Peterson v Commonwealth of Australia

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6026 of 2000

LOUIS ALLAN PETERSON	Plaintiff
v
COMMONWEALTH OF AUSTRALIA	Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	1-4, 7-11, 14-18, 21-23 April 2008
DATE OF JUDGMENT:	21 May 2008
CASE MAY BE CITED AS:	Peterson v Commonwealth of Australia
MEDIUM NEUTRAL CITATION:	[2008] VSC 166

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TORT – Collision between HMAS Melbourne and HMAS Voyager in 1964 – Whether injuries sustained – Post Traumatic Stress Disorder – Use by experts of definition in DSM 4 – Limitation of actions – Limitation of Actions Act 1958 (Vic) s 5(1A).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C. Thomson and Mr M. O’Brien	Hollows Lawyers
For the Defendant	Mr M. Titshall QC and Mr A. Moulds	Australian Government Solicitor

TABLE OF CONTENTS

Background......................................................................................................................................... 3

The collision........................................................................................................................................ 5

Plaintiff’s history after accident...................................................................................................... 6

Evidence of plaintiff as to emotional condition........................................................................ 10

Cross-examination of plaintiff...................................................................................................... 19

Other evidence.................................................................................................................................. 26

The issues.......................................................................................................................................... 27

Assessment of plaintiff as witness............................................................................................... 30

The plaintiff’s supporting witnesses........................................................................................... 45

Shirley Peterson............................................................................................................................... 45

Kevin Peterson.................................................................................................................................. 53

Wendy Peterson................................................................................................................................ 55

Honor Gilshenon............................................................................................................................. 57

Stanley Riley..................................................................................................................................... 59

William Gurnett............................................................................................................................... 61

Sidney Wakeling.............................................................................................................................. 63

Bernard McCarthy............................................................................................................................ 65

Findings of fact................................................................................................................................. 67

Post traumatic stress disorder........................................................................................................ 78

Evidence of psychiatrists and psychologists.............................................................................. 87

Medical evidence............................................................................................................................. 91

Dr Lambeth........................................................................................................................................ 91

Professor Horne.............................................................................................................................. 102

Dr Wade........................................................................................................................................... 110

Dr Kent............................................................................................................................................. 113

Defendant experts: Professor Bryant......................................................................................... 115

Dr Champion.................................................................................................................................. 122

Conclusions as to PTSD................................................................................................................ 126

Alternative diagnosis.................................................................................................................... 137

Conclusion....................................................................................................................................... 139

HIS HONOUR:

In this proceeding the plaintiff claims damages for injuries arising out of the collision between the aircraft carrier, HMAS Melbourne, and the destroyer, HMAS Voyager, on the evening of 10 February 1964, approximately 20 miles south east of Jervis Bay (the “Voyager collision”). At the time of the collision, the plaintiff was a member of the Royal Australian Navy, and was stationed on the Melbourne as a leading steward. He did not observe the collision. He alleges that, as a result of observations he made of the aftermath of the collision, he suffered psychological injuries, and in particular post traumatic stress disorder.

The plaintiff’s claim is based on the allegation that the collision between the two ships was caused by negligence of officers and crew of the Voyager, and further or alternatively of officers and crew of the Melbourne, and other officers and servants of the Commonwealth. He further alleges that his injuries are a disorder within the meaning of s 5(1A) of the Limitation of Actions Act 1958, and that he first knew in 1995 that he had suffered those injuries and that they had been caused by, or resulted from, the collision.

In its defence, the defendant has admitted that the collision was caused by the negligence of officers of HMAS Voyager and of HMAS Melbourne. The defendant has pleaded that the plaintiff’s cause of action is statute barred pursuant to s 5(1)(a) of the Limitation of Actions Act. The defendant admits that post traumatic stress disorder is a disorder within the meaning of s 5(1A) of the Act, but denies that the plaintiff is suffering from post traumatic stress disorder or any other disease or disorder within the meaning of s 5(1A). The defendant also pleaded three further positive allegations, namely:

(a)If the plaintiff was injured as alleged, that injury was not caused or materially contributed to by the collision.
(b)If the plaintiff suffered secondary non‑psychiatric injuries as alleged, namely alcohol and cigarette addiction, those addictions were not caused, or materially contributed to, by the collision, and were too remote to be a proper basis for recovery of damages.
(c)If the plaintiff suffered the injury alleged, the plaintiff has failed to mitigate his loss. In particular, the plaintiff consumed excessive quantities of alcohol and tobacco, failed to take reasonable steps to seek advice, and failed to seek appropriate treatment when he knew or ought to have known that that treatment was required.

In the particulars of injuries in the amended statement of claim, the plaintiff claims to have suffered the following:

“Causing, aggravating, accelerating, exacerbating and/or resulting in the future deterioration of the following:
(a) post traumatic stress disorder;
(b)stress, anxiety, nervousness and psychological reaction resulting in alcohol and cigarette addiction;
(c)depression;
(d)development of acid reflux and indigestion;
(e)severe shock;
(f)anxiety disorder.”

The medical and psychological evidence called in support of the plaintiff’s claim focussed principally on the issue whether the plaintiff had suffered post traumatic stress disorder (“PTSD”). The plaintiff’s medical witnesses, and in particular the specialist psychologist and psychiatrist called on his behalf, each expressed the opinion that the plaintiff had suffered PTSD as a result of the collision. In response, the psychologist and the psychiatrist called on behalf of the defendant expressed the view that the plaintiff had not suffered PTSD as a consequence of the Voyager collision, or at all. Essentially, there are two primary issues in the case. They are interrelated. The first issue is whether the plaintiff presently suffers from, or has suffered from, PTSD. The second issue is whether the Voyager collision caused the plaintiff to suffer PTSD.

The opinions of the psychiatrists and psychologists, as to whether the plaintiff had suffered PTSD as a result of the Voyager collision, were based substantially, if not wholly, on the history and range of symptoms reported to them by the plaintiff. Accordingly, the determination of the principal issues in this case depends significantly on an assessment of the evidence of the plaintiff, and of the witnesses called on his behalf, as to his emotional and psychological condition, and as to his alcohol consumption, before and after the collision.

Background

The plaintiff was born on 14 July 1934. His parents separated when he was five years of age. The plaintiff and his younger brother Kevin were placed in an orphanage. His sisters were placed in another orphanage. The plaintiff remained in the orphanage, and then in a boys’ home, until he was 16 years of age. He attended school in the orphanage and in the boys’ home, and completed his education at Year 1 level at the age of 14.

After the plaintiff left the boys’ home, he worked for approximately two years in a number of jobs in an unskilled capacity. He then enlisted in the Royal Australian Navy on 6 March 1952 for a period of six years and three months (thus enlisting for a period of six years from his eighteenth birthday). After undergoing training at HMAS Cerberus (Flinders Naval Depot), the plaintiff undertook further training at HMAS Watson in underwater submarine detection. Thereafter he served on three different ships carrying out seaman duties in the underwater control section. During that period of enlistment the plaintiff was promoted from recruit to ordinary seaman and then to able seaman.

In 1958 the plaintiff left the navy in order to try civilian life. He worked with BHP as an iron worker in Newcastle for four months, and then as a plumber’s labourer on the dockyards for six to seven months. He said in evidence that he had set his sights on becoming a steward in the navy. During his first period of enlistment he had worked in the petty officers’ mess and the chief petty officers’ mess, and had observed the work which stewards performed. Accordingly, the plaintiff rejoined the navy, initially for a further period of six years, in June 1959. He was unable then to rejoin as a steward because of his previous rank rating. Having completed a re‑entry course at HMAS Cerberus, he was posted to HMAS Quiberon, which was an anti‑submarine frigate. The plaintiff had already made a request to transfer to the steward branch. After the Quiberon, the plaintiff was posted to HMAS Paluma, which was a survey ship. Whilst serving on that ship he was offered a transfer to the steward branch, which he accepted. He left the Paluma and went to HMAS Cerberus in 1961. There he undertook a training course for four or five months. During that time the plaintiff, on 2 May 1961, re‑engaged for seven years, as he was required to serve a period of nine years (from 1959) to qualify for the stewards’ branch. On completing his training the plaintiff was posted for a short time to HMAS Kuttabul, the land based naval headquarters in Sydney. Subsequently, in September 1961 the plaintiff was posted to HMAS Melbourne.

At that time the Melbourne was preparing for a trip to the Far East. However, while the ship was docked in Adelaide, the plaintiff suffered a fall, in which he sustained a fractured arm. He was unable to remain on the ship on its trip to the Far East. He underwent an operation in Fremantle, and then was posted to land bases, HMAS Leeuwin, and, subsequently, HMAS Nirimba. The plaintiff had a further operation on his injured arm in Sydney. Ultimately he was cleared to go to sea, and was posted to HMAS Melbourne on 7 January 1964.

In the meantime, the plaintiff had passed a number of examinations which were necessary for him to gain promotion. On 21 February 1961 he had passed Education Test 1. That examination was necessary to advance to leading hand and, subsequently, to chief petty officer. On 7 August 1962, the plaintiff passed four examinations which were necessary to advance to leading steward. On 20 February 1964, he passed the Atomic Biological Chemical Defence (“ABCD”) examination which was also a prerequisite to subsequent promotion to petty officer.

When the plaintiff was posted to HMAS Melbourne in January 1964, he was an acting leading hand in charge of the officers’ wardroom and the officers’ wardroom pantry.

The collision

At the time of the collision the Melbourne was undertaking naval exercises in co‑ordination with other ships, including HMAS Voyager. The defendant has admitted that the collision was caused by the negligence of officers of both the Melbourne and the Voyager. Accordingly, it is not necessary for me to describe in detail the circumstances in which the collision occurred. Shortly before the collision, the Voyager had been travelling ahead of the Melbourne. It was given an instruction to take up a position at the rear. It turned in front of the Melbourne, and thus came into collision with the bows of the Melbourne. As a consequence the Voyager was cut in half. After the collision the two sections of the Voyager sank, and 82 members of the Voyager perished.

The collision occurred at about 9.00 pm on 10 February 1964. The plaintiff was then playing cards in the stewards’ mess, which was on the fourth deck of the ship. He heard the page broadcast an order to close openings. As he was the leading hand, he gave orders for the stern and forward hatches to be closed. At the same time he felt a bump. The plaintiff ran to the admiral’s barge space on the third deck on the starboard side. There he could see directly into the ocean. He saw the stern section of a ship “stroking down” the side of the Melbourne. At first he did not know what he was seeing. He said that the light was quite clear, as it was a moonlit night. He saw smoke and sparks coming from the ship, and there was noise coming from it. That noise was like escaping steam. The section of the other ship which he saw was travelling very slowly. When he first saw it, it was about 100 feet or so forward of him. It was making so much noise that he could not hear any noise other than the steam escaping.

The plaintiff stated that when he observed the section of the other vessel alongside the Melbourne, he felt “sheer terror”. The other ship was close to the aviation gasoline tanks on HMAS Melbourne, and he was afraid that the gasoline might explode. Accordingly, he ran back down the stairs and across to the port side of the Melbourne. There he climbed out into the gun sponson, which was a protrusion out the side of the ship where the anti‑aircraft guns were normally positioned. The plaintiff said that he took up that position because, if there was an explosion, he hoped he would be blown into the sea without being killed.

While the plaintiff was in the gun sponson, he could see the bow section of the other vessel on the port side of the Melbourne, lit up with a searchlight from the Melbourne. Another rating climbed into the gun sponson with him and said, “That’s the Voyager that caught it.” At that time the Voyager seemed to disappear from view.

The plaintiff then left the gun sponson and made his way aft to the quarterdeck. He assisted in putting out a tow rope, and also assisted an officer to launch a life raft. An officer asked him to crew the life raft, but he declined, as he was not a good swimmer. The plaintiff then went to the starboard side of the Melbourne. Survivors were coming on board the Melbourne on a gangway which had been lowered. The plaintiff escorted a survivor who had an injured leg to the wardroom, which had been turned into an emergency surgery. He then assisted survivors of the Voyager in the showers, by wiping the oil off them. Having completed that task, he then went to his own mess deck, cleaned off and had a shower.

Plaintiff’s history after accident

I shall return to the plaintiff’s reactions to the collision, and to his emotional and psychological condition over the past 44 years, shortly. However, it is convenient first to detail, in summary form, the plaintiff’s employment and personal history during that period.

In the days after the collision, the Melbourne made its way back to Sydney for repairs. The plaintiff stated that on the second day after the collision there was a broadcast on the public address system, instructing all personnel not to talk to anyone in relation to the collision, including family members. I should note that that aspect of the plaintiff’s evidence was in dispute. The defendant has tendered evidence, to which I shall refer, to the effect that Captain Robertson made one broadcast describing the movements of the ship before the collision, and, later, made a second broadcast, requesting those who spoke to the media not to quote Captain Robertson’s account which he had given to the crew of the Melbourne.

In 1962 the plaintiff met his wife Shirley. Subsequently, in 1963 they moved into an apartment and lived together in Sydney. They married in July 1965. When HMAS Melbourne returned to Sydney for repairs after the collision, the plaintiff and Shirley were living together in a flat. The plaintiff remained posted to the Melbourne until 3 January 1966. After the ship was repaired it travelled to the Far East in the latter part of 1964. It made a further trip to the Far East in 1965. In the meantime, having completed one year as acting leading steward, the plaintiff’s promotion to leading steward was confirmed on 10 November 1964. In January 1965 he attended the petty officers’ school at HMAS Cerberus, which he passed. In his evidence he stated that a supply officer recommended that he undertake a special duties course, but the plaintiff, having given that suggestion consideration, declined to do so.

In January 1966 the plaintiff was posted to HMAS Harman, which is a land base in Canberra. The plaintiff was in charge of the wardroom staff, with 12 to 14 staff and three cooks under him. His duties were to look after the officers. In the meantime he had been promoted to acting petty officer in November 1965, and his position as petty officer was confirmed in November 1966.

In 1967 the plaintiff heard that he was due to be posted to another location. He was given three choices. He stated that he chose HMAS Perth, because he believed that it was going on a trip to the Bahamas. The plaintiff joined the Perth in mid June 1967. In fact, shortly after he joined it, the Perth sailed to Vietnam. There the Perth was stationed on the gun line off the coast of North Vietnam from September 1967 to April 1968. During that time the plaintiff was petty officer in charge of the wardroom and stewards. He had 14 or 15 stewards and two cooks under his command. His main duties were to look after the officers. He had supplementary duties when the ship was on action stations. Initially he was in missile control as communications, and his task was to record on a tape recorder information which came from planes to the ships. When that position became redundant, the plaintiff became communications number for the executive officer, which was a secondary position in the event that the bridge of the ship was taken out by enemy fire.

The plaintiff estimates that the Perth fired 15,000 shells at the coast of North Vietnam. On a number of occasions the ship came under fire. On one such occasion, in October 1967, the ship came under intense fire from batteries from North Vietnam, when it was close to the shore. During a five minute period some 500 rounds landed in the water near the ship, and one of them struck the ship. As a result eight crew members were injured.

HMAS Perth returned to Sydney in April 1968. The plaintiff was then posted to HMAS Kuttabul for the two month period before his discharge from the navy on 22 June 1968. He decided not to re‑enlist in the navy. At that time he and Shirley were living in a flat in Sydney. After the plaintiff left the navy, Shirley and he stayed with his brother Kevin Peterson, and Kevin’s wife Wendy, in Newcastle, until they found their own accommodation. The plaintiff obtained employment as a barman at Spears Point RSL. After a few months, he obtained employment at the Masonic Club in Newcastle as a catering manager for 14 or 15 months, until he was retrenched.

The plaintiff then worked at a hardware shop for a couple of months, and subsequently for Buckingham Home Shopping Service, selling clothes out of a car for a short time. He then worked as a salesman for FBI Food Supplies for a period of one year. After leaving that employment, he worked as an iron worker for five or six months on the dockyards in Sydney, until about 1973. During that time he had also commenced employment as a casual barman at the Sulphide Welfare Club.

Subsequently, the plaintiff ceased working at the dockyard, and commenced permanent employment as a barman at the Sulphide Club. He remained in the employment of that club until 1990. About two years after he became permanent barman, he was promoted to head steward. That role involved extra duties, including making out rosters and ordering alcohol. A couple of years later the plaintiff was promoted again to sub‑assistant manager. In 1979, he unsuccessfully applied for the position of assistant secretary manager. Subsequently, in 1981 the assistant secretary manager resigned, and, at the request of the president, the plaintiff became assistant secretary manager. On Christmas Eve 1989, the plaintiff fell from on a ladder while he was putting up decorations for the club’s New Year’s Eve celebration. As a result he sustained serious fractures to both his feet.

The plaintiff then underwent a lengthy course of rehabilitation. He was confined to a wheelchair for three months, and subsequently was on crutches and, later, on walking sticks. He required further surgery consisting of bone grafts to both ankles in 1990. Attempts were made to find him lighter duties at the club, but they were not successful. Finally, the plaintiff was stood down in 1991 as medically unfit. He has not been in employment since that time. However, in 1993 he successfully stood as a candidate for election to the board of the Sulphide Welfare Club. In 1998 the club was renamed The Club Macquarie. In 2000 the plaintiff was elected junior vice president of the club, and in 2006 he was elevated to senior vice president of the club.

The plaintiff and his wife Shirley have two children. Their daughter Michelle was born in 1971, and their son Dean was born in 1973. Dean was born with Down’s Syndrome and has spent his life in institutions. He is now in a home. Michelle is married. She has one stepchild, and two daughters. The plaintiff and his wife live in their own home in Argenton, which is a suburb of Newcastle.

The plaintiff has suffered from a number of health problems, particularly over the last decade or so. In the late 1990s he was diagnosed with bowel cancer. He underwent an operation, and a large section of his lower bowel was removed. As a result he has had to use a colostomy bag. After the operation the plaintiff underwent 24 sessions of radiotherapy, and then six months of chemotherapy. He has had regular checkups, and there have been no signs of any recurrence of the cancer. The plaintiff also has type 2 diabetes, high blood pressure, and high cholesterol. He has also suffered a minor stroke, but he did not sustain any permanent damage as a result. In addition, the plaintiff has a longstanding alcohol problem. In 2002 he undertook a detoxification course in Wallsend Hospital. As a result he was able to substantially reduce his consumption of alcohol.

With that short history in mind, I turn to the plaintiff’s evidence as to the effects of the collision on him, and as to his emotional and psychological state over the last four decades.

Evidence of plaintiff as to emotional condition

The plaintiff stated that before the collision he had enjoyed his career in the navy. He and Shirley had a very good relationship. They would regularly go out dancing or to the movies. They were both keen dancers. The plaintiff described himself as a moderate drinker, and they would go to hotels for entertainment and dancing.

As I have already stated, immediately after the collision, when the plaintiff went to the admiral’s barge space, he saw the stern section of the Voyager scraping alongside the Melbourne. The plaintiff stated that he felt intense fear, as he thought it was likely that an explosion was imminent. He felt choked up, almost as if he was having a heart attack. When he was in the gun sponson, he calmed down a little, but was still highly emotional. Having made his way to the stern section of the Melbourne, he again observed the stern section of the Voyager. He could see three people running around on board. Two jumped over the side and a third climbed down the side of the vessel. When the plaintiff went to the accommodation ladder to assist survivors to come up the ladder, he noticed that there was difficulty because of the large swell. He saw survivors of the Voyager in the Melbourne cutter, which was then alongside the Melbourne.

After the plaintiff had assisted in showering off survivors and had a shower himself, he sat around with other crew members. There was a general feeling of dismay. Everyone was asking how it had happened. Later the plaintiff lay on his bunk, but he did not get much sleep. He kept awaking with a start, with visions of the stern of the Voyager scraping down the side of the Melbourne. He said he was in a heightened state of nervousness and was a bit jittery. In the following few days, as the Melbourne travelled back to land for repairs, there was still a general feeling of shock and disbelief. Subsequently, after the ship had docked in Sydney, the plaintiff learned that two of his friends (“Tubby” Smyth and Kelly Harclar), who were on the Voyager, had been killed. Mr Smyth had drowned while helping others to escape from the hull of the Voyager. The plaintiff said that he had served on ships with both of them. After the ship returned to Sydney, the plaintiff stated that he became agitated and jumpy, and commenced to drink heavily. He said that he would go ashore to the hotel and stay there until it closed. In the morning, when he went shopping for supplies for the ship, he would visit a hotel and have a few beers before going back on board.

The plaintiff described how at that time he became jumpy and had the “heebie‑jeebies”. From the night of the collision he would wake with a start, feeling uptight. Shortly after arriving in Sydney, he commenced to have attacks of shivers and shakes. The first such episode was three or four days after the return to Sydney. The plaintiff was in his flat in Ashfield. It was a warm day, but he felt shivers and shakes. He got into bed, and put four or five blankets on him. Later, Shirley returned home from work and found him in that state. The attack lasted all night. However, the next morning he returned to the ship, although he felt drained.

The plaintiff also described how, in that period, he took to drinking excessive amounts of alcohol in order to calm his nerves. He would continue to wake with a start, with a vision of the stern section of the Voyager scraping down the side of the Melbourne. Having awoken, he had difficulty getting back to sleep. Initially he awoke a couple of times each week with those visions. However, over time they reduced in frequency to about once a week or once a fortnight. By the end of 1964, he was waking with a start about once per fortnight. He said that he continues to wake with a start, although that happens less frequently. At least by 1968, he had ceased to have nightmares, although he continues to have disturbed sleep.[1]
[1]T161, 249-50.

The plaintiff continued to drink alcohol to calm himself down and to assist in getting to sleep. He said that at that time (1964) his wife was taking Serepax tablets for a nervous condition. From time to time the plaintiff took them himself to assist with his nerves. He continued to take Serepax on odd occasions, until he was posted to HMAS Harman in 1966.

During 1964, a Royal Commission was held into the collision between the Melbourne and the Voyager. The plaintiff read every newspaper article about it. On one occasion when he and his shipmates, while wearing the ship insignia, travelled by ferry from Circular Quay to Cockatoo Island, dockyard personnel said, “Stand back and let the killers on first”. The plaintiff said that he felt that he should defend his ship, arguing that it did not run over the Voyager, but he considered that it was better not to say anything. The plaintiff said that he was frustrated at the newspaper publicity, because he and his fellow crew members believed that the truth was not getting out, and that the captain of the Melbourne, Captain Robertson, was being given unfair treatment by the media.

The plaintiff stated that after the Melbourne was repaired, and it went to sea, he sometimes felt a bit claustrophobic, and he would take his stretcher onto the upper deck and sleep there. He did this particularly in the warmer weather. He said that since then he has had some minor claustrophobia problems. This occurs particularly when he goes shopping, because he does not like being in a noisy crowd in shopping centres.

The plaintiff also stated that after the collision he became irritable and short tempered with his staff. Before the collision he considered that people looked up to him as a good leading hand, who treated his stewards fairly. However, as the drinking took effect, he became impatient and less tolerant with them, and was quick to find fault with his staff.

The plaintiff also gave evidence that, when he undertook the petty officers’ course at HMAS Cerberus in January 1965, a supply officer recommended that he attempt examinations for special duties, because he felt that the plaintiff had the attributes to become an officer. To undertake those duties the plaintiff needed further educational qualifications, which he felt he did not have. He sat a test examination and, although he failed, performed quite well (40%). He said that ultimately he did not wish to pursue the special duties course, because he was still very nervous. He was still using alcohol and did not feel sufficiently confident to try to achieve any higher rating.

Subsequently, the plaintiff was promoted to acting petty officer in November 1965. That position was confirmed in November 1966. He said that he did not consider seeking further promotion to chief petty officer, because he had lost confidence to take the course which was necessary to attain that rank.

The plaintiff stated that while he was on HMAS Perth, on duty off Vietnam, he still had the “heebie‑jeebies” and sweats, and still consumed alcohol on a daily basis. He would wake up with a start every so often. He was drinking six to eight cans of beer per day. The firing of shells did not have much effect on him. On the occasion when his ship was struck by a shell, he was 50 feet from the explosion. Eight people were injured. The plaintiff did not have any role in the aftermath of that explosion. However, a friend of his was injured. He helped carry the friend to the Ikara decking, so he could be transferred by jackstay to the United States vessel which was alongside.

In about January 1968, HMAS Perth put in to Hong Kong for rest and recreation leave for the crew. One evening, the plaintiff had a severe attack of the shakes and sweating. The ship doctor was not on board, so the plaintiff went to a naval base hospital. There was no doctor at that hospital. The plaintiff remained there overnight and was given a tablet. On his return to the ship he was relieved of most of his action station duties.

The plaintiff stated that when he returned to Australia, he had lost confidence to do any further advancement, and so he decided to leave the navy. He was still drinking heavily, and suffering from the sweats and the shakes. He continued to have disturbed sleep. Before the collision, he had been a “light” smoker, and he would smoke one packet a day. However, after the collision, as he began to drink heavily, he also began to smoke more. His consumption of cigarettes increased to about 80 per day. However, in 1985, on the advice of doctors he gave it up, as he was told he would kill himself by continuing to smoke at that rate. He went “cold turkey” and immediately ceased smoking.

After the plaintiff left the navy, he and Shirley lived in Newcastle with his brother Kevin and Kevin’s wife Wendy. Hitherto, the plaintiff had got on very well with Kevin. However, they had some disagreements while they were living together. He coped with his duties as barman at Spears Point RSL and as catering manager in the Masonic Club, although in the latter capacity he had difficulty getting on with some of the staff, because of his irritability and intolerance of them.

The plaintiff stated that he felt ill‑suited to be a salesman when he worked in that capacity with FBI Food Supplies. He was short with the customers and intolerant of them.

In 1968 the plaintiff first sought advice from a doctor about his problems. He consulted Dr Fraser of the Boolaroo Warner Bay Surgery, in relation to his jumpiness, nerves, tension and sweating. The plaintiff was sent to the Wallsend Hospital to have tests for malaria, which proved negative. He was prescribed one packet of Valium, but Dr Fraser did not give him any diagnosis. Subsequently, in 1970 the plaintiff had an attack of the shakes, shivers and sweating. As a result, his doctor, Dr Pawsey, attended him at home and prescribed further tests for malaria. Again, those tests proved negative. Dr Pawsey prescribed a packet of tablets which the plaintiff took for 12 months. Subsequently, in the 1970s the plaintiff consulted Dr Sim of the Boolaroo Clinic, but he was not given any advice or medication. In 1985 he consulted Dr Zedkowsky at the Boolaroo Surgery, because he had a gross hangover from the excessive consumption of alcohol and cigarettes. As a result he ceased smoking, but he did not seek any other medical advice.

The plaintiff described how, during the course of his employment with the Sulphide Club, he tended to be impatient and difficult with his staff members. He was still suffering from nerves and shakes, and used alcohol to calm them. He was short with his staff, so that if things were not done the way he wanted them, he would let the staff know “in no uncertain terms”. The plaintiff was mainly working night shifts. When he ceased work at about 1.00 am, he and other members of the staff would remain drinking. Sometimes they would go home at 2.00 am or 3.00 am, and on other occasions he would drink through the night until 6.00 am. The plaintiff had no difficulty getting to sleep because of the quantity of alcohol he consumed, but he continued to suffer from disturbed sleep.

The plaintiff stated that after he became head steward at the club there were occasions on which, in the course of a tantrum, he would throw a chair across the dance floor at someone. He had difficulties with a number of members of the board of directors, because he did not feel that they were performing the duties which were required of them. On one occasion, he had a severe disagreement with a senior vice president, which degenerated into a physical confrontation.

When the plaintiff ceased work at the Macquarie Club because of his ankle injuries, he received a package, and also received workers’ compensation payments for six months. Thereafter, he was on unemployment benefits. At the age of 60 he became entitled to a returned serviceman’s pension from the Department of Veterans’ Affairs.

In 1995, the plaintiff was travelling to Sydney on a train in order to attend a march for Vietnam veterans. He fell into conversation with Mr Tom Case, who was a member of the Vietnam Veterans Association, and a veterans’ advocate in the employment of the Department of Veterans’ Affairs. At Mr Case’s suggestion, the plaintiff visited him at work. Mr Case showed the plaintiff a post traumatic stress disorder checklist. With the assistance of Mr Case, the plaintiff filled in and signed an application to the Department of Veterans’ Affairs for a disability pension. Most of the handwriting on the form is that of Mr Case. I shall refer further to that application in due course. However, the relevant feature of it is that the plaintiff, in that form, claimed to have suffered PTSD as a result of his experience in the Vietnam War, which had caused him to increase his consumption of alcohol and cigarettes. Following his attendance with Mr Case, he was referred to Dr James Nichols. Dr Nichols provided a report to the plaintiff’s general practitioner, Dr Sim. That report was tendered in evidence with the consent of both sides. Initially, the Department of Veterans’ Affairs (“DVA”) only allowed the plaintiff’s claim for hearing loss. The plaintiff successfully appealed. His claim for disability caused by PTSD arising from the Vietnam War was accepted, and he received a disability pension. He stated that at that time he did not draw any connection between his condition of PTSD and the Voyager collision.

Subsequently, in 2000, the plaintiff, at the suggestion of another former member of the steward branch of the navy, attended a conference with Mr David Forster, who is his solicitor in the proceedings. The plaintiff explained to Mr Forster what had happened. Mr Forster suggested that the plaintiff’s PTSD may have been triggered by his service on the Melbourne, and aggravated by his service in Vietnam. At his recommendation the plaintiff, in December 2000, saw Professor David Horne, a psychologist, who gave the plaintiff some information about PTSD. The plaintiff was referred to a psychiatrist, Dr Leonard Lambeth, whom he saw on 23 February 2001. Dr Lambeth offered to treat the plaintiff, but he declined.

In about 2002, the plaintiff consulted Dr Kent, his general practitioner. She arranged for him to undergo a five day detoxification course at the Wallsend Hospital in Newcastle. After completing that course, the plaintiff initially abstained from drinking any alcohol, and subsequently he was able to return to drinking in what he describes as a social manner. He says that he attends the Club Macquarie about once a week or once a fortnight, and when he does so he drinks eight to ten schooners of beer. However, he no longer needs to drink alcohol on a daily basis.

In 2004, the plaintiff commenced a course of psychiatric treatment with Dr Lambeth. According to Dr Lambeth’s treatment notes, the plaintiff consulted him on eleven occasions between 28 June 2004 and 9 May 2006. Dr Lambeth prescribed Lexapro, which is an antidepressant, by way of medication. After Dr Lambeth ceased to practise in Newcastle, the plaintiff commenced to see Dr Wade, who is a psychiatrist in Newcastle. He still sees Dr Wade every three months. He takes numerous medications, including 20mg of Avopro for depression, and 5mg of Diazepam for irritability.

In his evidence the plaintiff described a number of symptoms of the condition, which he ascribes to the consequences of being a witness to the aftermath of the Voyager collision. I have already referred to some of the plaintiff’s evidence as to having episodes of shakes and sweats, waking with visions of the Voyager scraping alongside the Melbourne, disturbed sleep, irritability, claustrophobia and excessive alcohol consumption. The plaintiff described how, shortly before his discharge from the navy in 1968, and while he was stationed at HMAS Kuttabul, he continued to have irregular episodes of shakes and sweating. Those episodes continued while he was working at the Sulphide Club, and he used alcohol to calm his condition. The condition persisted during the late 1990s and he continued to be nervous, uptight and irritable. The medication prescribed by Dr Lambeth has dispelled his feelings of “heebie‑jeebies”.

The plaintiff still suffers from disturbed sleep. He has trouble falling asleep, and he also awakes during the night. He told me that, in total, he would get about six hours sleep a night. He also sleeps during the day. He said that he would lie down, and read and doze off. Generally he would spend most of the afternoon in bed. As I have stated, although the plaintiff, in the first few years after the collision, was awakened by visions of the stern of the Voyager scraping down the side of the Melbourne, he has not suffered from those visions at least since 1968. Specifically, in his evidence he denied currently suffering from any nightmares or any specific dreams of the collision. On the other hand, the plaintiff stated that, if he sees a petrol tanker on the road, he is reminded of the aviation gasoline tanks and the fear that they might explode. When he has that reminder, he gets “just a little bit uptight, not too much, just a little bit woozy in the belly” and then he puts it behind him.[2] At another point in his evidence, the plaintiff stated that, when he has that reminder of the aviation gasoline tanks, he gets a “pitch” in the belly, and he tries to discard it, but it leaves him with a reminder of the collision, “just a feeling in the pit of the stomach.”[3]
[2]T162.
[3]T247.

The plaintiff stated that he does startle very easily if he hears a loud noise. He used not to be easily startled, but since the collision he has been very nervous on hearing loud noises in his vicinity. He specifically denied that, as a consequence of his experiences on the night of the collision, he has any particular concerns about the open water. When asked whether he had any such concerns he said, “No I don’t have any particular concern. I just don’t go there that’s all.”[4] He has a small tin boat which he has used in the shallow waters of Lake Macquarie for fishing. The plaintiff also stated that when he joined the navy he had a feeling that he would have an early death at the age of 45. He said he thinks this was because of the experiences of a number of sailors who had died or had been killed in the course of his duties. He had been told that he had a 250 to one prospect of not coming back if he went overseas, and he thought that with his luck he would “cop it”. The plaintiff also stated that he did not recall discussing the collision with anyone for some time after it occurred. He said he did not want to go into it, as he was still in a state of nervousness and tension.
[4]T166.

I have already summarised the evidence as to the plaintiff’s difficulties in dealing with other employees and members of staff, while he remained in the navy, and while he was at the Sulphide Club. The plaintiff also stated that he has been particularly irritable with, and hard on, his wife Shirley. He has tended to ignore her, and to be short with her. Before the collision Shirley and he were keen dancers, and they would regularly go dancing at the local hotel and the clubs. They also went indoor bowling and on picnics with friends. After the collision he has not been interested in any of those activities, but would prefer to drink when they go out. His relationship with his wife has been badly affected, so much so that in the early 1990s Shirley moved into a separate bedroom. That situation has continued since that time.

Cross-examination of plaintiff

It is convenient to summarise, at this stage, the cross-examination of the plaintiff, since a number of the central factual issues were exposed in the course of it.

The plaintiff was cross-examined about his early life, particularly in the orphanage and in the boys’ homes. He agreed that his lifestyle during that time was quite regimented and structured. He also agreed that his structured lifestyle continued when he went into the navy, and as he was promoted through the ranks during his two periods of enlistment in the navy.

The plaintiff was cross-examined on only one aspect of the collision, namely, that when he saw the stern of the Voyager scraping the starboard side of the Melbourne, he was fearful of an explosion, because he knew that the stern of the Voyager was near the aviation gasoline (“avgas”) tanks. It was put to the plaintiff that the avgas tanks were, in fact, further aft. He nevertheless maintained that, at the time of the collision, he believed that the avgas tanks were in the area where he observed the stern of the Voyager. The plaintiff was also cross-examined about the extent of his friendship with “Tubby” Smyth and Kelly Harclar, who, the plaintiff subsequently learned, had both drowned when trapped in the bow section of the Voyager. The plaintiff knew little about the personal life of either of those two men. He did not attend their funerals. Nor did he know where they lived.

A central focus of the cross-examination, and of the case put on behalf of the defendant, related to the plaintiff’s experiences on HMAS Perth in the Vietnam War. In cross-examination, the plaintiff stated that the Perth was positioned off the North Vietnam coast for six months. During that period the Perth fired 15,000 rounds at the North Vietnamese mainland, and regularly shells were fired at the Perth, which landed close to the ship. The Perth had aluminium top sides. If a shell came from overhead, it could penetrate the aluminium. The plaintiff agreed that that was a very frightening experience. The Perth had powerful five inch guns with a range of up to 14 miles. There was a powerful explosion each time the guns fired. When shells fired from Vietnam fell in the water near the Perth, the plaintiff could feel the percussion against the side of the ship.

On the occasion on which the Perth was hit by a shell, the plaintiff had been in the petty officers’ mess deck. Shortly before the Perth was struck he was moving up a gangway in the direction of the wardroom with his friend, Petty Officer Watson. Watson went one way, and the plaintiff went the other way. The plaintiff was 50 feet from where the shell struck the Perth. He was on the same deck. He could feel the explosion and there was a loud noise. Eight men were injured as a result of the explosion. Petty Officer Watson was close to where the shell exploded, and was injured. The plaintiff assisted to transfer Watson off the ship. The shrapnel wounds to Petty Officer Watson’s face looked like holes in his face. The plaintiff agreed that that experience was the closest he had ever come to death. He felt fear, but not absolute fear. He carried on up to the wardroom as he did not have an action station, and took cover below the aluminium deck. At that time some 500 shells were fired from the North Vietnam coast at the ship in a five minute period. After the Perth was struck, it carried out evasion tactics and escaped out to sea.

It was suggested to the plaintiff in cross-examination that, after he returned to Australia in April 1968, he determined not to re-enlist, because he knew that he might otherwise face another tour of duty in the Vietnam War. He agreed that at that time Australia was heavily involved in that conflict. He was aware that if he re-enlisted in 1968, it was probable that he would go back to Vietnam. He stated that if he had re-enlisted, and if his ship was sent back to Vietnam, he would be given the choice whether he would remain on the ship. However, if his ship had been re-posted to Vietnam, he would not have applied to be excused from service. He denied that the prospect of another tour of duty to Vietnam played any part in his decision not to re-enlist. He said he did not think about it. He agreed that in 1968 he considered that his life was messed up as a result of his experiences in Vietnam.

An important part of the case concerns the plaintiff’s application to the Department of Veterans’ Affairs for a disability pension arising out of his experiences in the Vietnam War. As I have stated, the plaintiff, in evidence in chief, described how he came to make the application, after meeting Mr Tom Case in Sydney in 1995. The cross-examination focussed on four parts of the application form. I shall return, in greater detail, to that cross-examination. However, it is useful to focus on those four parts at this stage. The first relevant section of the application was the plaintiff’s response to question 16, which asked the plaintiff to provide details of any “accidents, injuries or illnesses you suffered during service which relate to this claim”. In response, the following was written:

“PTSD
I have lost confidence – my life is messed up my marriage is shaky – my drinking problem has gotten worse – become enraged at the smallest thing – my emotions are all confused – horified (sic) at see (sic) mates wounded never knowing when we would be attacked or fired upon. I was made to feel guilty by people and the media on return to Australia. I have had suicidal thoughts.”

It is unclear from the plaintiff’s evidence whether he said that he wrote those words. Mr Case, when called to give evidence, stated that the answer to question 16 was not in his handwriting, but was written by the plaintiff. In cross-examination, the plaintiff agreed that what was written, in answer to question 16, was “basically” what he had told Mr Case. The plaintiff claimed, in cross-examination, that the answer contained “exaggerations”.

The next section of the application form was in answer to question 17, which requested the applicant to list “the disabilities you are now claiming”. The form stated:

“Briefly explain how the conditions of your service caused, contributed to or aggravated them. Indicate when you first became aware of each disability. Have your doctor fill in the medical practitioner column next to this one.”

In response, the plaintiff gave details of four disabilities. The first, “disability one”, was described as – “PTSD and drinking problems”. Alongside the question “How did service cause this disability?”, he provided the answer “Seeing mates injured and maimed, fired at by enemy, never knowing when we were going to be attacked”. In response to the question “When did you first become aware of the disability?” was written the date “1967”.

When questioned about the answer to question 17, the plaintiff stated that Mr Case had filled that section in. The plaintiff said that at that time he was unaware what PTSD was. He agreed that in the answer to question 17 he had attributed his injuries to the war in Vietnam, and had stated that he had sustained them in 1967.

The DVA application also contained a questionnaire concerning the consumption of alcohol by the applicant (hereinafter referred to as “the alcohol questionnaire”). The plaintiff, in answering that questionnaire, stated that he first began to consume alcohol on a regular basis when he joined the navy (question one), and that this had been caused by the “stress of training, to be part of team to relax at end of duties” (question two). He stated that, on average, he had consumed “six to eight middies per day, two nips of spirits” (question five). Question six, which was the focus of cross-examination, asked “have there been any periods when your alcohol consumption changed significantly?” The plaintiff ticked the box marked “Yes”. In response to the instruction to give details (“the period of the change, the amount of the change and the reason for the change”) were written the words:

“Increased to heavy drinking in Vietnam when not on gun line and especially after we were hit by VC fire, increased to ten to twelve cans per day plus spirits.”

In cross-examination, the plaintiff stated that Mr Case filled in the alcohol questionnaire. He accepted that the answer written in response to question six was “basically correct”. He agreed that he did not say in the form that his drinking had increased after the Melbourne/Voyager collision, but that it had increased after his experiences in Vietnam. He agreed that the information contained in the alcohol questionnaire was “basically the truth”. He agreed that the increase in drinking from six to eight middies per day to ten to twelve cans per day was due to those experiences.

The fourth part of the DVA application, which was focussed on in cross‑examination, was a “smoking questionnaire”. In answer to that questionnaire, the plaintiff stated that he had started smoking in 1952 (question three) because of “stress of training, was expected to when offered to me” (question two). When asked (question five) whether the smoking habit changed during the service, he answered “Yes”, and stated that it had increased in 1967 “from 20 per day to 40 plus per day”. As part of the same question he was asked “What was the reason for the change?” and he responded:

“Stress of operations in Vietnamese waters, to help relieve stress on long watches.”

The plaintiff stated that in giving that answer he had been directed by Mr Case what to put down. However, he accepted that the answer to question five was correct. He accepted that his smoking had increased because of his experience in the Vietnam War. He said that he did not state on the form that his smoking increased because of the Voyager incident, because the DVA application was an application for a pension arising out of his service in Vietnam. However, he agreed, again, that it was correct to say that his increase in his smoking habit was due to the stress of operations in Vietnamese waters.

The plaintiff was also cross-examined about his evidence as to suffering episodes of the shakes, shivers and sweats. He said that those episodes had occurred when he was on board the ship, but they were not visible when he was on duty. He said that in the early stages, shortly after the collision, he suffered from shakes and sweats on a couple of occasions each week. Sometimes they occurred when he was on board and sometimes when he was onshore. He stated that his condition would have been visible if he was under observation.[5] He said that they lessened in severity and frequency over a period of time, and that he last had shakes, to any significant degree, before he commenced medication from Dr Lambeth. He said that he still has shakes irregularly.
[5]T 278.

In relation to the episode of the shakes when the Perth had docked in Hong Kong on recreation leave, he said that when he returned to the ship after visiting the hospital onshore, the executive officer was standing with the ship’s doctor. However, the plaintiff did not speak to the doctor on his return to the ship. He agreed that his naval records contain no reference to anything relating to emotional instability, shakes, sweats or any other such phenomenon. He agreed that, during his time in the navy, he had visited the doctor on a number of occasions relating to various complaints, but none of them related to shakes and sweats. The plaintiff was then cross-examined, in this connection, about an extract of a statement made by him to his solicitor, which was quoted in a letter from the plaintiff’s solicitors to Dr Wade dated 19 March 2008 (Exhibit 6). In that statement the plaintiff described his experience when the HMAS Perth had been hit by gunfire from the North Vietnam shore battery in the Gulf of Tonkin. He stated how he had been admitted to Hong Kong Hospital “as the stress of operational duties resulted in me having a nervous attack and spending a night in hospital under observation”. The plaintiff agreed that he had told his solicitors that he had been admitted to the Hong Kong Hospital, as the stress of operational duties resulted in him having a nervous attack. He agreed, therefore, that in his statement to his solicitors he had said that the attack of the shakes in Hong Kong was the result of his Vietnam service. He agreed that that statement was inconsistent with his evidence in this case, namely that his panic attack in Hong Kong was the result of his psychological reaction to the Voyager collision.

The plaintiff was also cross-examined about his career in the navy, and his employment after leaving the navy. He agreed that he progressed in the navy from acting leading steward to leading steward, and subsequently to acting petty officer, and finally to petty officer, in the expected time. He also agreed that when he was discharged from the navy in June 1968 he had not served sufficient time as a petty officer to qualify for promotion to the rank of chief petty officer. The plaintiff agreed that after the Melbourne was repaired in 1964, it made a trip to the Far East, and that he did not come under notice of anyone that he was suffering any problems at sea. He stated that he did not have any problems being at sea when he was on that trip, nor when he was posted to the Perth and it travelled to Vietnam. He agreed that he had not had any training for the two jobs which he attempted as a salesman before he gained permanent employment with the Sulphide Club, and that he was never suited to being a salesman. He stated that in the last five years of his employment with the Sulphide Club there were 1800 members. When he ran functions at the club it was quite busy and crowded. He used to attend the functions. Before he injured his feet on New Year’s Eve 1988, he enjoyed his work at the club. He tried hard to become rehabilitated, but was unable to return to his former employment, because of the ongoing problems with his feet.

The plaintiff agreed that he had joined the naval reserve after he left the navy. However, that did not involve any further training or service. He also became a member of the Spears Point Reserve Serviceman’s League and of the New South Wales branch of the Vietnam Veteran’s Association. He has regularly participated in the annual Anzac Day march in Newcastle and also in the Vietnam Veteran’s Day march. At the Macquarie Club he had met a person called Trevor, who was the husband of a fellow employee. He agreed that he had been happy to talk to Trevor about the Voyager collision. He also had spoken to another employee (Tom Shinfield) about the collision, but otherwise he spoke to very few people about it. He had kept a folder containing copies of photographs of the ships on which he had served, together with other details relating to them, including the Melbourne. He gets on well with his two young granddaughters (aged 12 and 9), and he has a good loving relationship with his daughter. The plaintiff also agreed that he had enjoyed fishing in his small boat on Lake Macquarie, but in recent years he had not done so because of alterations to the environment of the lake. He also agreed that he had had a number of tough times in his life, including being raised in an orphanage, his experience in Vietnam, his son being born with Down’s Syndrome, and his health problems, particularly his injury to his feet, and his serious bout of bowel cancer. He agreed that he had reacted to those difficulties with some sadness, depression and anxiety.

Other evidence

The plaintiff called a number of witnesses as to his nature and temperament both before and after the Melbourne/Voyager collision. He called four members of his family, namely his wife Shirley Peterson, his brother Kevin Peterson, Kevin’s wife Wendy, and the plaintiff’s sister Mrs Honor Gilshenon. The plaintiff also called three former members of the navy who had served with him, Stanley Riley, William Gurnett and Sidney Wakeling. The plaintiff’s medical witnesses were his former psychiatrist Dr Leonard Lambeth, his present psychiatrist Dr William Wade, Professor Horne (the psychologist to whom he was referred by his solicitor in December 2000), and his present general practitioner, Dr Sharon Kent. In addition, Mr Case gave evidence concerning the circumstances in which the plaintiff signed the application to the Department of Veterans’ Affairs for a war disability pension. Mr James Bate, who had been an acting sub-lieutenant on board the HMAS Melbourne, gave evidence relating to the instruction given by Captain Robertson to crew members as to discussion of the collision with those who were not members of the crew. The plaintiff called Mr Robert Mummery, a commander in the naval reserve, to give his opinion as to how the plaintiff might have progressed in the navy had he not been involved in the Melbourne/Voyager collision. Finally, the plaintiff called an actuary, Mr Hugh Sarjeant, in support of his claim for economic loss.

In response, the defendant called two medico-legal witnesses, Professor Richard Bryant, a psychologist, who examined the plaintiff on 16 October 2000, and Dr Champion, a psychiatrist, who examined the plaintiff on 10 July 2003. The defendant also called Mr George Halley, who was a lieutenant commander on the Melbourne, as to the location of the avgas tanks, and also as to the instruction given by Captain Robertson to members of the crew as to the circumstances of the collision. The defendant tendered, with the consent of the plaintiff, a statement from Lieutenant Robert Smith, in relation to the issues in respect of which Mr Mummery gave evidence, namely, the plaintiff’s prospects of promotion in the navy, if he had re-enlisted for a further period of service in 1968.

The issues

The principal issues in the trial are readily apparent from the summary which I have given of the plaintiff’s evidence and his cross-examination. In essence, the plaintiff’s case is that, shortly after the collision, he suffered from a number of emotional disturbances including nervousness, irritability, insomnia, nightmares and episodes of shaking and the sweats. As a consequence he commenced to use alcohol in large quantities to cope with his nerves. The plaintiff’s case is that those symptoms manifested themselves, and that he commenced to abuse alcohol, shortly after the collision, and before he went to Vietnam. Thus his symptoms, and his abuse of alcohol, may be attributed to his experiences in the immediate aftermath of the Voyager collision, and not to his experiences in the Vietnam War. It is put on behalf of the plaintiff that the various emotional symptoms experienced by him as a consequence of the Voyager collision were and are symptoms of a post traumatic stress disorder.

As I have earlier stated, the plaintiff pleads six psychological conditions in the amended statement of claim. The case for the plaintiff has been put principally, if not solely, on the basis that he sustained PTSD as a consequence of the Voyager collision. In final address, Mr C Thomson, who appeared with Mr M O’Brien for the plaintiff, submitted that on the evidence it was also open for me to conclude that, as a consequence of the collision, the plaintiff developed an alcohol abuse disorder. He accepted that there was no evidence which would sustain a finding of any of the other disorders pleaded in the amended statement of claim.

The circumstances of the collision, and the plaintiff’s evidence as to his observations shortly after the collision, were not in dispute, save for two matters, which I can deal with shortly. The first issue related to the position of the avgas tanks on the Melbourne at the time of the collision. The defendant called Mr George Halley, who, at the time of the collision, was on the Melbourne as a lieutenant commander. Mr Halley stated that the avgas tanks were not in the position identified by the plaintiff in his evidence, but, rather, were further aft. However, no serious challenge was made to the evidence of the plaintiff that, nonetheless, he believed that, at the time of the collision, the avgas tanks were near the point at which he observed the stern of the Voyager alongside the starboard side of the Melbourne. I accept that the plaintiff did believe that the avgas tanks were in that position. I also accept the plaintiff’s evidence as to his actions and observations shortly after the collision occurred.

The second matter, relating to the collision, which was in dispute, concerned the contents of the instruction given by the captain of the Melbourne, Captain Robertson, to the ship’s company, while the ship was steaming back to Sydney. As I have stated, the plaintiff gave evidence that he recalled receiving an instruction, on the public address system, that they were not to discuss the collision with anyone at all. In response, the defendant tendered, with the consent of the plaintiff, an extract from a report by Captain Robertson in respect of the collision, to the effect that the captain made two announcements to the ship’s company. First, in the morning after the collision, he told the ship’s company of the movements of the ships so far as they were known to him, and explained the events leading up to the collision. Later in the day, Captain Robertson made a second announcement requesting that the ship’s company should not repeat to members of the media the account which he had given to them earlier that day. Mr Halley, in his evidence, also stated that he recalled the two broadcasts, and his evidence was substantially in accordance with the account given by Captain Robertson in his report. On the other hand, Mr James Bate, who was an acting sub-lieutenant on the Melbourne at the time of the collision, gave evidence similar to that of the plaintiff, namely, that he understood Captain Robertson, in his address, to have asked the ship’s company not to discuss the collision at all outside the ship. It is, in my view, quite understandable that, in the circumstances then pertaining, some of the ship’s company may have misunderstood the instruction given to them by Captain Robertson. I accept that, notwithstanding that Captain Robertson did not specifically ask the ship’s company not to discuss the matter with media, some of them, including the plaintiff, did understand him to have issued that instruction.

The plaintiff, and his witnesses, gave evidence that, before the Voyager collision, the plaintiff was a well adjusted and amiable person with no apparent emotional difficulties. The defendant did not put that evidence in contest. There is, however, a real issue as to the level of consumption of alcohol by the plaintiff in the years leading up to the collision. I shall refer further to that issue in due course. However, I do accept that, apart from that issue, the plaintiff was a normal, well adjusted person who did not suffer any of the emotional problems to which he has been subject, at least in more recent years.

The defendant did not put in issue that, at least by about 2002, the plaintiff suffered from alcohol abuse. Nor did the defendant put in issue that, from at least that time, the plaintiff has had psychological and emotional problems, which have been appropriately treated by Dr Lambeth and, subsequently, Dr Wade. It was put on behalf of the defendant that the plaintiff’s conditions developed progressively after the plaintiff left the navy. Based on the evidence, to which I shall refer, I accept that, at least from the early 1970s, the plaintiff has abused alcohol, and has suffered from emotional problems including excessive irritability, and sleep disturbance. There is an issue as to the extent of the plaintiff’s emotional problems during at least the three decades after his discharge from the navy, and also as to the level of consumption of alcohol by him during that period. The defendant’s case is that any emotional disturbance suffered by the plaintiff was a consequence of his experiences in the Vietnam War, his abuse of alcohol, his upbringing, and congenital factors.

Thus, it can be seen that the principal issues in this case include the following:

1.The level of the consumption of alcohol by the plaintiff in the years preceding the Voyager collision.
2.The emotional state of the plaintiff in the period between the Voyager collision and his tour of duty in Vietnam.
3.The nature and extent of symptoms suffered by the plaintiff, which have been relied upon by the psychiatrists and psychologists called before me to give evidence as to their diagnoses.
4.In particular whether, based on those symptoms, the plaintiff has suffered post traumatic stress disorder, and further or alternatively alcohol abuse disorder.

The resolution of many of those issues depends on a detailed examination of the plaintiff’s evidence, and also the evidence of the witnesses who were called on his behalf, as to the plaintiff’s manner and disposition before and after the Voyager collision.

Assessment of plaintiff as witness

During the trial, and in the preparation of these reasons, I gave the plaintiff’s evidence careful and anxious consideration. The plaintiff gave evidence before me for a period of four days. He was cross-examined at some length. I have taken into account the fact that the plaintiff is a stoic, and somewhat understated, person. He was accurately described by Dr Lambeth as a concrete thinker, who does not readily conceptualise. On the other hand, he is not inarticulate, and is reasonably intelligent. In his personal life, and in the witness box, he has demonstrated an ability to stand up for himself, whether in a dispute at work, or in fending questions in cross-examination.

When the plaintiff’s evidence is subjected to careful examination, it is clear that there are a number of issues, raised by defence counsel in cross-examination and in final address, which substantially detract from the credibility of that evidence. Those matters, taken together, have led me to the conclusion that the plaintiff’s evidence, standing on its own, is not reliable, in particular in relation to the question of the level of his consumption of alcohol before the collision, his emotional response to the collision, the level of his consumption of alcohol after the collision, and his emotional and psychological state before he embarked on his tour of duty to Vietnam.

The plaintiff acknowledged that, during his term of service in the navy, he did not consult a doctor for anything relating to the symptoms which according to his evidence he suffered after the collision, and in particular his nerves, his “heeby-jeebies”, shakes and sweats. On the other hand, he did consult the naval doctor in relation to a number of other different medical complaints during the same period. Yet he claims that during that period he suffered from attacks of the shakes and sweats two to three times per week. His explanation was that in the navy, if the doctor could not see the complaint, he would not treat it. However, he agreed that when he had an attack of the sweats and shakes, it would be observable. It is difficult to reconcile the plaintiff’s failure to attend a doctor at any time during the three years after the collision for his recurrent complaint of sweats and shakes, given his evidence as to the nature, severity and frequency of those attacks.

The plaintiff’s naval records were tendered in evidence. Those records included an annual assessment of the plaintiff’s performance by his supply officer. The records disclose that, in the years before and after the collision, the plaintiff consistently received high commendations from his supply officer. In each year after the collision he was described as either “excellent”, “extremely efficient” or “most capable”. He was described as being an asset to any staff, as setting an excellent example to his juniors, as taking charge well over his subordinates, and as controlling his staff well and moulding them into a team. By way of example, the supply officer responsible for the plaintiff at HMAS Harman during 1966 stated of the plaintiff:

“An excellent PO std (petty officer steward) who has earned the respect of all ward room officers by his job performance. He is polite, tactful and handles his staff firmly plus fairly. He is an excellent caterer.”

Mr Mummery, who is a naval reserve officer holding the rank of commander, gave evidence on behalf of the plaintiff as to the plaintiff’s potential for progress in the navy, if he had re-enlisted in 1968. He noted that the last five character and efficiency reports on the plaintiff during his period of service up to 1968 rated the plaintiff as “very good/superior”. Mr Mummery commented that that is a particularly high level of achievement, which is not always consistently attained by members of the navy. That rating disclosed a high level of competence and conscientiousness by the plaintiff during that period. According to the plaintiff, during the same period, his condition was, in some respects, at its most florid. In particular, the plaintiff stated that he suffered from the sweats and shakes two or three times a week during 1964, and that the frequency of those sweats and shakes reduced, but did not disappear, in ensuing years. Until 1966 he woke at night with visions of the stern section of the Voyager scraping down the side of the Melbourne. According to the plaintiff, he was highly irritable during the same period, and regularly consumed excessive amounts of alcohol.

On any objective analysis, it is difficult to reconcile the nature and extent of the complaints described by the plaintiff in his evidence, with the assessments of his performance by his superiors. It is true that, particularly during his years at the Sulphide Club, the plaintiff was able to perform his work competently, notwithstanding that, during the same period, he drank excessive amounts of alcohol. However, even allowing for that consideration, the objective assessments of the plaintiff’s performance, during the four years in which he remained in the Royal Australian Navy after the collision, are inconsistent with the evidence by the plaintiff as to the nature, extent and severity of his condition during that period. Those assessments reflect not only that the plaintiff was highly competent, efficient and conscientious, but that he led his staff well. Those comments are in sharp contrast to the evidence of the plaintiff that, during that time, he was inappropriately acrimonious in his dealings with his subordinates.

After the collision the plaintiff remained with the Melbourne until early 1966. During that time it made a trip to the Far East in the latter part of 1964, and made a further trip to the Far East in 1965. There is no indication in the plaintiff’s records which indicates that he was unable to cope with such prolonged journeys by sea. As I have stated, notwithstanding his evidence as to his emotional state at the time, his superiors consistently rated him as an excellent steward who performed all his work conscientiously and very competently.

In a similar vein, it is significant that, after the plaintiff was posted to Vietnam on HMAS Perth from June 1967 until April 1968, he continued to receive highly commendatory reports from his lieutenant commander. The report for the period from six months to 31 December 1967 described the plaintiff as being a competent, reliable and respected petty officer, who had good leadership qualities and who controlled his staff well, moulding them into a team. The report described the plaintiff as “an asset to any ship”. In the subsequent report, dated 21 April 1968, the lieutenant commander described the plaintiff as a “valuable member” of the supply branch on board, and that he was a respected leader. During that time, the Perth was involved in active combat duties off the coast of North Vietnam, during which it regularly came under fire. On one occasion it was hit by a shell. The fact that the plaintiff was able to discharge his duties in such a competent and conscientious manner, notwithstanding the stresses to which he was subjected, militates against the probability of the plaintiff suffering from the florid symptoms which he claimed to have suffered to during that period.

In this connection, a question arose as to the nature of the plaintiff’s response to the incident when the HMAS Perth was struck by a shell fired from the North Vietnamese coast. In cross-examination, the plaintiff said that shortly before the Perth was struck he was heading in the direction of the wardroom. After the ship was struck he continued on to the wardroom. He then went to the stern of the ship, and took cover below the aluminium deck in the area near the ship’s company mess hall, because the ship was still under fire. The plaintiff agreed that the incident was the closest he had ever come to death. He was frightened, but did not feel absolute fear. He also helped carry his friend, Petty Officer Watson, to the Ikara deck, so that he could be transferred to a United States vessel alongside. Watson had shrapnel wounds to his face, and the plaintiff could see holes in his face.

There was a dispute among the medical practitioners as to whether the plaintiff’s response to that incident could be reconciled with a diagnosis that he was then suffering PTSD as a result of the Voyager collision. The evidence of the plaintiff in respect of the incident was put to Professor Bryant, the psychologist who examined the plaintiff in October 2000 on behalf of the defendant. Professor Bryant expressed the view that, if the plaintiff had already been suffering from PTSD symptoms before he was stationed on the Perth, he would have fallen apart as a result of his experiences in the Vietnam War. Similarly, in cross-examination, Dr Lambeth expressed the view that a person, who already had PTSD, and who was confronted with the trauma to which the plaintiff was subjected in Vietnam, would not have been able to carry out his duties. His functioning would have decreased significantly. In particular, Dr Lambeth would expect such a person to react with panic to an incident such as his ship being shelled. On the other hand, in re-examination, Dr Lambeth stated that, even if such a person had PTSD, his naval training would take over in Vietnam, and he would be able to function reasonably well notwithstanding the trauma to which the person was subjected. In cross-examination, Professor Horne expressed the same view.

I shall return to the evidence of the experts in due course. However, in my view, the opinions expressed by Professor Bryant, and Dr Lambeth in cross-examination, more realistically reflect what might be expected of a person who, suffering from the concatenation of symptoms described by PTSD, was exposed to the ongoing stress and trauma of the war in Vietnam, and in particular to the events in which the plaintiff’s ship was shelled. The fact that the plaintiff was able to continue carrying on, after his ship was shelled, and to assist with the evacuation of a wounded friend, militates against the reliability of the evidence of the plaintiff that, during that period of time, he was suffering from the symptoms which he has described, and which have been relied upon by the expert practitioners called on his behalf to make a diagnosis that he had suffered PTSD as a result of the Voyager collision.

Dr Champion stated that Lexapro is usually effective for treating irritability and sleeplessness. It is not a specific for PTSD. He agreed that if the plaintiff had been using his wife’s Serepax tablets in 1964, then he may have had an anxiety condition. He stated that sleep disturbance and vivid and frightening dreams are often a symptom of alcoholism[84]. Alcohol abuse can also cause feelings of detachment and estrangement from others.[85] The fact that the plaintiff went to sea on a number of trips after the collision contradicted the proposition that there was any avoidant behaviour by him.
[84]T 1226.
[85]T 1228.

Dr Champion stated that the use of questionnaires, in making a diagnosis of PTSD, was undesirable because, in a medico-legal context, the subject is prone to being influenced by suggestion and motivation. By asking the patient to tell you the things that disturb them, the psychiatrist is able to elicit the symptoms which most concern them. Although the plaintiff did not have much psychiatric insight, he would not fail to describe symptoms which were troubling him.

Mr Thomson cross-examined Dr Champion about the plaintiff’s evidence as to his reaction when seeing a petrol tanker. Dr Champion stated that that evidence did not describe the intense psychological distress specified in criterion B 4 of DSM 4. In relation to the plaintiff’s evidence as to his reaction to the avgas announcements, Dr Champion stated that a clear distinction must be made between memories which may have associated with them certain fears, but which do not indicate an illness, and the memories described by criterion B 4. The plaintiff’s reaction to the avgas announcements (as described in evidence) would be a normal response to such circumstances[86].
[86]T 1230.

Dr Champion further stated that the evidence of the plaintiff about experiencing dreams of the Voyager scraping down the side of the Melbourne, and particularly the evidence that those dreams had ceased by 1968, indicated that if the plaintiff had had PTSD, it had largely resolved when the dreams had resolved.

Conclusions as to PTSD

In light of the foregoing, I can now state the conclusions which I have reached in relation to the competing opinions of the experts, as to whether the plaintiff sustained PTSD as a consequence of the Voyager collision. As I have already indicated, the differences between the views expressed by the plaintiff’s experts, and those expressed by the defendant’s experts, are predominantly a product of the different histories and complaints related to them by the plaintiff. In my view, the explanation for a number of the differences lies in the particular method adopted by the plaintiff’s experts on the one hand, as distinct from the defendant’s experts on the other hand, in obtaining that information from the plaintiff, namely, the use by the plaintiff’s experts of checklists or questionnaires in identifying symptoms of which the plaintiff complains. For the reasons which I have already stated, I accept the criticisms made by Professor Bryant and Dr Champion of the use of checklists and questionnaires. In the context of a medico-legal claim, such a technique of obtaining information from a subject is fraught with suggestion. In such a case the subject sees the expert for a particular purpose. Where, in those circumstances, the expert places before the subject a list of symptoms which would qualify the subject for a particular diagnosis, on the basis of which a claim might be made, there is a high risk that such a technique will influence the subject, at least subconsciously, in providing information to the expert about his or her symptoms.

In this case, that risk was very high. Before the plaintiff spoke to Mr Forster in 2000, it had not occurred to him that the emotional problems to which he was subject, including his alcohol abuse, were in any way related to the Voyager collision. Indeed, the only information which he had in that respect was when he saw Dr Nichols in 1995, and Dr Nichols diagnosed a “PTSD” arising from the plaintiff’s experiences in Vietnam. It appears that the plaintiff then had limited, if any, understanding of “PTSD”. The first suggestion to the plaintiff that he had PTSD, caused by the Voyager collision, was made to him by Mr Forster, the solicitor, in 2000. He was then referred by Mr Forster to Professor Horne. At the outset of the examination, Professor Horne placed before the plaintiff five written questionnaires for him to answer. The first questionnaire, in essence, contained a checklist of the symptoms which form the basis of a diagnosis of PTSD. The plaintiff was then referred to Dr Lambeth. Similarly, Dr Lambeth placed before the plaintiff, at the outset of his examination, a checklist setting out the same symptoms. In that context, the method of examination by both of the plaintiff’s experts was, I consider, fraught with the risk of suggesting to the plaintiff the requisite symptoms which were to be reported to qualify for a positive diagnosis.

The problems associated with using a checklist were compounded by the failure of Professor Horne and Dr Lambeth, in any real sense, to elucidate the symptoms reported by the plaintiff in answer to the questionnaires filled out by him. It became evident, in cross-examination, that neither expert had embarked on any significant clarification of the document filled in by the plaintiff. Rather, the two experts largely relied on that information as the raw data for their diagnosis of PTSD.

The failure of the experts to properly elucidate the answers given by the plaintiff to the checklist is highlighted by the answer given by the plaintiff, to the checklists of both Professor Horne and Dr Lambeth, in response to the question whether he had a feeling that his future would be foreshortened. In both checklists the plaintiff answered that he used to think that he would be dead by the age of 45. In his evidence the plaintiff made it clear that he had had that feeling since his early days in the navy, and thus before the Voyager collision. The plaintiff did not suggest, at all, that the feeling that he might not live beyond the age of 45 had been engendered, or enhanced, by the Voyager collision, or by any other trauma in his life. If the plaintiff’s answer, to the question on the checklist as to that topic, had been properly explored by the experts, it is quite possible that the plaintiff might have given to the experts the same explanation of that symptom which he gave in Court.

That example, in my view, highlights another problem involved in the use of a checklist, namely, the risk that the subject may misunderstand what he or she is required to do in answering the checklist. The plaintiff’s answer to the checklist question, in relation to his feeling that he would have a foreshortened future, points to the possibility that the plaintiff misunderstood the instructions given to him in relation to filling out the checklist.

There are some potential limitations involved in the technique used by Professor Bryant and Dr Champion. The plaintiff is a somewhat taciturn person. There was the risk that, by being asked open ended questions, the plaintiff might not be suitably prompted to report all the symptoms to which he had been subject. However, I accept the explanation given by Professor Bryant and Dr Champion that, ordinarily, one would expect a person, in the process of such an interview, to report accurately the symptoms which are most intrusive, and which are most florid.

I also accept that Professor Bryant and Dr Champion have based their opinions, in part, on some matters which are not supported by the evidence in this case. In particular, Professor Bryant stated that the plaintiff reported to him that he had a healthy marriage. The evidence in this case is to the contrary. Certainly, the plaintiff’s marriage has survived, in one form or another, for over 40 years. However, it could not be described as “healthy”. In addition, Dr Champion and Professor Bryant both stated that they were told by the plaintiff that his parents were very heavy users of alcohol. Professor Bryant and Dr Champion relied on that statement to suggest that there may be a genetic link in the plaintiff’s abuse of alcohol. However, the plaintiff, in his evidence, denied that his parents were heavy drinkers[87]. Mrs Gilshenon stated that the plaintiff’s (and her) parents were not alcoholics while they were young. She added that when her mother was in her late 50s she married a drunkard, and that she then took to alcohol.[88] I accept that evidence. There is therefore no evidence to support the suggestion that the plaintiff’s abuse of alcohol might have had a genetic basis.
[87]T 682.
[88]T 1278.

I turn, then, to the findings by the experts as to the six criteria prescribed by DSM 4 for a diagnosis of PTSD. In doing so, I do bear in mind the warning by the New South Wales Court of Appeal in Seedsman[89], and by the Victorian Court of Appeal in Burk[90], that it is not for the trial judge to form a diagnosis, one way or another, by using the six criteria as a “checklist” or “cookbook”. However, it is necessary to make findings in relation to the competing views expressed by the experts as to each of the criteria, in order to determine whether I should accept the plaintiff’s experts’ diagnoses of PTSD.
[89]New South Wales v Seedsman (2000) 217 ALR 513; [2000] NSWCA 119.
[90]Burk v Commonwealth of Australia [2008] VSCA 29, [138].

The four experts (Dr Lambeth, Professor Horne, Dr Champion and Professor Bryant) each accepted that in the immediate aftermath of the Voyager collision, the plaintiff was exposed to a traumatic event which corresponded with criterion A. However, there was dispute amongst the experts as to whether the plaintiff had reported symptoms conforming with criteria B, C and D.

Dr Lambeth considered that the plaintiff had reported “recurrent and intrusive distressing recollections of the event” under criterion B 1. That conclusion was based solely on the plaintiff’s positive answer to the checklist. The plaintiff did not give evidence of any such repeated disturbing memories, thoughts or images of the collision. There is therefore no factual foundation for the conclusion made by Dr Lambeth to symptom B 1.

Professor Horne also accepted that the plaintiff had described symptoms corresponding with criterion B 1, based on the plaintiff’s answer to the written FOA questionnaire, which mentioned “Tubby Smyth rescuing Voyager crew before he went down with the Voyager” and “Friends he (the plaintiff) lost on the Voyager”. In his evidence, the plaintiff did not refer to having “recurrent and intrusive recollections” of Tubby Smyth or other friends he lost on the Voyager. Thus, there is no evidence to sustain Professor Horne’s conclusion that the plaintiff had had experiences described in criterion B 1 of DSM 4.

Dr Lambeth also considered that the plaintiff’s condition involved criterion B 2, “recurrent distressing dreams of the event”. As I have pointed out, that view is based on the plaintiff’s positive response to that question in the checklist used by Dr Lambeth. That answer does not accord with the evidence, namely, that the plaintiff’s dreams, of the stern of the Voyager alongside the Melbourne, had ceased by the time he commenced with HMAS Harman in early 1966. Thus I reject Dr Lambeth’s conclusion that the plaintiff, at the time of examination, experienced a symptom which fulfilled criterion B 2 of DSM 4.

In this connection, I accept the explanation by Professor Bryant that the dreams, which the plaintiff stated he experienced until about early 1966, were a normal human reaction to exposure to trauma, rather than being symptomatic of any underlying disorder resulting from exposure of the plaintiff to the trauma of the collision.

Professor Horne and Dr Lambeth both accepted that the plaintiff had reported symptoms fulfilling criteria B 4 and B 5. Dr Lambeth based that conclusion on the plaintiff’s answer to his checklist that he felt “very upset”, especially when seeing fuel tankers and being reminded of the avgas. Professor Horne based his conclusion on the plaintiff’s report of “intense psychological distress” and “physiological reactivity” given by the plaintiff to the question in his checklist, namely his feeling, when seeing fuel tankers on the roads, that the gasoline airplane fuel stored on HMAS Melbourne could explode, and his feelings of distress when visiting psychologists for assessment. The plaintiff’s evidence was that, when he sees a petrol tanker, he is reminded of the collision, and of the danger of an explosion, and that he feels “a little bit upset” and experiences a “pitch” in the stomach. He described experiencing the same reaction when he was on the Melbourne and the announcement would be made “No smoking avgas”.[91] As I have already stated, I consider that the assessment of that evidence, by Professor Bryant, is correct, namely that the type of reaction described by the plaintiff is a very common response for a trauma survivor, and it is not an indication of a disorder arising from exposure to a trauma. Rather, I accept Professor Bryant’s conclusion that such a response is a normal function of human recall of a traumatic occasion.
[91]T 247 to 248.

Pausing there, I therefore do not accept the conclusions of the plaintiff’s experts that the plaintiff’s symptoms fulfil any of the five prescribed experiences constituting criterion B of DSM 4. That conclusion, alone, is sufficient to cause me to reject the conclusions by Dr Lambeth and Professor Horne that the plaintiff had suffered PTSD as a consequence of the Voyager collision.

I turn then to criterion C prescribed by DSM 4, that of “persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness” as indicated by three (or more) of the seven prescribed phenomena.

Both Dr Lambeth and Professor Horne considered that the plaintiff reported symptoms fulfilling criteria C 1. That opinion was based on the responses by the plaintiff to the checklist or questionnaire filled out by the plaintiff. By contrast, in his report, Professor Bryant stated that the plaintiff reported that he did not actively avoid talking and thinking about the collision. In cross-examination, the evidence of the plaintiff was put to Dr Lambeth as to the plaintiff’s involvement in the Naval Reserve, the Naval Association, the Vietnam Legion Movement, and in annual marches. Dr Lambeth stated that that evidence did affect his conclusions about criterion C 1, and indeed criterion C 2, as it would demonstrate “little avoidance” in the context of PTSD.[92]
[92]T 391.

I have already referred to the evidence given by the plaintiff, and by his family, as to the limited extent to which the plaintiff has spoken about the Voyager collision in the intervening years. In that context I do bear in mind that the plaintiff is, by nature, quite taciturn. He did agree that he had talked to “Trevor” and Mr Shinfield at the Sulphide Club about the collision, albeit that the conversations were quite brief. He attributed the brief nature of those conversations to the fact that that is the way in which sailors tend to talk to each other about such matters.[93] On the balance of probabilities, given the response by the plaintiff to Professor Bryant in his interview, and given Dr Lambeth’s view as to the plaintiff’s participation in naval and military matters after leaving the navy, I am not persuaded that the plaintiff has described symptoms upon which a diagnosis, that he satisfied criterion C 1, could properly be made.
[93]T 670.

Both Professor Horne and Dr Lambeth also expressed the view that the plaintiff had described symptoms corresponding with criterion C 2, because of his answer to their questionnaires that he no longer goes on a boat (Professor Horne) or that he had nothing to do with the water (Dr Lambeth). As I have indicated, those responses were contrary to, and not supported by, the evidence in this case. Therefore there is no evidentiary basis for the diagnosis that the plaintiff suffered a symptom complying with criterion C 2.

Each of the four expert witnesses in the case accepted that the plaintiff did not describe symptoms envisaged by criterion C 3.

Criterion C 4 consists of “markedly diminished interest or participation in significant activities”. The plaintiff gave an affirmative answer to Dr Lambeth’s checklist, indicating that he had “moderately” lost interest in activities which he used to enjoy. In his report Dr Lambeth stated that the plaintiff “describes a loss of interest in most activities”. However, Dr Lambeth did not elucidate that statement by the plaintiff. On the face of it, a “moderate” loss of interest in “activities”, which the plaintiff used to enjoy, is not the same as the symptom described by criterion C 4, namely, a “marked” diminution in interest or participation in “significant” activities.

Professor Horne’s questionnaire corresponded more accurately with the description of criterion C 4 in DSM 4. The plaintiff gave a negative response to that question. Similarly, Professor Bryant, in his report, observed[94] that the plaintiff did not report a lifestyle which lacked interest in activities. Although the plaintiff’s activity had been limited since his cancer, on balance Professor Bryant did not consider that the plaintiff satisfied criterion C 4. Based on that analysis, I do not accept Dr Lambeth’s conclusion that the plaintiff satisfied criterion C 4. The plaintiff, and his wife, did state that, since the collision, he had preferred to drink, rather than socialise or go dancing, bowling or to the movies. However, I have rejected the plaintiff’s evidence, and that of his witnesses, that the plaintiff significantly increased his intake of alcohol as a consequence of, and in the period following, the Voyager collision.
[94]Exhibit 5, page 9.

The plaintiff also gave a positive response to questions in the questionnaires of Dr Lambeth and Professor Horne in respect of criterion C 5. Professor Horne’s questionnaire is notated that the plaintiff does not make friends easily or let people get close to him, and that he ignores people if he can. Dr Lambeth did not elucidate the plaintiff’s positive response to the question “feeling distant or cut off from other people”. In contradistinction to those responses is the evidence of the plaintiff’s involvement in the Sulphide Club, and in particular his membership of the board of the club from 1993. Dr Lambeth agreed that that evidence did not indicate a lack of interest in enjoying other people’s company, and that it would militate against the plaintiff’s affirmative answer in the checklist in respect of symptom C 5.[95] In my view, that concession by Dr Lambeth is correct. It is reinforced by the conclusion of Professor Bryant that the plaintiff does not satisfy criterion C, because he has a close relationship with his family, notwithstanding that he does report a reluctance to engage in much social activity. I therefore do not accept the conclusions of Professor Horne and Dr Lambeth, stated in their reports, that the plaintiff has symptoms which fulfil criterion C 5.
[95]T 394.

The experts are unanimous that the plaintiff did not report a restricted range of affect, and thus that he does not satisfy criterion C 6. Finally, as I have noted, Professor Horne and Dr Lambeth accepted that the plaintiff did satisfy criterion C 7, but that conclusion was based on the plaintiff stating that he had thought that he would die by the time he was aged 45. As I have noted, the plaintiff had experienced that feeling since his early days in the navy, quite unrelated to any trauma, let alone the Voyager collision.

For those reasons, the evidence before me does not satisfy me that Professor Horne and Dr Lambeth were correct in finding that the plaintiff satisfies three or more of the prescribed symptoms under criterion C. I am in fact satisfied, on the balance of probabilities, that the plaintiff did not suffer symptoms corresponding with any of the criterion C symptoms. Accordingly, on that basis, it follows that the plaintiff would fail to qualify for a diagnosis of PTSD.

I have, therefore, rejected the views of Dr Lambeth and Professor Horne that the plaintiff has, or has had, symptoms corresponding with any of those described in criteria B and C of DSM 4, and I have accepted the opinions of Professor Horne and Dr Champion to the contrary. It follows that I am not satisfied that the plaintiff has established that he has suffered PTSD.

The four experts were unanimous that the plaintiff did report symptoms which would fulfil criteria D 1 and D 2, namely difficulties with disturbed sleep, and irritability. Although the matter is academic, I do not accept the diagnoses by Dr Lambeth and Professor Horne that the plaintiff has symptoms fulfilling criteria D 4 and D 5. I have already indicated my reasons for that conclusion, namely, that the plaintiff did not give any evidence equating to “hypervigilance”, and that I am not satisfied that the plaintiff does suffer a startle response to noises.

Turning, briefly, to criterion F, I do accept that the plaintiff’s irritability and alcohol abuse has damaged his marriage. I also accept that they played a role in the plaintiff’s relations with those who worked under him at the Sulphide Club, and, to a limited extent, with the directors of the club. However, as I have stated, I do not consider that the anxiety or alcohol abuse are symptoms or consequences of a PTSD suffered by the plaintiff. Nor did they result from the Voyager collision.

The conclusion which I have expressed above is reinforced by my earlier findings as to the plaintiff’s emotional state, and his level of consumption of alcohol, after the Voyager collision. A diagnosis of PTSD is not made in the abstract. It is a disorder which is caused by, and its symptoms are associated with, exposure to a specific traumatic event. The opinions stated by Dr Lambeth and Professor Horne were based upon the report to them by the plaintiff that he suffered florid emotional symptoms which commenced shortly after the Voyager collision. They were also based upon the statement by the plaintiff to Professor Horne and Dr Lambeth that, whereas before the collision the plaintiff was a moderate or social drinker, after the collision he took to drinking to excess. Professor Horne and Dr Lambeth did not find that the plaintiff had suffered PTSD simpliciter; they found that he had suffered PTSD as a consequence of the Voyager collision. That diagnosis was based on the timing of the plaintiff’s symptoms, and also on the description of them by the plaintiff including intrusive thoughts in relation to the collision, and avoidance of stimuli associated with the collision.

As I have earlier concluded, I do not accept that the plaintiff, after the collision, underwent the significant emotional changes claimed by him. While I have found that there were some elevated levels of anxiety, which would be expected after such a trauma, and while I have also accepted that there may have been some increase in the plaintiff’s level of irritability, I have not accepted that there was the substantial, marked alteration in either of those conditions claimed by the plaintiff and his wife Shirley. Further, I have not accepted that, after the collision and in consequence of it, the plaintiff’s drinking increased to the substantial degree depicted by the plaintiff and other witnesses called on his behalf.

The conclusion which I have reached is, I consider, consonant with a common sense approach to the definition of PTSD in DSM 4. As Dr Lambeth pointed out,[96] PTSD is a disorder. It follows a traumatic or horrific event. It has three component conditions. First, there must be distressing involuntary recollection of the event. Secondly, there must be avoidance of stimuli associated with the trauma and numbing of general responsiveness. Thirdly, there must be symptoms of hyper arousal, similar to anxiety. As a consequence of that group of symptoms there must be a significant loss of relevant function. In the present case, the plaintiff’s only report of any lasting re-experience of the event is that of a mild reaction to seeing petrol tankers, and being reminded of the danger of explosion of the avgas tanks. In my view Professor Bryant makes abundant sense in describing that reaction, not as a persistent re-experience for the purposes of criterion B, but, rather, as a normal function of human memory, which commonly occurs in every day life. Secondly, where the plaintiff had no qualms in twice returning to sea on the ship which was involved in the collision, and subsequently serving on another ship overseas in war, it would be contrary to common sense to find that there had been persistent avoidance by him of stimuli associated with the trauma. Equally, where the plaintiff has been a long‑standing member of a local club, has held positions on the board of that club, and has a good relationship with his daughter and grandchildren, a finding that the plaintiff nonetheless had symptoms of “numbing of general responsiveness” would be out of touch with reality, and not in accordance with every day experience. In essence, there is little evidence that the plaintiff has been subject to the involuntary distressing re-experience of the Voyager collision, or that he has persistently avoided stimuli in association with it, in the manner envisaged by DSM 4.
[96]T 318.

For the foregoing reasons, I am not satisfied that the plaintiff sustained PTSD as a consequence of the Voyager collision.

Alternative diagnosis

At the commencement of these reasons I set out the injuries pleaded by the plaintiff. Mr Thomson opened the case solely on the basis that the plaintiff had suffered PTSD as a consequence of the Voyager collision. In final address, he also sought to persuade me that the plaintiff had pleaded, and proven, independently of a finding of PTSD, that he had suffered an alcohol abuse disorder as a result of the Voyager collision.

At one stage Mr Thomson did also seek to contend that the plaintiff had suffered an anxiety disorder. However, he accepted that there was no evidence of any such diagnosis by any of the medical practitioners who appeared before me. In my view, that concession was correct. In his cross-examination, Professor Bryant did refer to the possibility of a development of an anxiety condition as a consequence of the collision.[97] However, he was not, in my view, then advancing an alternative diagnosis of the plaintiff.
[97]T 776 to 777.

Mr Thomson submitted that the evidence supporting an independent diagnosis of alcohol abuse disorder is found in the reports of Professor Bryant, Dr Kent, Professor Horne, Dr Lambeth and Dr Wade. Mr Thomson submitted, on the basis of the decision of the New South Wales Court of Appeal in Hill v Commonwealth[98], that it is not necessary that an alcohol abuse disorder be a consequence of a recognised psychiatric disorder, but that the law recognises an alcohol abuse disorder as such a disorder in its own right.
[98][2005] NSWCA 94, [65] and following.

In response, Mr Moulds made four submissions:

1.The pleadings do not allege an alcohol abuse disorder.
2.If such an order has been pleaded, it was not a reasonably foreseeable consequence of the collision.
3.None of the practitioners, relied upon by Mr Thomson, have made a diagnosis of alcohol abuse disorder, independent from, and not attached to, a diagnosis of PTSD.
4.In any event, the evidence does not support the proposition that, as a result of the collision, the plaintiff did sustain such a condition.

In my view, the alternative basis relied on by Mr Thomson should fail for two reasons. First, I have already found, on the evidence, that the plaintiff did not substantially increase his consumption of alcohol as a result of the Voyager collision. I have accepted that, before the collision, the plaintiff consumed alcohol in the quantities disclosed in the DVA application, namely in the order of six to eight 10 ounce glasses of beer per day together with some spirits. I have found that, over the years, particularly since the plaintiff left the navy, his consumption of alcohol increased. However, I have not accepted that the plaintiff’s experiences of the Voyager collision caused or contributed to the plaintiff’s increased alcoholic consumption over the years.

Secondly, and contrary to the submission of Mr Thomson, I do not accept that any of the experts proffered a diagnosis that, as a result of the Voyager collision, the plaintiff sustained an alcohol abuse disorder, as a separate disorder independent of a diagnosis that the plaintiff had suffered PTDS. In their reports Dr Lambeth, Dr Wade and Professor Horne each expressed the view that the plaintiff’s alcohol abuse (or dependency) disorder was related or secondary to their diagnosis that he had PTSD arising out of the Voyager collision. Professor Bryant did conclude that the plaintiff had suffered alcohol abuse, but did not relate it causally to the Voyager collision.

Conclusion

It follows, for the reasons I have set out at length, that I am not satisfied that, as a consequence of the Voyager collision, the plaintiff suffered any of the injuries alleged by him. Indeed, I am satisfied that he did not suffer any injury or damage as a result of the collision. While I am satisfied that, after the plaintiff left the navy, he developed problems which, ultimately, required psychiatric treatment, I am not satisfied that they were in any way caused by, or related to, the Voyager collision. Accordingly, the plaintiff has failed to prove that he suffered any injury or damage as a consequence of the collision, and his claim must be dismissed.

In reaching the above conclusions I am mindful that, after the plaintiff left the navy, and in particular in the last two or so decades, the plaintiff has had psychological problems which have been appropriately addressed by Dr Lambeth and Dr Wade since 2004. However, as the expert witnesses have acknowledged, there are a number of other circumstances in the plaintiff’s background, apart from the Voyager collision, which, it is reasonable to conclude, were the likely cause of those problems. They include his early background, his long history of alcohol abuse (which preceded the collision), his involvement in the Vietnam war, his adjustment to civilian life after his early years in institutions and then almost sixteen years in the armed forces, his accident at work, his incapacity as a result of that accident, and his unrelated and very serious health problems.

For the purpose of completeness, I note that, although the defendant did not proffer any argument in support of its defence that the plaintiff’s claim was statute barred, nonetheless that defence was not abandoned. It is not necessary for me to make any finding in relation to that defence. However, I should indicate that, if, contrary to the findings which I have made above, I had concluded that as a consequence of the Voyager collision the plaintiff suffered PTSD, I would have accepted that the plaintiff did not know that his injury had been caused by the collision, or by any act or omission of the Commonwealth, until he was referred to Professor Horne in December 2000. Accordingly, if the plaintiff had proven injury in this case, I would not have held the plaintiff’s claim to have been statute barred.

[2008] VSC 166

21 May 2008