Ledger, A.W. v Commonwealth of Australia

Re: ANTHONY WILLIAM LEDGER
And: COMMONWEALTH OF AUSTRALIA
No. G127 of 1990
FED No. 229
Damages

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

CATCHWORDS

Damages - assessment of damages - psychiatric harm - post traumatic stress disorder - consequential addiction to medication.

HEARING

MELBOURNE

#DATE 18:4:1991

Counsel for the Applicant: D.A. Wheelahan QC

with A.R.G. Johnson

Instructed by: Patterson, Houen and Commins

Counsel for the Respondent: J.A. McCarthy QC

with B.J. Knox

Instructed by: Australian Government Solicitor

ORDER

1. Judgment be entered in favour of the applicant in the amount of $548,699.00.

2. Judgment on the applicant's claim for damages for future medical expenses be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

I propose to deal with this case at this point of time on the basis that I do not make any award in respect of future medical and the like expenses. As already indicated, I will reserve that aspect of the case for future argument on the question of whether I should award a lump sum on the basis of the evidence given or whether I should adopt a different approach, namely, that of making an order which would have the effect of requiring the respondent Commonwealth of Australia to continue to make payments into the future for the applicant's necessary medical expenses under the provisions of the Veterans' Entitlement Act 1986.

To that extent the judgment that I give today will not be final one. It will, however, be final in respect of the matters that I deal with. The outstanding question will be determined very soon after future argument in Sydney.
The applicant in these proceedings, Mr Anthony Ledger, sues the Commonwealth of Australia in order to recover damages for injuries, disabilities and consequential losses, occasioned to him as a result of an accident occurring on 22 October 1985. The accident took place upon HMAS Stalwart, on which vessel the applicant was then serving as a petty officer. I shall refer to the details of the accident later in these reasons.
The respondent Commonwealth of Australia has admitted liability in respect of this accident, so it does not become the duty of the court to determine issues of negligence and the like. The circumstances of the accident, however, can be taken into account on ordinary principles in assessing an appropriate figure for general damages.
The applicant's injuries in respect of which compensation is sought fall within the field of psychiatric harm. Some slight suggestion has been made in the case of some organic cerebral damage. It was raised at the outset, but there is very scant reference to such a question in the material placed before me and it has not been relied upon in final address. On the probabilities I am satisfied that no such question arises.
The area of the medical science of psychiatry involved in these proceedings requires that the court give consideration to a psychiatric condition which has come to be known in the literature as "post traumatic stress syndrome". It is this condition which the applicant is said to be suffering from as a result of the accident in respect of which he sues. A deal of evidence has been given before me in relation to this condition. I am satisfied by evidence which I accept that this condition, so described, has been established as a recognised psychiatric illness since about 1980 and that since approximately that time its manifestations have been more clearly defined as more cases have been recorded and studied.
The evidence indicates that the main group of sufferers have been Vietnam veterans who suffered severe emotional shock in the theatre of war and who, for the most part, experienced a degree of community rejection on returning home. A detailed description of the symptomatology of this condition and its signs are to be found not only in the very elaborate evidence which has been given in these proceedings orally by expert psychiatrists whose evidence I accept, but also in a document which has been tendered and has been described as DMS III.
I do not intend to set out in any detail the various matters that are set out in that document or in the evidence. I make simply the following observations as to matters which I find proved to my satisfaction in relation to this condition. It has its origin in a traumatic experience suffered by a patient, which experience would be one greater than normally encountered in ordinary human circumstances. This trauma leads to an emotional response which is severe, prolonged and persisting. The response includes symptoms of severe anxiety, emotional instability, difficulty in controlling anger and aggression, irritability, low tolerance to noise of various kinds, a distinctly low tolerance to stress, a tendency to withdraw and to be anti-social and an interference with the capacity to concentrate, to remember accurately and to make satisfactory decisions. Episodes described as flash-backs when the sufferer finds himself involuntarily remembering, recalling and reliving the relevant traumatic experience is also a feature. These flash-back episodes are painful and can be very disturbing and distressing when they occur. Interference with sleep, coupled with nightmares relating to the incident, or similar incidents, are also a common feature. Interference with sleep as a regular matter induces fatigue which also plays a part in the general loss of enjoyment of life and ability to lead a proper life which is a feature of this condition.
I am satisfied that the condition itself belongs to that category of psychiatric illness which is referred to as neurosis in contradistinction to those illnesses which are described as psychoses. The significant feature of this distinction is that the sufferer retains insight into his condition. He retains all his ordinary mental faculties, his level of intelligence and the like, although his ability to function may be deadened or diminished. His retention of insight makes him, of course, aware of these serious changes and short comings. Consequently, he tends to experience frustration which in itself tends to make his emotional state worse.
I am satisfied also that it is common for the sufferer to seek, consciously or unconsciously, to deal with these problems by a process of denial to himself and to the outside world of their existence. The mechanism of repression is used. In itself, it leads to a bottling up of emotions generated by a stressful situation so that that situation may be at least coped with. This bottling up can cause an explosive emotional release later.
I am satisfied that, in the long term, these emotional defence mechanisms, which the sufferer of this condition tends to adopt in order to cope with day-to-day living, can break down with the result that the condition can worsen. This, of course, runs counter to ordinary human experience which tends to suggest that with the passage of time the impact of an emotional experience will tend to diminish, if not disappear. It is clear, however, that where the emotional experience has produced this particular psychiatric result that common course does not necessarily occur. The reverse can occur for the reasons to which I have just made reference.
The condition has been regularly treated, as have other conditions in the area of neurosis, by the administration of appropriate drug regimes. It appears from the evidence that various drugs are used by various practitioners in various combinations. I do not propose to deal with those matters in any detail. Broadly speaking, tranquillising and anti-depressant medicine is used for the purpose of diminishing the degrees of anxiety and irritation and other unfortunate emotional effects being suffered by any particular patient. It is clear on the evidence that the degree of success in the administration of these drugs involves matters of individual difference.
It is also clear that if the drug commonly known as Valium or something similar is used then this drug can lead to addiction. It has been put in evidence, which I accept, that addiction, when it occurs in these circumstances, can properly be regarded as a sequel of the original cause of the condition, namely, the traumatic episode and its emotional consequences. I am satisfied that this is a proper approach to any question of addiction to Valium which may arise as a result of its being used in treatment of this condition.
Where such addiction arises it has to be dealt with, as it were, as a separate illness and appropriate steps taken to reduce the level of intake of that particular drug or substituting some other drug for it.
I am also satisfied that the condition, so far as the administration of therapeutic drugs are concerned, is characterised by the ingestion quite frequently of above average amounts or dosages of these drugs. There appears to develop a tolerance on the part of the patient to drugs of this kind administered at a level well above that to be found in the treatment of what might be described as normal neurotic conditions. It does appear that sometimes the amount taken by a sufferer can, at least so far as the drug described as Largactil is concerned, reach proportions normally appropriate to the treatment of psychosis, and that this can occur without the deadening or stupefying effects which normally accompany the administration of a drug at that level. This is explained on the basis that this particular condition frequently involves what are described as very high levels of arousal. In ordinary terms, as I understand the evidence, this means that the unfortunate sufferer of this particular syndrome can experience debilitating emotions such as anxiety, anger, irritation and frustration to a significantly high level such that the dosage to which I have referred does not have its normal effect having regard to the level of arousal with which it has to cope.
I also accept that the reduction of intake of, especially, the drug Valium, where large dosage levels have occurred, can produce withdrawal symptoms of an unpleasant kind. In particular, an effect can occur which has been described in evidence as the "rebound effect" which involves the patient, in respect of whom this reduction has been undertaken, experiencing at apparently increased levels the anxiety and other disturbing and debilitating emotions in respect of which the drug had been administered in the first place.
It is against this general background of my acceptance of the psychiatric evidence in this case that I approach this particular piece of litigation.
The applicant was born on 30 June 1959. He joined the navy as a junior recruit in January 1975. It is clear that he was a young man of above average intelligence. It is clear also that he was outgoing and well-motivated. He saw himself as having a career in the navy. He gave consideration as to whether he would follow a career path which would take him into the field of being a commissioned officer. This was apparently available to him. He chose, however, to take another career path which would not involve that area of promotion but which would involve promotion up to the rank of warrant officer or chief petty officer if he persisted with the navy. He did so because he wished to follow a trade and acquire the skills of that trade which he might then take into the outside world if he chose to leave the navy later in life. I accept that he contemplated that he would remain in the navy for 20 years, that being a period of enlistment available, and that the situation as to what he did with his skills and experience acquired in that period of time would be reviewed at the expiration of that period.
He became an apprentice within the navy in the area of the shipwright. He intended to complete that apprenticeship and, in fact, whilst he was a member of the navy, he did so, becoming a qualified shipwright. In the navy this carried with it the description "MTH", meaning "marine technical hull". The period of apprenticeship undertaken by him commenced on 12 January 1976 after he had completed basic training, and was to continue - as it did - for a period of 4 years. He successfully completed that apprenticeship and accordingly acquired the trade skill.
The period from his commencing that apprenticeship up to the time when this accident happened was not uneventful so far as concerns his naval service. He did sustain some back injury from which he recovered. He contracted hepatitis; again he recovered from that. He suffered appendicitis on one occasion in 1981. He, in fact, underwent an emergency appendectomy in 1984. He injured his shoulder playing cricket. He required and received an operation to his nose to straighten a deviated septum.
There were some periods when he obviously became dissatisfied with naval service. He made some applications for voluntary discharge which he withdrew. On one occasion he went AWOL for 60 days. That was in May 1979. He was then only 20 years of age. The reason for this is not particularly clear in the evidence, apart from perhaps some level of dissatisfaction with what he was doing. There were also some family problems. He came back to the navy. He suffered disciplinary action. He was accepted back into the ranks and the matter seems to have been closed.
He also had problems with seasickness which led him to seek postings only to larger vessels where the problem was not so extreme. This appears to have been accepted by the navy. Although he obviously suffered problems when at sea, it seems quite obvious that he was able to discharge his duties, although under difficulty.
There were periods of stress referred to in the evidence. The applicant married in 1982. His wife had been previously married. There was a child of the previous marriage. There were problems with the wife's first husband. It appears clear enough that this induced some occasions of stress. It does not appear, however, that such occasions of stress produced anything in the nature of emotional upheaval or anything that could be described as a severe emotional reaction on the part of the applicant.
Notwithstanding these matters, it is quite plain from the evidence that the applicant remained in the navy and, at the time when this accident occurred, was intending so to remain. His career in the navy had been unimpeded by the matters to which I have referred. He had received promotions at appropriate times and had achieved the rank of petty officer, the equivalent to the rank of sergeant in the army, not long before the particular incident.
I mention these earlier matters only because they were put to me in argument as indicative, as I understand it, that the applicant had perhaps not such a future in the navy as could be the subject of optimism or that perhaps he has heading towards some sort of problem, in any event. These matters quite fail to lead me to any such conclusion. Undoubtedly he lost a considerable amount of time one way or another through illness and mishap in the period of time to which I make reference, but I am quite satisfied that in the ultimate, having given consideration to these matters and the submissions made in respect of them, that they have no bearing whatever on the outcome of this case.
On the personal side, the evidence establishes to my satisfaction that the applicant was, as I have said, of above average intelligence. He was a personable young man, he got on well with people, he was motivated to succeed, he was, if anything, an extrovert, he was good company, he was happily married, he adjusted well to the fact that upon marriage he undertook responsibility for a child not his own and he was a good father to that child. When, in the fullness of time, another child was born of the union of himself and his wife, he was equally a good father towards that child.
The picture that emerges is simply one of a happy marriage, not subject to anything more than normal stresses and strains associated with a marriage between young people with perhaps the additional feature of one child of the marriage not being a child of that union. This state of affairs is amply attested to by the applicant's wife who was called in the case and also the applicant's father-in-law who had clearly formed a very satisfactory view of the applicant as a young man and husband for his daughter.
The accident happened, as I have indicated, upon the naval vessel HMAS Stalwart. The vessel had left Darwin for the purpose of deployment in the general area of Indonesia. It was to be a voyage of some months duration. The applicant was a member of the crew. He had responsibility for a group of seamen working in his area as shipwrights. He also had, as a petty officer, responsibility in other areas. In particular he was responsible for a group known as the firemens group, or words to that effect. This particular part of the ship's organisation involved that group in being available to deal with emergencies occurring within the ship, such as fires and the like.
On the day of the accident, the applicant first became aware of any problem when an appropriate warning signal sounded in the mess where he was then situated. This involved him in taking an appropriate team of helpers to a portion of the ship nearby the stern glands. This was a corridor area referred to in the evidence as "Two Hotel Flat".
When he arrived there, there was a scene of very considerable confusion. What had occurred was that there had been a release into the stern gland compartment, a large self-contained area at the rear of the vessel, of the gas hydrogen sulphide. Its release into that area is acknowledged to have occurred as a result of relevant negligence on the part of the servants of the respondent. Some members of the ships crew had been working in that area undertaking a necessary pumping operation. They were overcome to varying degrees by the gas, which is a toxic gas and which can be lethal if inhaled in sufficient quantity for a sufficient period of time. In fact, deaths did occur as a result of this incident. The applicant busied himself in assisting those who had been affected and in obeying instructions to open up certain gun port doors which existed in that area and which, if opened, would allow ventilation to occur and have some beneficial effect on disposing of the noxious fumes.
It is clear that whilst he was engaged in this task he inhaled some of the fumes and that these had a deleterious effect upon him, although of a temporary nature. It was necessary for him to receive oxygen treatment in the ship's sick bay. He returned to Two Hotel Flat to render further assistance. The whole episode was a highly traumatic one.
A particularly significant feature so far as he was concerned was that a fairly close friend had been apparently working in the area of emission of the gas. He had been rendered unconscious and was apparently convulsing. The applicant, I am quite satisfied, was very disturbed by this and he made prodigious efforts to attempt to bring this friend back to consciousness.
In the upshot the applicant, along with other affected members of the crew, was evacuated from the Stalwart by helicopter and taken to Darwin Hospital.
The applicant suffered unpleasant, if in the ultimate temporary, effects of the inhalation of the gas. He was induced to vomit. He suffered some, at least transient, neurological results. He suffered headaches, but most importantly he was obviously emotionally shocked by what had occurred.
He, along with others, received treatment at Darwin in the hospital, to which he was taken, and, later, in an RAAF hospital. He was then transported back to Sydney for further attention. In Sydney he received considerable medical treatment to which I shall make brief reference.
He was seen quite promptly on his return to Sydney by members of his family. His wife deposes, in evidence which I accept, to observing a considerable emotional change in him even at that stage. He appeared to be upset and angry. He received some leave and he returned home concurrently with receiving medical attention and his wife was able to make similar observations at that time.

As might be expected, he was checked out with great care by the naval authorities, as were other persons involved in this unfortunate incident. It is significant in this case that, apart from physical symptoms, which were of course the subject of attention, he was at that early stage of time displaying very considerable emotional reactions to what had occurred. Within what is only a matter of a fortnight from the traumatic incident itself, a clinical psychologist who examined him on behalf of the respondent noted that he was a young man of above average intelligence, having an IQ range of 122, and noted also that at that point of time it was clear that, and I quote his words, "the applicant's emotional health was severely shocked". That psychologist expressed the view, however, that "he was a mature and very intelligent young man who in time no doubt will be able to overcome his present emotional difficulties".
He was also displaying emotional symptoms of sufficient severity to warrant his being examined by a psychiatrist, Dr Whetton. That specialist expressed the view that he was at that stage suffering from "a traumatic neurosis gradually settling". Early prognoses were accordingly optimistic. Regrettably that optimism was not fulfilled in future events.
In December of 1985, approximately two months after the accident, he was transferred by an ordinary posting to HMAS Cerberus, a shore station near Melbourne. He gives evidence that at that point of time he still felt angry and disturbed and anxious. He found himself unable to concentrate adequately. He was having problems with recollection of the incident.
He also found, as a most disturbing matter, that he was being difficult at home. Aggressive in a most uncharacteristic way with his children, irritable and angry with his wife. He noticed the changes. He found them most distressing. When he gave evidence about them in the witness box he wept. Clearly, the recollection of those matters is still a very disturbing matter to him. That display of emotion, in my view, was entirely genuine and could not be attributed to any sort of forensic histrionics.
He was treated as requiring psychiatric attention whilst at Cerberus. He came under the care of Dr Myers, a psychiatrist practising in Melbourne. Dr Myers obviously treated him as being genuinely emotionally disturbed. He provided counselling and supportive therapy.
It is clear that the applicant continued to suffer from emotional problems throughout 1986 and that he continued under the care of Dr Myers. It is clear also that problems at home continued due to emotional outbursts and irritability on his part. He displayed signs of wishing to isolate himself from the family. He became anti-social. His wife was concerned about the effect on the children. They were sent for some period of time back to her parents in Perth.
It became the wish of the applicant that he should be posted to Perth so that some support could be received in the family situation from the availability of his wife's family. It is clear on the evidence that Dr Myers was of the view that a posting of this kind could be beneficial. An application was made, but it was refused by the navy. This obviously occasioned distress to the applicant. It appears from the evidence that representations were made, not at the instance of the applicant but of his parents-in-law, for the navy's refusal to transfer him to Perth to be reversed. This application was made at a political level. It appears that it occasioned some difficulty with the result that the decision on the application was delayed. This delay obviously further occasioned emotional problems so far as the applicant was concerned.
The applicant, during this year, reached a point of time when it was appropriate for him to apply for re-engagement in the navy for a further 12 years, which would take him, having regard to the period of his service which had elapsed, up to the termination of the 20 year period of engagement which he had earlier envisaged.
He made application for re-engagement and apparently he attended and was examined by the necessary medical boards in this regard. This application again was the subject of some delay, which apparently occasioned him, as I accept, more emotional distress. In the upshot he made the decision, which may have been a somewhat impetuous one, to withdraw the application for re-engagement having regard to the delay and difficulty which appeared to surround it and accept the situation that his term of engagement in the navy would thereby come to an end. He did this. He later, I am satisfied, regretted having done so.
The application to withdraw the re-engagement application was, however, accepted with alacrity with the result that he was discharged from the navy at the termination of the existing period of service on 7 January 1987. At that point of time there were, in train, applications for entitlements under appropriate legislation resulting from the incident and the already diagnosed effects upon him.
The termination of his period of engagement in the navy was intended to provide him with the opportunity to go to Perth, reside in that city with his family in proximity to his wife's family. At the time of his discharge, I am satisfied that he was suffering the emotional effects of the accident. Indeed, it is not suggested that he had in any sense fully recovered from them. He was still being treated as suffering from a traumatic neurosis with the expectation, or at least the hope, that there would be recovery in time.
The applicant became under the necessity of seeking employment in Perth after his discharge from the navy. I am satisfied that he made some attempts to obtain work in the area of his trade. He was, of course, by then a fully qualified naval shipwright. He was not successful in these endeavours and he took work with a company known as the Midland Brick Company. That work was fitting and turning work in which he could use skills which he had acquired whilst in the navy. It was obviously work that fell far short in its demands upon those skills from the demands made on him as a petty officer in charge of a group of shipwrights in the ship's woodworking department.
He was not particularly satisfied with the work. That dissatisfaction in fact mirrored the dissatisfaction that he had felt throughout his period in Cerberus in Melbourne. In that earlier period he had not been permitted, because of his problems, to carry out work of the standard to which he regarded himself as being fitted. This had been an additional problem whilst in the navy causing emotional responses.
A similar emotional response was generated by his perception of the type of work he was doing with Midland Brick. He expressed the view to Professor Burvill, a psychiatrist that he was seeing through the Repatriation Commission in Perth, that the work he was doing with Midland Brick was only dirty work. I am satisfied on the evidence of the applicant that quite apart from dissatisfaction with the level of the work he experienced considerable difficulty in performing it. The work came in two phases. In one phase he worked as part of a shift and therefore had the support of fellow workers in doing the maintenance work. In another phase however, he was required to deal with work on his own in a situation where he had to perform it unaided. The work approximated to that of maintenance fitting of brickmaking machines. If any significant breakdown occurred for any significant period of time there was consequent loss of production. He was working therefore, when on his own particularly, in fairly stressful situations.
I am satisfied that he could not, as he found, handle the build up of stress that occurred. This not only produced emotional symptoms but it also produced physical symptoms in the nature of shaking of the limbs. I am satisfied that at that point of time he was unable to do that work and that that inability stemmed from his condition resulting from the accident.
Through the good offices of his father-in-law, Mr Reynolds, he next obtained work at an organisation referred to in the evidence as Pegasus Transport. His father-in-law had a managerial position in that organisation. It was, as the name suggests, a firm which engaged in transport activities. Basically, it made deliveries on behalf of clients throughout Perth metropolitan and suburban areas.
The applicant worked, first of all, as a driver and dock hand. This was, in comparison with his level of intelligence and acquired skills, fairly menial work. I am satisfied that he was not entirely happy with it and that he experienced a degree of frustration in its performance.
He, again as a result of the consideration of his father-in-law, was given a more significant task. That was a supervisory role. He became in effect the manager of the loading and dispatch activities. It was a role requiring responsibility, care and concentration. It was, to at least some extent, a role equivalent to that played by him as a naval petty officer in control of seamen working under him in the workshop of the ship. In certain respects, however, the work would have been different. He did not have available to him, as he would have had in the navy, the general weight of naval discipline to back up orders and directions that he would give. He was dealing in an industrial situation where that degree of discipline did not obtain. I am satisfied, however, from the pre-accident descriptions of the applicant's personality and abilities that it would have been work well within his ordinary capabilities.
The simple fact of the matter was that he could not tolerate the stress involved in the handling of the men and in the organisation of the details of the work which obviously required fairly quick decisions being made from time to time, the issuing of orders to personnel, the changing of those orders and the like, all matters, of course, normally coming within the range of activities of a supervisor in that type of work.
He was not only experiencing difficulty in coping with the stresses and emotional strains of the performance of the work. Those stresses and strains and the attendant frustrations involved in his recognition of the fact that he was not able to carry out the work satisfactorily had an effect in his domestic life. He continued to be difficult and irritable and at times somewhat violent at home. The marriage was under strain. The children were being affected.
His father-in-law was not unreasonably dissatisfied with his level of performance and, at that point of time, was probably less able to appreciate the reasons for it than he would now be. A row of apparently fairly severe proportions occurred between them in the workplace. This disputation related to the perceived lack of responsibility on the part of the applicant in the conduct of his duties, his failure to accept help and counselling offered by his father-in-law, and the general low performance of his services. The result was that the applicant tendered his resignation from this work and that resignation was accepted.
I am quite satisfied on the evidence given by Mr Reynolds that the applicant's standard of work, general attitude, general self-control, mood swings, and inability to handle the men underneath him are fully established. I am equally satisfied that the applicant was aware of these problems and very disturbed by them.
The applicant, contemporaneously with the matters to which I have been referring, was under medical care in Perth. This took place under the auspices of the Repatriation Commission. He had seen Professor Burvill, to whom I have already made reference, who had formed the view that he was exhibiting continual anxiety symptoms which were at that stage fairly chronic, and that he expected that those would continue with exacerbations and remissions for some years. He was in receipt of assistance by way of administration of tranquillising drugs and the like. The problems at home, I am quite satisfied, continued. There was also in train an application for the grant of a pension relating to his health problems occasioned by the accident.
After losing the job with Pegasus Transport and the circumstances to which I have made brief reference, he obtained a position with another transport company described as T and C Couriers. This was again a supervisory position. The evidence suggests to me that he obtained it with some assistance from his father-in-law, obviously in the hope that he would be able to perform the work. It was somewhat similar to the work performed at Pegasus in that it involved supervision of carrying operations. He was involved in setting up a taxi truck communications centre. He held a position with that company from 31 October 1988 until 6 April 1989. I am satisfied from the applicant's evidence that he also found that work too stressful and that he was reaching a stage where it may well have come to a halt.
As a result of discussions with a psychiatrist whom he was seeing, a Doctor Bell, he decided that it would be advantageous if he moved himself and the family to Brisbane. There were obvious difficulties resulting from the unpleasantness occasioned by his losing of the job with Pegasus Transport in the family circle in Perth. It was felt that these differences were exacerbating his obvious emotional problems and that a move to Brisbane, where he could be close to his own relatives, might be beneficial.
The move was undertaken in 1989. A home was purchased in Brisbane, and the family moved there. The move did not produce the beneficial result that had been hoped for. Indeed, so far as the applicant's condition is concerned, it is clear that there was considerable deterioration whilst in Brisbane.
He again took a job with a transport company. This transport company was known as Comet Express. He worked there between May and November of 1989. He obtained employment in a supervisory role doing, so far as I can ascertain from the evidence, much the same sort of work as he had attempted unsuccessfully in Pegasus Transport. The same result ensued.
Evidence has been given by Mr Van Doore, his superior in that organisation, which evidence I accept. This evidence indicates quite clearly that the applicant, having successfully completed a training period of some months, during which it was anticipated that he would be able to hold down the job which he was ultimately given and perform it satisfactorily, entered upon that job. Increasingly he became unable to perform it. I am satisfied that this was once again because he was unable to tolerate the necessary strains and stresses involved in the organisational work that the job entailed. This failure to handle the job at an acceptable level became very obvious to Mr Van Doore.
I should say that the evidence indicates that throughout this period in Brisbane the applicant was following the regime of tranquillising and anti-depressant medication which he had been on, in effect, since the accident. It is clear that he had to establish fresh connections with the medical profession upon moving to Brisbane. He clearly went to private general practitioners in the area in which he was living in the first instance. He obtained prescriptions of Valium and anti-depressants. I am satisfied, although the evidence is not entirely clear, that he was receiving amounts of Valium by prescription which were likely to lead to dependence and addiction. It also seems clear that the amount of heavy tranquillising drugs, such as the drug known as Largactil, were also being prescribed for him and that the dosages were large. The size of these dosages, although large and although they have been adversely commented upon by expert witnesses called on behalf of the respondent, are consistent with the high tolerance level which has been found to exist in cases of post-traumatic stress disorder. I have already made reference to that matter in my earlier observations about that condition. It is clear to me that the build up of dosage of these drugs which occurred in Brisbane was in every way consistent with the development of the condition which he was undergoing. He was experiencing high levels of arousal in the sense to which I have already made reference which called for greater dosages to control them and which, at least in the case of Valium, led to addiction. These high levels of arousal are amply attested to by the evidence of his wife and also the evidence of Mr Van Doore who saw the problems occasioned by them at work.
Efforts were made in the work-place to cope with the applicant's problems. Indeed, I think he received quite sympathetic treatment from Mr Van Doore and Comet Express having regard to the fact that quite early in the piece it must have become apparent that he was not capable of performing his duties at the necessary level. Mr Van Doore speaks of him breaking down in his office, of breaking into tears in relation to his inability to control particular men under his command or supervision. Ultimately he was given work which isolated him from the stresses and strains of human contact in the work-place. He was given a job in what was described as "the tower", from which, as I understand the evidence, he was able to control operations without the face-to-face contact which could be productive of scenes and of emotional distress. It seems fairly obvious that he became increasingly unable to perform these tasks also.
It is clear to me that his psychiatric condition was worsening throughout this period. This is amply attested to by the fact that he sought assistance through the Greenslopes Hospital, a hospital under the control of the Repatriation Commission. He received some assistance from Dr Cameron who gave evidence in this case. It is clear that there was little rapport between himself and Dr Cameron on the basis of patient and psychiatrist. It is a well-known fact in psychiatric medicine that rapport is important and that it sometimes is achieved easily and sometimes not at all. It seems fairly clear to me, having heard the evidence of Dr Cameron and of the applicant, that this was one of those unfortunate situations where the achievement of a necessary level of rapport was simply not possible.
He was ultimately admitted to the hospital to receive therapy, the details of which I need not refer to. He was discharged with some hope that he would be able to re-enter the work force. This in fact did not eventuate. His condition worsened. There were episodes which have been described as suicide attempts through the taking of excessive medication.
Be that as it may, it is quite apparent on the evidence that his psychiatric condition worsened and he became incapable of returning to work at Comet. The evidence of Mr Van Doore makes it quite clear to me that prior to his going into hospital, on the basis of receiving some leave from that organisation, it was the firm intention of Mr Van Doore that he would not be re-employed unless there was substantial improvement.
I am quite satisfied that, as at the end of 1990, which is the termination of the period when the applicant and his family resided in Brisbane, the applicant was undoubtedly a victim of post traumatic stress disorder. Indeed, in my view, that particular psychiatric problem had been previously diagnosed, if under different diagnostic labels, by psychiatrists that he had seen in the past. The significant thing was that instead of improvement gradually occurring the reverse had occurred. A worsening had taken place which was consistent with one of the acknowledged effects of this particular psychiatric problem. I am satisfied that he had been exercising degrees of control through denial and repression, in the sense to which I have already made reference, that he had been undertaking work which should have been within his capacity but which, because of his condition, was not, that increasingly he was becoming aware of this and frustrated by it, that increasingly his ability to control his emotional reactions was deteriorating and that this was having effects of a serious kind both in the work place and in the domestic situation.

There is no doubt that the situation was complicated by what had become an addiction to the drug Valium. The evidence satisfies me that this had occurred. He was also taking large amounts of Largactil, consistent with the high degree of arousal which was a concomitant of his condition but, which was nevertheless, from the point of view of his general health, a most unsatisfactory matter.
I do not need to detail the whole of the evidence relating to this period in Brisbane. I accept the descriptions which are given of him and by him in relation to his condition there.
Since losing the job with Comet he has not worked and the case is put to this court on the basis that he will not reasonably be capable of gainful employment in the future.
As indicated during the course of addresses in this matter, it is my view that the diagnosis of the applicant's condition as falling within the description of the psychiatric disorder referred to presents no great problem. Indeed, I do not understand that at this point of time there is any serious dispute that the applicant fits into that category. I also have no hesitation in finding that the applicant's disabilities are consistent with him suffering from that particular psychiatric illness and that his suffering from that illness stems from the traumatic experience aboard HMAS Stalwart in 1985.
The great difficulty in the case, as indicated, is prognosis. The applicant is now only 32 years of age. He is psychologically disturbed. So much was evident even in observations made of him in the giving of his evidence. The recalling of the incidents on Stalwart produced an immediate emotional response. The recalling of incidents when he spoke of smacking his children, of being unable to tolerate their noise and of his awareness of the difference in him in this regard, pre and post accident, also provoked an obvious emotional response. There were other instances in the evidence.
As to his continuing psychological disturbance, consistent with the diagnosis that is made, there can be no doubt. He is not, however, psychotically deranged. The particular diagnosis is one which has emerged in psychiatric fields only since 1980, as I have already indicated, with the result that necessary case studies have not been in existence for a great period of time. I am not unnaturally faced in this case with some conflict of scientific testimony as to the ultimate outcome for a person afflicted with this particular problem. It, not uncommonly, falls to a judge who is essentially a lay person and who must educate himself in these matters by attending to evidence, by asking questions and thinking over them deeply, to make decisions in areas where the experts themselves cannot reach agreement. But I must embark upon that task. It is important and it is significant.
The applicant presents undoubtedly as an intelligent and articulate young man, subject to these demonstrations of emotional disability to which I have referred. He has comprehended questions, often of some difficulty, put to him in the course of this case. In the witness box, a situation which is not conducive at any stage to composed reply, he gave replies which were articulate and sensible.
This is not to say, of course, that he is not afflicted by the emotional problems to which I have made reference and which I accept. I have got to determine on the evidence whether the significant and persistent problems from which he suffers are such as to take him out of the work force for all time. That is only one of the matters that I have to consider. I have also to consider what his future as a human being is likely to be and I have to consider to what extent monetary compensation should be given to him for these matters.
At the end of 1990, the applicant and his family moved back to Perth. I think it to be clear that the attitude of the applicant's relatives in Perth would probably now be more understanding than perhaps it was in the first instance. Mr Reynolds, a witness who impressed me greatly, was undoubtedly most concerned at the changes that he observed in the applicant when the applicant first came to Perth, the changes simply being that from a young man highly motivated and good company, into a man who was emotionally difficult, lacking in self esteem, apparently preferring his own company to those of others and the like, all matters to which I have referred. These matters were clearly visible at the time when the applicant first came to Perth. Mr Reynolds, I feel certain, adopted a reasonably optimistic view. He clearly hoped that when he put the applicant into the job that he put him into, it would be not only beneficial in the financial sense, but also beneficial to his mental and emotional health. Significantly, Mr Reynolds, said in his evidence that he made a mistake and that he came to realise that the stress level of that sort of work was something which the applicant in his impaired condition could not cope with.
There will be, in my view, a greater degree of domestic understanding displayed to the applicant now he has returned to Perth. He is also aware of the problems associated with Valium addiction. He has come under the care of a psychiatrist, Dr Risbey, who I found to be a most impressive witness and with whom he, clearly enough, has adequate rapport. He has evinced a wish to reduce his dependence on Valium and generally get his drug program back into better balance. He is being encouraged in this by Dr Risbey.
It is reasonable to assume that given his motivation in this regard and the care he will receive, that there will be improvement. The question which is difficult to determine is: what will be the degree of that improvement, bearing in mind the comparatively young age of the applicant? He has 33 years of average working life ahead, if he can achieve work. He has a considerably longer period of his natural statistical life.
Dr Risbey is a psychiatrist well acquainted, in my view, with the particular psychiatric illness from which the applicant suffers. He has had considerable experience based upon his study and care of Vietnam veterans, to whom I have already made reference. He is not optimistic. Clearly he expects that he can achieve some degree of improvement, especially by weaning the applicant with his assistance from the dosage of Valium which is too high. Indeed, the applicant's enthusiasm in this regard has, according to the doctor, been somewhat deleterious. He has reduced the dosage rather too rapidly and he has suffered to some extent the rebound symptoms to which I have made reference.
The thrust of the doctor's evidence, however, is that, whilst he can hope to ameliorate the applicant's condition, he does not see any realistic prospect of getting him into an emotional situation where he can undertake any form of sustained employment. It is, of course, of significance that the past has amply demonstrated the applicant's inability to do so. I think it established beyond question in the case that jobs requiring the level of stress associated with the supervision of men, such as the jobs that the applicant undertook with ultimate failure, must continue to be beyond him. I see nothing in the evidence to suggest that that form of employment could ever now be within his grasp.
The particular affliction from which he suffers, so far as the evidence indicates, appears to be one which carries with it no hope of spontaneous remission. It is one that can be coped with only by resort to psychiatric counselling and by the proper and controlled administration of tranquillising and anti-depressant drugs. It seems fairly clear that the applicant's well-being, and indeed the well-being of his family, must be dependent, not only in the immediate future, but in the foreseeable future and probably for the rest of his life, upon his being kept out of situations of unacceptable stress.
So far as the future is concerned, and looking at the matter purely at his personal level, I think one can only foresee that he will suffer from emotional problems consistent with the disorder that he has and that he will have periods of irritability and lack of control. He will have periods of withdrawal, he will suffer from anxiety and he will generally have to lead a life far more restricted than that of an ordinary person. He will be assisted in coping with these problems in the manner that I have indicated by psychiatric counselling and the proper administration of drugs. He must, I regret to say, accept that he will have a life restricted in this way. It is certainly not the happy, outgoing, social life that he would have anticipated living, had it not been for this accident. It is a life which will require from those around him a degree of understanding which, on the evidence as it comes to me, I expect that he will receive.
In the area of work I have contrasting psychiatric evidence to which I must apply my mind and which I must evaluate against a background of commonsense and experience, such as a judge can muster. It is put to me that it is reasonable to assume that with proper encouragement he should be able to undertake jobs which, although he would consider them as menial having regard to his ordinary levels of aspiration, his prior levels of achievement and his acquired skills, would nevertheless be jobs within his capability.
I must make the observation, of course, that insofar as he may be found to have residual work capacity, then it must be assumed, having regard to his duty to mitigate his damage, that he will exercise it. If he does not exercise it, that is a matter which cannot be laid at the door of the respondent.
The question is, is there residual working capacity to be taken into account, or does one have to accept the entirely gloomy picture that he will be in effect incapable of gainful employment because of his condition and because of the reasonably anticipated reaction of employers to it.
I think it obvious that if he is to work in the future it will be in areas which he would see as being beneath the true levels of his abilities. Driving has been put to me as a possible form of work. It seems quite clear from the evidence of Mr Reynolds that at the early stages of his employment with Pegasus Transport, when he was employed as a dockhand driver, he performed that work to all appearances satisfactorily. That is somewhat back now in time.
It has been pressed upon me that he made the move from Brisbane to Perth by car in two days, and that in that period of time he did most of the driving. This evidence only appeared in the evidence given by his wife. It is difficult to evaluate that evidence. Whereas it shows he was capable of driving extended hours over extended distances and arriving safely, it does not tell me a great deal about his emotional condition while he was doing it and whether it is truly indicative of an ability to drive in an acceptable way in an industrial situation. It is simply a factor in this case which I must take into account.
Another significant factor, although the extent of its significance is in this case, as in all similar cases, a matter of debate, is that he comes before the court as a litigant, that he has been undergoing the stresses necessarily involved in litigation and that the termination of the litigation will at least remove those stresses. Evidence is given by one expert psychiatrist that the removal of such a stress is a significant matter. Another expert tells me that although it used to be regarded as a significant matter it is now being regarded as being of less and less significance.
There is the question of renewal of ability to cope with life in general if his drug regime is better adjusted. As against that, there is the problem that if the adjustment is unsatisfactory there may in fact be an augmentation of the unfortunate emotional reactions which debilitate him at the moment.
Over the whole of this hangs the question of the length of time that is involved in the period that must continue to the cessation of his normal working life. It is a very difficult thing to accept that over that extensive period this young man, who has obvious matters on the credit side of the ledger to be taken into account and who will certainly have, or should have, a need to work, will not find gainful employment. He obviously has a desire to improve his situation, but coupled with that desire is an acceptance, as expressed in evidence, that he no longer has any motivation to work.
These matters pose difficult considerations. I think it not unreasonable to look at the matter in two stages. They correspond with stages that have been put to me in argument on the question of quantification of damages. I think it reasonable to assume, and one deals only with the balance of probabilities in cases such as this, that had the applicant not been impaired by this accident, and despite earlier problems in his naval life, that he would have done what in fact he did do, apply for re-engagement until the expiration of the 20 year period. What would happen after that must, of course, remain in the area of conjecture because he had formed no fixed intention himself.
The period of two years, however, which has been put to me as being a period which I should consider separately in terms of computations of damages, being the period to April 1993, corresponds with a period that I would see as a reasonable one to take into consideration in determining what the future holds. Counsel for the respondent put to me, I consider quite reasonably, that the period in Brisbane was ultimately disastrous for the applicant. Things went more wrong in Brisbane than they had before he went there. This is borne out by the observations of Mr Reynolds who regarded the applicant on returning to Perth the second time as being in a worse case than he was when he left to go to Brisbane. Clearly the applicant needs and, in my view, will receive, over a period of two years, which I take as being a reasonable period, assistance from Dr Risbey and assistance from a more stable situation having come back to Perth from Brisbane. He will receive counselling and care in relation to the drug addiction of which he wishes to rid himself. There is a reasonable prospect of a drug regime being brought into balance but that will take time. I think it reasonable to accept that in the two year period to elapse he will demonstrate no earning capacity and that it could not be expected of him that he would.
I asked myself what do I see reasonably as the situation thereafter. On one hand it is put to me that notwithstanding the assistance he may receive over those two years, nothing is reasonably to be expected or hoped for of the ensuing period, other than that he will continue unemployed and basically unemployable, a TPI pensioner. I do not think that is what he wants for himself, so one can expect an increase in the level of his motivation. I make that assessment of him as a person. The question is what will that achieve having regard to the nature of the psychological disorder from which he suffers.
It is put to me for the respondent, on an optimistic note based upon psychiatric evidence called in its case, that the therapeutic value of work itself is not to be ignored, that if he can be coaxed back into the work force and led to accept a less satisfying level of occupation than that to which he originally aspired, then he will gradually get himself into a situation where he can take consistent work, perhaps as a driver. Well, I don't see that as being right either.
I think the nature of the disorder from which he suffers, which has been so carefully expounded, and the evidence in this case means that, so far as employability is concerned, the best he can look forward to is sporadic periods of employment in the future in situations where that employment may well come to an end if the stress level becomes more than he can tolerate.
It has been put, of course, and I should mention this, that he has a trade and that he should be able to fall back on that. He explained to me in some detail what the work environment was in relation to his exercising of that trade, the nature of the machines with which he would be involved, the problem that he has with shakes of the limbs if he becomes over tense. The evidence satisfies me that the exercise of his trade in the ordinary areas where it would be exercised is not a field reasonably open to him, nor on the evidence is ever likely to be.
I have come to the conclusion, doing the best I can, on the whole of the evidence and seeing no purpose in simply going over and over it in these reasons, that I can approach this reasonably only on the basis of making the best estimate I can of the percentage of loss of earning capacity in this man from a period about two years hence to the end of his ordinary working life. I have come to the conclusion that I should see him as having lost approximately three quarters of his earning capacity.
With these findings made, I turn then to the question of the assessment of damages, leaving out as I have said, the question of damages for future medical expenses. There are no damages claimed for past medical expenses on the basis that these have, to date, all been met by the respondent.
Before doing so, I should perhaps indicate this so that it is recorded. I have been greatly assisted in arriving at the conclusions that I have so far expressed by the very able arguments of counsel and the submissions that they have put to me. Those submissions have necessarily covered more areas of fact than I have, as I am aware, dealt with in the reasons that I have given. It should be understood, however, that I have considered all those submissions and that I have taken them into account in reaching my conclusions.
It is convenient to consider the area of past economic loss, as this presents no real difficulty. Figures have been provided to me which take into account earnings that would have accrued to the applicant in the navy as against earnings that he in fact achieved after leaving the navy. This produces a figure of $33,333 which I award. Because of amounts received during the period of incapacity, the amount to which interest should be applied is not that figure but rather the far smaller figure of $1805. I accept, as has been submitted to me, in a schedule of damages handed up by way of address by learned counsel for the applicant, that on the authorities it is appropriate to accept a figure of 9 per cent as being the appropriate interest rate, taking the period of 5.5 years which is involved to date. That produces a figure of $894 in interest which I also award.
I turn to the question of assessment of loss of earning capacity in the future. I approach it on the basis which I have already indicated. Counsel for the applicant has put to me a 2 year period which, as I have already said, I accept, during which time, on the evidence, it would be reasonable to have attributed an earning rate of $530 per week. A discount rate of 3 per cent produces an appropriate figure of $101.03, which I also accept.
Counsel accepted for the purpose of argument that a discounting factor for contingencies of 15 per cent should be applied. I think, all in all, considering that the period involved is only 2 years, that I should not accept a figure of that order, being a figure which is ordinarily more appropriate to considerably longer periods. Doing the best I can, I consider that the amount that should be awarded on the basis of total inability to work, as I have indicated, for that 2 year period is the round figure of $50,000.
I come then to the second period of which I have spoken, being the period from the expiration of the earlier period in April 1993 until the applicant's 65th birthday. I accept age 65 as being a reasonable age to use for the purpose of this calculation. I do so in the knowledge that it is submitted that so far as his career in the navy would have been concerned, he may well not have been in the navy at that age. There is no real evidence before me as to career prospects in the navy other than that he had achieved the ordinary promotion levels up to petty officer and that within the 2 year period of which I have spoken, all things being equal, he would have achieved the level at which he originally aimed, of chief petty officer or warrant officer. I think the probabilities favour that he would have done so. Whether he then continued in the navy or not, I am satisfied that, in an area where certainty is never achievable, it is reasonable to take, as counsel for the applicant has done in his submissions, the earnings of the warrant officer or chief petty officer, as they now are, and use them as a basis for a calculation of future loss. I do not think it necessary to detail the bare bones of this calculation. The calculation that has been given to me includes a discount rate of 15 per cent, which I think is acceptable, and a 3 per cent interest rate for the purpose of the primary calculation. The result that is achieved on the basis of a total inability to earn, using those calculations, is a figure of 488,150 in light of the findings that I have already made. I am satisfied that, because I see him with the residual earning capacity that I have found, it is appropriate to reduce that figure to 370,000 and that will be the amount that I will apply to that aspect of his claim.

There is an amount which is not in contest of $10,461 being what is generally referred to as the well known Fox v Wood component. That amount must also be added. There must be deducted an agreed figure being an amount of refundable compensation payment of $41,989.
As for the question of general damages, I do not propose to rehearse what I have already said about the effect of this accident upon the life, lifestyle, enjoyment of life and general abilities of this young man. The evidence indicates quite clearly a profound change which has persisted and which, with some amelioration, will afflict him for the rest of his life. Awards of general damages are notoriously difficult. Judges find them no easier to arrive at than do juries. One has regard to amounts that are given for shocking physical disabilities and their consequences which so frequently come before the courts as providing some sort of a scale or tariff. I think that the injury done to this young man is a significant and serious one and will be with him always. I do not consider that I would be doing justice to him if I were to award less than $120,000 for general damages and that is the figure I award.
I allocate of that sum the sum of $40,000 to compensate him for pain, suffering and loss of enjoyment of life to date. I think, without going into detail, that if I apply to that figure a figure of 15 per cent to cover the whole of the period from the accident to date, that will answer the necessary award of interest. That produces a figure of $6000. Those two latter figures accordingly go into the computation.
These amounts total $548,699. That is the amount which will be included in the judgment for the applicant. There is the outstanding question of whether that amount must be augmented to take account of future medical expenses, or whether the matter can be dealt with by some form of order which will take into account his entitlement.

[1991] FCA 229

18 APRIL 1991