Metcalfe v Commonwealth of Australia

[2008] HCATrans 278

[2008] HCATrans 278

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M21 of 2008

B e t w e e n -

RONALD THOMAS METCALFE

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Application for special leave to appeal

GLEESON CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 1 AUGUST 2008, AT 12.43 PM

Copyright in the High Court of Australia

MR J.B RICHARDS, SC:   If the Court pleases, I appear with MR S.K. McGREGOR on behalf of the applicant.  (instructed by Hollows)

MR P.J.  HANKS, QC:   May it please the Court, I appear with MR R.W. DYER for the respondent.  (instructed by Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Richards.

MR RICHARDS:   The first point of special interest in relation to this case is the conflict between the Courts of Appeal of New South Wales and Victoria in determining what we say are indistinguishable cases.  We say the second point of special interest is the fact that there remains a significant amount of litigation on foot in these Voyager Cases.  I am instructed at least 25 cases are still to come before the courts, the Supreme Courts of Victoria and New South Wales.  In the instant case both trial judges and, subsequently, Courts of Appeal had to decide the question as to whether or not the respondent was liable for the plaintiff’s diminution of earning capacity which was attributable to the plaintiff’s disillusionment with the Navy consequent on the collision and which caused each plaintiff to  ‑ ‑ ‑

GLEESON CJ:  You mean consequent upon?

MR RICHARDS:   Consequent upon the collision and which disillusionment caused each plaintiff to decide to leave the Navy.

GLEESON CJ:   But the disillusionment was not a form of injury, was it?

MR RICHARDS:   The decision of each plaintiff to leave the Navy was attributable to that disillusionment.

GLEESON CJ:   I am sorry, I thought that in the New South Wales case there was a finding that it was part of the post traumatic stress disorder, but there was a finding to the contrary in this case?

MR RICHARDS:   The points are, we say, indistinguishable inasmuch as in the New South Wales case – I will take your Honour to the New South Wales case – the trial judge had in fact at first instance decided that the evidence fell short of establishing that the plaintiff left the Navy because of his psychological injury. 

GLEESON CJ:   That was held by the Court of Appeal to be in error.  The Court of Appeal said, if I understand it, this was part of his PTSD?

MR RICHARDS:   That is so.  The Court of Appeal said in paragraphs 74 and 75 as follows:

74       The only other basis for limiting the liability for such loss was the suggestion that the appellant had three years to reconsider his attitude and the lapse of time rendered his failure to re‑enlist a consequence which could not be attributed to the collision.

75       The logic of that proposition is, with respect faulty.  It fails to recognise that the disillusionment with the Navy formed part of the psychological effect of the collision, which effect continued, as his Honour found, until well after 1967 ‑ ‑ ‑

GLEESON CJ:   Well, that is a proposition of fact in that case. 

MR RICHARDS:   It is a proposition of fact put forward by the New South Wales Court of Appeal on identical findings of fact of the judge in the court below, that is to say, just as the trial judge in Blaxter found that the disillusionment was a cause, but the plaintiff had not shown it was psychological injury that caused the plaintiff to leave the Navy. 

GLEESON CJ:   I am looking at page 108 lines 55 to 60.

MR RICHARDS:   We combined these findings there with the findings of the learned trial judge at paragraph 332.  We accept, your Honours, the trial judge’s findings at paragraph 332, which is on page 76 of the court book, found that it was not due to compensable psychiatric injury.  We say it begs the question, having regard to what they found in terms of the cause for his not re‑enlisting.  The cause for his not re‑enlisting was the collision and the disillusionment the collision caused.  We say that in Blaxter similarly the reason that the plaintiff there lost income was because of the collision and the disillusionment with the Navy that collision occurred.  We do say they are indistinguishable on that point.  At page 76 of the application book the learned trial judge did find as follows:

I accept that the plaintiff would probably have re‑enlisted in 1967 had it not been for the collision.  But it does not follow, and I do not accept, that a cause of him leaving the Navy was compensable psychiatric injury.  I consider it probable that he left the Navy because he had lost faith in its processes.  Principally, he had lost such faith because of the simple fact that the collision had occurred.

Now, we say his Honour’s logic in making that distinction is the same faulty logic of the trial at first instance in Blaxter where the learned trial judge found that the evidence fell short of establishing that he left the Navy because of his psychological injury.  We rely on the reasoning of the Court of Appeal of New South Wales to say that his Honour the trial judge was wrong and, indeed, the Victorian Court of Appeal was wrong because they failed to recognise that disillusionment with the Navy formed part of the psychological effect of the collision.

GLEESON CJ:   Well, it may or may not.  It is a question of fact in a particular case, is it not?

MR RICHARDS:   Well, we say no.  We say that the question of fact being made by the learned trial judge in both cases was the same finding of fact and that the logic to be applied to it remains faulty, whether it is in New South Wales or whether it is in Victoria.  So the New South Wales Court of Appeal say that the logic of the proposition of separating the two is faulty and the fact that the Victorian Court of Appeal has not recognised the faultiness of that distinction is not to the point.

CRENNAN J:   At page 77 paragraph 338 of the trial judge’s reasons he draws a conclusion, following from the findings you pointed to earlier, in which he says that:

in my view no causal link was established between the PTSD from which the plaintiff suffered for a time after the collision and the major depression which had its gross onset in April 1989.

Now, that is his Honour’s conclusions based on the findings of fact that he has made.

MR RICHARDS:   Yes.  We do not attack that conclusion.  That was the second limb of the case we brought at first instance where we sought to establish that the PTSD that followed the collision was a cause of a depressive breakout in 1989.  We failed to establish that.  We are not trying to establish that as a question of fact, that the collision and the PTSD caused the onset of depressive illness in 1989.  Our case is that in establishing the matters that are set out in paragraph 332, we have established a necessary basis for there to be a liability in the respondent because the tortious act of the respondent gave rise to a disillusionment, we say, as part of the PTSD and that cannot be separated from the PTSD.

Just as in New South Wales the Court of Appeal said it was illogical to separate disillusionment away from the PTSD, so we say it is illogical here.  We set out and the facts establish the extent to which symptoms of PTSD will include avoidance, will include distress and will include, we say, establish as a matter of fact here disillusionment.  Therefore, when Justice Ashley concluded it is that loss of faith in the processes caused by the collision coinciding with PTSD from which the plaintiff suffered, then we say that the case is made out and we can invoke the logic of the New South Wales Court of Appeal.

We say on the evidence between the two cases there is no difference, there is no distinction that can be made on the facts.  When the matters come before the respective Courts of Appeal there is no distinction on the facts.  Both trial judges have said, “We are not satisfied that you left the Navy because of psychological illness”, but both trial judges have found, “You left the Navy because of disillusionment caused by the collision and its aftermath”.  We say in those circumstances one of the Courts of Appeal is wrong.  We seek to argue the Victorian Court of Appeal is wrong in not recognising the faulty logic or the false distinction made between disillusionment on the one hand and active PTSD.  So there is active PTSD at the time that the plaintiff makes the decisions in both cases.

Your Honour took me earlier to paragraph 16 of the Court of Appeal decision and this is where we say the Court of Appeal is in error:

The learned judge accepted that the appellant would probably have re‑enlisted in 1967 had it not been for the collision.  But the judge did not accept that a cause of his leaving the Navy was a compensable psychiatric injury.

We say that is begging the question.  We say what needs to be looked at is whether there is disillusionment which can be a rational disillusionment which co‑existed with a psychiatric injury.

His Honour concluded that the appellant probably left the Navy because of the simple fact that the collision has occurred.  Another probable consideration, said his Honour, was the way in which his commanding officer had handled the signals incident.

It is taken up further by the Court of Appeal in relation to this argument at page 117 of the application book.  Again that is where we say that the Court of Appeal is arguably in error in relation to this where it said:

Similarly, the fact that the appellant would have re‑enlisted in the Navy but for the collision and that he would have reached the rank of Warrant Officer had he remained in the Navy do not, without more, establish the required nexus.  The appellant’s explanation for leaving the service was that the collision caused him to lose faith in the Navy, more particularly, in its ability to provide a ‘safe’ situation on ships.  Without more, such an apprehension is not a manifestation of PTSD and the same can be said for his claimed fear that he had of going back to the sea. 

We say there that he had disillusionment, he had lost faith in the Navy processes, just as had Mr Blaxter in New South Wales.  We say that to say that more is needed is the same faulty logic.  If disillusionment exists at the same time as PTSD exists, then to separate them and to make one compensable and not the other is illogical.  The court went on to make this point:

A person may have a rational concern that the Navy can no longer organise its services such as to prevent naval disasters of the kind that occurred here without it being the product of mental illness.  The same applies, we think, about a fear of going to sea in naval ships.

That is the logic of the Victorian Court of Appeal.  The New South Wales Court of Appeal, on the other hand, found that disillusionment founded the case in liability and that disillusionment should not be separated from PTSD.  It is perhaps illustrated by the next phrase from the Court of Appeal of Victoria:

The situation is no different from one where similar apprehensions are experienced by, say, a tram driver who was involved, whilst driving a tram, in a collision between his tram and a truck and who sustained some physical, but not mental, injury.

So again we put that this is a case about mental injury.  The learned trial judge found the plaintiff had mental injury until 1973 that was causing him symptoms at the time of the disillusionment – causing him symptoms at the time that he decided to leave the Navy and to separate one from the other, we say, has no basis in logic any more than it had in Mr Blaxter’s case. 

What we put in our outline at paragraph 13 on page 218 of the application book is that we say that on the basis of the decisions of Medlin and Blaxter, it is sufficient for the plaintiff to have established that his decision to leave the Navy was brought about by reason of the happening of the collision and his consequent disillusionment with the Navy.  The plaintiff does not have to establish that it was some other particular aspect of his psychiatric injury that could be isolated as an immediate cause of him leaving the Navy.  Put another way, the plaintiff need not show that his decision to leave the Navy was an irrational one, or one that resulted from morbid thinking, but only that it was so closely connected to the collision that it should be viewed as being caused by the collision.

In the language of this Court in Medlin it would be, in that case, the retirement of the plaintiff was but a natural step caused by reason of the effects of the injury suffered by the plaintiff.  So we say in both cases the loss suffered by the plaintiff should be said as to have the necessary nexus inasmuch as one is attributable to the respondent’s tortious act in both cases.

The third and fourth points we make in relation to the special interest in this case is in relation to the aspect of economic loss generally.  The

learned trial judge in a 395‑page judgment dealt very briefly with the claim made by the plaintiff for economic loss.  He had shown two sentences which is of course favourable to his Honour’s 395‑page judgment.  Those paragraphs were 332 and 354.  Paragraph 332 I have taken the Court to already.  At page 84 of the court book his Honour simply said this:

My conclusions why it was that the plaintiff left Naval service, and that there was no causal connection between the plaintiff’s PTSD and his depressive illness, mean that the plaintiff is not to be compensated for economic loss.

Now, this was a plaintiff who had left naval service in 1967 at a time that he was suffering from PTSD.  On the learned trial judge’s findings he continued to suffer PTSD until 1973.  The pleadings in the case clearly put that, it is from the particulars of damage annexed to the statement of claim, his income earning capacity has been substantially impaired by reason of his injuries.  It was put very broadly.  Now, at trial the two specific matters were put, that both because of the PTSD did the plaintiff leave the Navy and because of the PTSD the plaintiff subsequently suffer a depressive illness in 1989.  

It was still there and open on the pleadings to say that this plaintiff, as in the case of Lymbery, had suffered a compensable loss by reason of the fact that he left the Navy in 1967 and that for another six years thereafter he suffered PTSD.  In respect of none of that did his Honour assess the plaintiff’s diminution of earning capacity.  On the basis of Medlin, that the test for damage is diminution of earning capacity, his Honour did not descend to that nor did he descend to make any assessment in relation to a Farlow type payment or a Lymbery type claim.

Now, before his Honour was a claim for special damage of some $900,000.  His Honour dismissed that in the one sentence that I have taken your Honours to, as well as paragraph 332.  We say it was clearly open and should have been allowed by his Honour that there was economic loss that this plaintiff had suffered, that was open to pleas, that had been argued in the two ways I have said, nonetheless should have been allowed to the plaintiff.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Richards.  We do not need to hear you, Mr Hanks.

Having regard to the basis on which the applicant’s case was put referred to in paragraph 36 of the Court of Appeal’s reasons and to the findings of fact made at trial and upheld in the Court of Appeal, we think there are insufficient prospects of success to warrant a grant of special leave in this case.

The application is dismissed with costs.

We will adjourn until 2.00 pm.

AT 1.03 PM THE MATTER WAS CONCLUDED