Hill v Commonwealth of Australia

[2005] NSWCA 94

CITATION:	HILL v COMMONWEALTH OF AUSTRALIA [2005] NSWCA 94
HEARING DATE(S):	16/11/04
JUDGMENT DATE:	5 April 2005
JUDGMENT OF:	Mason P at 1; Giles JA at 116; Tobias JA at 117
DECISION:	Appeal dismissed with costs.

CATCHWORDS:	NEGLIGENCE - psychiatric illness - post-traumatic stress disorder - alcohol dependency and/or abuse - causation - reasonable foreseeability - substantial wrong or miscarriage - judge's treatment of witnesses - evidence not properly taken into account - shifting evidentiary onus - expert opinion. (ND)
LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 Commonwealth v McLean (1996) 41 NSWLR 389 Havanaar v Havanaar [1982] 1 NSWLR 626 Hill v Commonwealth of Australia [2001] NSWSC 800 Hill v Commonwealth of Australia [2003] NSWSC 1025 Purkess v Crittenden (1965) 114 CLR 164 T C v The State of New South Wales [2001] NSWCA 380 Tubemakers of Australia v Fernandez (1976) 50 ALJR 720 Watts v Rake (1960) 108 CLR 158
PARTIES:	Brian Finlay HILL v COMMONWEALTH OF AUSTRALIA
FILE NUMBER(S):	CA 41144/03
COUNSEL:	Appellant: A G Melick SC/ K Sant Respondent: R E Williams QC/ J McLachlan
SOLICITORS:	Appellant: James Taylor & Co, Myrtleford Vic Respondent: Australian Government Solicitor, Sydney

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 21147/96
LOWER COURT JUDICIAL OFFICER:	Cripps AJ

CA 41144/2003
SC 21147/1996

MASON P
GILES JA
TOBIAS JA

Tuesday 5 April 2005

Brian Finlay HILL v THE COMMONWEALTH OF AUSTRALIA

JUDGMENT

1 MASON P: The appellant was a rated Naval Airman who was below decks on HMAS Melbourne on 10 February 1964 when it collided with the destroyer HMAS Voyager. The collision resulted in the deaths of 82 men on Voyager. The appellant was not physically injured by the accident nor was he placed in any position of danger. He participated in the rescue efforts and would undoubtedly have been distressed by what he saw and learnt in the aftermath of this disaster.

2 He was 25 at the time. He had married his first wife Dorothy in 1961. They had two sons, James born in 1962 and Stuart born in 1967. Dorothy was killed in a car accident in 1969. In 1970 the appellant married again, but the relationship only lasted about six weeks. In 1981 he married Christine Jones (now Harvey). This marriage broke down in 1991.

3 In October 1996 the appellant commenced these proceedings. In September 2001 he obtained an extension of time under the Limitation Act 1969 in a contested application (Hill v Commonwealth of Australia [2001] NSWSC 800).

4 The proceedings came to trial before Cripps AJ in September 2003. The Commonwealth denied that its admitted negligence caused any of the appellant’s psychiatric conditions that were the subject of disputed or undisputed medical diagnosis in various medical reports.

5 The claim failed and a verdict for the defendant was entered (see Hill v Commonwealth of Australia [2003] NSWSC 1025). This appeal seeks a new trial limited to particular issues that the appellant submits were either not addressed by the primary judge, were the subject of insufficiently disclosed reasons, or were based upon findings referable to witnesses other than the appellant that ought not to have been made.

Rejection of PTSD claim

6 In his Statement of Particulars and the addresses of his counsel at trial the appellant contended that a range of injuries and disabilities stemmed from the accident. The case as opened (Black 11-13) was that the appellant suffered:

… a psychiatric illness which dramatically altered the course of his life thereafter.
The nature of this diagnosed illness, known as post-traumatic stress disorder, often called PTSD, which is a recognised psychiatric illness, the nature of that illness is such as to often conceal from its victims the fact that they have suffered the illness. In other words, they know there is something wrong but they don’t know what has caused it, and that was the situation with the plaintiff.
Although he realised that after the collision his life had changed dramatically, that he approached matters quite differently, that he thought of things in a different way and he had lost the motivation and the dedication which he had previously had, he was not aware that this constituted a psychiatric illness until many, many years later, in August 1997, when the disorder was first formally diagnosed by a medical practitioner as being a psychiatric condition sustained by him as a result of his involvement in the events of the collision on the fatal night.
…
So, as a result of his injuries and since the collision, he lost his naval career fairly shortly, and lost his focus on life, became dysfunctional, withdrawn, an emotionally impoverished person who found it difficult to maintain any decent, long-term relationships with spouses, family and friends.
So he has had a large number of different types of illnesses, a lot of it contributed to by alcoholism, which again, it is contended, has been caused by the condition. We will hear a good deal of medical evidence about that.

7 The evidence at trial included four broad categories.

8 First there was the evidence of the appellant himself, extensively challenged in cross-examination.

9 Secondly, there was evidence from family members and friends who testified as to their observation of the appellant’s drinking habits and emotional state at various times, long past. For some of them, their observation was limited to periods well after the accident.

10 Thirdly, there were extensive medical records covering the period of the appellant’s service in the Navy (13 February 1958 to 9 December 1964). The records cast significant light on the appellant’s condition before and after the accident and on the reasons for his discharge on medical grounds. This material presented real problems for the appellant, because it disclosed that there were major stressors in his life before the accident and that these, not the accident, were the grounds on which he left the Service in December 1964.

11 Fourthly, there was a body of body of medical opinion from treating doctors and specialists retained for forensic purposes. The medical evidence uniformly supported a diagnosis that the appellant was currently suffering from alcohol abuse and alcohol dependence and that he was in this condition in the (late) 1990s. The opinion evidence naturally addressed the possible aetiology of these medical conditions. Some of the appellant’s doctors supported his claim for accident-related PTSD and/or other recognisable psychiatric illness.

12 The appellant’s primary claim was that in the immediate aftermath of the accident he was suffering from PTSD and that as a consequence of that condition he drank excessive quantities of alcohol to self-medicate which, in due course, resulted in him becoming an alcoholic. Cripps AJ recorded (at J45) that his claimed excessive consumption of alcohol from the earliest times after the accident was said to be a “co-morbid” condition associated with PTSD.

13 This claim was rejected by the trial judge, whose decision on this subject is not challenged. The appellant was found to be a most unsatisfactory witness, his evidence lacked vital corroboration, his business dealings in the 1970s belied his asserted level of incapacity at that time, and he had deliberately attempted to suppress the evidence of a doctor (Dr Wu) who had treated him in and after 1996. The appellant’s claim as to a causal link between his drinking problems and the accident was also at variance with the contemporaneous naval medical records and the information he provided to his own doctors in the 1970s and 1980s. The medical opinions that inferred PTSD were found worthless because they were based largely on histories provided by the appellant.

14 Senior counsel for the appellant in this Court (who had not appeared at trial) conceded that any part of the remaining case that depended on this Court accepting the appellant’s testimony could not be maintained. Furthermore, the claim based upon a diagnosis of PTSD was no longer pressed.

The alternative case pressed on appeal

15 What is pressed is an application for a new trial based upon various categories of miscarriage relating to an alternative claim that is said to have been maintained at trial and to be supported by evidence from sources independent of the appellant’s discredited testimony. It is submitted that the trial judge’s failure properly to address this alternative case and the evidence on which it could be based and/or his failure to give adequate reasons for its rejection amounted to grounds for a new trial.

16 To obtain a new trial the appellant must show that a substantial wrong or miscarriage has occurred stemming from matters of legitimate complaint (Part 51 r23). In Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33, Mason CJ, Deane, Toohey and McHugh JJ said (at 39):

The court’s jurisdiction to order a new trial depends upon the demands of justice. But what is done or omitted to be done at the trial is an important consideration and will affect the exercise of the court’s jurisdiction.

17 I understand the appellant to accept that, before he could expect to obtain a new trial, he must point to expert and lay evidence that in combination could support the claim as to an accident-induced recognisable psychiatric illness. The respondent’s main answers to the alternative claim in this Court were that it had not been pressed at trial and that it was unsupported by essential expert evidence.

18 Cripps AJ found that the appellant is now and had been for some time “an alcoholic” (J24, 27) with a range of ensuing illnesses and incapacities. The appellant then points to the evidence of his lay witnesses at trial, especially Mr Thorne, submitting that the trial judge either erred in the findings that he made as to the appellant’s level of drinking in the late 1960s from the time of the accident and/or that he failed to address the evidence that did support the alternative medical case. It is submitted that these witnesses corroborated the appellant in his testimony that from as early as 1964 he was drinking to such a level as to constitute the psychiatric illness of alcohol abuse according to the Diagnostic and Statistical Manual of Mental Disorders 4th ed (DSM-IV or the Manual).

19 Identification of the evidence that supports this alternative case is not without its difficulties. One contributing factor is the elision in particulars/evidence of three potentially distinct matters:

(a) the appellant’s present condition (loosely described as alcoholism and not in dispute),

(b) the illness(es) that contributed to it, and

(c) the implicit assertion that these contributing illness(es) stemmed from the accident through a gradual progression of events not necessarily representing a recognisable illness, but sufficient to make good the causal link required by the law.

20 The Amended Particulars of Injuries (Red 115) spoke in the following terms (I have emphasised what I understand to be the presently relevant portion):

As a consequence of the collision between HMAS Voyager and HMAS Melbourne on the high seas on 10 February 1964 the Plaintiff has sustained injuries including: major depressive illness which is chronic, post traumatic stress disorder, chronic generalized anxiety state, substance abuse disorder being alcoholism, insomnia and sleep problems, poor concentration, claustrophobia, fearing of impending disaster, amnesia, diarrhoea, impotency, poly alcoholic neuritis, poor short term memory, lacks insight into his alcohol problem.

21 In the final address at trial there was the following exchange between the judge and senior counsel for the plaintiff (Black 463):

HIS HONOUR: It’s your case, isn’t it, the plaintiff developed PTSD consequent upon this?
FARIS: Yes.
HIS HONOUR: Is that the case?
FARIS: Yes.
HIS HONOUR: There is no alternative case?
FARIS: There is a minor allegation of alcoholism and a couple of other injuries; we won’t be pressing those.
HIS HONOUR: But you will be pressing alcoholism consequent upon PTSD.
FARIS: Yes. Simplistically put, the collision caused the PTSD and the other problems are a sequelae of that.
HIS HONOUR: But if it wasn’t post-traumatic stress disorder, are you still alleging alcoholism was caused by the collision?
FARIS: We are. That and anxiety, and even Dr Phillips concedes that.

See also Black 485-6.

22 There were written submissions before the trial judge to which it will be necessary to return.

23 The trial judge did not overlook the alternative case for compensation for alcohol abuse and dependency (see J12, 23). He described it in the following terms (about which the appellant makes no complaint) (J23):

Alternatively, it is alleged that even if he did not suffer from the condition of post traumatic stress disorder or any other anxiety of the type referred to in his claim, he has made out a case that by reason of the collision he has become an alcoholic and that even if he did not suffer from one or other of the other conditions referred to above, he is entitled to be compensated for the consequences of his alcoholism.

24 This case was also rejected. According to the respondent’s summary, the judge found that:

(i) the appellant did not suffer any psychiatric condition caused by the collision;

(ii) the appellant did not have the symptoms which he claimed to have had since the collision;

(iii) the appellant was not “self-medicating” for the purposes of dealing with those alleged symptoms;

(iv) the appellant’s claimed consumption of alcohol since 1964, and in particular in the 1970s and 1980s, was deliberately exaggerated; and

(v) the appellant’s decision to drink to excess was a voluntary decision by him.

The findings and reasoning leading to the rejection of the alternative case

25 As indicated, Cripps AJ rejected the appellant’s evidence that between the 1960s and the 1990s he was aware he was suffering from symptoms including insomnia, claustrophobia, nightmares, flash-backs etc or that these were triggers for excessive drinking by way of “self-medication” (J17, 19-20, 25-29, 39, 71).

26 The primary judge also made findings about the evidence of the appellant and others as to the level of drinking engaged in by the appellant in the first decade after the accident. Some were expressed in terms of the judge not being persuaded of a particular state of affairs. There is nothing wrong with this. Nor did the judge err (as suggested by the appellant) in holding back from finding when the condition of alcohol dependence diagnosed in the 1990s had first occurred. Unless the reasoning erroneously overlooked the principles in Watts v Rake (1960) 108 CLR 158 (discussed further below), and/or unless contrary findings were compelled because evidence on the topic was unchallenged at trial, this was a perfectly acceptable way of addressing a case in which the appellant bore the ultimate burden of proof. This is particularly so, bearing in mind that the appellant called witnesses (mainly himself) who gave evidence directed to establishing the matters in question.

27 The critical portions of the judgment dealing with the appellant’s drinking following the accident and the conclusions drawn from it were (emphasis added):

25 … I find that the plaintiff’s narrative history and upon which the diagnosis of a psychiatric injury was made is unreliable . I have not overlooked the circumstance that the plaintiff has called witnesses to support his version of events. For example he called his former brother in law Mr Thorne to attest to the plaintiff’s drinking habits in 1964 and before and after the collision. Not surprisingly and bearing in mind that Mr Thorne was only recently asked to recall events and circumstances almost forty years ago [there] are inconsistencies in his evidence. It would seem, however, that to the extent that Mr Thorne was able to speak concerning the plaintiff it would have been for a period of a couple of months after the collision because thereafter the plaintiff and his wife and small child left his father in law’s house in Nowra and moved to Sydney. Nor have I overlooked the evidence of the plaintiff’s former wife or the evidence of a business associate Mr Williams who referred to the plaintiff’s drinking in the seventies and eighties. I shall refer to their evidence in due course.

…

28 Although the plaintiff gave evidence to the effect that he was drinking huge amounts of alcohol each day the history given to his doctors and that appearing in medical records was that he drank only four or five beers a day. I accept that he may have toned down his alcohol consumption when asked questions about it particularly when he might not have thought he needed to be accurate. However I cannot overlook the circumstance that in 1996 when he was referred to Dr Wu by his solicitor for the purpose of a possible diagnosis of post traumatic stress disorder he maintained that his beer consumption was about four or five midis [sic] a day. This achieved some significance because the plaintiff has maintained that one reason why he felt unable to discuss his symptoms (including his heavy addiction to alcohol) was that he was, in effect , cracking hardy (a state of mind according to psychiatric experts called on his behalf not inconsistent with the diagnosis of post traumatic stress disorder).
29 In May 1996 he saw Dr Wu to determine whether he had post traumatic stress disorder. Before me he elaborated at length about the amount of alcohol he had regularly consumed since 1994.[sic] However, he told Dr Wu that he drank only four of five beers a day. Moreover in answer to a question asked of him by Dr Wu he said he had not had nightmares. In evidence before me he gave a history of constant nightmares.

31 … But I do know from the evidence that was tendered that the plaintiff told Dr Wu he did not have an alcohol problem and he did not suffer from nightmares .

39 On their face in the naval records attribute to the plaintiff a statement that his then problems were linked to pre-collision events. As I have said, it is not unimportant to note that not one symptom that he now claims he experienced and which lead psychiatrists retained by him to the diagnosis of post traumatic stress disorder was recorded other than being depressed for “a couple of days”. And none of the symptoms he did have (other than being depressed for “a couple of days”) were attributable to the collision. The plaintiff in an endeavour to minimise the interpretation of the naval records adverse to his case has said that he was in effect forced to give an untrue pre-service history of anxiety. He said the doctors at the hospital told him he could either return to the Duchess, go to the naval prison at Holsworthy, or admit an untrue history of anxiety and be discharged from the navy. He said he took the last option. I record that I do not believe the plaintiff. My conclusion derives in part from the circumstance that, as will be seen, there were other occasions in evidence when the plaintiff was, to put the matter fairly neutrally, somewhat careless with the truth and that he had an appreciation of how he might reconstruct past events to meet the requirements of a case he was presenting. It is also in part because I do not accept that the naval medical officers would have engaged in such deceitful and improper conduct. Even if it be assumed that they had decided that perhaps the plaintiff was not suited for the navy they could have acceded to the plaintiff’s request that he leave the navy by describing his condition as “anxiety state” without the need to compel the plaintiff to make up a pre-service history of anxiety.

41 But perhaps of more significance is the circumstance that although not mentioned at all in his evidence-in-chief or in the particulars given concerning how he exploited his working capacity after leaving the navy, it emerged that the plaintiff engaged extensively in land speculation and development during the seventies and eighties . The matter was not explored in any great detail but it emerged that there were at least eighteen transactions involving the purchase and sale of land. In some of them the plaintiff either alone or in conjunction with his spouse or his children acquired properties, obtained development consent, developed the land and then sold….
…
44 In evidence the plaintiff has said that he suffered from claustrophobia, insomnia, flashbacks, nightmares, intrusive thoughts etc from the time of the collision until the present time and that he drank up to fifteen middies of beer a day together with wine and spirits to drive away the intrusive thoughts ever since the collision. He said he suffered an episode of claustrophobia when he was assigned to the HMAS Duchess. I have already referred to the evidence that he had taken a trip to Fiji by sea and his unsatisfactory response, which was to the effect that he went by sea because that’s what his wife wanted and that he spent almost the entire time above deck and at the bar. That is to say that he may have spent considerable time at the bar I am not persuaded that was because of feelings of claustrophobia.
45 It appears to be the plaintiff’s essential case that most of his problems derived from his excessive consumption of alcohol. His primary case, as I have said, is that this is a “co-morbid” (to use the expression of Professor McFarlane) condition associated with post traumatic stress disorder. His secondary case is that even if he did not suffer from post traumatic stress disorder he became an alcoholic because he “self-medicated” after the collision which resulted in his addiction to alcohol.
46 There is no evidence of excessive alcohol consumption in the naval records and it would seem to me if the plaintiff was drinking to the extent he claimed he was drinking in 1964, he would scarcely have functioned at all much less be promoted as in fact he was. All the other medical records, including the records of admission to Jamison Private Hospital, Nepean Private Hospital, the report of Dr Yeo who operated on the plaintiff, the history given to Dr Wu, and the clinical notes of Dr Moss do not match the evidence given by the plaintiff . The evidence of his former wife Christine Harvey and the evidence of Mr Williams is to the effect that during the 1970’s and 1980’s the plaintiff functioned well as a real estate salesman and land developer although I accept that he may have drunk more than he told the doctors. But the evidence from Mr Williams and Ms Harvey is to the effect that he did not drink during working hours in the 1970’s and 1980’s (the period during which they had him under observation) and, as I have said he functioned successfully as a real estate salesman. The inference I would draw from all the evidence is that the plaintiff probably drank more during the 1970’s and 1980’s than he told doctors and than appears in the hospital records. I do not, however, accept that his drinking had reached the stage where he had become so addicted to alcohol that he could not stop drinking and that he woke up many times in the middle of the night and had to drink to get back to sleep (this is not confirmed by Ms Harvey with whom he was living for many years. She spoke of him having some nightmares when she would wake him up after which he “just went back to sleep”).
47 The medical evidence is that the plaintiff is now an alcoholic. I can make no finding as to when the plaintiff became addicted to alcohol in the sense that he ceased to have any real capacity to decide whether to drink or not to drink . However, I record that I am not satisfied that his consumption of alcohol since 1964 and, in particular in the 1970’s and 1980’s was as great as he has claimed. The fact that he was able to work as well as he did work while drinking would suggest to me that his consumption of alcohol was relevantly a voluntary decision on his part and not the consequence of an inability to resist alcohol .
48 I should also mention that to the extent that it is alleged that he became an alcoholic (as opposed to that being a consequence of post traumatic stress disorder) that I would not regard alcoholism as a type of damage similar to post traumatic stress disorder, notwithstanding that according to Professor McFarlane there is evidence of some “co-morbidity” between post traumatic stress disorder and alcoholism. If alcoholism is indeed an identifiable medical illness when it reaches the point when an alcoholic ceases to have any control over whether he or she drinks I would not, regard that as a reasonably foreseeable consequence although, I accept, that it was reasonably foreseeable that a person in the position of the plaintiff might suffer post traumatic stress disorder as a result of the carelessness. As I have said, however, I do not accept that that condition has been established.
…
51 … The plaintiff may now have reached the stage when he gets up in the middle of the night and has a couple of scotches before going back to bed but I do not accept that this was happening during the 1970’s and 1980’s .
52 I do not accept Mr Thomson’s submission that the plaintiff’s witnesses who talked about the plaintiff’s heavy drinking, namely Mr Williams and Ms Harvey, were not really challenged. That was not so. In fact, Ms Harvey (his former wife) and Mr Williams spoke of the plaintiff’s consumption of alcohol in the 1970’s and 1980’s. He was referred to as being a “keen drinker” but neither said he was drinking while he was at work and both said that he was a good worker. I have already explained why I do not regard Mr Thorne’s evidence as being reliable bearing in mind that he was asked to recall events that took place nearly forty years ago. The plaintiff called his two children, James and Stuart, but neither was able really to express a reliable opinion concerning the plaintiff’s drinking – not at least until well into the 1970’s. They did refer to the plaintiff being a heavy drinker but as I have said I am not satisfied that at that stage his drinking was relevantly involuntary.

28 Most of these findings addressed the PTSD case advanced through the diagnosis of Professor McFarlane.

29 His Honour must be taken to have incorporated by reference his findings of primary fact about the early symptoms and drinking to the extent that they were relevant to his rejection of the alternative case.

30 The alternative case was ultimately rejected in the following terms:

91 I have already referred to the circumstance that the plaintiff alleges that even if a condition of post traumatic stress disorder (or other general anxiety disorder) is not made out he is entitled to be compensated because as a result of the collision he became an alcoholic. I do not think his alcoholism (which was recognised by psychiatrists on both sides as being present when he saw them between thirty five to thirty nine years after the collision) was relevantly a foreseeable consequence of the collision (unlike, for example, the possibility of post traumatic stress disorder which was a foreseeable consequence). Even if it could be said that his alcoholism was caused by or connected to the events of February 1964, his alcoholism was the result of a series of voluntary decisions on his part to drink to excess which ultimately resulted in him becoming an alcoholic.
92 But leaving to one side the question of foreseeability, I do not think any connection has been established between the plaintiff’s alcoholism as diagnosed in the late 1990’s and the collision in 1964. As I have earlier said if the plaintiff has reached the stage where his dependence on alcohol has become a psychiatric condition I am not persuaded that that had any connection with the collision bearing in mind the plaintiff’s work history, earlier medical histories (including that given to Dr Wu) and generally the unreliability of the plaintiff’s evidence.

31 The appellant had relied at trial upon the psychiatric evidence of Dr Ahmed who saw him in October 1997 and Dr Keshava who saw him in about February 2000. Dr Ahmed diagnosed PTSD and Dr Keshava diagnosed general anxiety disorder (chronic) with depression and alcohol dependence. Each doctor had proceeded upon a history from the appellant about his drinking habits and their stimuli that was discredited and ultimately rejected by the trial judge.

32 The judge’s findings about these two doctors include matters that are also relevant to the alternative case. He said (emphasis added):

71 It may be that if the history given to Dr Ahmed and Dr Keshava is to be accepted, a case is made out that the plaintiff suffered from post traumatic stress disorder consequent upon the collision. But that, of course, is not the history that I have found. I do not accept that the plaintiff had years of appalling insomnia, gross abuse of alcohol and an inability to function at work .
72 Neither Dr Keshava nor Dr Ahmed persuade me that the plaintiff has suffered post traumatic stress disorder, or that his alcohol abuse which I am prepared to assume to have now reached the stage of addiction, was relevantly a consequence of a mental illness or relevantly a foreseeable consequence of the collision….
…
The case on appeal

33 In the written and oral submissions, counsel for the appellant Mr Melick SC and Dr K Sant, identified the critical issue in the case for a new trial as being whether the alternative case of alcohol dependency and/or alcohol abuse according to the Manual was properly addressed by the trial judge in light of the evidence and arguments at trial.

The grounds of appeal were:

1. His Honour erred in failing to accept the evidence of Mr Thorne and no proper reason was given for rejecting this evidence.
2. His Honour erred in that he did not consider the way in which the evidence of the Appellant’s wife and children, which he accepted, supported the Appellant’s case.
3. Alternatively, His Honour erred in failing to deal with the evidence of the Appellant’s wife and children which ought to have been accepted.
4. His Honour erred in finding that alcoholism and/or alcohol abuse or dependence were not reasonably foreseeable as a result of the Respondent’s negligence in causing the collision.
5. (a) His Honour erred in failing to find that alcohol abuse and/or dependence are recognisable psychiatric illnesses;
(b) His Honour erred in finding that alcoholism is only an identifiable medical illness when it reaches the point at which a person has no control over his or her drinking.
6. His Honour erred in failing to consider whether the tort was a direct or indirect contributing cause of any intervening decision or decisions to drink made by the Appellant.
7. His Honour erred in finding that alcoholism and/or alcohol abuse or dependence are not injuries of the same time or kind as post-traumatic stress disorder as both are a form of nervous shock.
8. (a) His Honour erred in failing to consider whether the evidentiary onus has shifted to the Respondent and whether it had discharged that onus.
(b) As the Appellent’s alcoholism was within the scope of the risk created by the Respondent, His Honour erred in not finding that the evidentiary onus had so shifted.

9. Further and in the alternative, His Honour erred in not finding that the Respondent had not discharged its evidentiary onus. The Appellant is entitled to a verdict.

34 The appellant embraced as a toehold the findings in J52 set out above that (construed generously) were to the effect that the appellant was a heavy drinker by the 1970s, even though he was not then drinking as much as he claimed and even though his drinking was not yet “involuntary” (see also J47).

35 It was submitted that the findings disclose particular errors representing “a series of compounding misconceptions about alcohol” (CA Tr 91). These included:

(i) rejection of the case by reference to findings concerning levels of drinking immediately after the accident that were vitiated by his Honour’s analysis of the evidence of Mr Thorne and Ms Harvey (Grounds 1-3);

(ii) unjustified rejection of a foreseeable link between the accident and heavy drinking (Ground 4);

(iii) failure to recognise that if someone has an alcohol injury, he or she can perform at a reasonable level, sufficient to perform employment at an apparently satisfactory level; and

(iv) assuming that the appellant’s alternative case required it to be shown that his drinking was involuntary (Ground 5(b)).

The judge’s treatment of the lay witnesses (Grounds 1-3)
Shifting evidentiary onus (Ground 8)

36 The evidence of the lay witnesses about their observation of the appellant’s drinking habits in the 1960s or 1970s was important corroboration of the claim that by this time the appellant had drinking problems capable of establishing his alternative case and that these manifested themselves well before full blown alcoholic dependence was diagnosed in the 1990s.

37 The appellant particularly relies on the evidence of Mr Thorne who saw the appellant in the months immediately before and after the disaster in February 1964. To a lesser extent he relies on the evidence of his third wife, Ms Harvey, who met him in the early 1970s. The observations of his sons, James (born 1962) and Stuart (born 1967) are also relied upon, but they are of little weight on the presently critical issue, in my view.

38 The factual challenges focus upon the judge’s failure to make findings bridging the gap between his findings about “heavy” alcohol consumption in the late 1970s and the accident in early 1964. At times, the appellant seemed to appeal to the retrospective role that the presumption of continuance is capable of playing in a proper case. At times, the criticism invoked Watts v Rake and other authorities that indicate that a defendant bears an evidentiary onus in unravelling certain causation issues (Ground 8).

39 In the main, however, the appellant referred to the evidence of his third wife, his sons and especially Mr Thorne, his first wife’s brother, as to their observation of his drinking and his condition in the 1960s and early 1970s.

40 Mr Thorne was born on 22 July 1945 and would have been 18 at the time of the accident. His older sister married the appellant in October 1961. After they married the appellant went on the Melbourne. The appellant’s then parents-in-law made a flat at the side of their house in Nowra where the appellant’s wife, the appellant (when on shore leave) and their first child James (born in 1962) lived.

41 Mr Thorne lived at home until 1967. When the appellant was at home at Nowra he used to see him every day, but particularly on weekends when they went fishing or to dances.

42 Mr Thorne remembered the collision in February 1964, even to the extent of recalling that his mother came in and woke him up to tell him about it.

43 Mr Thorne gave evidence about the appellant’s personality and drinking habits both before and after the accident. It included the following (Black 262ff):

Q. You said that you recollect, as it were, the time of the collision. Before the collision, what sort of a person was Brian?
A. Well, just there was a lot of other navy blokes, navy mates also, and also some civilian blokes, we’d hang around together.
Q. I am asking what sort of person was Brian?
A. He was nothing out of the ordinary. Sometimes we would play cards or have a few beers of a night, watch TV together.
Q. How would you describe his personality? What sort of a person was he?
A. He was always pretty active. He was always wanting to do something. You never saw him sitting around doing nothing at all. I never saw him reading very much at all but he was always an active sort of character. He was always fixing something.
Q. How did you get on with him?
A. I got on him well. I had – we used to talk about the football and, you know, just normal mates things.
…
Q Before the collision, what were his drinking habits?
A. I would see him have a couple of beers and my father and that, we would have a couple of beers, but it wasn’t a regular thing. It wasn’t every night. Sometimes on the weekend or someone’s birthday, my mother’s birthday or Dorothy’s birthday or something like that, or something special on we would have a few beers.
Q. When, I think you said, you went to the pub.
A. Yeah, go to the dance, obviously you would have a few beers there.
Q. What were his drinking habits at that stage? Was it light, medium, heavy? How would you describe it?
A. I never – nothing out of the normal. You know, we probably have about three or four beers. Be home by about midnight.
…
FARIS: Q. Did he ever say anything to you about how he felt about the navy?
A. Yeah, that was his career. He wanted to make a career of it.
…

Q. And how did he get on with his navy mates?
A. Good, yeah.

…
Q. After the birth of the son, how did the marriage seem to be? Did they appear to be happy or unhappy or what did they ---
A. I think they were happy. I had no reason to question it.
Q. In the years before the collision, did you ever see him in what seemed to be a state of depression?
A. No, I don’t recall.
Q. In the years before the collision, did he have mood swings, you know, from depression to happiness or from ---
A. Nothing as – I don’t recall anything.
…
Q. But do you have a memory of him coming back after the collision?
A. Yeah, I certainly do.
Q. To your observation, what was he like, now he has come back from the collision?
A. Probably one of the things that I really recall at that stage is the I noticed a difference in the waking up during the night screaming and yelling and the crying.
Q. Did he seem to be the same person?
A. No.
Q. What ---
A. He seemed to be very much affected, very much inside himself, and he didn’t want to talk about it and it was just sort of a taboo subject. It wasn’t to be discussed in any way, what happened.
…
Q. And in the period after the collision, what, if anything, did you hear at night from their room?
A. I certainly heard him crying.
Q. Anything else?
A. And yelling and screaming and my sister would say, “Wake up, Brian, wake up” and trying to get him together.
Q. Could you hear her say that?
A. Yeah. And I also – the only person I ever talked about it was – I never talked about it with him. I spoke to my mother about it because she was woken up with it, too.
Q. How regular was this disturbance?
A. Well, it was pretty – it was very regular. You know, it might go on some nights nearly all night. Some nights it just started 3 o’clock or 4 o’clock in the morning. Sometimes it would be a lot earlier than that.
Q. Did you ever speak to him about these disturbances?
A. No. The only thing I spoke to him about the Melbourne was how could it happen and where he explained to me what the Melbourne and the Voyager did, what the actual exercise was, roughly.
Q. After the collision, now he is back, what did you see of their relationship? What was the quality of the husband and wife relationship?
A. I could certainly see some stress there and I could understand it, too, you know if your could hear him crying at night.
Q. What did you observe that led you to say that you could see stress between them?
A. The way they spoke to each other.
…
Q. After the collision, did Brian exhibit a particular attitude towards his son James?
A. Yeah. I think he – the only way I could explain it, he seemed to have a short fuse with it. Like he didn’t have much tolerance.

Q. Was he like that before the collision?
A. I certainly hadn’t noticed it.

Q. And how did this short fuse show itself?
A. Well, if James did anything wrong he would be chastised to the point where – one occasion he got the belt to him.
Q. I will come back to that. Did his short fuse relate to his wife?
A. Year, there were some arguments. I could hear them arguing?
Q. What about the short fuse and your parents?
A. Yeah, there was some arguments there to – the arguments were mainly driven around the fact that – the way he was treating James.
Q. So did this culminate in a major family blow up?
A. Yes.
Q. About how old was James at this stage?
A. I think he would have been just under two. Somewhere between 18 months and two.
Q. And did Brian do something to James?
A. Yeah, he certainly belted him.
Q. Belted him with what?
A. A strap.
Q. And could you see any results of that?
A. Yeah, I saw welts on his legs.
Q. On the boy’s leg?
A. Yeah.
HIS HONOUR: Q. How old was James then?
A. He would have been under two.
FARIS: Q. Was he about two?
A. He could have been two. I just can’t remember.
Q. Did your parents do anything?
A. Yes, my father got very involved in it.
Q. Could you tell us what happened?
A. Actually, I don’t know what the – actually started over about, but what it boiled down to --
Q. Were you there?
A. Yes.
Q. What happened?
A. Because I come out to see what the commotion was all about and there was screaming and yelling and my father was saying, “You can’t do that to your son”. There was a lot more said and there was a big argument, and then there was actually – there was even a gun produced.
Q. Who produced the gun?
A. Actually, trying to think back – going back on that period, I thought Brian brought the gun out, but I must say, to me, that wasn’t a big issue. They were yelling and screaming at each other and my mother was going to get the police and that.
Q. Did you see a gun?
A. Yeah, I remember seeing the gun.
Q. Who had it?
A. I think Brian had it.
Q. Did he say anything, that you can remember, about the gun?
A. Well, he was telling my father to keep out of his own business.
Q. Did anybody try to stop the confrontation?
A. Yeah. We were trying to help him.
Q. Who was that?
A. My sister and my mother were both crying and I came out to assist.
Q. Is there anything that you can say that you could observe about Brian’s condition during this argument?
A. I think he had been drinking.
Q. Had you ever seen him behave like this before?
A. No.
Q. I want to ask you about his drinking after the collision. He came home?
A. Yep.
Q. You said, whatever it was, three or four days after the collision. Did you observe anything about his drinking habits?
A. I see him – like he seemed to be drinking a lot more at night.
Q. How much?
A. Well, you don’t actually see someone bringing in bottles of beer but – well, I’d seen him bringing in a couple of bottles of beer, you know. Sometimes it might be four, two in each hand. Like, they came in brown paper bags those days, little stubbies, 760 ml bottles – “long necks”, they call them these days.
Q. What was his condition on those drinking episodes? Did he drink a lot or little or how was he?
A. If he brought four bottles home they would all be drunk that night.
Q. By whom?
A. Obviously my sister would have a glass, too, but she wouldn’t be affected by it so much.
Q. Did you ever see him drunk on these days?
A. I never saw him falling down but I could see that he was certainly slurring in his speech.
Q. And had you seen him like that before the collision?
A. No.
…
Q. After the collision, what was his relationship with your parents like?
A. There was certainly a breakdown there and that would have been all happening in – within six months of the collision. You could see it getting worse and worse.
…
Q. What happened to the plans for building on the house the next door, that project?
A. Well, after the big blow up, the next day Dorothy and Brian and James went to Sydney and we didn’t hear from them for months.
…
Q. When was that? Was that about May, was it? When was James born? You said --
A. March. He was born in March. This may have been May so James would have been about two, so just under two.

44 Mr Thorne was quite firm that the big argument occurred around May 1964, when James was about two or just under. The appellant, his wife and child left the flat at Nowra and it was three or four months before there was something of a reconciliation (Black 271). Even then, there was evidence that the appellant was beating his wife (Black 271). Mr Thorne left home in 1967.

45 This pattern continued until the accidental death of the appellant’s first wife in 1969.

46 Mr Thorne used to see the appellant about once a month during the later 1960s. He described him as “very much on edge because he had trouble with his work … he wasn’t keeping his jobs” (Black 272). He said that the appellant was certainly drinking pretty heavily. He described an incident in which the appellant got in a car to go and get extra beer and rolled the car over (Black 272).

47 Mr Thorne’s cross-examination was quite brief. He admitted that he had only been asked to think about these events within the last two or three years. He was asked general questions about what the appellant did when in the Navy and his answers were generally consistent with his evidence in chief. He said that he was unaware of any anxiety on the appellant’s part prior to the collision. The only cross-examination relevant to his observation of the appellant after the collision was (Black 276):

Q. And that which you heard going on in the bedroom, you were not privy, were you, to the nature of the stress in the bedroom of your late sister and your brother-in-law in 1964?
A. No. All I was aware of, he was – when he came back, he was crying and very upset.
Q. You gave evidence about all of the things you heard in the bedroom, screaming, yelling.
A. Yeah.
Q. Crying.
A. I remember that.
Q. Stress between your sister and your brother-in-law?
A. Yeah, like I said, I could see there was tension between them. Not all the time.
Q. You were not privy to what, if anything, was the cause of the stress or the tension between them, were you?
A. No, I wasn’t aware of what was causing it, no.
Q. Were you aware that Mr Hill had been at the Balmoral Naval Hospital in September and October of 1964, prior to his discharge from the navy?
A. Yeah, I knew he went to hospital, yeah.
Q. When did you know that?
A. I would have been told – I knew he had been there because that is when he got discharged from there.
Q. When did you know he was there after he was discharged?
A. Yeah, after he was discharged, yeah.

48 Ms Harvey was a receptionist at the real estate agent in St Mary’s where the appellant worked. She commenced that job in about 1972. The relationship with the appellant commenced in about 1973. Cohabitation commenced in 1974.

49 Ms Harvey described the appellant at this time as “very emotionally disturbed” (Black 279).

50 Ms Harvey saw no signs of the appellant drinking at work. But after they were living together (Black 282):

He was drinking every night. Every night, and a lot. He’d actually start drinking at the office, sometimes, with the boss, and then he would continue when he got home…. [He] just kept drinking until he went to bed.

51 He consumed a lot of cask wine, also vodka, whiskey and beer. Towards the end of the relationship the appellant hit and bruised Ms Harvey on a number of occasions (Black 290).

52 Ms Harvey gave evidence about the property deals engaged in by the appellant that became (with the evidence of Mr Williams) the basis of the judge’s findings in that regard.

53 The cross-examination of Ms Harvey concentrated on the evidence about the appellant’s business acumen and capacity to work as an estate agent.

54 Ms Harvey said that the appellant had nightmares two or three times a week for the whole period of their cohabitation (Black 296-7). She was not challenged about her evidence as to his drinking habits. Cripps AJ said otherwise at J52, but his Honour was wrong in this respect unless one reads the judge as referring to Ms Harvey’s evidence about the appellant’s capacity to work as a real estate agent.

55 I do not think that the evidence of the appellant’s sons adds much to the resolution of the present issue, although it is not inconsistent with the case now pressed (see Black 302-3 as to Stuart Hill’s observation in the late 1970s and Black 360-1 as to James Hill’s observations a little later). They were too young at the relevant time, as his Honour observed.

56 As at trial, the naval records are relied upon by the respondent to support the conclusion that the appellant’s unhappiness in the months leading to his discharge in December 1964 stemmed from worry about the sexually-transmitted disease contracted in 1960 and poor relationships with his co-workers. Nevertheless, it is not suggested that increased alcohol consumption was incapable of stemming from the Voyager disaster (see also Professor McFarlane’s evidence at Blue 251) (see further below, dealing with Ground 4).

57 In this Court, the parties also accept that this is an area where the appellant can invoke the principles in Watts v Rake and Purkess v Crittenden (1965) 114 CLR 164, thrusting on the defendant the onus of adducing evidence to show that any proven supervening incapacity stemmed solely from difficulties predating the accident. It is here that Mr Thorne’s observation of the plaintiff’s drinking habits before and after the accident assume significance, albeit tempered by the fact that he would have been ignorant about the existence or impact of the appellant’s pre-accident problems.

58 The appellant submits that Mr Thorne’s and Ms Harvey’s evidence was clear and relevantly unchallenged. It ought to have been accepted; or at least there should have been adequate reasons for its rejection. It was also submitted that those reasons should have adverted to the Watts/Purkess principle. His Honour’s statement (at J25, 52) that Mr Thorne had been asked to recall events that took place nearly forty years ago was an inadequate reason, in the circumstances, for effectively disregarding Mr Thorne’s evidence. That evidence was graphic, specific as to date, not inherently improbable and consistent with the appellant’s own evidence and that of Ms Harvey. As indicated at J25, Mr Thorne was speaking of a critical period being the months after the collision, prior to the time when the appellant, his wife and small child left his father in law’s house in Nowra and moved to Sydney.

59 I generally accept these submissions.

60 At J25 the judge referred to unidentified inconsistencies in Mr Thorne’s evidence.

61 Mr Thorne’s evidence corroborated that of the appellant to a significant degree. It is of course possible that the personality and drinking changes observed by him were unrelated to the collision. But this was a matter seriously in issue. Nothing to that effect was put to him. It remains a possibility, but in my view a fairly unlikely one. Mr Thorne’s evidence was not properly taken into account on the alternative causation issue.

62 In my opinion, the appellant has made good his complaint touching the fact-finding in a potentially important area, namely the possibility that there were symptoms of significantly heavy drinking in the months following the collision. Not only was there evidence about it, but the absence of serious challenge at trial indicates that the evidence ought to have been accepted, if material, unless compelling reasons for its rejection were advanced in the judgment.

63 I have concluded that the appellant would be entitled to a new trial based upon the symptoms observed by Mr Thorne if that lay evidence (taken at its highest) can be shown to support a medical case advanced at trial and supported by expert evidence.

64 It is unnecessary to base any conclusion upon the judge’s treatment of Ms Harvey’s evidence. I content myself with observing that it strengthens my concerns about the fact-finding as to the medium-term impact of the disaster.

Reasonable foreseeability (Ground 4)

65 In rejecting the alternative case the judge said (J91):

I do not think his alcoholism (which was recognised by psychiatrists on both sides as being present when he saw them between thirty five to thirty nine years after the collision) was relevantly a foreseeable consequence of the collision (unlike, for example, the possibility of post traumatic stress disorder which was a foreseeable consequence). Even if it could be said that his alcoholism was caused by or connected to the events of February 1964, his alcoholism was the result of a series of voluntary decisions on his part to drink to excess which ultimately resulted in him becoming an alcoholic.

66 This finding is challenged in Ground 4.

67 I would uphold this challenge. Intuitively, it is difficult to see why the lesser consequence of “alcoholism” was not foreseeable when the more serious PTSD was. Professor McFarlane had given uncontradicted evidence referring to several studies that confirm that it is a matter of common experience that people may drink to excess in order to drown their sorrows in response to distressing events (Blue 250-1. See also Havanaar v Havanaar [1982] 1 NSWLR 626).

68 Furthermore, senior counsel for the Commonwealth at trial admitted, for the purposes of the case, that in February 1964 it was foreseeable that a member of either ship might suffer a psychological injury arising out of the collision (Black 481). This admission would embrace the alternative case if it were made out by the evidence.

69 All that has to be established in this regard is foreseeability of injury of the same kind as that actually suffered, even if the particular damage or its extent was not reasonably foreseeable, or the damage occurred in an unexpected and unforeseeable manner (Commonwealth of Australian v McLean (1997) 41 NSWLR 389 at 403).

70 This ground is established. But it is not sufficient in itself to lead to a new trial. The trial judge himself distinguished between the foreseeability and causation issues, finding that the appellant’s alternative case failed for want of proof of causation (see J92).

Did the trial judge misconceive the nature of alcoholism? (Ground 5(b)

71 The appellant raised a cluster of matters said to establish that the trial judge’s analysis was clouded by misconceptions as to the nature of alcoholism. I use the expression “alcoholism” at this stage, recognising the greater attention will need to be directed to the psychiatric illnesses of Substance Dependence and Substance Abuse that are said to have been established on the judge’s findings.

72 The appellant submits that his Honour proceeded on the erroneous view that any alcohol-related problem did not become a psychiatric condition or injury within DSM-IV until a person loses all control over what he drinks. In other words, he found that unless drinking was completely involuntary, it is not a medical problem or injury. The appellant also criticised the trial judge for having refrained from finding when the plaintiff became addicted to alcohol in the sense that he ceased to have any real capacity to decide whether to drink or not to drink. This was said to show that the judge failed to address the alternative case of alcohol abuse/alcohol dependency, a submission to which I shall return in detail. The judge is also said to have erred in thinking that if someone has an alcohol dependency, he or she cannot perform at a reasonable level, sufficient to perform employment at an apparently satisfactory level.

73 I would reject these related complaints because they misrepresent his Honour’s reasoning.

74 The finding at J46 rejecting the evidence that the drinking had reached the stage where the appellant had become so addicted to alcohol that he could not stop was addressing the PTSD case. In my opinion, this is also what the judge was referring to when he spoke of drinking at an earlier period as representing a voluntary decision (see J52, J91. See also J47, J51-52).

75 Cripps AJ explained himself in J47 where he recorded that:

The medical evidence is that the plaintiff is now an alcoholic. I can make no finding as to when the plaintiff became addicted to alcohol in the sense that he ceased to have any real capacity to decide whether to drink or not to drink. However, I record that I am not satisfied that his consumption of alcohol since 1964 and, in particular in the 1970’s and 1980’s was as great as he has claimed. The fact that he was able to work as well as he did work while drinking would suggest to me that his consumption of alcohol was relevantly a voluntary decision on his part and not the consequence of an inability to resist alcohol.


See also J46:

I do not, however, accept that his drinking had reached the stage where he had become so addicted to alcohol that he could not stop drinking and that he woke up many times in the middle of the night and had to drink to get back to sleep (this is not confirmed by Ms Harvey with whom he was living for many years. She spoke of him having some nightmares when she would wake him up after which he “just went back to sleep”).

76 In these and other passages, the judge explained why he was not satisfied about the voluntariness of the drinking in the 1970s. First, the claim was inconsistent with the appellant’s own history as provided to Dr Wu in 1996 (four or five beers a day (middies)) (see J28-9). Secondly, the same history involved the appellant telling Dr Wu that he did not have an alcohol problem and he did not suffer from nightmares (J31). Thirdly, his Honour addressed causation, referring to the Naval medical records and what they revealed about the stressors unrelated to the accident, the appellant’s reference at the time to no more than being depressed “a couple of days” due to the collision; and the conclusion that the appellant was a generally untruthful witness (J39). Fourthly, the judge cited the appellant’s capacity to engage extensively in land speculation and development during the seventies and eighties – with at least 18 transactions involving the purchase and sale of land (J41, 47). Ms Harvey and Mr Williams attested to him not drinking during working hours in the 1970s and 1980s and having functioned well as a real estate salesman and land developer, although the judge accepted that he may have drunk more than he told the doctors (J46, J52). Fifthly, there was absence of any reference to excessive drinking in the Naval records and in all other medical records in the 1960s and 1970s (J46).

77 I see no error in this process of reasoning. The asserted “compounding misconceptions” have not been established.

Relating the factual case at its highest to the expert evidence (Grounds 5(a), 6, 7, 9)

78 The remaining grounds may be addressed compendiously.

79 It is appropriate first to look at the template of expert evidence onto which the appellant seeks to fit what he submits was the unconsidered or wrongly rejected testimony of the lay witnesses who spoke about his drinking habits in the immediate to medium-term aftermath of the accident.

80 The respondent submits that it is no coincidence that Professor McFarlane did not address the alternative diagnosis now relied upon. This was because “it was basically a PTSD trial” (CA Tr p32). That trial was run and lost. Cripps AJ rejected the appellant’s account that he was drinking excessively immediately after the accident, by way of self-medication to deal with nightmares and shocking images in the mind that prevented sleep.

81 The respondent accepts that a stand-alone alcohol abuse case was contained in the particulars and was adverted to in final address (at Black 463 and 485-6). But its point is that the trial was otherwise conducted on the basis of extreme symptoms such as insomnia, claustrophobia, nightmares and flash-backs manifesting themselves in 1964 when the appellant came ashore shortly after the accident. In other words, the trial judge’s concentration on a case of this nature reflected the way that it was fought between opening and closing addresses. It was not enough for the appellant to flag an alternative case if he did not lead evidence in its support or clearly signal his intention to make such a case out of parts of the expert evidence led by the defendant ostensibly in meeting the case pressed by the plaintiff during the trial.

82 The appellant’s principal expert witness at trial was Professor McFarlane. The respondent submits that he only addressed and supported the PTSD claim that was ultimately rejected and is no longer pressed. I accept this submission, for reasons set out below.

83 The respondent further submits that the lay evidence called at trial was similarly focussed. It is therefore not open to the appellant to seek now to use it in support of the alternative case when the only issue joined by the experts referable to that lay evidence concerned the more extreme PTSD case.

84 Professor A C McFarlane’s primary diagnosis of PTSD rested upon a history from the appellant (rejected by Cripps AJ) that included a significant increase in alcohol consumption during the period he was posted to HMAS Albatross at Nowra (5 March 1964 to 7 September 1964) apparently associated with memories of seeing a skull and cap on the foredeck of HMAS Melbourne immediately after the collision (Blue 242). The history also included the following (rejected by Cripps AJ) (Blue 243):

Throughout his time after leaving the Navy his sleep was broken.
His alcohol consumption was a consistent problem where he would drink to the point of intoxication to allow him to sleep, but then would wake and have several more drinks. He stated that before the accident he had only been a social drinker.

85 Professor McFarlane’s diagnostic assessment and discussion of the “aetiological perspective” are lengthy (Blue 247-254, 268-271). On my reading, his opinion offers no foothold for the alternative, fall-back case that is now pressed. It is true that he expressed the view that the appellant had suffered from:

a post-traumatic stress disorder, major depressive disorder, alcohol abuse and dependence and related anxiety symptoms. (Blue 247)
But the whole thrust and structure of the professor’s reports, on my reading of them, do not permit a lay person to pick and choose individual portions. I feel reinforced in this conclusion because (a) Professor McFarlane was not asked questions suggestive of an alternative half-way case; (b) his conclusions rest explicitly on the discredited history of alcoholic self-medication to maintain sleep pattern (Blue 248Q); and (c) because of his reference to alcohol abuse in the sense of being used as a form of self-medication as “an important comorbidity with post-traumatic stress disorder” (Blue 250. See also Blue 268-9, 271M).

86 In this Court, the appellant concentrated his attention on the evidence of Dr Jonathan Phillips, a consultant psychiatrist called by the defendant at trial. Dr Phillips saw the appellant in about February 2000. The history then provided included a statement that the appellant had virtually forgotten all details of the naval collision until two years ago and that he began to be troubled by a number of symptoms at that time. He found increasing difficulties with sleep and he was drinking excessive amounts of alcohol. He was referred by his general practitioner to a psychiatrist (Dr Ahmed) who recommended that he enter an in-patient detoxification program.

87 Despite this information being recorded by Dr Phillips, the history must have included statements about earlier drinking. It is recorded that after the appellant’s return to civilian life he “continued to drink heavily, often attending the hotel at 10-00am and remaining there for 4-5 hours. He would consume approximately 8 schooners of beer over that period” (Blue 350H). Drinking caused the break-up of his second marriage (Blue 351Q). There is also a reference to heavy drinking during the period when HMAS Melbourne was undergoing repairs (Blue 353T).

88 Dr Phillips’ OPINION was as follows (Blue 353-5 emphasis added):

Mr B Hill is a 60 year old self employed, thrice married man who was a safety equipment officer (naval airman) at the time of the collision between HMAS Melbourne and HMAS Voyager on 10 February 1964. He experienced lower level stress when compared to other ex-HMAS Melbourne sailors examined by me.
He was below decks at the time of the collision and suffered no personal injury. He took no direct part in the rescue operation. He said that he saw human parts on the deck of the ship. That experience would have been the high point of stress experience by him.
Whilst Mr Hill drank heavily during the period when HMAS Melbourne was undergoing repairs, he could not recall other significant symptoms at the time. It had only been when he was assigned to HMAS Duchess (a sister ship of HMAS Voyager) when he suffered additional symptoms. Specifically he found himself unable to remain within the confines of the ship, the experience causing him to develop symptoms of acute anxiety and perhaps panic. He went absent without leave because of his then problems. He was discharged from the Navy as medically unfit later in 1964. His naval medical file should be of interest .
Mr Hill had a number of symptoms during his long period of civilian life, mainly excessive drinking, some difficulties relating to others (including women and work superiors), episodic depressive symptoms (including an overdose of medication in 1972) and recurrent gastrointestinal symptoms (though secondary to irritable bowel syndrome).
However, on the history Mr Hill experienced a worsening and extension of his symptoms at the time when he was referred to Dr Ahmed. His symptoms included despondency, poor esteem, difficulties relating to others and coping in crowded places, middle insomnia with nightmares (linked thematically with the naval collision). Despite knowing that he developed abnormal liver function tests, he continued to drink alcohol.
I find it hard to know why Mr Hill should have experienced a change in the pattern of symptoms in recent time, particularly as he failed to identify any significant intercurrent stressor. It is possible that as he ages his coping skills have deteriorated. Additionally his ongoing pathological use of alcohol would cause him to have increasing difficulties coping with everyday demands of life.
Mr Hill’s only certain diagnoses are of alcohol dependence DSM 303.90 and alcohol abuse DSM 305.00. I cannot state that his problems with alcohol were caused by psychological stress at the time of the naval collision. However that event may have played some causal role in his path towards alcoholism.
He undoubtedly has a number of symptoms of depression and anxiety, currently, but not of breadth or depth sufficient to reach a diagnosis of major depressive disorder, generalised anxiety disorder or panic disorder. He could be said to have an adjustment disorder with mixed anxiety and depressed mood DSM IV 309.28, with the disorder having become chronic in nature. Once more, I cannot state that his adjustment problems were caused by the naval collision.
Mr Hill is not a psychologically minded person and his intelligence is no better than average. He would not be suitable for psychotherapy. He should join Alcoholics Anonymous however and he may be assisted by medication with one of the newer agents which alter drinking behaviour. He does not require the expert services of a psychiatrist.
Whilst I recognise that Mr Hill has psychological symptoms which interfere with the smooth conduct of his life, I doubt that any substantive link will be found between psychological trauma experienced at the time of the naval collision and his current symptoms. He almost certainly lacks intrinsic psychological strength and his decompensation was inevitable. His prognosis remains uncertain. I doubt that he will be able to continue much longer in the workforce.
In answer to your questions:
4a-d. Above.
4e. I cannot find a substantive link between Mr Hill’s experience of psychological trauma at the time of the naval collision and his ongoing symptoms. Nevertheless I accept that events at the time of the naval collision may have added to his abuse of alcohol .
4f. Mr Hill does not require specialised psychiatric care. He will benefit from general support from his family practitioner and perhaps medication with one of the newer agents used in the management of alcoholism.
4g. Mr Hill remained self employed at the time of my consultation. I doubt however that he would be able to work in close proximity to others.
4h. This has proved to be a particularly difficult question in just about all my assessments of ex-HMAS Melbourne sailors. There is no evidence available to suggest that Mr Hill made a conscious link between his experiences at the time of the naval collision and his symptoms, at least until he began therapy with Dr Ahmed. It becomes more likely than not that he first made such a link at that time.

89 Dr Phillips provided a later report based on his review of the appellant’s naval clinical records and additional documentary medical evidence. The relevant portions of the opinion (Blue 363ff, emphasis added) were:

I advised in my earlier report that compared with numerous other ex-sailors examined by me who were on board HMAS Melbourne at the time of the collision with HMAS Voyager on 10 February 1964, BH experience lower level psychological stress. He had been below deck, was uninjured and took no direct part in the rescue operation.
BH advised that he drank heavily whilst HMAS Melbourne was undergoing repairs and he continued to drink heavily for many years . He was recorded at the Penrith Medical Centre at a later time to have had an average intake of 120 grams of alcohol/24 hours. BH noted additional symptoms when he assigned to HMAS Duchess, a sister ship of HMAS Voyager. He found himself unable to remain within the confines of the ship and he experienced symptoms of acute anxiety and panic. He went absent without leave, he said because of these symptoms. He was discharged medically unfit from the Navy during 1964.
I note BH’s various symptoms during his many years of civilian life, notably hazardous drinking (as mentioned), relationship difficulties, episodic depressive symptoms (including an overdose of medication in 1972) and recurrent gastrointestinal symptoms (thought by me at the earlier time to be secondary to an irritable bowel syndrome).
Assuming BH’s history to be correct, he experienced a worsening and extension of his symptoms at the time of referral to Dr Ahmed, particularly despondency, poor esteem, difficulties relating with others and coping in crowded places, middle insomnia with nightmares (linked thematically with the naval collision).
I concluded at the earlier time that BH had 3 diagnoses: alcohol dependence DSM IV 303.90, alcohol abuse DSM IV 305.00 and adjustment disorder with mixed anxiety and depressed mood DSM IV 309.28, the latter disorder being chronic in type. Whilst acknowledging the seriousness of these disorders, I was unable to make a direct link between the stress and the naval collision and the development of the plaintiff’s psychiatric problems. I accepted, however, that the stress of the naval collision may have added to his abuse of alcohol, given that hazardous drinking became a problem soon after the time of the naval collision.
On the basis of information made available to me at the earlier time, I concluded that BH almost certainly lacked intrinsic psychological strength. Further, he was inevitably going to develop psychological symptoms, even if there had been no naval collision.
There is evidence to suggest quite strongly that BH had psychiatric problems, perhaps of intermittent type, even prior to the naval collision . He was noted at Page 29 of Volume 1 of the documents to have had a “mental breakdown before joining the Navy”. It is of interest that mention is made at Page 74 of the plaintiff having a brief nervous disorder in mid-1955. However, I also note that the plaintiff was not found to have psychological or medical problems at the time of his initial naval assessment, this to be found at Page 1.
It is possible that BH suffered an extension of symptoms during 1964 . Particularly at Page 33, it is noted that he was troubled by diarrhoea and vomiting and further that he failed to mix with mess mates and had a desire to leave his ship. However, it was noted, additionally, that these problems linked with the sexual indiscretion two years earlier rather than the naval collision . It is noted additionally that he may have become mildly paranoid at that time.
…
More likely than not, BH was constitutionally predisposed to psychological problems (particularly in the domains of anxiety and depression) and that he had shown some, albeit brief, evidence of psychological symptoms from as early as 1955. If this was the case, then it become highly likely that the sexual indiscretion became a stressor for him (as suggested in the available documents). It is possible, additionally, that the naval collision was a second stressor, but there is no notation in the documents to confirm this .
…
Whilst BH had been awarded a pension on the basis that he suffers post traumatic stress disorder, there is insufficient evidence in the documents to support that diagnosis. …
Taking all relevant psychological information, I believe that BH has a chronic adjustment disorder with mixed anxiety and depressed mood, with severe exacerbation of depressive symptomatology from time to time. Additionally Dr Keshava on Page 179, advised that BH had a generalized anxiety disorder with depression, alcohol dependence and problems with anger control. I believe the plaintiff would have suffered problems of this type, even in the absence of the naval collision, but that incident may have added in small measure to his later problems.
…
Whatever the case, BH has two lines of clinical pathology.
The first line is psychological and encompasses a many year history of symptoms across the domains of anxiety and depression, with severe exacerbation of depressive symptoms from time to time and with at least two attempts on his life. I continue to believe that the plaintiff was constitutionally predisposed to the development of psychological problems . I do not believe that a useful link will be made between the naval collision and his adjustment disorder with mixed anxiety and depressed mood, but I do not rule out some small contribution. There is a more likely link between the naval collision and the plaintiff’s hazardous drinking, given evidence that his intake of alcohol increased soon after the incident.
…
Finally, I stand by my earlier opinion that events which occurred at the time of the naval collision have added in a small measure at most to BH’s long history of psychological difficulties and have not added in any measure to his physical problems.

90 Compared to Professor McFarlane’s reports, the passages from Dr Phillips’ two reports that have been set out above offer greater assistance to the attempt to erect an alternative case upon the shoulders of findings that should have been made (according to the appellant) about the levels of drinking in which the appellant was engaged when he came ashore after the accident.

91 The only diagnoses that Dr Phillips was able to state with certainty were alcohol dependence DSM IV 303.90 and alcohol abuse DSM IV 305.00.

92 Nevertheless, Dr Phillips said:

I cannot state that his problems with alcohol were caused by psychological stress at the time of the naval collision. However that event may have played some causal role in his path towards alcoholism.

93 The appellant correctly observes that these two sentences represented an opinion by an expert that a causal link between the accident and the much later alcoholism was possible (cf Tubemakersof Australia v Fernandez (1976) 50 ALJR 720, Commonwealth v McLean (1996) 41 NSWLR 389 at 410). But Cripps AJ was not bound to accept as probable what the expert hypothesised as possible. A fortiori, where the history given to the expert was materially false. Later in the same report Dr Phillips wrote:

Whilst I recognise that Mr Hill has psychological symptoms which interfere with the smooth conduct of his life, I doubt that any substantive link will be found between psychological trauma experienced at the time of the naval collision and his current symptoms. He almost certainly lacks intrinsic psychological strength and his decompensation was inevitable.

94 Throughout his reasons Cripps AJ shows a clear understanding of the proposition that an expert’s opinion that something might cause something else permits but (when put in issue) does not require the tribunal of fact to come to such a conclusion (see esp J77-79, 81, 85, 86).

95 Nothing in Watts contradicts these principles. The ultimate onus of proof or persuasion rested with the plaintiff throughout. My views on this topic are set out in T C v The State of New South Wales [2001] NSWCA 380.

96 Dr Phillips’ “certain diagnoses” of alcohol dependence DSM 303.90 and alcohol abuse DSM 305.00 are stated in the present tense; and the present situation of which he speaks includes the significant development of worsening symptoms at or shortly before the time the appellant was referred to Dr Ahmed (established elsewhere in evidence as October 1997). The report offers no medical opinion supporting an earlier diagnosed psychiatric illness. Its statements as to the possible linkage of the illnesses diagnosed and the accident in 1964 should therefore be read in this context. Senior counsel for the appellant, Mr Melick SC, accepted that there is no opinion from Dr Phillips as to whether he would have diagnosed alcohol dependence and/or abuse based upon the evidence of Mr Thorne, Ms Harvey and the appellant’s two sons (CA Tr p26).

97 Furthermore, Dr Phillips’ references to identified DSM categories do not assist the appellant, when that treatise is examined.

98 The Manual was not put into evidence at trial. But the trial was conducted (I infer) on the basis that the expert’s opinions referable to the Manual, if ultimately relevant, could and should be read by reference to the criteria in the Manual that the expert thought were engaged.

99 The relevant pages of the Manual were provided to this Court without objection. The entries concerning alcohol dependence and alcohol abuse are as follows:

303.90 Alcohol Dependence
Refer, in addition, to the general text and criteria for Substance Dependence (see p192). Physiological dependence on alcohol is indicated by evidence of tolerance or symptoms of Withdrawal. Especially if associated with a history of withdrawal, physiological dependence is an indication of a more severe clinical course overall (ie, earlier onset, higher levels of intake, more alcohol-related problems).
Alcohol Withdrawal (see p215) is characterized by withdrawal symptoms that develop 4-12 hours or so after the reduction of intake following prolonged, heavy, alcohol ingestion. Because Withdrawal from alcohol can be unpleasant and intense, individuals with Alcohol Dependence may continue to consume alcohol, despite adverse consequences, often to avoid or to relieve the symptoms of withdrawal. Some withdrawal symptoms (eg sleep problems) can persist at lower intensities for months. A substantial minority of individuals who have Alcohol Dependence never experience clinically relevant levels of Alcohol Withdrawal, and only about 5% of individual with Alcohol Dependence ever experience severe complications of withdrawal (eg, delirium, grand mal seizures). Once a pattern of compulsive use develops, individuals with Dependence may devote substantial periods of time to obtaining and consuming alcoholic beverages. These individuals often continue to use alcohol despite evidence of adverse psychological or physical consequences (eg depression, blackouts, liver disease, or other sequelae).
Specifiers
The following specifiers may be applied to a diagnosis of Alcohol Dependence (see p195 for more details):

With Physiological Dependence
Without Physiological Dependence
Early Full Remission
Early Partial Remission
Sustained Full Remission
Sustained Partial Remission
In a Controlled Environment
305.00 Alcohol Abuse
Refer, in addition, to the text and criteria for Substance Abuse (see p198). Alcohol Abuse requires fewer symptoms and, thus, may be less severe than Dependence and is only diagnosed once the absence of Dependence has been established. School and job performance may suffer either from the aftereffects of drinking or from actual intoxication on the job or at school; child care or household responsibilities may be neglected; and alcohol-related absences may occur from school or job. The person may use alcohol in physically hazardous circumstances (eg driving an automobile or operating machinery while intoxicated). Legal difficulties may arise because of alcohol use (eg arrests for intoxicated behaviour or for driving under the influence). Finally, individuals with Alcohol Abuse may continue to consume alcohol despite the knowledge that continued consumption poses significant social or interpersonal problems for them (eg violent arguments with spouse while intoxicated, child abuse). When these problems are accompanied by evidence of tolerance, withdrawal, or compulsive behaviour related to alcohol use, a diagnosis of Alcohol Dependence, rather than Alcohol Abuse, should be considered. However, since some symptoms of tolerance, withdrawal, or compulsive use can occur in individuals with Abuse but not Dependence, it is important to determine whether the full criteria for Dependence are met.

100 Each of these passages stipulate that the reader must refer, in addition, to the general text and criteria for Substance Dependence (p192)/ Substance Abuse (p198) respectively.

101 When one turns to the criteria for Substance Abuse (at p199 of the Manual), the relevant statement is:

A maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
(1) recurrent substance use resulting in a failure to fulfil major role obligations at work, school, or home (eg repeated absences or poor work performance related to substance abuse; substance-related absences, suspensions, or expulsions from school; neglect of children or household)
…
(4) continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance (eg arguments with spouse about consequences of intoxication, physical fights).

102 It is not necessary to set out the criteria for Substance Dependence (p197) because, for reasons given below, the appellant has failed to persuade me that there was any miscarriage referable to the trial judge’s consideration of the easier of the two hurdles for the appellant to overcome (ie Substance Abuse).

103 What is critical to the criteria for each of Substance Abuse and Substance Dependence is the opening phrase in each instance, namely “A maladaptive pattern of substance use, leading to clinically significant impairment or distress as manifested by …”. This reference to what is “clinically significant” makes it impossible, in my view, for a lay person to perform his or her own diagnosis simply by holding a set of facts up against the text of the Manual. I am certainly of the view that it could not be held that there was a miscarriage justifying a new trial based on possible acceptance of Mr Thorne’s and Ms Harvey’s evidence where the text of the Manual was not put into evidence and where none of the doctors (including Dr Phillips) were asked any relevant questions about the alternative case.

104 A remnant of the appellant’s case remains. One variant of the submissions in this Court was the argument that the trial judge should have addressed and upheld a claim for liability based on a simple causal link between the accident and the condition of alcohol abuse/alcohol dependence clearly diagnosed in the late 1990s.

105 In considering this further alternative I shall again assume in the appellant’s favour that the evidence of Mr Thorne arguably corroborated the appellant as to his early post-accident symptoms. The appellant’s argument is that the judge should have considered whether there was a causal link between the events of 1964 and the condition clearly diagnosed in the late 1990s. The Watts line of cases is again invoked to cast an evidentiary onus on the respondent to negate the linkage. On this approach it was said to be not good enough for the trial judge to be unable to find when the appellant became addicted to alcohol (J47).

106 The appellant accepts that this variant of his case will have to overcome significant hurdles before it could be accepted. The tribunal of fact would have to grapple with the evidence about the alternative stressors in the appellant’s life before the accident, the possibility of an underlying or inherent predisposition to heavy drinking and/or psychological breakdown, and the possibility of events between 1964 and the late 1990s breaking the relevant “chain of causation”. But the appellant’s complaint, in this as in other matters, is that the trial judge did not address this variant of the alternative case.

107 I have considered anxiously whether this case was put at trial. I am not persuaded that it was, with the consequence that I find no miscarriage of justice meriting a new trial stemming from the judge’s omission to deal with it.

108 The extract from final addresses at trial set out at par [21] above shows the plaintiff’s counsel at trial belatedly embracing a case that was not dependent upon finding PTSD. To repeat the relevant portion:

HIS HONOUR: But if it wasn’t post-traumatic stress disorder, are you still alleging alcoholism was caused by the collision?
FARIS: We are. That and anxiety, and even Dr Phillips concedes that.

109 This exchange is ambiguous as regards the matter immediately at issue.

110 The respondent contends that the alternative case advanced at the trial was a narrow case, not that advanced on appeal. In my opinion, this should be accepted.

111 The portion of the address referred to above took place on 10 October 2003. The hearing resumed on 14 October 2003. Junior counsel for the plaintiff, Mr Thomson, handed up a copy of written submissions dated 13 October 2003, describing them as a summary in broad form of the claim the plaintiff was making (Black 484, 485). That written submission (Black 633 ff) addresses the plaintiff’s condition before and after the accident. Various symptoms disclosed in 1964 were said to be consistent with the plaintiff then suffering from an undiagnosed PTSD “resulting from the collision and its aftermath and triggered into extreme form by his posting to the Duchess” [on 28 August 1964] (Black 638).

112 A portion of the written submissions entitled Symptoms post-Navy should be extracted:

10 The Plaintiff had a disrupted job history (T82-95), eventually stopping work in March 2000 because of ill health, his alcohol and bowel problems, and it is submitted on his behalf, in general a psychological decompensation (see Jonathan Phillips Ex 9(i) 18th February, 2000 p.7 bottom paragraph and p. 8 item (g)) and the various reports and certificates of Dr Keshava included in the file of the Department of Veterans Affairs (Ex 19). Whilst Mr Hill has described throwing himself into his work in an attempt to shut out intrusive thoughts and memories (T103); MacFarlane (Ex N 28403 p. 15-16) he has changed jobs numerous times and had periods out of work because he could not get on with people, and/or relate to authority and/or was unsettled or could not deal well with members of the public and did not like even the job he was most successful at, namely real estate salesman; (David Thorne T273; Thomas Williams T351, 356; Christine Harvey T281, 282, 284, 288, 294).
11 It is submitted on behalf of the Plaintiff that the Plaintiff’s psychiatric disorder following the collision was at the very least:
A The cause of his leaving the Navy and losing that steady career and its associated financial benefits, and has been the substantial cause of his disrupted job career and his inability to capitalise on the opportunities thrown his way over the years so that he is now living in rented premises (T55).
…
12 Further, the Plaintiff has suffered from alcoholism which can be attributed to an attempt to self medicate his anxiety following the collision, and this alcoholism has been a significant factor in his unsatisfactory employment career, relationships and has contributed seriously to his general unhappiness. It was also a significant factor in each suicide attempt (T107-111; 114-116; 101-102; Christine Harvey T283, 290; Stuart 303-304; James 361-363; Williams T351; David Thorne 269, 273).
13 It is submitted that this alcoholism is both a consequence of and subsidiary to the primary diagnosis of post-traumatic stress disorder, but it is also a psychiatric disorder in its own right in this case, and further it has contributed to his gastrointestinal discomforts and upsets.
14 The Plaintiff also suffered symptoms of irritability, moodiness and consequent difficulties in relationships since the collision…

113 As I read these submissions, the progression towards “alcoholism” is advanced on the shoulders of “an attempt to self medicate…anxiety following the collision” (par 12 of the above extract). The relationship and business difficulties in the ensuing years are advanced as symptoms of an undiagnosed psychiatric condition that manifested itself in 1964. This is a reference to the case advanced by the appellant in his medical histories and his testimony that involved heavy drinking in 1964 as a form of self-medication in response to the visions and nightmares then besetting the appellant. In other words, it was a narrow version of the alternative case.

114 The broader version – pressed in this Court – was open to be accepted in light of Dr Phillips’ statement that the collision “may have played some causal role in [the appellant’s] path towards alcoholism” (par [92] above). But the judge was not bound to find this variant of causation established on the probabilities. His decision not to accept such a claim is not attended by appellable error.

115 The appeal should therefore be dismissed with costs.

116 GILES JA: I agree with Mason P.

117 TOBIAS JA: I agree with Mason P.

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