaining of the chief mechanicians certificate. Is that right?
A. No, that was to do the mechanicians course, do the course.

Q. But that had a direct translation into civilian life as a qualification?
A. Yes, it meant I was a fitter and turner, yes.

Q. If you successfully passed this course, you were entitled to assert, wasn't it the fact that you had the qualifications of a fitter and turner within civilian life?
A. That's correct.

Q. A trade?
A. That's correct.

Q. That was the decision that you made at that stage that you'd stay on the additional time in order to gain that qualification?
A. That's right.

Q. "Approached the divisional officer with a view to withdrawing and was a little surprised when name came up. It was a little hard to select him, but in the case the board ... I've obtained the following information." There follows certain information which includes the proposition that you had again failed mechanics. Is that right?
A. That's correct.

Q. And the proposition that you apparently advised at that time, was that you considered your failure due to the fact that it was a relatively new subject to you and you pointed out apparently that none of the other mechanicians on the course had attempted the paper. Is that so? Is that what transpired between the two of you?
A. Yes.

Q. Then you told him certain other things. Then the general comment that turned up at that time was that "Impresses as a sailor who could cope with the special duty of an engineer, though he could have some difficulty with the more difficult theoretical aspect of the course. Motivation is rather luke warm. Recommendation adequate, but suggest rejection on grounds of motivation and marginal ability." Was that conveyed to you by the way, or not?
A. Yes it was.

LAY EVIDENCE SUPPORTING THE PLAINTIFF’S CASE:

81 In support of his claim the Plaintiff called his wife, Catherine; his daughter Emily Baxter; Helen Thompson; a man whom he has known since High School, Bevan Bateman; a man with whom he served in the Navy, James Meredith and a workmate at Amoco and BP, Barry Askew.

82 Mrs Lymbery said she met the Plaintiff when they were fellow students at Caboolture High School. She said that he was a very good sportsman and was also good academically. He was popular with students and teachers. She was aware that he joined the Navy after he left school and had some contact with him when he returned to Caboolture on leave. He told her that he loved his work in the Navy.

83 She, herself, joined the Army in February 1964 and while stationed at Georges Heights witnessed the damaged Melbourne enter Sydney Harbour. She knew the Plaintiff was on board and arranged to take leave in order to see him. They went for a drive in Centennial Park, she noticing that he was very quiet and withdrawn and seemed “edgy”. He told her that he was not allowed to discuss the collision.

84 She saw him again at Caboolture at Christmas 1964 and noticed that he was still quiet or withdrawn, unlike his previous personality. At that time, she and the Plaintiff were not romantically involved but this seemed to occur about October 1965. She said he was still much quieter and more reserved than he had been before the collision. She also noticed that whereas before the collision he seldom smoked cigarettes, afterwards, “he always seemed to be smoking”.

85 In June 1966, they married and set up home at Rosehill near Sydney. Within the first month of marriage, she said there was an incident when the Plaintiff sat up in bed “his arms up, groaning, mumbling, his eyes wide open”. She noticed that his body was wet, “he was a ball of perspiration”, but she could not discern what he was saying or mumbling.

86 There were many repetitions of similar incidents, both at night and during the day when the Plaintiff awoke from an afternoon sleep. During the first such incident in daylight, she put her hand in front of his eyes but perceived no reaction despite them being open. The episodes which she said last about seven seconds have occurred at a frequency up to the present of two or three times a week. They are always accompanied by heavy sweating.

87 In or about 1967 Mrs Lymbery first noticed symptoms of heavy snoring, followed by a short period of interrupted breathing which many years later were diagnosed as sleep apnoea. It is not asserted that sleep apnoea is related to the collision.

88 She also gave evidence about the skin rash with which her husband has been afflicted since the marriage. She said it used to occur behind his knees, on his arms and around his abdomen. Sometimes it seemed to be worse after he had been at sea. According to her, the problem lessened once he left the Navy.

89 Apart from a silver tray which he had won at a course, Mrs Lymbery said that the Plaintiff seemed to want to put the Navy out of his life. He gave away his uniforms and seemed to lose contact with his naval colleagues. It was at her instigation that he joined the Vietnam Logistical Support Association, but she said his involvement has been extremely limited.

90 On an occasion about the time he was going to Vietnam on HMAS Sydney, he told her he had withdrawn promotion papers, “because he had lost his self-confidence and self esteem and felt that because of that he would not be a good leader of men”. He told her of the incident in Vung Tau Harbour which he said resulted in him being “pulled out of the engine room” and which brought back to him all the memories of the collision in a very stressful way.

91 Mrs Lymbery said that she was aware her husband took medication for gastric reflux from at least the time of their marriage. To her observation over the years the condition seemed to become worse. She believed that the reflux caused her husband to reduce his alcohol intake.

92 During the time the Plaintiff worked at Amoco, Mrs Lymbery told Mr Williams that he appeared to be stressed and unhappy but said that he did not talk about his work. Moreover, after the collision she said that he never regained the outgoing personality he had before. When he left Amoco he told her that he was “nervous at work” and that he could not do the job properly.

93 Referring to the period on the dairy farm, she said, ”He was solitary up there” which “bothered” her but apparently not him. She said that she decided, after discussion with her husband, that he should try to get work back at the refinery and she enlisted his former colleague Barry Askew to help in that regard.

94 According to her testimony, the Plaintiff only once ever discussed the collision with her and this was at a Christmas while they were on the dairy farm. She said that he told her that he tried to help but he was not allowed and that he saw men in the water screaming out and he felt helpless. She said that her husband appeared distressed and emotional while telling her this.

95 In relation to the period when the Plaintiff worked for BP, Mrs Lymbery said that he appeared nervous if a storm was brewing and would comment about the havoc that storms could create at the refinery. On one occasion, he told her of an incident concerning a broken valve as a result of which he told her, “I froze – the Melbourne/Voyager came back to me”. He also said words to the effect that he could not cope with the work at the refinery.

96 Under cross-examination, Mrs Lymbery said that her husband was pleased with his progress in the Navy and told her, at one point, that he had been invited to put himself forward as a candidate for officer rank. She said that the incidents of her husband suddenly sitting up in bed muttering etc. have continued as before, despite his use of a CPAP machine, although the machine has stopped his snoring.

97 Mr Burbidge asked her about a long standing hay fever problem which she said was resolved when he had a sinus operation about 1995. She said that he used to take Quick Eze for gastric reflux which, “he would eat like lollies”. Later it was found that his gullet was ulcerated and he was prescribed a more effective medication.

98 While still in the Navy, she said he had a hernia operation but apparently two more operations were required subsequently. He stopped smoking when he was facing the last of these. She told Mr Burbidge that as far as she was aware, at least before the collision, he was only an occasional social smoker but her knowledge of his habits was limited in the period prior to October 1965.

99 As to her husband’s friends, she said that he does not now socialise with any Naval colleagues but he has one or two friends at the bowling club where he spends about twenty hours per week, playing bowls and performing voluntary work.

100 Prior to retirement from BP, she said that the Plaintiff told her he wanted to take his long service leave entitlement as leave, and this he in fact did, commencing long service leave during 2001. She said that she could not recall being told that he had agreed with his manager that when he returned he would resign, although clearly this is what occurred. She said that the letter of resignation in June 2002, was her first actual notice of retirement but conceded that her husband told her during his leave that he intended to retire. He also told her that, “he lost confidence and he could not cope and he was nervous”.

101 Mrs Lymbery agreed with Mr Burbidge that by June 2002 their financial situation was comfortable and sufficient to withstand her husband’s retirement.

102 Mrs Baxter was born on 22 March 1972 and recalled moving to the dairy farm at Maleny when she was 7. She described her father as “very quiet – he kept to himself”. During her school years, she said that his participation in her school and sporting activities was “very, very low”. He also appeared reluctant to discuss his naval life, although there was one occasion about 16 years ago when, in response to a question from the man who later became her husband, he said that he had been on the Melbourne at the time of the collision.

103 There was this exchange with Mr Williams:

“Q. When you were about, say, 8 years of age. Can you remember eye witnessing something involving your dad being asleep on the lounge at the farmhouse in Maleny?
A. Yes.

Q. What did you see?
A. Dad would sit up and his eyes would be open and he would like, like he didn't know where he was and he would sit up for a few seconds and I remember that I would ask him if he was okay and he'd blink a few times and say - he would say that he's okay.

Q. When you say this would last "for a few seconds", have you actually - with a sweep second hand estimated how long he would take to sort of snap out of it?
A. Probably about four seconds - four or five seconds.

104 Asked whether she had noticed any change in her father’s demeanour or disposition since having psychiatric treatment, she replied:

105 Mrs Thompson said that she has known the Plaintiff since about 1960 when they were at High School. He was in her older sister’s group of friends. She described his personalty, “very popular. Even the teacher liked him. He was scholastically quite bright, very good sportsman very outgoing”.

106 She was aware that he joined the Navy after leaving school and remembers seeing him back at Caboolture after the collision. He was then very quiet, “a very big contrast”.

107 During the period he worked for Amoco, she said that he always seemed to be very stressed and in an emotional state, which, in her observation did not change during the period he was on the dairy farm. She described his personality as “ a bit morose”. She maintained her contact with her sister and the Plaintiff and said that when he returned to the refinery, he appeared, “ the same, if not worse in the stress level, Yeah, very sort of distant. Very distant”.

108 She recalled an incident which occurred in 1966 when her sister and brother in law were living at Rosehill:

“A. Well, Cathy showed me Errol was - well, he was supposed to be asleep but he was sitting up in bed, eyes open, and he was sort of groaning, you know. Bit of a groan. And she said, "Look at this."

HIS HONOUR: Q. Bit of a what?
A. A groan.

109 According to Mrs Thompson, she was present subsequently when on four to six occasions a similar incident occurred.

110 Mr Bateman, a retired bank manager, has known the Plaintiff since he was about 5, Mr Bateman being about 2 years older. He described the Plaintiff as a good athlete in a variety of sports and said that he was “a happy go lucky sort of chap, anything for a lark, always joining in and would go for his life”.

111 He spoke to him on the telephone shortly after the collision when he said, (unsurprisingly), that the Plaintiff was somewhat subdued. His next contact with the Plaintiff was at his wedding in 1967 and then there was apparently a lengthy gap until they met in 2001 at a school reunion. He said the Plaintiff “seemed very quiet, did not really want to carry on much of a conversation”.

112 Mr Meredith met the Plaintiff in the Navy on a Marine Engineer Training course before the collision. He recalled that the Plaintiff’s academic ability was “excellent” and that he was a good sportsman, especially at cricket. He described his personalty as “very nice, very affable and very outgoing”. He was also very popular with colleagues.

113 Mr Meredith was serving on Melbourne when the collision occurred but he and the Plaintiff were in different messes. He has never spoken to him about the collision but he did remember a piped order as they steamed back to Sydney not to discuss the collision with anyone.

114 After the collision, Mr Meredith was posted to a shore establishment and did not have contact with the Plaintiff again until 1966 when they were both on the course at HMAS Nerimba for about 2 years. He said the Plaintiff was “very reserved. Not as outgoing, just different. He was different”. He did not mix with others.

115 Mr Askew, now a controller at the BP refinery in Brisbane where the Plaintiff worked, said he had worked at the refinery since September 1978 when it was owned and occupied by Amoco. He met the Plaintiff when he came to work there about October or November 1978. They then worked the same shifts. He described his impression of the Plaintiff at the time:

“A. Yes, when I started there, Errol worked on the panels a lot. There are certain jobs in the oil refinery. To give you a background, there are outside jobs where you work outside on the plant and at that stage we had two panels. Where the plants run from those panels, Errol worked on those panels. When we would get a crude oil change, or there would be an impending cruel oil change, Errol's mood used to change. He would get sort of uptight - not nervous, as if in shaking-type nervous - but his demeanour would slowly change the closer it got to the time and he would start playing with something, like a piece of wire or biro cap.

Q. A piece of wire or a biro?
A. Biro or something we used to call it his worry toy. He would be there and he would fidget with it. Would still be looking at his panels but it would be like a subconscious thing where he would be playing with this thing while he was watching what was going on on the control panel. The blokes used to take the - - --

WILLIAMS: 'Mickey' will do nicely?
A. For want of a better word, we used to take the mickey out of him over it and tell him you have worried that thing enough, why don't you give it a break, and he would put it down and half throw it on the desk, and within a couple of minutes it would be back in his hands and checking the clue charge furnace. It would get that way he would keep it in his hands while he made adjustments with the other hand.

116 Mr Williams then led evidence from Mr Askew about the Plaintiff’s resignation from Amoco and decision to live on a dairy farm:

“Q. Very well. There came a time as we know when he left Amoco and by that time how well did you know him?
A. Oh, we were pretty good friends.

Q. What was your reaction - was it a sudden thing?
A. Yeah, it came out of left field. It is like people have sea changes every day, different people, and, they plan them and it is a big thing. This, just sort of one day he is there working at the refinery and the next day he is finishing on Friday because he is going up to milk cows, and he never seemed happy about it, like, if it was me having a sea change, I would be over the moon and I would be bashing everyone's ears, as most people would. It didn't seem like something that he was going to enjoy.

Q. Did he ever explain it to you or did he just -
A. No, I asked him once, when he first told me that he was finishing up, or I heard somebody said Errol is finishing up. I couldn't believe it and I had a bit of a chat to him and he said he was going up to milk cows.

Q. What did he say exactly?
A. Banging the old memory a bit now, but it was - he was going up there to work on this farm.

Q. Did you, after he had, out of the blue, gone off to milk cows, go and visit him from time to time?
A. Yeah, in the early years my wife and I didn't have kids when Errol and Kathy first moved up to the farm, and because I work shift work I got time off during the week and I would zip up on the motorcycle, ride up that way and call in and see them.

Q. Your wife Shirley was friendly with Cathy?
A. Yeah. After a couple of years, my daughter was born in 82, we would go up there occasionally, of an afternoon, we pick up a bun or something on the way up and go up there, and I would give Errol a hand rounding the cows up and then we would have afternoon tea.

………………………………….

Q. Going back to the farm, you visited him on multiple occasions. What sort of life did he appear to be living?
A. Very ordinary. The house that they were living in was clean and tidy, not long after they moved up there Errol did the bathroom up a little bit, but you would do the house a favour if you pushed it over with a bulldozer.

Q. Sorry?
A. You would do the house a favour if you pushed it over with a bulldozer. It was a dump. There wasn't a level floorboard in the place. It was past its use by date.

117 As to his return to the refinery, there was this exchange:

“WILLIAMS: Q. We know that after some six years he came back to the refinery. How did that happen?
A. It came about one afternoon I think it was a Sunday Cathy and Emily - Errol's wife and daughter, called him home once and - this particular day, and, Cathy was having a bit of a cry on shirt shoulder. I was there at the time. We were having a cup of tea, and she was saying how they were struggling up there, and they got no money, and they had been having to buy clothes at St Vinnie's, and no money for Emily's school fees, schooling. She was in high school by this stage. What grade, I'm not quite sure. And they were really doing it tough, so, I knew there was a job - an operator job coming up at the refinery. Someone had just left. I had a chat to a mate of mine or a bloke that I used to work with. He was my shift manager. He worked with Errol on the same shift that I started on, back in B shift, and I rang Errol and had a bit of a chat to him about it. I said look there is a job going, why don't you get off your bum and do something about it.

Q. What was his reaction?
A. He did, but, it wasn't like - went along with it. It wasn't like - Hey that sounds good, I will jump in and do something! You know, and I know Ken Goodman, the other person that had a bit to put in a good word for him to get him put back on, but he - Errol, I wouldn't say he was less than enthusiastic about coming back, but he - we even went over the day they moved down to Brisbane and helped them move in and it wasn't like he was glad to be back.

Q. When he became a shift manager in 1999, was that when you once again worked on the same shift together?
A. Yes, Errol came onto our shift as a shift manager, yes.

Q. And from the time when he came back to what was now BP, you weren't working alongside each other until he became shift manager in 199 -
A. No we didn't work on the same shift. Occasionally I would work overtime on the shift that he worked on but not on a regular shift, basis. We still saw each other and did a couple of shutdowns together, that type of thing?

· Although I believe that the Plaintiff’s evidence that he was not a cigarette smoker at all before the collision was mistaken, I accept that before the collision he was a light or social smoker but became a significantly heavier smoker afterwards, before ceasing altogether about 1985. On the balance of probabilities, I accept a causal link between the collision and an increased level of smoking with the consequences identified by Professor Goulston.

· That no causal link was established between the collision and sleep apnoea and I note that no claim in that connection was pressed.

· That he suffered eczema or skin rashes to such a significant degree that medical attention was required before the collision. The collision may have exacerbated the problem but I am not prepared to regard that as more than a possibility. I note that there was no report from a dermatologist in evidence and that, according to Dr Alcorn, the condition improved when he travelled north.

· In my view, the evidence does not warrant a finding that he suffered nightmares in any accepted sense attributable to the collision. It may be that nightmares precipitated his startled awakenings but he did not mention their content to any doctor and his evidence on the subject was quite vague. He seemed to use the expressions “nightmares” and “flashbacks” interchangeably. The latter seems to me to encompasses what he experienced.

· I am not satisfied the Plaintiff established that his alcohol intake significantly increased as a result of the collision. He admitted that he was a “binge drinker” before the collision and that he subsequently moderated his drinking habits as a consequence of experiencing gastric reflux.

· The Plaintiff’s personality changed quite considerably after the collision altering him from an outgoing gregarious man to an introverted, withdrawn, somewhat morose one.

· Although the Plaintiff throughout his working career, both in the Navy and afterwards, performed the duties assigned to him very capably and conscientiously, once he achieved a high level of responsibility, he tended to lack a degree of confidence in his own abilities which was causally related to the collision.

· There was an incident in Vung Tau Harbour about 1969 when the Plaintiff, in trying circumstances, had what might be described as a “panic attack” and as a consequence went up on deck. The incident did not loom sufficiently in his mind for him to mention it to Dr Gelb or to Mr Binfield. Nor did he mention it at the time as a factor in him deciding to leave the Navy. It was not established, in my opinion, that it involved him deserting his post or any other dereliction of duty, moreover, it occurred about 2 years before he actually left the Navy. I do not regard it as constituting a significant factor in his decision to leave the Navy.

DEFENCES:

149 The Defendant, inter alia, pleaded as separate defences, “Remoteness”, “Contributory Negligence”, and “Failure to Mitigate”. To the extent that “Remoteness” and “Contributory Negligence” were appropriate or required to be pleaded, as defences the matters particularised can be dealt with under the rubric of “Failure to Mitigate”. That was particularised as follows:

“Further or in the alternative, in answer to the whole of the Statement of Claim, the Defendant says that if the Plaintiff did suffer any injury, loss and/or damage, which is not admitted, the Plaintiff had a duty to mitigate his loss and to take all reasonable steps to minimise the effects of those injuries, but did not do so and/or has unreasonably aggravated the same.

Particulars

a Smoking and continuing to smoke cigarettes when he knew or ought to have known it was dangerous to his health;

b Failing to heed warnings that smoking cigarettes can cause ill health;

c Failing to cease smoking;

d Consuming alcohol in excessive quantities;

e Consuming alcohol and continuing to consume alcohol when he knew or ought to have known it was injurious to his health;

f Failing to heed warnings that consuming alcohol could cause ill health;

g Failing to cease consuming alcohol;

h Failing to seek treatment, or any appropriate treatment, when he knew, or ought to have known, that such treatment was required;

i Failing to notify, or report to, the Defendant that he was suffering from any injury, loss, disability or damage.

150 The Defendant adduced little evidence in support of its allegation of Failure to Mitigate and, in relation to cigarette smoking, the Plaintiff was not cross-examined about his knowledge of the dangers. Given that the court is concerned with the period between 1964 and 1985, I am not persuaded that the evidence warrants a finding of Failure to Mitigate in respect of such part of the Plaintiff’s claim as may be related to cigarette smoking.

151 I have already held that, in my opinion, no causation was established between the collision and any increase in the Plaintiff ’s consumption of alcohol.

152 As to the Plaintiff's failure to seek appropriate treatment, this, as it seems to me, can only relate to the Plaintiff’s psychological injuries. I accept as reasonable his explanation for not seeking medical attention whilst still in the Navy. No explanation was proffered for his failure thereafter and, until quite recently, to seek medical attention. According to the evidence, the treatment provided by Dr Gibson has been beneficial and it is reasonable to infer that such treatment, if provided much earlier, would have been more beneficial. I think there was a Failure to Mitigate, which would warrant a deduction of the order of 10% from the general damages to which the Plaintiff is otherwise entitled.

GENERAL DAMAGES:

153 As I have indicated, the Plaintiff has established psychiatric injury in the form of PTSD, which has persisted for more than 40 years. He is to be compensated for the manifestations of that disability, which I have sought to identify, namely a significantly changed personality, frequent “flashbacks”, symptoms of gastric reflux and loss of confidence in his abilities when given high responsibility.. His claim must be assessed in light of the other unrelated medical problems which have beset him, as listed by Dr Alcorn. In that connection, what the High Court said in Malec v J C Hutton Pty Ltd (1990) 64 ALJR 316 is relevant. I also take into account the prospect that psychiatric or psychological treatment, which the Plaintiff says he will undertake when financially able to do so, may improve his condition and my finding that his degree of disability would probably have been reduced had he sought timely medical intervention soon after he left the Navy.

154 Doing the best I can, I assess damages for non-economic loss according to common law principles at $90,000

PAST AND FUTURE MEDICAL EXPENSES:

155 Past medical expenses were agreed at $7,724 and that sum, in my opinion, should be allowed.

156 The sum of $32,230.22 was claimed as an agreed amount in respect of future medication and medical expenses although causation was disputed. I have had some difficulty in reconciling the figures set forth on the Plaintiff’s schedule of damages, but there should be, in any event, some reduction in light of my finding that the Plaintiff’s skin problems are not be attributable to the collision. I allow $31,230 under the head of future medical expenses.

DIMINISHED EARNING CAPACITY:

157 The Plaintiff claimed damages for diminished earning capacity upon the hypothesis that his retirement from the Navy, his resignation from Amoco, and his resignation from BP were all causally connected to the collision.

158 The problem is not dissimilar to that discussed by the High Court in Medlin v State Government Insurance Commission (1995) 69 ALJR 118. In that case a university professor was injured in a motor vehicle accident when aged 56. He was due to retire at age 65 but retired when aged 60.

159 In relation to such retirement, the trial judge (Debelle J) found:

“The pre-eminent reason for the plaintiff's retirement was his desire to devote as much time as possible to research and creative philosophy untroubled by the requirements of university life, particularly his teaching and administrative duties. However, another reason for his retirement was his belief that, as he was not performing at the level he thought desirable, he should resign. But this was not the main reason for his retirement.

160 In their joint judgment Deane, Dawson, Toohey and Gaudron JJ stated the overarching principle (omitting citations):

161 In the course of his judgment, McHugh J (with whom the other members of the court substantially agreed) said, (omitting citations):

“However, the ultimate question is whether, as a matter of common sense, the financial loss that the plaintiff has suffered was caused by the plaintiff's act in resigning his office rather than by the defendant's negligence. If the plaintiff acted unreasonably in retiring early, then the law will disregard the defendant's negligence as a cause of the plaintiff's financial loss. That negligence and its effects will be treated as background conditions of the plaintiff's loss and, as a matter of common sense, not material causes of the plaintiff's loss.

A further question, and one that can be conveniently considered at this point, is whether, having regard to the loss of earning capacity, the plaintiff failed to mitigate his financial loss by not continuing in employment which would have continued to give him the earnings which he was receiving before the accident. In Adams v Ascot Iron Foundry Pty Ltd, Sugerman JA correctly pointed out that, where a question arises as to whether a plaintiff could have obtained employment that was within his post-accident capacity, the question is not really one of mitigation of damages. The plaintiff must prove that such employment is beyond his or her capacity ``as part of the general burden which lies upon him of proving the extent of the damage he has suffered by reason of the injury'’. But here the plaintiff has proved a general impairment of earning capacity and the exact degree of the impairment is not a matter for this court to decide. Accordingly, the question that then arises is whether the plaintiff failed in his duty to take steps that could have avoided or reduced the financial loss which he claims flowed from that loss of earning capacity.

28

Adams

162 In this case, the nature and ramifications of the Plaintiff’s psychiatric disability were, in my opinion, such as to diminish his income earning capacity and likely to be productive of financial loss.

163 As to his decision to leave the Navy, it was submitted by Mr Burbidge that he was not as committed to long service in the Navy as he would have the court accept. He referred to the fact that the Plaintiff initially signed on for less than the maximum period permitted and that the Plaintiff himself said to an interviewing officer on 18 April 1969, as quoted above, that “He is not sure that he wants to sign on again, mainly because of trips away”.

164 Nonetheless, I have concluded that the Plaintiff did lose confidence in his ability to progress to more senior rank, that such loss of confidence was causally related to the collision (as I have already found), and that this circumstance caused him to become disillusioned with the Navy as a career. It follows, in my view, that his decision to leave the Navy was reasonable.

165 The more difficult question is what follows from that conclusion. His claim is based on the reports of Cumpston Sargeant Pty Ltd (the Cumpston Reports). They predicate 3 scenarios namely:

166 While the decision of the Plaintiff to leave the Navy was reasonable, in my view, he cannot reasonably look to the Defendant for compensation consequent upon his decision to leave Amoco and work on a dairy farm and his decision to retire at age 57 from BP. In my opinion those decisions were predominantly for personal reasons and only remotely connected to the collision. In the case of leaving Amoco, the motivating force was the opportunity to embark upon a rural life which appeared attractive at the time, and in the case of leaving BP, the fact that he and his wife were then financially comfortable and he had no need to work.

167 At their highest, the decision to leave Amoco and the decision to leave BP were prompted by his fears, contrary to the evidence, that he was unable to perform the responsibilities of the positions to which largely the exercise of his own skills and diligence had led him. There was no evidence that he sought, either during the dairy farm period when his income was almost halved, or after June 2002, when it ceased altogether, other more suitable employment.

168 What he has established, in my opinion, is an entitlement to a lump sum as compensation for diminished earning capacity, according to the principles referred to in such cases as National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569 at 598; Thatcher v Charles (1961) 104 CLR 57 per Windeyer J at 77-8 and Victoria Stevedoring Pty Ltd v Farlow (1963) VR 594 per Sholl J at 599. The words of Windeyer J in Thatcher v Charles are apt to this case:

“Today a man incapacitated for one form of employment can often get other employment perhaps just as remunerative: so that he is not in a pecuniary sense worse off. That does not mean, however, that he has not suffered any economic loss. He has; for he has a reduced earning capacity as the range of activities in which he can be employed is less. It does mean, however, that conventional methods of calculating economic loss by reference simply to wages formerly earned are not appropriate”

169 Such a lump sum should take account of such matters as the delay experienced by the Plaintiff in obtaining suitable employment after he left the Navy, and his inability, because of lack of confidence, to accept positions of high responsibility. I have regard to evidence that in his last year in the Navy, he earned about $5,000; in his last year at Amoco about $15,000; that in the years on the dairy farm he averaged about $8,000 per annum; and that his annual income when he left BP was approaching $150,000. I think, in the circumstances, that $50,000 would be a reasonable sum to award for diminished earning capacity. In the circumstances, I have not regarded that assessment as susceptible to a deduction for Failure to Mitigate.

INTEREST:

170 I am satisfied on the authority of Simonius Vischer & Co v Holt and Thompson [1979] 2 NSWLR 322 that I have no power to award interest for any period prior to 1 July 1972.

171 It was submitted on behalf of the Defendant that no interest at all should be allowed, and reference was made to what was said in Bennett v Jones (1977) 2 NSWLR 355, and to the apparent discrepancy between the evidence given by the Plaintiff before me and his evidence before the Master during the Limitation Act hearing. The Master specifically found:

“The plaintiff did not realise that these diverse symptoms may have a psychological cause. Hence he did not seek the advice of a psychologist or psychiatrist until 2001”.

172 Before me there was this exchange between the Plaintiff and Mr Burbidge:

“Q. Then this was a rather more serious problem by which you were confronted?
A. It was.

Q. In terms of the psychological problem, wasn't it?
A. It was.

Q. And you've told us it's something that you discussed with others whom you say had had similar problems of nightmares?
A. That's correct.

Q. Then, did you have any other basis for not taking these matters to medicos other than the one you've told us about?
A. There is another reason.

Q. Perhaps you'd better tell us that as well?
A. At this stage in my career I wanted - all my ambitions were still there, I wanted to go on. And if I went to a doctor with psychiatric problems I felt that that would hinder or injure my career. It may even - might hinder my promotion.

Q. So the additional reason is that you recognised the problem to be of a psychiatric nature?
A. That's correct.

Q. That's about the last thing that you needed anywhere on your record?
A. Exactly.

Q. But you see, was not your application to the Court based on the failure, on your inability to recognise that you've had a psychiatric condition?

OBJECTION. FORM.

Q. Was not the basis of your application for extension of time that you didn't know you had a psychiatric condition?
A. That's correct. All I knew I was having these dreams, I didn't really realise it was a--

HIS HONOUR: Q. Did you finish that answer Mr Lymbery?
A. I'm lost, your Honour.

BURBIDGE: Q. You didn't realise that it was what?

A. Ask me again.

Q. You've just accepted that the basis of your application for extension of time was the proposition that you did not know yourself to have suffered a psychiatric condition until shortly before the application was made?
A. That's correct.

Q. But within the last several minutes, you've told his Honour that you had an additional reason at the time for not consulting any medicos in the Navy, namely, that you knew it was a psychiatric condition and the last thing you needed in terms of promotion, was something on your record that contained the word "psychiatric" condition?
A. That's correct.

Q. Then may I draw from that, and if not, why not, that you lied to the Court in order to gain an extension of time?
A. No I haven't lied. I've tried to tell the truth all along.

Q. How can you reconcile the two ideas: 1) You knew you had a psychiatric condition, and 2) You sought an extension of time on the basis that you didn't know you had a psychiatric condition?
A. When I said here before a psychiatric condition, I used those terms. At the time I didn't know it was a psychiatric condition, I just knew I had the nightmares and flashbacks. I knew if I went to a Naval doctor they might send me to psychiatrists or something. I didn't know at that stage it was a psychiatric problem. I didn't know that until 2001 when I seen Dr Binfield.

Q. That doesn't quite tell us how it was--
A. I was in denial Mr Burbidge.

173 Arguably, there is an inconsistency between the Master’s finding and the Plaintiff’s evidence but, in my opinion, this of itself would not warrant me depriving him of interest. The fact is that the Master, on the evidence before her, concluded that the Plaintiff was entitled to relief under the Limitation Act and, in effect, excused him from not bringing action earlier.

174 I think it would be just to award interest at 2%pa on $50,000 of the award for general damages and on $40,000 of the award for diminished earning capacity from 1 July 1972 to the date of judgment. Such interest amounts to $62,437.

175 In summary, therefore, I award

Out of Pocket Expenses: $ 7,724

Future Medical Expenses: $31,230

Compensation for Diminished

Earning Capacity: $ 50,000

Interest on General Damages

and Compensation for Diminished

Earning Capacity: $ 62,437

TOTAL: $ 241,391

ORDERS:

176 1. Verdict and judgment for the Plaintiff $ 241,391

3. Exhibits may be returned.

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Citations

Errol Frederick Lymbery v Commonwealth of Australia [2007] NSWSC 183

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Metcalfe v Commonwealth of Australia [2008] VSCA 23

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Metcalfe v Commonwealth of Australia [2008] VSCA 23

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Malec v JC Hutton Pty Ltd [1990] HCA 20

Hollis v Vabu Pty Ltd [2001] HCA 44

CITATION:	Errol Frederick Lymbery v Commonwealth of Australia [2007] NSWSC 183
HEARING DATE(S):	27,28, 29, 30 November 2006 1, 4, 5, 6, 7, December 2006
JUDGMENT DATE :	9 March 2007
JUDGMENT OF:	Patten AJ at 1
DECISION:	See paragraph 176
CASES CITED:	Medlin v State Government Insurance Commission (1995) 69 ALJR 118 Malec v J C Hutton Pty Ltd (1990) 64 ALJR 316 National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569 at 598; Thatcher v Charles (1961) 104 CLR 57 Victoria Stevedoring Pty Ltd v Farlow (1963) VR 594 Simonius Vischer & Co v Holt and Thompson [1979] 2 NSWLR 322 Bennett v Jones (1977) 2 NSWLR 355
PARTIES:	Errol Frederick Lymbery Commonwealth of Australia
FILE NUMBER(S):	SC 20824 of 2001
COUNSEL:	Mr M.Williams SC with Mr A Gemmell - Plaintiff Mr R. Burbidge QC with Mr D. Brogan - Defendant
SOLICITORS:	Hollows Lawyers - Plaintiff Australian Government Solicitor - Defendant