Metcalfe v Commonwealth of Australia

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5782 of 2002

RONALD THOMAS METCALFE	Plaintiff
v
COMMONWEALTH OF AUSTRALIA	Defendant

---

JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATES OF HEARING:	1, 2, 4, 7, 8, 9, 10, 14, 15 and 17 February 2005; and 30 June 2005
DATE OF JUDGMENT:	24 March 2006
CASE MAY BE CITED AS:	Metcalfe v Commonwealth
MEDIUM NEUTRAL CITATION:	[2006] VSC 105

---

Torts – Collision between HMAS Melbourne and HMAS Voyager in 1964 – Whether injuries sustained – Post Traumatic Stress Disorder – Nature of condition – Quantum of damages.

Limitations of actions – Applicability of s.5(1A), Limitation of Actions Act 1958, in the circumstances of the particular case.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Richards SC with Mr S. McGregor	Hollows
For the Defendant	Mrs J. Morrish SC with Ms A. Fox	Australian Government Solicitor

TABLE OF CONTENTS

Statement of the Case........................................................................................................................ 1

Did the plaintiff suffer compensable injury?............................................................................... 3

Overview.................................................................................................................................... 3
Uncontroversial evidence........................................................................................................... 7
The plaintiff.............................................................................................................................. 12
Melita Metcalfe......................................................................................................................... 30
Margaret Scorse....................................................................................................................... 34
Anthony Walker....................................................................................................................... 35
James Clarence.......................................................................................................................... 36
Speaking about the collision...................................................................................................... 39
The medical evidence................................................................................................................ 42
Pre-enlistment and Pre-discharge examinations....................................................................... 43
DVA file................................................................................................................................... 44
Dr Joe Leong’s records.............................................................................................................. 44
Mooney Street Medical – Report 20 December 2004............................................................... 48
Dr Wilfred Richards – Report 13 February 2002..................................................................... 49
Ms Elissa Morriss – undated report......................................................................................... 49
Dr Likely................................................................................................................................... 52
Mr Zemaitis.............................................................................................................................. 59
Professor McFarlane................................................................................................................. 62
Dr Bell...................................................................................................................................... 68
Analysis.................................................................................................................................... 72

Damages............................................................................................................................................. 81

Section 5(1A), Limitation of Actions Act...................................................................................... 82

Estoppel; Waiver............................................................................................................................... 90

Conclusion......................................................................................................................................... 92

HIS HONOUR:

Statement of the Case

The plaintiff, Ronald Metcalfe, was born on 2 April, 1934. He commenced this proceeding by writ filed 29 May 2002, claiming against the defendant, Commonwealth of Australia, damages for injuries which he alleged that he sustained in consequence of the collision between HMAS Melbourne and HMAS Voyager on the evening of 10 February 1964. At the time of the collision, Mr Metcalfe was Stores Petty Officer on HMAS Melbourne.

By his Statement of Claim, Mr Metcalfe alleged that he sustained injuries as follows:

“Causing, aggravating, accelerating, exacerbating and/or resulting in the future deterioration of the following:
(a)     Post-traumatic stress disorder;
(b)     Severe shock;
(c)     Severe anxiety and depression;
(d)Attempts to medicate himself by heavy use of alcohol with consequential impairment of body function;

(e)     Acid reflux;
(f)      Anxiety disorder;
(g)     Generalised anxiety disorder;
(h)     Adjustment disorder;
(i)      Enlarged hart (sic);
(j)      Bowel disorder.”

At trial, the plaintiff did not rely upon all of the injuries which he had particularised. So, he did not rely upon the injuries alleged by particulars (e), (i) and (j). Next, he contended that the substance abuse disorder alleged by particular (d) was the consequence of compensable psychiatric injury; and that in turn it had given rise to impairment of body function - which was described as “more or less cognitive functioning.” Again, he did not separately pursue the injury alleged by particular (f). It was at least embraced by particular (c); and possibly by particular (g). Further, he did not address paragraph (h) discretely. In all, the focus at trial was upon the injuries alleged by particulars (a), (c), (d) and (g).

It was not in contest at trial that the defendant owed the plaintiff a pertinent duty of care, and that the collision occurred by reason of the negligence of the defendant its servants or agents in breach of that duty.

The first area of contest was whether the defendant’s admitted breach of duty was a cause of any and what injury to the plaintiff. The defendant disputed that such was the case.

The further issues in contest at trial arose out of the circumstance that this proceeding was brought very late.

By its defence, the Commonwealth pleaded reliance on s.5(1)(a) of the Limitation of Actions Act 1958 (“the Limitation Act”). There is no doubt, the proceeding not having been commenced until May 2002, that in the ordinary course it would have been Statute-barred. For, as the plaintiff alleged, he suffered the onset of post traumatic stress disorder (conveniently, “PTSD”) soon after the collision – albeit that, as he asserted, its signs and symptoms went unrecognised. Further, plaintiff’s counsel rightly conceded that his client could not succeed on an earlier foreshadowed application for extension of time made under s.23A of the Act in its original form[1].
[1]See Bestobell Overseas Ltd. v. Carden [1988] VR 891 at 896-7; (FC), approving Tung v. Augustine [1973] VR 616 at 624-5.

The plaintiff however, pleaded by Reply that –

·He sustained injuries, “namely post traumatic stress disorder, an anxiety disorder, depression and a substance abuse disorder” which constituted, severally a “disease or disorder” for the purposes of s.5(1A) of the Limitation Act; and that he did not know that he had suffered those injuries, or that the same were caused by the defendant’s 1964 tortious conduct, until 2002. So, he contended, his action was not statute-barred at the time of its commencement.[2]
·In any event, in the circumstances, the defendant was estopped from taking the limitation defence, or had waived taking it.

[2]It was common ground, and rightly so, that the relevant period for the purposes of s.5(1A) was 6 years, and not the 3 year period substituted by Act No. 52 of 2002.

The defendant met the plaintiff’s reply by contending, in substance, that -

·None of the injuries relied upon by the plaintiff was a “disease or disorder” within the meaning of s.5(1A).
·If s.5(1A) could otherwise apply, the plaintiff had knowledge of the matters addressed by paragraphs (a) and (b) at a time which took his claim outside the limitation period established by that subsection.
·The circumstances pleaded by the plaintiff could not give rise to an estoppel; or waiver.
·The plaintiff had not established the necessary evidentiary basis for the alleged estoppel or waiver, even assuming that the plea was conceptually sound.

Did the plaintiff suffer compensable injury?
Overview

The medical issues mainly debated at trial were, first, whether the plaintiff had developed PTSD soon after, and in response to, the collision; second, whether the plaintiff, in the alternative, had developed late-onset PTSD; third, in either event, what were the symptoms and consequences of the condition; fourth, whether any of those symptoms or consequences had persisted, or worsened, in the period between onset and trial. Interrelated with those issues was the circumstance that the plaintiff suffered a severe depressive illness in 1989, and had continued to suffer, variably, from that condition thereafter. A question arose whether a cause of the depression – notwithstanding the presence of other potential causes – was pre-existing, compensable, psychiatric injury.

In order to apprehend the significance of particular lay and medical evidence, it is necessary to understand what is comprehended by PTSD.

PTSD is a diagnosis made most often by reference to criteria set out in the Diagnostic & Statistical Manual of Mental Disorders which is published by the American Psychiatric Association. As at trial, it was in its fourth edition, its title being shortened to DSM-IV.[3]
[3]I can put to one side the refinement of there being revised and transitional versions of DSM-IV.

Dr Likely, a psychiatrist called for the plaintiff, paraphrased the diagnostic criteria pertinent to a diagnosis of PTSD. Professor McFarlane, another medical witness called for the plaintiff, also addressed the criteria in his viva voce evidence and in his report dated 31 December 2005 which went into evidence. In Wright v. Commonwealth[4], at [58], I set out the criteria somewhat more expansively. Nothing which I said in Wright differs in substance from evidence adduced in this proceeding, and it is convenient to reproduce what I there said:
[4][2005] VSC 200.

“Criterion A: the person has been exposed to a traumatic event in which both of the following were present:
(1)The person experienced, witnessed or was confronted with an event or events which involve actual or threatened death or serious injury; or a threat to the physical integrity of himself or herself or others.
(2)The person’s response involved intense fear, helplessness or horror.

Criterion B: the traumatic event is persistently re-experienced in one (or more) of the following ways:
(1)Recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions.
(2)Recurrent distressing dreams of the event.
(3)Acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations and dissociative flashback episodes, including those that occur on awakening or when intoxicated).
(4)Intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event.
(5)physiological re-activity on exposure to internal or external cues which symbolise or resemble an aspect of the traumatic experience.

Criterion C: persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness as indicated by three (or more) of the following:
(1)Efforts to avoid thoughts, feelings or conversations associated with the trauma.
(2)Efforts to avoid activities, places or people that arouse recollections of the trauma.
(3)Inability to recall an important aspect of the trauma.
(4)Markedly diminished interest or participation in significant activities.
(5)Feeling of detachment or estrangement from others.
(6)Restricted range of affect.
(7)Sense of foreshortened future.

Criterion D: persistent symptoms of arousal, as indicated by two (or more) of the following:
(1)Difficulty falling or staying asleep.
(2)Irritability or outbursts of anger.
(3)Difficulty concentrating.
(4)Hyper vigilance.
(5)Exaggerated startle response.

Criterion E: duration of the disturbance more than one month.
Criterion F: the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.”

It is convenient to identify the witnesses who gave evidence pertinent to the question whether the collision, and so the defendant’s tortious conduct, was a cause of the plaintiff suffering compensable injury.

Pertinent lay evidence was given by the plaintiff, and by -
·The plaintiff’s wife, Mrs Melita Metcalfe;
·The plaintiff’s sister in law, Mrs Margaret Scorse.
·A former naval man, Mr Anthony Walker.
·A superior in the plaintiff’s civilian working life, Mr James Clarence.

For the defendant, pertinent evidence was given by a number of former crewmen on Melbourne, namely –

·Mr John Dunlop.
·Mr Paul Graham.
·Mr George Halley.
·Mr Charles Robson.
·Monsignor Francis Lyons.

Medical and like evidence was given orally and in writing by –

·For the plaintiff - Dr Michael Likely, psychiatrist.
Professor Alexander McFarlane, Psychiatrist.
Mr Robert Zemaitis, psychologist.

·For the defendant - Dr David Bell, psychiatrist.

In addition, certain medical records and reports pertaining to the plaintiff were put into evidence.

Counsel for the defendant, it is next convenient to note, did not contend that the plaintiff or any of the other relevant lay witnesses had deliberately attempted to mislead the court. Evidence adduced by the defendant from Dr Bell was rather that the plaintiff and his wife had demonstrated the fallibility of memory. They had been innocently unreliable witnesses, seeing cause and effect when in truth it did not exist.

It was not in debate that memory is fallible with the passage of years. But recollection is not necessarily unreliable . Its reliability or otherwise, bearing in mind the burden of proof borne by the plaintiff, must be assessed in the particular case having regard to overall body of evidence.

Uncontroversial evidence

Although this section of my reasons is concerned to resolve the question whether the plaintiff established that he suffered any, and what, compensable injury, a good deal of the lay evidence addressed both that question and other issues in the trial. So, for instance, the plaintiff, his wife and sister in law gave evidence bearing upon quantification of damages, and evidence concerning the factual basis for the pleaded estoppel/waiver. Other lay evidence addressed the latter question discretely - thus, the evidence given by Messrs. Dunlop, Graham, Halley, Robson, and Monsignor Lyons. I will summarise and assess the entire body of evidence to which I have just referred within the topic now under specific consideration. To do otherwise would be to create an artificial division in my assessment of the reliability, particularly, of the plaintiff’s evidence.

Much of the chronology pertaining to the plaintiff’s life history was uncontroversial. He was born on 2 April 1934, and so was aged 70 at trial. He was educated to grade 6 level. He ceased his schooling at about age 13. He enlisted in the Navy in 1958. In the years between leaving school and enlistment he had worked as a carpenter with his father, and had driven trucks.

At the time of his enlistment – this appears to have been common ground - the plaintiff underwent routine medical examination; and nothing abnormal, physical or mental, was detected.

The plaintiff enlisted for a 9 year period – that is, his period of service was to end in 1967. That is not to say, of course, that re-enlistment was not possible.

The plaintiff underwent training at HMAS Cerberus, in the Stores Department. He did well in all aspects of training. Following training he was transferred to HMAS Nirimba, a shore station in New South Wales, as a Second Class Stores Assistant.

The plaintiff married in June 1959. In July 1960 his first child, a daughter, was born. A second daughter was born in 1961.

Going back a little, in January 1960 the plaintiff was posted to HMAS Anzac. There he remained until being posted to HMAS Melbourne in August that year.

In January 1962 the plaintiff was transferred back to Nirimba. There he remained until he was posted to HMAS Penguin in May that year.

In January 1962 the plaintiff was posted back to Melbourne. There he served up to, and after, the time of the collision.

Not long before his second posting to Melbourne, the plaintiff was promoted to Leading Stores Assistant. Then, in January 1964 – that is, shortly before the collision – he was promoted to Acting Stores Petty Officer. With the effluxion of time, he was confirmed as Stores Petty Officer. That was in January 1965.

In November 1964, that is, not long before his confirmation as Stores Petty Officer, the plaintiff was transferred from Melbourne to HMAS Moreton. There he remained until being posted to HMAS Sydney in November 1965, from whence he was posted to HMAS Derwent in February 1966. Concerning his postings to Moreton, Sydney and Derwent, the plaintiff gave particular evidence which was said to bear upon the question whether he suffered compensable injury in consequence of the collision. I will refer to that evidence later in these reasons.

The plaintiff was discharged on 22 May 1967. His last posting, from 10 April 1967, had been at HMAS Kuttabul.

I pause for a moment, to add four matters.

First, the plaintiff’s progress in Naval service was speedy. He achieved his promotions in the shortest time possible. He was favourably assessed from time to time by his superiors. His discharge Trade Certificate described his performance as “superior”.
Second, in the course of his service the plaintiff received two Good Conduct Badges and a General Service Medal. There was, however, one instance of misconduct alleged against him. It led to charges being laid. In the event, they were dismissed. But a question arose at trial as to the significance, or otherwise – in the context of the plaintiff’s mental health – of the whole episode.
Third, it seems to have been common ground that the plaintiff was medically examined shortly before the time of his discharge; and that his mental state was recorded as being normal.[5]
Fourth, in the course of his service the plaintiff made few sickbay attendances.[6] Nonetheless, the fact that he did attend the sickbay, before and after the collision, shows that he knew the facility was available to him, and that he was prepared to use it when he considered it necessary.

[5]Plaintiff’s counsel provided me with a chronology which made those assertions. Defendant’s counsel did not suggest that the assertions were incorrect.

[6]One such attendance, not long before the plaintiff’s discharge, was for a lacerated leg.

Returning to the narrative, the plaintiff had the following employments after his discharge from the Navy:

·Ansett Airlines– porter – commencing July 1967.
·Crosby Tiles – Senior Storeman – commencing October 1967.
·Commonwealth – Storeman/driver – commencing October 1968.
·Self employed – carpenter – commencing April 1973.
·Commonwealth – claims assessor – commencing July 1974.
·Commonwealth –Manager, Transport and Storage Group – May 1982 to February 1990.
·Marine Operations – casual storeman – June 1990 to November 1990.

Also subsequent to the discharge, the plaintiff enlisted in the Naval Reserve. The period of his engagement was August 1967 to August 1972.

I turn to the plaintiff’s medical and related history subsequent to his discharge from the Navy’s permanent service in 1967. For present purposes I am concerned only to record the sequence of events; not to resolve controversies which arose at trial.

·In the 1980s, the plaintiff suffered a double hernia.
·In late April 1989 the plaintiff suffered a “nervous breakdown”, and was some 5 weeks off work. He made a claim for compensation against his then employer, asserting that his breakdown was a consequence of work stress. His claim was rejected. He sought reconsideration, and his claim was then accepted – embracing incapacity to 30 June 1989.
·In December 1990, subsequent to his ceasing work with Marine Operations, the plaintiff began to receive Sickness Benefits. Not long thereafter, he went onto a Service Pension.
·In 1997, the plaintiff was diagnosed with a bowel disorder. He underwent substantial surgery.
·In March 1998, the plaintiff applied for a Department of Veterans’ Affairs (DVA) disability pension. In May 1998 a pension was granted at the rate of 40% for sensori-neural deafness referable to Naval service.
·In 1999, the plaintiff applied for a disability pension increase - relying upon asbestosis, skin cancer, varicose veins, bowel disease, Paget’s Disease, and depression. He contended that those conditions were related to his service in Malaysia and Vietnam – that is, whilst serving on Derwent.
·In May 1999, Dr Likely was appointed to examine the plaintiff for DVA. He reported that the plaintiff had suffered depression since 1985. He did not diagnose PTSD attributable to the collision.
·On 24 June 1999, DVA decided to increase the plaintiff’s disability pension to a 50% rate, accepting that there was a relationship between Naval service and skin cancer and asbestosis. But a relevant relationship was not accepted in the case of the plaintiff’s depression.
·In January 2002, Mr Zemaitis, a psychologist, made a diagnosis of PTSD. The plaintiff had been referred to Mr Zemaitis by his present solicitors. The plaintiffs brother, the secretary of an RSL branch, had apparently filled out a form – inferentially, a document compiled in blank by the solicitors – and, with the consent of the plaintiff, had sent it to the solicitors. That had been the starting point for this proceeding.
·In February 2002, Dr Likely made a diagnosis of late-onset PTSD. He concluded that the plaintiff had been, in effect, ’in denial’ at the time of his earlier assessment.
·In December 2004, Professor McFarlane diagnosed PTSD.
·In January 2005, Dr Bell made a diagnosis of anxiety and depression.
·Each of Mr Zemaitis, Dr Likely, and Professor McFarlane opined that there was a relationship between the PTSD which they diagnosed and the collision; and they discerned a relationship between the PTSD and the plaintiff’s depressive illness.
·Dr Bell perceived no relationship between the anxiety and depression which he diagnosed, and the collision.

The plaintiff

I turn to evidence which, together with the uncontroversial material which I have already detailed, enables determination whether the plaintiff established that the collision was a cause of him suffering some and what injury. I begin with the evidence of the plaintiff, who was living near Townsville, in Queensland, at time of trial; and had been living there for many years. He gave his evidence by videolink.

The plaintiff said that he joined the Navy to fulfil a lifelong dream. He wanted to make the Navy his career. It had been his goal to enlist, in all, for periods totalling 21 years, with the hope of being recommended for and obtaining a commission, so that he could remain in the service up to age 55 or 60.

The plaintiff was asked, later in his evidence in chief, about his state of mind concerning Naval service as at January 1964. There were these questions and answers:

“… what was your intention as to how far you wished to go in the Navy?--- Well, I would have pursued further to get my Chief’s rate, which I would have got in my nine years, for sure. I was qualified for it, but I did not accept it. I was qualified for it in Moreton, but I didn’t accept it. I then would have – after I came out of the Navy the Warrant Officer rank came in, and I do believe I would have stopped in for at least 20 years and I would have became, would have gained the rank of Warrant Officer.”[7]

[7]T100.

As at January 1964, the plaintiff said, stationed on Melbourne, he was in charge of reference books relevant to his department. He had to serve in the main store. He was mainly responsible for radio and electrical stores, and also for the return of items such as fans or motors. He had about 6 subordinates. He enjoyed his work immensely.

The plaintiff described the collision and its aftermath.

He was showering in 3 Delta Petty Officers’ Mess at the time. He “not so much heard, just felt, about 6 to 8 bumps”, like driving over corrugations at a fair speed, “then it was just plain sailing.”

Next, he heard the Captain say over the ship’s public address system: “Oh, my God, we’ve hit the Voyager”. This was soon followed by a call to emergency stations.

He, the plaintiff, then ran to the damage control station. To do so he had to go onto the weather deck. He looked through an opening, and saw the stern section of Voyager drifting past, at an angle.

The plaintiff then gave this evidence:

“There were a lot of other people because that had been their emergency stations, and there were people, sailors, jumping off the stern end of the Voyager, between the Melbourne and the Voyager stern, and we were all singing out to them “Don’t jump. It’s too dangerous”. But they were just that stressed out that they thought, being on, roughly, the height of our 3 weather deck, they could grab hold of it – but they couldn’t – and they could go down between the two ships, which happened to be a metre, a metre and a half to two metres apart. I then looked over the side and I saw a sailor in the water, and he was singing – he was all covered in fuel oil and he was singing out, “Help. Please help me”, and I looked on the bulk head behind me and there was a buoy. I picked it up and threw it over to him. I did not wait to see whether he grabbed it, or what happened, because I was – I should have stopped, but I went straight on to my 3 Hotel and down the stairs to my damage control stations, because if you don’t report there I would have been in, been in trouble.”[8]

And this:
“I was just horrified, and it was just disbelief. You couldn’t believe what was happening. But the concern was, was trying to do what we were trained, to get as many survivors as we could.
Of the man you threw the lifebuoy to, do you know what happened to him?
No, I do not. But, but on my way, after I left him, on my way down to 4 Hotel, I felt guilt and – and I can’t think of the other word that – or shame, really, I think would be the word, that I had left a man that was singing out for help, and just threw him a buoy and just did not see whether he grabbed hold of it or whether he was rescued, and that has stuck with me for quite a long time.”[9]

[8]T102-103.

[9]T104.

In the damage control headquarters, Mr Metcalfe said, he heard that the front section of Voyager had sunk. This implied substantial loss of life. His reaction -

“… was disbelief , how it could have happened. In the Navy we were so well trained and the exercise had been done numerous, numerous occasions over the years, and I still cannot believe that it really happened. But it did.”[10]

[10]T104.

The plaintiff said also that only a few days earlier there had been a basketball match between sailors of the two vessels. He had particular concern at the time about the welfare of two Voyager crewmen. Only on return to shore were his concerns in that connection relieved.

Mr Metcalfe gave evidence of a fear which he had at the outset:

“… the fear I had, before I got down to the damage control station, was that Melbourne was fully laden with aircraft fuel, and also with diesel fuel, which we, for ourselves and also for other ships. We act as a tanker for other ships that are escorting us, and I thought if a fire was to start the Melbourne just would have went up, just like a big atomic bomb. But I did not know where, actually, the Avgas gas fuel tanks were held, were, on the Melbourne.”[11]

But, having arrived at the damage control station, he was told that there was no severe damage to Melbourne, and that he should help rescue survivors.

[11]T106.

He said this:

“… I raced straight back up to 3 Echo weather deck to see whether the chap that I threw the buoy to had been rescued or something. I don’t know – I knew he wouldn’t still be there, I wouldn’t think so, and I wouldn’t want to recognise him; so I don’t know to this day whether he was rescued, or not.”[12]

[12]T106.

Concerning his role assisting survivors, Mr Metcalfe gave this evidence:

“We had scrambling nets thrown over the side of Melbourne and what, and we also had the gangway down, down near the quarter deck, and any person that could sort of help himself along was put up the scrambling net and then we would help them on board and take them into, into the hangar. The hangar was made into an emergency hospital and they were put on, taken, escorted to shower rooms so they could get all the oil off them and then we gave them clothes – some of our own clothes, even – and blankets, and put them on stretchers in there, the really severe ones. I did not see any really survivors that were damaged severely – I have lost the word.”[13]

[13]T106-7

I refer also to these questions and answers:

“… what was the – what had happened in relation to the oil that had been in the water? --- Well, the oil, it burnt them all, their eyes and their skin. The helicopters were used, first up, to, to do the rescue of survivors; but after a few minutes the Melbourne got word that the survivors, when they retrieved some of them – they were complaining about the helicopters, they were making it worse for them down, when they were in the water. They were blowing the fuel oil all over them, so that had to cease. The helicopters were just used with search, their search lights and landing lights to light up the area.
And what effect had the oil had on the men as they had been in the water? --- Could you repeat the question, please?
What affect had the oil had on the men being rescued? --- Well, some of them sort of had burns, but once they were showered off, and that, they weren’t too bad.
And for approximately how long did you remain at that station on 3 Deck, helping survivors? --- Roughly two o’clock in the morning.
And what was your feeling – what feelings did you have about having to rescue these men from the sea after the collision? --- Well, I had a lot of anxiety and, I don’t know, helplessness, I suppose, that, that it happened. We couldn’t do much for them.”[14]

[14]T107-108.

Concerning the eventual sinking of the stern section of Voyager, Mr Metcalfe gave this evidence:

“… a boat crew from Melbourne damage control party went over and checked on it to see if there was any survivors on board, and to see if they could salvage it by making it watertight so it could be salvaged. They radioed back to Melbourne that they had thought they had succeeded and they felt sure there was no, no more sailors on board; and then, within a few minutes it just, just sank, and the boat crew got away safely and the stern end just slowly got further and further – the stern came up, raised up higher and higher, and then it went down. I noticed the port propeller on the stern end of Voyager was still turning very slowly, but that wouldn’t have been from the engines, or anything like that. There was steam billowing out of aft stack of Voyager. As it went slowly down in the water there was a big glow. Everyone thought it might have blown up, but it didn’t. It just sank very quietly. It was a very eerie feeling.”[15]

[15]T108-109.

I turn to the plaintiff’s evidence concerning events after Melbourne’s return to port.

He was, he said, on board for 14 days after arrival at Sydney, then had 14 days compassionate leave.

According to his evidence, an order had been given by a person in authority which forbade him to discuss the collision with others. So when, as might have been expected, he was asked questions by family members, he told them that he was “not allowed to speak about it, and … also do not want to speak about it”.[16]
[16]T117.

The plaintiff said that, in the event, he, his wife and children spent most of his leave at a family beach house south of Townsville – Townsville being the city where his parents, and ordinarily his wife and child, lived.

The plaintiff described his return to the Melbourne. It was very nerve-wracking. He could not settle down. The vessel went out on sea trials. It temporarily lost its steering. He said that he now had no recollection of his time on Melbourne between the sea trials and his being posted to Moreton, a shore base in Brisbane, in late 1964. He was, he said, very relieved at getting off Melbourne.

The plaintiff was asked this essentially leading question, and gave this answer:

“Whilst you were in Moreton, what memories or recollections or flashbacks, if any, were you having of the collision? --- Oh, I was having them just about every night and – well, even sometimes during the day. But to fight that I put myself into – I call myself, I suppose, a workaholic – I put myself into my work to try and hide.”[17]

[17]T123.

Concerning alcohol, the plaintiff gave evidence that he had been a non-drinker before joining the Navy. In service, before the collision, he would drink the occasional shandy. He compared this with a pattern of drinking which he noticed when posted to Moreton:

“Well, when I got my posting to Moreton I went ashore, with a few of my mess mates, and we went to Kings Cross RSL and we had drinks there and it suddenly dawned on me that I wasn’t having shandies, I was drinking straight beers and my friends were not saying a word, and it surprised me. And to this day I am still drinking straight beers.
And how heavily were you drinking during your time at HMAS Moreton? ---I started to drink more heavily there. I would go to work at seven o’clock in the morning, instead of eight, and I would work on ledgers and postings and doing the accounting, and at lunchtime we would have a few beers, go to the Petty Officers – seamen and junior ranks, we all drank in the same mess – and we would only have a couple then. But I would go back to our work, and then after work, at four o’clock, the Petty Officer – he was in charge of the canteen part, as we called it – he would open up and we would all have a few beers there, and instead of going straight home I wouldn’t get home until possibly half past five, six o’clock, may be seven.[18]

It caused arguments with his wife, he said, when he came home half, or three quarters, drunk.

[18]T124-125.

The drinking which he described, said Mr Metcalfe, “gave him relief”. He could get to sleep at nights; and it “eased [the flashbacks and memories] up a little bit.”[19]
[19]T125.

He described the “flashbacks” – counsel’s word – this way:

“Well, the first thing, I am in a shower and then I am racing out on to the weather deck at 3 Echo, and I see men jumping and they are singing out “Help me. Please, help me”, and there is nothing you can do.”[20]

[20]T126.

He said also that:

“… there is (sic) lots of others but I have this – some dreams, as I said, don’t sort of relate to the Melbourne, but it does at the end. If I am correct, one of my dreams, I recall, was, I was in a rowboat with a small motor on, way out in the ocean, no land in sight, and the motor stopped; and then I looked around and I had no oars, and I thought “Well, the best thing to do is to get out and push the boat”, and next thing I found myself on the floor, and just dreams like that.”[21]

[21]T127.

The experiences which he described, Mr Metcalfe said:

“… flash across my mind during the day and I ---
Okay --- ? ---And I try to get myself into working to hide, to push it back to the back of my mind.”[22]

They make him very irritable and agitated.

[22]T128.

The witness gave evidence, without objection, of a conversation which he had had with a superior officer in 1965 concerning promotion. The officer had asked whether he would like to be recommended for a commission. He had replied in the negative, saying that he had not made up his mind about re-enlistment. He had so responded because he had lost interest in the Navy.

Further as to his promotional prospects, Mr Metcalfe gave evidence that whilst at Moreton he successfully finished one part of a course which had to be completed before he could be promoted to the rank of Chief Petty Officer. A superior had asked him whether, if he completed the other part of the course, he would accept such promotion. He had replied that he would not do so at the moment. He had doubts about re-enlistment which he had not had before the collision.

Mr Metcalfe said that whilst at Moreton he was advised that he was to be posted back to Melbourne, as of December 1965. He took that matter up with the Naval Officer in Charge, Queensland. He asked if he could be posted to a small ship. He gave this evidence:

“… I felt being on a small ship I could be on the upper decks more freely than on the Melbourne. I just could not have stepped on Melbourne.”[23]

[23]T133.

In the event, his request was generally unsuccessful, for he was posted to another big ship, HMAS Sydney. According to his evidence, he did not cope well.

“It was terrible. I tried to get off it as much as I could. I would go ashore every night and have a few beers – more than a few, I guess – and that was the only way I would cope with it, unless I got a transfer to a small ship.”[24]

[24]T134.

Fortunately, according to his evidence, he was not long on Sydney. He managed to arrange a swap transfer onto HMAS Derwent, a destroyer. That was in February 1966. He served on Derwent for about 14 months. Within that period the vessel engaged in a 9 months’ tour of the Far East – particularly Borneo, Malaysia and Vietnam. He felt “quite comfortable” whilst on Derwent. He still had flashbacks and dreams, just not as severely. He was having them 3 to 4 times a week.

It was whilst serving on Derwent that Mr Metcalfe decided, on his account, to leave Naval service. He remained on the vessel until shortly before his discharge. For the last month or so he had the shore posting at Kuttabul.

The plaintiff gave evidence about the incident which led to him facing charges. I briefly adverted to it earlier in these reasons. It occurred whilst he was serving on Derwent. The incident occurred in Borneo, where the vessel was undertaking shore bombardments. Some ‘signals’ – apparently in written form - that should have been shredded were in fact thrown overboard. The signals were retrieved and the plaintiff was charged. The charges were dismissed. The main fault, it should be added, apparently lay with one of the plaintiff’s subordinates.

Concerning his service on Derwent, the plaintiff gave evidence that the vessel entered Vietnamese waters whilst escorting Sydney. He said that he did not feel that the ship was in danger whilst at port in Vung Tau.

I turn to the plaintiff’s evidence concerning events subsequent to his discharge from the Navy. Again, I only mention evidence additional to that which I have earlier summarised.

The plaintiff said that he remained in the Ansett Airlines job – apparently it was in Townsville, where he and his family had decided to live – for about 12 months. He was drinking a bit, sleeping poorly, and suffering “horrific” recollections and dreams.

He described his service for 5 years in the Fleet Reserve as being “automatic”. There had been no training in that period.

The plaintiff said that, after employment as a senior storeman with Crosby Tiles, he began work with the Commonwealth as a storeman and driver. That job lasted for about 5 years, until 1973. In that period, he said, he was drinking more, still having difficulty sleeping, and did not talk about the collision because he did not want to do so, and because he had been ordered not to do so.

He gave evidence that in 1974, after some 15 months in self-employment as a carpenter, he took on employment in Townsville as a claims assessor with the Transport and Storage Group of the Commonwealth Department of Administrative Services. He had to assess claims for property damage made by arriving and departing Commonwealth personnel.

In 1982, he said, having worked very hard as a means of avoiding thoughts about the collision, he was promoted to Townsville manager of the Transport and Storage Group. There were five aspects to his job. One of them was management of the hire car fleet which provided transport for visiting dignitaries.

The plaintiff said that he worked very hard in his new job. He continued to drink heavily. There was discontent in the family.

He gave evidence about an operation on his left knee. It took place, he thought, in October 1988.

I should next refer to the witness’s evidence about his “nervous breakdown” in 1989. He said that he went to work one day. He began work, but had no recollection of what had happened from about 8.00 am. onwards. He was some 8 weeks off work.

The witness was taken to events which had occurred earlier in 1989. He had experienced difficulties with a casual employee. The man chanced to live next door to the plaintiff. While the plaintiff was off work with his knee problem, the temporary manager had offered the man a permanent position. Then the plaintiff, on his return to work, had been told to put the man off. There had been disputation. The Union had been called in. Eventually a decision had been taken to make the man permanent. The man had accused the plaintiff of “organising everything to put him off”. On Mr Metcalfe’s account – which, as will be seen, differed dramatically from what he told his medical practitioner at the time - the difficulties concerning this man were not affecting his state of mind at the time of his nervous breakdown.

The plaintiff described his mental state in the period shortly after his breakdown this way:

“I was in a very distressed state. I locked myself in the bedroom. I would not go out anywhere. I did not want to see anyone – I wouldn’t see anyone. If they came to the door the wife would just say ’No, he doesn’t want to see anyone.’”[25]

[25]T146.

I mentioned earlier that the plaintiff made, and pursued, a claim for compensation under the Commonwealth legislation in respect of his nervous breakdown. He wrote two letters in support of his claim. They went into evidence.[26] On their face, and contrary to his viva voce evidence, the plaintiff implicated the alleged stresses of his job, and the disputation with the other man, in his breakdown. In his first letter he said –

“I broke down when talking to the Administration Manager in Brisbane about the industrial activity.”

[26]As exhibit C.

Subsequent to his breakdown, according to Mr Metcalfe, he continued to have sleep disturbance, memories, flashbacks, dreams - that was the question formulated by counsel - as badly as ever.

I turn to the circumstances in which the plaintiff ceased his employment by the Administrative Services Department. He gave evidence that he was told by a superior, subsequent to his breakdown, that his position was to be upgraded to class 8 from class 6, and was asked whether he would be applying. He felt that the upgrade was a way of ensuring that he would not apply for the job. He did not apply. His superior then said that he would take steps to have the plaintiff put out on medical grounds. He responded in turn that this should not be done to him; that he knew there were “packages coming out in February 1990 and [he] would like one of them.”[27]
[27]T152.

In the event, said the plaintiff, a package was offered to him, and he took it, ending his employment by the Department in February 1990.

Concerning the upgrade of his position to class 8, and his feelings about leaving the Department, the plaintiff said:

“I would have liked to have gone for it; but my feelings with the Department, and all this (sic) flashbacks and things I was having, I just didn’t think I would be able to cope with the job.”[28]

[28]T152.

Concerning his last employment, with Marine Operations, Townsville, the plaintiff gave evidence that it was a casual job; and that the job ended when casual work ended.

In December 1990, as I earlier noted, the plaintiff went onto sickness benefits. He gave evidence that he nonetheless applied, unsuccessfully, for a number of jobs thereafter; although he said that his mental health would then have been “pretty low”.

Receipt of sickness benefits, it appears, did not last for long. In 1991 the plaintiff applied for, and obtained, a Service pension.

Tracing through his medical history in more recent years, Mr Metcalfe gave evidence of developing bowel problems which led on to surgery in April 1997. At surgery, three quarters of his small bowel, and part of his large bowel, were removed. He was more than 6 weeks in hospital. For a considerable period he could not move around, and just stopped at home. He visited his specialist monthly. He had to stop playing bowls, which he had taken up in his retirement, and which he had much enjoyed. Only in late 1997 did he take up bowls again. But he did so only for a short period.

The long term consequences of his bowel surgery, said Mr Metcalfe, had been a lot of problems with diarrhoea, and with uncontrollable and distressing flatulence.

The plaintiff described his life since he stopped playing bowls as having been essentially isolated. He spends most of each day by himself in his workshop. He makes little things. He drinks substantial quantities of home brew beer, which he first began to make in 1992. At time of trial, his consumption, he said, was possibly 4 to 6 large bottles in an afternoon, he having reduced his intake from an earlier 6 to 8 bottles in an afternoon. The beer he brews is now 3% alcohol, down from an earlier 6%.

As to his relationship with his wife, Mr Metcalfe gave evidence that subsequent to the collision, but not before, it had been marred by his occasionally abusing her verbally. This had happened for no reason whatsoever.

With reference to his 1999 claim for service-related disabilities, specifically depression, the plaintiff was asked why he had said nothing about the collision. He replied:

“I did not, and could not – I wouldn’t left (sic) myself accept that the Melbourne and Voyager collision was affecting me. I thought I was coping with it the way I had been all the time, and I thought I was a much stronger man and had no problems.”[29]

[29]T158.

The plaintiff gave evidence of an occasion in 2001 when an issue arose concerning newspaper clippings which pertained to the collision. He had sent the clippings to his wife soon after the collision. They had been put in a box. In 2001, he had said to his daughter that he did not care what she did with them, she should not talk about them to him, and she should just get out of his sight. After this incident, he said, his level of symptoms[30] had increased.
[30]That is, the symptoms which in this proceeding he sought to attribute to the collision

The plaintiff also gave evidence that in the latter part of 2001 he had thoughts of committing suicide. He had attended his general practitioner, and had been referred back to Dr Likely, the psychiatrist who had first seen him in 1999. Dr Likely, the plaintiff said, had told him that he was suffering from “severe post traumatic stress, severe depression”,[31] and that he would require treatment. The doctor had told him that it was “from the Melbourne and Voyager incident.” He, the plaintiff, had told the doctor that he didn’t think that was so.
[31]T160.

In the event, the witness said, Dr Likely had put him on medication. He had continued to consult the doctor. Medication had continued. He felt it had made him a bit more bearable.

Thus far, I have referred to the plaintiff’s evidence in chief. I go to evidence which he gave in cross-examination. I deal with it in the sequence that questions were asked.

Concerning the signals incident, Mr Metcalfe gave evidence that he thought it was unfair that initially the Captain of Derwent had wanted to punish not him, but his subordinate. But this did not cause him to be disillusioned about the system of Navy discipline. The fact that, in the event, he had been charged had caused him only temporary concern. It had dissipated when the charges were dismissed.

Concerning Derwent’s role in checking for mines in Vung Tau harbour, the plaintiff said the work had been done by frogmen, and by operation of sonar. He agreed that on Derwent’s tour in East Asian waters there had been a true wartime element. But these incidents of his service, he said, had not caused him worry.

The witness agreed that his had been a traditional type of marriage. He had been the breadwinner. His wife had stayed at home. His attitude was, he agreed, that whatever problems he experienced were personal, and for him to deal with.

The plaintiff gave evidence that in 1989, and for many years before that, he had attended a Dr Joe Leong. He had visited the doctor on many occasions, and in respect of a variety of conditions. This topic was revisited frequently in cross-examination. The gist of the questions put to the plaintiff was that he had enjoyed a good relationship with that doctor, was likely to have mentioned problems or symptoms to the doctor, and had not done so in respect of any of the post-collision symptoms of which he had given evidence. The gist of the answers was that the witness may have mentioned sleep problems to, but had not discussed the collision with, the doctor.

Concerning the 1989 breakdown, it was put to the plaintiff that the history which he had provided to Dr Leong had focused upon his problem with the troublesome fellow-employee. Evidently that was the case.

Attention was drawn by the cross-examiner to an entry in the doctor’s notes for 1989 which recorded that there had been no past history of anxiety/nerves before 27 April 1989. The plaintiff did not deny having given such a history. He said that he had been hiding his problems. But he agreed that he had discussed with the doctor, until the latter’s retirement in 2001, “very personal medical problems”.

Further with respect to his breakdown in 1989, the plaintiff gave evidence that Dr Leong had referred him to a psychiatrist, Dr Wilfred Richards. The psychiatrist had asked him about past problems. He did not think that he had told the doctor about any such problems. He was quite sure that he had not discussed any problems as a result of dreams about the collision. He had been, he said, dissatisfied with the attention which he received from Dr Richards.

Asked why, when he was advised by Dr Leong that he required medication, he had said that he would not take it, and why, although he believed that he may have needed help, he did not seek referral to another psychiatrist, the plaintiff said that he didn’t want people thinking he had seen a psychiatrist; and that, as at 1989, he thought that a stigma attached to seeing a psychiatrist, and to taking medication for a psychiatric problem.

The plaintiff agreed, with respect to his claims for a service-related disability pension, and an increase in such pension, that he had ascribed certain conditions to Naval service. They had included depression, said to have had its onset in April 1989. He had attributed the depression to incidents of service whilst posted to Derwent. He agreed, as is the case, that such claims are made by declaration, false declarations attracting penalties. He agreed that before 1989 he had not told Dr Leong that he was experiencing flashbacks, intrusive thoughts, reduced concentration, nightmares or hallucinations. He agreed that he might possibly have told the doctor, in 1999, that he drank “four stubbies a night.” He agreed, further, that in 1999 his depression did not affect his personal life, and that he had so informed the doctor; and that he had told the doctor that he was having no problems in domestic inter-personal relationships, because he had family support and understanding. Still further, he agreed that he had told the doctor in 1999 that he preferred not to take any tablets apart from occasional sleeping tablets.

In 1999, the plaintiff said, he began to read books about depression, in the context of seeking help. But he had read no books about PTSD.

It will be recalled that, in 1999, Dr Likely diagnosed the plaintiff as suffering from depression which could be attributed to service experiences other than the collision, and that he did not diagnose PTSD. The plaintiff was taken through the history which he had then given Dr Likely. He agreed that he had told, or may have told, the doctor that he had experienced irritability and sleep disturbance since 1985; and that he attributed the 1989 breakdown to the signals incident. That was what he then honestly believed. Concerning the collision, the witness agreed that he had told Dr Likely that he did not find it to be horrifying, that it did not induce feelings of fear, nor feelings of helplessness. He had, indeed, told the doctor that people from Melbourne were putting in claims that should be knocked back; that the crew of Voyager had borne the brunt of the disaster. He had also told the doctor that he did not feel the incident had caused him long-term psychological consequences, that he did not tell the doctor he was experiencing flashbacks or distressing dreams, nor seeing images or having thoughts about the incident, nor reacting to reminders of the incident.

It will next be recalled that, in early 2002, Dr Likely revised his diagnosis of the plaintiff’s mental condition. The plaintiff gave evidence of telling the doctor that he began to be troubled by his experiences in connection with the collision from the latter part of 2001, his mental state having deteriorated “a terrible lot from” 1999[32]. He agreed also that things had deteriorated after re-reading a newspaper article concerning the collision in late 2001.
[32]T226.

Questioned about when and why he decided to leave Navy service, the plaintiff said that it was in the latter part of 1965, that he didn’t trust the Navy and he feared going back to sea. He had told a superior, between 1965 and 1967, that the true reason for not wanting to re-enlist was that he did not trust the Navy.

Returning to the issue of his 1989 breakdown, the plaintiff agreed that nothing had prevented him from discussing the enormous problems which he was then having with a psychiatrist. What had stopped him from being completely frank about his problems was himself; his embarrassment at having to discuss his difficulties with a psychiatrist, his reaction to what family and friends might think if it was known that he was receiving psychiatric treatment.

Concerning his work performance up to the time of his 1989 breakdown, the plaintiff agreed that his employers had spoken of him in glowing terms. He said that he had tried his best to make sure that his dreams and flashbacks did not affect his work performance.

As to the time of the onset of symptoms, the plaintiff agreed that, as he had told Profession McFarlane, their onset was when he received the news, in late 1965, that he was to be posted back to Melbourne. He agreed that he had said much the same thing to a Dr Young; and that he had told Dr Young that his symptoms were minimal until his breakdown in 1989, and that he had suffered no symptoms of significance between 1990 and 1998.[33]
[33]T278.

Concerning the situation in 1998, antecedent to his making the claim for an increased service-related pension, the plaintiff was asked these questions and gave these answers:

“You told Dr. Young that [in 1998] you had increasing thoughts of the Melbourne, with the whole thing coming back to you. You made no mention of that in that claim that you made to the Department of Veterans Affairs – you see? --- No, I did not.
But if you are accepted, you were having dreams that actually involved the collision itself; correct? --- Correct.
And when you woke up you knew that that was what the dream was about; correct?--- Correct.
And that dream caused you some distress; is that right?--- That’s correct.
And you knew that that dream about the Melbourne/Voyager was part of your problems about your distress, didn’t you?--- I did.”[34]

[34]T279.

Re-examined as to why, in 1999, he had not told Dr Likely about his emotional reaction to the collision, the plaintiff first said that he did not know; and then, that “obviously” he was trying to hide the fear. He had been told not to talk about the collision, and if it ever came up it just upset him more.

I should mention, finally, these questions which I asked the plaintiff, and his answers:

“Please tell me if this is correct or not: according to your evidence, for a period of years, many years, leading up to April 1989 you had been aware of having unpleasant thoughts from time to time about the Melbourne/Voyager collision, sometimes you had dreams about it, and what you tried to do was to keep those things right in the back of your mind by getting on with your daily work?--- That’s correct, your Honour.”
But from April 1989 onwards you not only had those feelings, but you had this new feeling, which initially was very acute, of wanting to withdraw from the company of other people; is that an accurate summation?--- That’s correct, Your Honour. [35]

[35]T300.

I have not referred to all the plaintiff’s evidence, nor set it in the context of evidence given by other witnesses. But the following observations may be made.

First, I am of opinion that the plaintiff attempted to give me a broadly accurate account of the collision and its aftermath, the circumstances in which he left the Navy, and his subsequent medical and employment history. I say “attempted to give” because I am satisfied that his evidence was not reliable – regardless what was the explanation – in important respects. Of this conclusion, more later.

Second, the plaintiff’s account of the collision, and his involvement in its immediate aftermath, was not the subject of cross-examination. I consider that I should accept his evidence about those matters.

Third, as I perceive it, different aspects of the cross-examination were essentially designed to establish the following propositions:

·Such symptoms as the plaintiff may have suffered from a time not long after the collision had not persisted indefinitely, had not been substantial in terms of pain and suffering and loss of enjoyment of life, had not been a cause of the plaintiff leaving the Navy, and had not impaired the plaintiff’s employment capacity in the period preceding the 1989 breakdown. To an extent the plaintiff had overstated the position – for instance, with respect to the amount of alcohol which he had taken before his breakdown. Concerning the likelihood or otherwise of the persistence of any symptoms which had developed after the collision and, in the event of persistence, their likely severity, the plaintiff’s failure to say anything pertinent to his long time general practitioner, Dr Leong, was significant.

·Whatever had been the situation before April 1989, from that time onwards the plaintiff had on his own account suffered more extensive and more disabling symptoms. The plaintiff’s acute breakdown in 1989 was sufficiently explained by his immediate employment stresses. It had precipitated the end of his working life.
·The deterioration in his condition in 1998 and thereafter of which the plaintiff complained was explained by the impact of the non-compensable breakdown in 1989, compounded by the distressing sequelae of the bowel operation and by the rejection of most aspects of his claim for an increase in his disability pension.
·The 1989 breakdown had given the plaintiff an opportunity to reveal any past history of emotional upset. If the opportunity had been taken, any compensable injury would probably have been revealed. But, perhaps for personal reasons, the plaintiff had not taken up the opportunity.
·The plaintiff’s 1999 attendance upon Dr Likely had given the plaintiff another opportunity to reveal any history of emotional upset stretching back to the mid-1960’s. Again, the plaintiff had not taken up that opportunity.
·The plaintiff’s recent attribution of long term symptoms, and his 1989 breakdown, to the collision was an understandable but inaccurate revision of history.

I turn to other lay evidence.

Melita Metcalfe

Melita Metcalfe is the plaintiff’s wife. They met in 1957, married in 1958, and so, as at trial, had been married some 46 years.

Mrs Metcalfe described her husband, when they first knew each other, as being very friendly. He was:

“a happy go-lucky sort of fellow, friendly with everyone. But he was responsible with it.”[36]

He intended making the Navy his career, to go as far as he could.

[36]T367.

In a family context, said the witness, her husband was in early times a “terrific” father. Nothing had been too much trouble.

Subsequent to the collision, Mrs Metcalfe said, her husband initially sent her a telegram that he was all right. Then he sent her the newspaper clippings to which I referred a little earlier. They saw each other a few weeks after the collision. The plaintiff had told her that he couldn’t talk about what had happened. They went to the beach house which the plaintiff described in his evidence. The plaintiff was, she thought, “just glad to be with the family.”[37]
[37]T371.

Mrs Metcalfe described a change in her husband after the collision. There were these questions and answers in her evidence in chief:

“Did you observe any change in him after the collision?--- Oh, yes. He was very closed. He wasn’t as – oh, where he was sort of always happy and that, he was very, just very quiet, morose, grumpy.
And how soon after the collision did you notice this change?--- When I got – when he was posted to Moreton and I went down to, down there to join him, in Brisbane.
So the two of you lived together during that posting?--- Yes.
Yes. Did you notice any change in his sleeping pattern?--- Oh, he seemed to be restless, restless feet. He had been drinking, and that made him not the best.
What was his drinking like before the collision?--- Well, he didn’t; not to my knowledge anyway.
And what changes did you notice after the collision, in regards to his drinking?--- He was drinking more heavily, which caused a lot of arguments because that just wasn’t him.
Did he drink in front of you, at that stage?--- He knew it wasn’t worth it.
Now, Mr. Metcalfe gave evidence that he was verbally abusive towards you at times? --- Correct.
After the collision. Do you have a recollection of that?--- Yes.”[38]

And:
“Generalise for us what the nature of the arguments and the abuse was like?--- Well, I wasn’t used to him drinking, for a start; and also instead of, he would be – instead of usually asking me to do something, I was told to do it.”[39]

[38]T371-372.

[39]T372.

Asked about his proposed transfer back to Melbourne, Mrs Metcalfe gave this evidence:

“Now, at some stage were you aware that he was transferred in a posting back to HMAS Melbourne?--- Yes.
HMAS Melbourne?--- Yes.
Did he make any remarks, comments, to you when he learned he was to be posted back there?--- He went ballistic.
Yes. And do you recall what he said he was going to do, or not do?--- Oh, he was going to try and get his posting changed, because there was no way he was going back to the Melbourne.
Did he say what was bothering him about that posting?--- He didn’t want to be on the big, on the big ships.
Did he say why that was?--- Well, having been involved in the collision, I know that he didn’t think it was a very happy posting.”[40]

[40]T373.

Concerning his sleeping pattern after the collision, Mrs Metcalfe gave this evidence:

“Now, you mentioned, I think, that you noticed after the collision he started kicking his feet in his sleep; is that correct?--- Yes, or he would sit up suddenly in bed too ---
And ---?--- And flop right back down again.
And was there anything else unusual that started happening with his, during his sleep?--- He was just restless, where before he was a very sound sleeper.
Was he making any noises whilst he was asleep?--- No, at that stage, apart from, oh, mumbling, which didn’t – I didn’t understand anything of it.”[41]

[41]T373-374.

Without objection, the witness the witness gave further evidence about the plaintiff’s sleeping pattern:

“Now, after he left the Navy, did his sleeping habits change?--- Oh, yes.
How?--- Oh, he started having nightmares.
When was that?--- I beg your pardon?
When did he start having nightmares?--- Oh, a couple of years after we moved into our home; more or less badly in the last five or six years.
And was there any period, in between when he first moved back into the home and the last four or five years, when you say they got worse? Was there any period that they actually ceased, to your observation?--- No, no. They were worse in the last few years, but they never ceased.” [42]

[42]T374.

Concerning the plaintiff’s withdrawal from contact with other people, Mrs Metcalfe gave this evidence:

“Did you notice any change in his attitude towards meeting people?--- Oh, he avoided them if he could.
And when did you notice that he started avoiding people?--- Yes.
When did you notice that he started avoiding people?--- Oh, after about late 1997 or 8, I think it was. He just started to get worse. He gave up his bowls.”[43]

Her husband, she said, became very withdrawn after his 1989 breakdown; also, very anti-social and argumentative.[44]

[43]T375.

[44]T434.

Cross-examined, Mrs Metcalfe said that over the years she had tried, unsuccessfully, to get her husband “off alcohol”. It had led to arguments.

Mrs Metcalfe was scarcely cross-examined at all. Her evidence gave some support to the plaintiff’s account that he suffered symptoms[45] which could be explained by the presence of a psychiatric illness from a time not long after the collision. It tended to show, also, that the 1989 breakdown had led on to a new phenomenon – social withdrawal; and that the plaintiff’s mental problems had worsened in quite recent years.
[45]I include in that description, whether or not it is quite apt, his resort to excessive use of alcohol.

Margaret Scorse

Mrs Scorse is Mrs Metcalfe’s younger sister. She met the plaintiff when she was only about 11 years old. Concerning the plaintiff’s attitude and intentions with respect to Naval service, and his manner generally before the collision, she gave evidence similar in content to the evidence of Mrs Metcalfe.

After the collision, said the witness, she first saw the plaintiff on his return him. He was uncharacteristically abrupt.

The next time she saw him was after he had left the Navy.

“He was drinking heavily; he was an angry man, certainly not the person I knew previously. Totally changed, uncharacteristically angry, and not wanting to be amongst, not wanting to be amongst the family and like he used to be.”[46]

He was drinking heavily.

[46]T395.

The plaintiff’s wife, it appears, herself suffered a nervous breakdown. It was in the 1970s. Concerning the breakdown and specifically the plaintiff’s response to it, Mrs Scorse said that:

“… he was unsympathetic towards her problems.”[47]

[47]T396.

As to the sequence of events, Mrs Scorse gave this evidence:

“Ron’s demeanour and being angry continued to get worse from the time he came home to Townsville after the collision to when he had the breakdown.
Thank you. Now, did you observe any change in Mr Metcalfe’s behaviour after the breakdown?--- Yes, I did.
And what changes did you notice?--- He was less able to cope with people, with crowds. He became very withdrawn, to the point where he would not go out on outings, or shopping. He just wanted to stay at home on his own.”[48]

[48]T398-399.

The witness was not cross-examined. Her evidence was essentially compatible with the evidence given by Mrs Metcalfe. The force of her evidence depended to an extent upon the frequency with which she had dealings with the plaintiff. She said that she did not see him at all between a time shortly after the collision and “quite some time after”. The latter time, she thought, was after his discharge. Then, responding to a question expressed in non-specific terms, she said that she had seen him frequently after he returned to Townsville. It appears that she was then speaking about the 1970s. She said that “at this time” the plaintiff was drinking heavily. She referred to his relationship with his children, they then being aged 10 to 12 years of age. That would have been in the early 1970s. Her reference to the plaintiff’s response to Mrs Metcalfe’s breakdown also pertained to an event which occurred in the 1970s. Evidently, the witness had continued to see the plaintiff thereafter. But I think that the frequency of such contact was not made clear.

Anthony Walker

Anthony Walker is a retired naval man. He first met the plaintiff in 1958, when the two of them were recruits at Cerberus. They became good friends. The plaintiff was somewhat older and the witness looked up to him a bit.

Mr Walker gave evidence of his own progress in Naval service. The evident purpose of that evidence was so that his progress could be compared with the plaintiff’s swifter advancement through the ranks.

According to the witness, the plaintiff was very keen when in training, and he was enjoying the Navy when the two of them served on Anzac in 1960. The plaintiff was likeable, reliable, and neither drank alcohol nor smoked.

The witness gave evidence that he had been a Chief Petty Officer when he left Naval service in 1978. He had been next on the roster, he said, to be promoted to the new rank of Warrant Officer.

The witness also gave some evidence about the prospect, in the time of which he could speak, of a Stores Petty Officer achieving commissioned rank. It could happen. It depended upon a recommendation. He thought that 60 was the retirement age for officers.

About 6 years before trial, Mr Walker said, he met the plaintiff again. This was his description:

“He was a bit of a mess. I got a bit a shock (sic). As a matter of fact, if (sic) hadn’t spoken with him on the phone previously, or arranged a meeting, I wouldn’t have recognised him. I don’t know. He didn’t look good to me. Anyway, he was drinking, and he suggested going to the club and that sort of thing, and it was just completely uncharacteristic of Ron, and I just didn’t, hardly knew the man. He wasn’t the same fellow I knew. He was completely changed.”[49]

[49]T414.

Although, as will be seen, it is not necessary for me to decide the point, I infer from Mr Walker’s evidence that, had the plaintiff remained in Naval service, unaffected in any way by the collision, he would probably have achieved the rank of Warrant Officer soon after that rank was introduced in 1972. Other than that, Mr Walker’s evidence cast no new light on the plaintiff’s personality, demeanour and attitude to Naval service before the collision, or his ill-health – putting to one side its precise nature, and its cause or causes – in quite recent times.

James Clarence

Between February 1984 and October 1990, James Clarence was the Queensland State Manager of the Transport Services Group of the Department of Administrative Services.

When he began in that position, the witness said, the plaintiff was manager in charge of the Transport Services Group at Townsville. He described the plaintiff, before his breakdown, this way:

“Ron[‘s] was a small operation. He ran a good operation up there. He was a fairly intense person. I would describe him as someone who is a bit of a perfectionist, very much client-focused, and ensuring that our clients got the services that they would seek and ensuring that the operation up there ran very smoothly. He was a good officer.”[50]

[50]T379.

The witness said the plaintiff had mentioned his Naval service, but “he just didn’t want to talk about it and changed the subject all the time.”[51]
[51]T379.

On his account, the plaintiff had a “very small role” and he, the witness “wouldn’t describe it as stressful.”[52]
[52]T380.

His recollection of the circumstances in which the plaintiff suffered his breakdown was that the plaintiff had refused to provide a vehicle to a member of the Australian Parliament, on the footing that one was not available. The incident had been “totally out of order.” [53]
[53]T380.

The witness had some recollection of the problem which arose between the plaintiff and the employee who was also the plaintiff’s neighbour. He said that the plaintiff was

“quite upset with the decision not to make the person permanent, and was quite irrational about it.”[54]

[54]T381.

Subsequent to the plaintiff’s breakdown, according to the witness –

“… his performance wasn’t as good as it had been. I would describe it as, as patchy. There were periods when he was really focused on client service and the organisation’s operations and other times when he wasn’t.”[55]

[55]T381.

Concerning the upgrading of the plaintiff’s position to class 8, Mr Clarence said that:

“…prior to the incident that happened early in 1989 I would have described Ron as a strong contender for the position. His performance subsequent to that incident in 89, I wouldn’t (sic) have thought, made him a far lesser candidate for that job; and certainly, I would have had doubts about his, his getting the job had he gone through to interview.”[56]

In fact, the plaintiff had been “very reluctant to want to be considered for the upgraded position.”[57]

[56]T382-383.

[57]T383.

Cross-examined, the witness affirmed that the plaintiff, had he not taken a redundancy package, would – almost certainly – have had a job offered to him.

Further, in cross-examination, the witness agreed that in February 1990 he had written a reference for the plaintiff which gave no indication that the latter’s abilities had declined in the preceding year.[58]
[58]See exhibit 3.

The evidence given by Mr Clarence confirmed, if confirmation was needed, that the plaintiff had been an able employee before his breakdown. It cast little light on the circumstances of the breakdown, other than that the plaintiff had behaved in an uncharacteristic manner when the illness had its gross onset. The witness’s evidence also confirmed that the plaintiff had reacted badly to the dispute with the fellow employee – albeit that Mr Clarence misdescribed the source of the plaintiff’s upset.

Those matters apart, Mr Clarence’s evidence was to the effect that the plaintiff’s position had not been upgraded so as to force the plaintiff out of the job; and that the plaintiff’s apparent capacity to perform his work was reduced after his breakdown. I see no reason why I should not accept those aspects of the witness’s evidence. On any view, the plaintiff was considerably affected by mental upset after his 1989 breakdown. In the event, I conclude that the 1989 breakdown and its aftermath was a cause of the plaintiff ceasing employment with the Department, and that it was probably causative of him not obtaining employment after late 1990.

Speaking about the collision

The plaintiff, evidently, said nothing for a very long time about the symptoms from which he allegedly suffered. A number of explanations were offered how it could be that he in fact suffered such symptoms and yet said nothing. The plaintiff himself offered, as a partial explanation, an “order” which he said he had been given not to speak about the collision. I say “partial” because, as I have already noted, at several points in his evidence the plaintiff said that he had told enquirers that he did not want to speak about the collision, and was not allowed to speak about it. “Partial” is also apt because one thread in the plaintiff’s case was that he would not countenance the idea of being psychiatrically unwell, and so said nothing as might indicate such unwellness; whilst another thread was that denial of symptoms was itself an aspect of PTSD.

I should examine such evidence as was adduced about the “order”. The plaintiff gave evidence about the matter; whilst for the defendant, relevant evidence was given by John Dunlop, Paul Graham, George Halley, Charles Robson and Francis Lyons.

According to the plaintiff, whilst Melbourne was steaming back to port, a broadcast was made on the ship’s public address. It went like this:

“Attention all hands. On our arrival in Garden Island Sydney a.m. tomorrow we expect to be greeted by a lot of wives, friends, girlfriends, family, and also a lot of press. Now, this is an order: you are not to discuss the collision with any of those people. If you go ashore and you are in clubs, bars or pubs, do not discuss it amongst yourselves because there will be reporters trying to get a story. All you have got to do is, when you go ashore, enjoy yourself, forget about it, and get on with your lives. That is all.”[59]

[59]T114-115.

In cross-examination, the plaintiff resisted the suggestion that all that had been said was that sailors should be cautious of saying too much on arrival back at port because journalists would be trying to get stories; and that nothing had been said about sailors not speaking to members of their families.

The plaintiff agreed in cross-examination that he had completed a questionnaire – he said he could not recall having done so, but his handwriting appeared on the document – for submission to the first Royal Commission into the disaster. He agreed with me that the circumstances of the incident had been exhaustively and publicly agitated at two Royal Commissions.[60] It is also the fact that, on his account, he spoke about the incident with the superior officer who asked him if he would like to be recommended for a commission; and that ultimately he did speak extensively about the collision, and its asserted effects upon him – with his solicitors, his counsel, and a number of doctors.
[60]See T296-298.

I go to the pertinent evidence adduced by the Commonwealth. In February, 1964 John Dunlop was an engineering officer on Melbourne. On his account, the Captain made a broadcast on the morning after the collision. In the course of it he said, inter alia, that when the ship arrived at port there was likely to be a lot of press interest, that crew members should be cautious in what they said, and that they should think first. There had been no order.

The witness gave some other evidence – particularly as to the availability on Melbourne of chaplains and medical staff. It went to there being professional help on board ship which the plaintiff could have accessed. It was pertinent to the estoppel plea raised by the plaintiff. I need not refer to that evidence now.

Mr Dunlop was not cross-examined.

I next refer to the evidence of Paul Graham. He was an Engineer Lieutenant on HMAS Melbourne at the time of the collision. It was his evidence that on the day after the collision the Captain made two broadcasts. In one of them he told the crew his version of events. In the other he asked crew members, if they were approached by the press, or anyone, not to quote what he had said in his earlier broadcast. He said that he had not heard a broadcast by anyone other than the Captain giving an order to the crew such as the plaintiff had described.

Twenty fourth, it may be said that, when the plaintiff began to describe symptoms indicative of PTSD, it was of symptoms which had only developed – at least in terms of any severity – from the time of part rejection of his claim for a disability pension increase; or from the time when he re-read, or talked with his daughter about, the old newspaper clippings. That, it might be argued, tended in favour of a diagnosis of late-onset PTSD, and against a conclusion that in truth the plaintiff suffered symptoms at the outset, which thereafter settled. But here again the prospect of false attribution needs to be considered. In terms of probability, it seems more likely to me that symptoms developed proximately to the collision, rather than they had their onset 35 years later. Some of the evidence given by the plaintiff and his wife – for example, about his refusal to speak about the collision, and about his response to being posted back to the Melbourne - was persuasive.

Twenty fifth, I have constantly kept in mind the fact that the plaintiff, by common consent an honest witness, described in his evidence persistent symptoms indicative of PTSD following upon an event apt to cause PTSD. But, as I have tried to make clear, there were major hurdles in the way of acceptance of that history. The number of explanations, not all consistent, which were offered in an attempt to explain the changes in the history given by the plaintiff to my mind underlines the problems which the plaintiff’s case faced.

Damages

The plaintiff is to be compensated for pain and suffering and loss of enjoyment of life attributable to PTSD. I am satisfied, as must be apparent from these reasons, that some symptoms of the disorder appeared very shortly after the collision and that additional symptoms developed, particularly when the plaintiff was stationed at Moreton, and was posted back to Melbourne.

I am also satisfied, as I have said, that the symptoms of PTSD, which were not sufficient to impair the plaintiff’s capacity as a serviceman, or as a civilian employee, settled over a period of time. It is impossible to be precise as to when all the symptoms were spent. It would certainly be open to conclude that they were spent before 1970, the year in which the plaintiff first consulted Dr Joe Leong. But I conclude that symptoms progressively declined after 1967, and were spent by the time that the plaintiff commenced in self-employment. That was in 1973. In an affidavit sworn in March 2003 the plaintiff deposed that, although he still suffered some ‘flashbacks and nightmares’ at the time, his period of self employment was ‘probably the happiest time [he] had experienced since the collision.’

On that footing, then, that plaintiff suffered a modest level of distress arising from the symptoms which I have many times described, that the distress was at its worst in late 1965 and early 1966, and that thereafter it progressively declined between 1967 and 1973, I assess the plaintiff’s damages at $60,000.

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. In the event, certain evidence given by the plaintiff and by Mr Walker, to which I have earlier referred, need not be further considered. Nor need I describe or analyse evidence adduced for the plaintiff from the actuary, Mr John Cumpston; and adduced for the defendant from Lieutenant Commander Christopher Harcher.

Section 5(1A), Limitation of Actions Act

When I heard the evidence in this matter, the Court of Appeal had not yet decided Clark v Stingel.[97] After that decision was published, I decided Wright. In doing so, I attempted to apply Clark. I then heard further submissions in this matter. Wright went on appeal, and on 20 December 2005 the Court of Appeal concluded, in light of an argument not advanced at trial, that I had misapplied Clark. Now Clark is the subject of appeal to the High Court, and an application for leave to appeal to that Court has been made in Wright. It might fairly be said that the circumstances are not ideal for resolution of the s.5(1A) argument in the present case. One can anticipate an argument in Clark that the way in which that case was explained in Wright underlines the problems which can arise when once the words of a statute are departed from. But my obligation is clear: to apply Clark as it was explained in Wright.
[97][2005] VSCA 107.

Section 5(1A) of the Limitation Act applies, inter alia, in an action for damages for negligence where the damages claimed by the plaintiff –

“…consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by…”.

the plaintiff. Then, action may be brought –
“…not more than [6] years from, and the cause of action shall be taken to have accrued on, the date on which the [plaintiff] first knows –
(a)that he has suffered those personal injuries; and
(b)that those personal injuries were caused by the act or omission of some person.”

There was really no debate in this case that PTSD, from a medical standpoint, is a “disorder”. It is so described in DSM-IV[98]. It may be, as Professor McFarlane opined, that PTSD is productive of non-specific physiological change in addition to its having a psychological component. It also may be that from a medical standpoint it should be categorized as a “disease”. Neither of those issues need be decided in this case[99].
[98]And in ICD-10 – that is, the International Classification of Diseases, 10^th revision, published by the World Health Organization.
[99]I considered them in some detail in Wright at [319]-[354].

In Clark, it was decided by the majority that s.5(1A) applies to diseases or disorders which are “insidious”.

In Wright, the Court of Appeal focused upon a passage in the judgment of Eames, JA in Clark in which his Honour described a disease or disorder being insidious –

“…because its contraction could not be known at the time of contraction, its existence only being discovered much later[100].”

[100]At [84], my emphasis.

The Court concluded that the test was one subjective to the victim, that s.5(1A) applies to a disease or disorder the contraction of which is so disguised from the victim that the victim does not know that he or she has contracted it – that is, within the ordinary limitation period. It said this[101]:

“36In our judgment it would be productive of great inconvenience and even greater injustice if the application of s.5(1A) were to turn upon the quality (or lack of it) of the medical advice available to the victim. Equally, if the effect of a disease or disorder were to prevent the victim detecting the need for medical advice, it would be inconvenient and unjust if the application of s.5(1A) were to turn on whether the disease or disorder were otherwise fortuitously detected. Conversely, it would be most convenient, and it would be just, and therefore it makes evident sense, that s.5(1A) should apply to a disease or disorder contracted at or about the time of a tortious act or omission and howsoever disguised from the victim that he or she remains ignorant of its contraction until after the limitation period. Consequently, we infer that the majority in Clark chose that latter interpretation. With respect, that is what we take them to have meant by the expression ‘could not have been known’.
37The respondent argues that so to construe s.5(1A) would deprive s.23A of most of its useful operation. We reject that argument also. As the reasoning in Clark makes clear, s.5(1A) is confined to insidious diseases and disorders, which is to say those that are contracted at or about the time of the tort and of a nature so disguised that the victim does not learn of contraction until after expiration of the limitation period. Section 5(1)(a) and 23A deal with the remainder of compensable injuries.”

[101][2005] VSCA 309, [36]-[37].

It was submitted for the defendant that, in Mazzeo v Caleandro Guastalegname & Co.,[102] Chernov, JA had distinguished between traumatic personal injury claims and claims falling within s.5(1A).[103] The present case should be viewed as falling within the former category. The plaintiff’s cause of action had been complete long ago. There had been an undoubted traumatic event, and there had been consequences, in terms of the plaintiff’s psychological well-being, from a time soon after the collision. A claim had not been brought within time. The proper remedy had been by way of a s.23A application.[104] Upon such an application, the plaintiff’s state of actual knowledge of psychological sequelae of the collision could properly have been investigated; also the circumstances of his failure to seek a medical explanation for such sequelae. The plaintiff had known of those sequelae. It mattered not that he had not known the medical term for his problems[105]. So far as it might be argued that he had not known of the consequences of the defendant’s act or omission, it was by his own choice. It could not be right that the circumstance that a prospective plaintiff was “in denial” could excuse a failure to know relevant matters. Neither could a failure to know be excused if, as a matter of personal choice based upon a particular social attitude, a prospective plaintiff chose not to seek medical advice despite being aware of certain symptoms.
[102][2003] 3VR 172.
[103]See at [43].
[104]Although, as it turned out, such an application could not be pursued in this case.
[105]Counsel cited Falcon v McCann [1998] VSC 83 at [13].

In Mazzeo, the view of the interrelationship between s.5(1)(a) and s.5(1A) expressed by Chernov, JA was not adopted by the whole court. Tadgell, JA was circumspect in that connection.[106] The judgment of the Court of Appeal in Wright,[107] however, suggests that there is a clear dichotomy between injuries to which s.5(1A) applies and all other compensable injuries. The former must fit the description given in Wright in the passage which I cited a little earlier.
[106]See at [14].
[107]At [37].

In the present case, the plaintiff “contracted” PTSD soon after the collision. Certainly, no later than when he was stationed at Moreton, he suffered from injury which was of more then minimal extent.

His cause of action was then complete. It follows that the ordinary period of limitation expired not later than 1971.

I am satisfied, however, that the plaintiff did not know that he had contracted PTSD until long after the expiry of the ordinary limitation period. It is true that he developed a disparate collection of symptoms, of which, well within the limitation period, he and his wife were aware. So, for instance, he knew that he had memories of, or associated with, the collision. He knew that he did not want to talk about the collision and its aftermath, or be posted back to the Melbourne. He became aware that his drinking pattern had changed. But that was not to know that he had suffered any injury at all. It amounted only to him being aware of what may be described as the ordinary and not unexpected sequelae of having been involved in a distressing event. It is not to the point that, more than 35 years later, armed with the certainty of hindsight and knowledge of PTSD as an entity, it can now be said that the plaintiff was suffering from psychological injury; let alone that he should be taken to have known that fact.

It follows from what I have said that the plaintiff positively established[108] that he suffered a disease or disorder to which s.5(1A) applied. The circumstances upon which the defendant relied to contend that any injury was one that must be dealt with by the application of ss. 5(1)(a) and 23A do not yield that result.
[108]I say nothing about where the onus of proof lay.

An action for damages might be brought in respect of personal injuries consisting of a disease or disorder contracted by the plaintiff, and yet be statute-barred under s.5(1A). That is because the sub-section sets up its own limitation period – that is, a period determined by reference to paragraphs (a) and (b).

In the present case, some, but little, attention was paid to those paragraphs, although it is only there that the sub-section in terms makes a plaintiff’s knowledge relevant. There was no argument, in the context of paragraph (a), whether knowledge is confined to actual knowledge, or extends to matters which would or may be revealed on reasonable enquiry.[109] On the other hand, the defendant’s submissions concerning a plaintiff’s knowledge, though addressed to a different point, could extend to an argument that knowledge could not be gainsaid by the artifice of non-enquiry when confronted by symptoms calling for disclosure and medical investigation.
[109]For instance, no analogy, or contrast, was sought to be drawn between the language and operation of s.5(1A) and 23A(3).

In Cavenett v Commonwealth of Australia[110]Gillard, J determined a claim by a former Melbourne crewman for damages for PTSD attributable to the collision. His Honour dealt with the question of knowledge for the purposes of paragraph (a). This is what he said about the matter:

“184What is the test to determine knowledge within the meaning of s.5(1A) of the Act? Is it an objective test, is it a subjective test, or is it a combination of both? In my opinion it is a subjective test. It is the knowledge of the plaintiff which is the relevant knowledge for the purposes of the section. Being a subjective test, the plaintiff’s knowledge includes his knowledge at the relevant time and takes into account his intelligence, knowledge and experience. In this regard the observations made by the courts in relation to mitigation of damages in cases concerning an allegation that a plaintiff failed to undergo medical treatment to mitigate his loss are relevant. I refer to Karabotsos v Plastex Industries Pty Ltd and the High Court decision of Fazlic v Milingimbi Community Inc. In my opinion in determining whether or not the plaintiff has established the date when he first knew he had suffered the personal injuries to his mental condition, the Court takes into account his state of knowledge and experience. In determining that issue, the plaintiff’s knowledge and experience of matters medical equip him with a better understanding of the symptoms and whether the personal injuries he suffered were an injury or impairment to his mental condition. In my view he does not have to know the name of the mental injury. The plaintiff has to prove that he did not know that he suffered an injury to, or impairment of, his mental condition.”

[110][2005] VSC 333.

His Honour did not have to consider whether want of knowledge by reason of failure, for one reason or another, to seek knowledge should nonetheless be accounted knowledge. The question is an interesting one, but even assuming that it had been sufficiently raised in argument in the present case, I do not think that it need be answered. That is so for the following reasons.

First, the plaintiff’s case was simply that he first knew he had suffered PTSD in early 2002, when the condition was diagnosed by Mr Zemaitis and Dr Likely. Albeit that Dr Likely then diagnosed late-onset PTSD, and that I have concluded, to the contrary, that the plaintiff developed PTSD soon after the collision which settled no later than 1973, the plaintiff’s evidence accurately stated the position. That is, such disparate symptoms, present no later than 1973, which in sum justified a diagnosis of PTSD, had never been recognized by the plaintiff as coherent elements of a discrete disorder; nor had the plaintiff been advised of such a matter until early 2002.

Second, had this been a case of late-onset PTSD – assuming that there is such a variant – the plaintiff’s subjective knowledge would have been no different. But an antecedent question would have arisen: that is, how, if at all, late-onset PTSD could fit into the Wright framework.

Third, it is unnecessary to consider how s.5(1A) would have operated had I concluded that the plaintiff continued to suffer from PTSD from the time of its onset through to trial, and that the 1989 major breakdown was an interrelated condition. The depressive illness, considered discretely, should probably have been characterised as a late-occurring injury whose fate was to be governed by sub-s.5(1)(a) and 23A, not by s.5(1A). But, beyond that, the depressive breakdown may have become relevant to the question of the plaintiff’s knowledge of the PTSD which I have postulated was then present.

Fourth, concerning the defendant’s contention that the plaintiff’s failure to make disclosure or enquiry had been unreasonable, and had disabled him from learning that he was suffering (or had suffered) from PTSD, at different points in the trial counsel for the defendant highlighted opportunities which the plaintiff had enjoyed to describe his symptoms to doctors whom he had attended. The opportunities identified by defendant’s counsel, as I perceive it, were –

·Those offered by the plaintiff’s long-term, close relationship with Dr Joe Leong.
·The medical investigation which followed the plaintiff’s gross breakdown in April 1989.
·The circumstances which attended the plaintiff’s claim for an increased disability pension, for depression, in 1999.
·The plaintiff’s interview by Dr Likely in 1999.

The writ was filed on 29 May 2002. It follows that if the limitation period began to run on or after 30 May 1996, then the proceeding was brought within time. In that event, there could be no legal relevance to the plaintiff having learned in 1998 or 1999 that he was suffering, or had suffered, from PTSD which was attributable to the collision. So, even if knowledge comprehended something more than actual knowledge, it would lead nowhere in respect of events in 1998 and 1999.

That takes me back to earlier times. Here it becomes important to bear in mind my conclusions that the plaintiff did suffer PTSD, but that its effects were never gross, did not interfere with the plaintiff’s employment, and were wholly spent no later than 1973; and my conclusion that the April 1989 breakdown was triggered, as the plaintiff said was the case at the time, by the immediate strains of his then employment.

Against that background, there was, I think, no occasion for the plaintiff to have raised with Dr Joe Leong, before his symptoms of PTSD settled, the fact that he had such symptoms. If “reasonableness” was a pertinent criterion he was not unreasonable in not doing so.

Then, in the period 1973 to 1989, there was nothing for the plaintiff to have raised with Dr Leong.

Next, the plaintiff correctly identified the trigger for his major breakdown when he attended Dr Leong in April 1999. The indicative symptoms of PTSD were now long past. It was not the case – upon the conclusions which I have reached – that the plaintiff then suffered symptoms of PTSD; and that, for one reason or another, he concealed them.

Finally, in the period 1989 to 1998 the plaintiff suffered relapsing depression. But there was no occasion, upon the conclusions which I have reached, for him to tell his doctor about symptoms of PTSD, which were now in the distant past.

In the event, even if knowledge, for the purposes of paragraph (a) of s.5(1A), was held to extend beyond actual knowledge, it would have taken the defendant nowhere in the circumstances of this case.

It follows from what I have said that the plaintiff’s compensable condition fitted the profile described in Wright. Section 5(1A) therefore applied. Regardless where the onus of proof lay, the plaintiff was not prevented from successfully relying upon that provision.

I should add two matters. First, if the outcome in Clark in the High Court was to return the law to the position stated in Herschberg and Anor v Mula[111] then, subject to something new being said about paragraphs (a) and (b), the plaintiff would remain able to successfully rely on s.5(1A). Second, if in Clark the High Court affirmed the meaning of s.5(1A) given it by the Court of Appeal, but said that such meaning was as I understood it in Wright,[112] then on the findings which I have thus far made, and bearing in mind evidence, which I accept, that the disorder now known as PTSD was medically recognised in the 1960s and 1970s, the plaintiff could not successfully rely upon s.5(1A).
[111](1993) Aust Torts Reports 81 – 256.
[112]That meaning did not turn on the question whether medical advice in a particular case was or was not available to a plaintiff.

Estoppel; Waiver

Because, in my opinion, the plaintiff’s case is not statute-barred, it is strictly unnecessary to consider the plaintiff’s reliance on the estoppel and waiver to which I referred earlier in these reasons. But I should say something about those matters.

The estoppel, as pleaded and particularized by paragraph 5(a)-(j) of the Second Further Amended Reply, is indistinguishable from the estoppel pleaded and particularized in Wright. In my reasons in that case, I considered the conceptual basis of the estoppel.[113] I concluded[114] that –

“…even if the plaintiff made out on the evidence, his case that by conduct and words the defendant induced him to make the assumptions which are alleged, and in reliance thereon he acted and abstained from acting to his detriment, nonetheless the defendant would not be estoppel from raising the s.5(1)(a) limitation defence”.

[113]At [375] – [398].

[114]At [398].

Save that “maintaining” might be substituted for “raising”, I adhere to that conclusion.

Concerning the pleaded waiver, which was not separately addressed, I do no more than refer to, and adopt, what I said in Wright at [486].

Notwithstanding what I have said about the conceptual basis of the estoppel, I add this: In my opinion the evidence did not make out the estoppel as it was pleaded and particularised.

As a preface to my conclusions about matters of fact, I refer to and adopt the observations which I made in Wright at [401] – [404].

Against that background, first, I am positively satisfied that neither the Captain of Melbourne nor any other person in authority said anything which could have been reasonably understood to contain a prohibition upon crewmen speaking to anyone about the collision. Even if the plaintiff had some contrary belief, and I do not accept that he did, it could not have been reasonably derived from what was said.

Second, I do not accept that the plaintiff did not speak to his family about the collision and its aftermath, or to any doctor about his symptoms in the period that he suffered from them, in consequence of any order that he should not do so. There was no such order, and the plaintiff’s conduct was otherwise explicable.

Third, I accept, as I did in Wright, that the Navy assumed something of a pastoral role in respect of its men as at 1964. Complementary to that role was the provision of naval doctors, and (on some ships) chaplains. The plaintiff was, speaking generally, entitled to assume that the defendant would treat him for injuries which he suffered, and which he reported. But it is a different question whether the defendant’s failure to assess the plaintiff’s mental health subsequent to the collision conveyed an unambiguous representation that he had not suffered injury in the collision. It is another question whether, if there was any such representation, it was conveyed with the intention that the plaintiff act – or not act – in reliance upon it; or that the plaintiff might reasonably have so understood the situation. It is yet another question whether the plaintiff assumed, in consequence, that he was a well man, and so acted – or did not act – to his disadvantage.

In my opinion, each of those questions should be answered unfavourably to the plaintiff. The following considerations are pertinent:

·There is a great difference between a representation that injury will be treated and representation by conduct that the possible presence of injury will be investigated.
·It is the fact that the Navy decided not to screen all survivors of Voyager for psychological sequelae of the collision. But the plaintiff did not know of that decision, and so it could not have affected his conduct. Moreover, it is speculative what he might reasonably have drawn from the decision had he known about it. Still further, I do not accept that the Minute which noted the decision[115] bespoke conduct of the Navy which was intended to cause the plaintiff to assume that he was psychologically well, and that he should act upon such assumption.
·It may be accepted that the plaintiff did not believe himself to be psychologically injured in the period during which he suffered from PTSD. In those circumstances there was no occasion for him to seek medical attention. But there was nothing to link that state of mind, and that conduct, with any conduct of the defendant.

[115]Part of exhibit L.

Fourth, there was no evidence that any statement made by the defendant, or any other conduct on its part, caused the plaintiff to assume that he could resort to the (mis)use of alcohol in order to forget the collision. The plaintiff himself gave no evidence of anything said in that connection; nor identified any other conduct.

Conclusion

There should be judgment for the plaintiff for $60,000.

------

[2006] VSC 105

24 March 2006