Stankowski v Commonwealth of Australia - [2004] NSWSC 198

No judgment structure available for this case.

CITATION: Stankowski v Commonwealth of Australia [2004] NSWSC 198 revised - 24/03/2004

HEARING DATE(S): 29/09/2003 - 02/10/2003, 07/10/2003 - 08/10/2003, 10/10/2003, 13/10/2003 - 17/10/2003, 20/10/2003 - 22/10/2003, 20/11/2003, 16/12/2003

JUDGMENT DATE:
22 March 2004

JUDGMENT OF: O'Keefe J

DECISION: (1) Verdict and judgment for the plaintiff for $377,851.14; (2) The defendant to pay the plaintiff's costs.

CATCHWORDS: Negligence - Maritime collision - Collision - Voyager - Melbourne - Psychological injury - Post Traumatic Stress Disorder - PTSD - Loss of chance - Pension - Damages

LEGISLATION CITED: Evidence Act 1995, s 72

CASES CITED: Malec v JC Hutton (1990) 169 CLR 638

PARTIES :
Stephen Stankowski
Commonwealth of Australia

FILE NUMBER(S): SC 21240/95

COUNSEL: Mr AG Melick SC, Dr K Sant - Plaintiff
Mr RJ Burbidge QC, Mr GT Johnson - Defendant

SOLICITORS: James Taylor & Co - Plaintiff
Australian Government Solicitor - Defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O’Keefe J

22 March 2004

21240/95 STEPHEN STANKOWSKI v COMMONWEALTH OF AUSTRALIA

JUDGMENT

Background

1 The worst peacetime maritime disaster in the history of the Royal Australian Navy occurred at 8.56pm on Monday 10 February 1964. At that time the destroyer HMAS Voyager (Voyager) was engaged in night flying exercises with other vessels of Her Majesty’s Royal Australian Navy. These included the aircraft carrier HMAS Melbourne (Melbourne). During the course of these exercises it became necessary for Voyager to change position, moving from the starboard side of Melbourne to its port side. For reasons that have never been adequately explained, despite enquiries by the Navy and two Royal Commissions, Voyager accelerated and cut sharply across the bows of Melbourne. At the time, the signal for Melbourne to steam full-speed ahead on both engines had been given and although this had not taken effect, Melbourne was nonetheless proceeding at 22 knots.

2 The two vessels collided. The bow of Melbourne struck Voyager at the after end of her bridge, at a time when she was almost at right angles to Melbourne. The force of the impact heeled Voyager sharply onto her starboard side. Debris from Voyager was thrown up onto Melbourne’s Flight Deck. High-pressure steam and black smoke cascaded from one of Voyager’s ruptured boilers. The momentum of Melbourne (a vessel of 16,000 tons standard; 19,950 tons deep load) was sufficient to push the smaller vessel, Voyager (approximately 3,000 tons) bodily through the water until Voyager broke in two. When this occurred, her bow section passed down the port side of Melbourne; her stern section down the starboard side.

3 The bow section of Voyager turned over on its side off the port quarter of Melbourne and sank about 10 minutes later taking down with it a large number of Voyager’s crew. Voyager’s stern section, with the stern facing aft scraped slowly down Melbourne’s starboard side, emitting quantities of steam and black smoke. Melbourne’s engines were reversed and the vessel was brought to rest with Voyager’s stern section some 600 feet (one cable; 180 metres) off Melbourne’s stern. Subsequently the vessels drifted apart to a distance of approximately 1000 yards (914 metres). However a little later Melbourne was moved away to avoid a second collision. The stern section of Voyager sank at 18 minutes after midnight on 11 February 1964. In all 82 lives were lost.

4 A number of sailors were on the stern section of Voyager. Some leapt into the water, in which there was a deal of debris and oil. Some were able to get onto life rafts. The survivors were spread over an area of up to half a mile around Voyager and there were the bodies of dead sailors amongst the living. Initially the sea was calm but there was a four to five foot swell that made it difficult for rescue boats that had been launched from Melbourne. Later the weather became a cause for concern, with a gale warning being issued for the Bass Strait area.

5 Following the collision, orders were given for accommodation ladders, drifter ladders and scrambling nets to be put over the side of Melbourne to facilitate the taking on board of survivors. Rescue operations by the sailors of Melbourne proceeded under the command of individual officers. Helicopters arrived in the area, but darkness and other factors prevented more than two of them from operating safely. A rescue was effected by one helicopter, but in the main the survivors in the water were not anxious to be winched up from the water. Most of the survivors were picked up by boats that had been launched from Melbourne.

6 The rescue operations continued for some time and just before 3am Melbourne began to leave the area, slowly, because of the extensive damage that had been occasioned to its bows. She arrived back in Sydney early on the morning of 12 February 1964, berthing at Garden Island.

The plaintiff’s claim

7 Stephen Stankowski (the plaintiff) was a sailor on board Melbourne at the time it collided with Voyager. He was then 19 years of age, having enlisted in the Navy in 1961 when he was 15 years and 9 months. His period of enlistment was for 12 years and after being in various other Royal Australian Naval vessels, he was posted to Melbourne on 28 December 1962.

8 The plaintiff did not actually see the collision. When it occurred he was below decks. However he claims to have seen the aftermath of the collision and at least part of the rescue operations. He has commenced an action in negligence and has sought to recover damages for psychological injuries sustained. The Commonwealth of Australia (the defendant) has admitted negligence and as a consequence the matter for determination has been posed by the defendant in the following terms:

“Has the plaintiff established that he sustained damage, in particular PTSD or some condition akin to that in consequence of emotional trauma consequent upon his presence on HMAS Melbourne when she collided with HMAS Voyager several minutes before 9pm on Monday 10 February 1964?”

9 The defendant has characterised the essential matters for decision to be:

(i) whether the plaintiff is to be believed in relation to his assertions concerning the psychological problem that is the subject of claim;

(ii) whether he does in fact have a psychological problem;

and

(iii) whether such problem was caused by the disaster.

10 The defendant’s positing of the matters for decision is somewhat narrower than the way in which the case was conducted in relation to the psychological damage alleged to have been sustained by the plaintiff. The plaintiff has characterised the matters for trial as:

“(i) whether the plaintiff suffers from a recognisable psychiatric illness;

(ii) whether such an injury was reasonably foreseeable in the event of a collision such as the one that occurred. The defendant has pleaded that the injury claimed is different in kind from that which was reasonably foreseeable. It appears that there is no dispute that some injuries to sailors in Melbourne was reasonably foreseeable;

(iii) whether the injury was caused or materially contributed to by the negligence of the defendant;

(iv) the quantum of any damages.

11 Both characterisations of the matters for decision raise the credibility of the plaintiff as a cardinal factor. If the essence of his evidence is believed, then much of the argument concerning his condition and its aetiology is resolved; but not entirely. This is because the defendant has challenged, inter alia, the histories recorded by a number of medical experts on whose evidence the plaintiff relies. Acceptance of the plaintiff also goes a long way towards the establishment of the damages.

12 The trial commenced before a jury, but it was discharged after some days of hearing and continued before me sitting without a jury. It occupied 17 days of hearing. The importance of the issue of the plaintiff’s credibility in the overall scheme of the case and its resolution can perhaps be gauged, at least to some extent, by the fact that the plaintiff’s evidence in chief was quite short, even as supplemented by some very short evidence on the eighth day of the trial. His cross-examination extended over some two full days. He was also cross-examination at some length on his recall to the witness box on the eighth day of the trial. Senior counsel for the defendant perceived, correctly so in my view, that the plaintiff’s credibility was at the heart of the plaintiff’s case and that the undermining of his credibility was the defendant’s pathway to success.

13 The plaintiff brings the action and bears the onus of establishing, to the civil standard, the matters in issue. The defendant has submitted that the plaintiff has not established that he has ever suffered any compensable injury for which the defendant is liable. The plaintiff asserts that he has satisfied the onus to the requisite standard in relation to the matters in dispute and that the evidence establishes that as a consequence of the collision of 10 February 1964 and its sequelae he suffered psychological damage that has caused him impairment over the course of many years.

Facts

14 At the time that Melbourne steamed into the side of Voyager the plaintiff was in the shower five decks down into the body of the ship. He described the crash, the lights going out in the bathroom and himself and others going up a hatchway on to the mess desk where he quickly donned a pair of overalls and a pair of sandals before going to his muster point one deck up from where he had been showering. He said that ”curiosity got the better of me and I went on the upper deck to have a look”. He saw the back half of the Voyager still with lights on and with steam coming out of it. The events described accord with the description included in the official report made by the Captain of Melbourne, Captain RJ Robertson RAN. The plaintiff said that he saw men jumping into the water and boats milling around the back of Voyager picking up the survivors. He observed large cargo nets that had been rigged over the side of Melbourne, alongside which the boats that were bringing the survivors, attempted to pull. The survivors were helped up the nets by members of the crew of Melbourne including the plaintiff. He said that he survivors were “very dirty, very stunned, shaking and, yeah, their eyes just looked dead.” The evidence reveals that the plaintiff was not the only one to observe this. His reaction to what he saw when engaged in this task was that he felt “terrible”. The official reports indicate that some of the survivors appeared too shocked or too injured to swim when they were rescued. Some were bleeding, some were stretcher cases, some were vomiting. Although the plaintiff did not give chapter and verse concerning this, the official record shows that the bringing of survivors aboard Melbourne was a very impactive event. The effect which the plaintiff asserts that it had on him at that time is not only understandable it is something that one might well expect.

15 In a history given to Professor McFarlane the plaintiff said that some of the survivors whom he had assisted had injuries including such things as broken arms and legs. Although there is no direct evidence of such injuries from the plaintiff, there is evidence to indicate that a number of dead bodies were taken on board Melbourne and that there were several survivors who were severely injured and had to be airlifted to the mainland. Other survivors who were injured were treated by doctors aboard Melbourne. The nature of the collision and the consequent sinking of Voyager are events from which injuries of such a kind would be likely. The combined weights and respective speeds of the two vessels would have undoubtedly given rise to an enormous jolt. Even an impact between two motor vehicles travelling at speeds of the kind maintained by the two vessels that came into collision frequently produces broken limbs; a fortori with the impact between Melbourne and Voyager.

16 Later that night the plaintiff was directed to help clean up the survivors by wiping the oil out of their faces and out of heir eyes. When he was engaged in these various activities he said that he had particular concern in that he thought “we might be next”, and was very concerned for the safety of one of his mates named Nick.

17 It is apparent from the description of the events around Melbourne following the collision that there was a lot of lighting, probably search lights from Melbourne, lights from the vessels that had been launched to rescue survivors and, a little later, from the helicopters referred to above. The plaintiff said that he was observing the stern section of Voyager when the lights on it began to dim, the steam stopped gushing out and it slowly turned stern-up and sank to the bottom.

18 The plaintiff was cross-examined about the events of 10 and 11 February 1964 on the basis of a history recorded by a Dr Wu. This history included a statement to the effect that on the day after the collision there were ships everywhere fishing out bodies. He was also cross-examined on evidence in chief that he had given that at about 8am on 11 February 1964 he went onto the Flight Deck and could see a couple of mine sweepers looking for survivors. It was suggested that this was just not probable and that by 8am Melbourne would have been far from the scene of the collision. The plaintiff adhered to his evidence. I thought he undoubtedly believed what he had said in this regard and on analysis it was not inherently improbable.

19 Melbourne set out for Sydney at approximately 3am at a very slow speed, described as slow ahead. At a later time the speed was increased to revolutions for 8 knots but this produced at best 6.5 knots through the water and the weather and wind conditions slowed Melbourne down even further, so that its best speed was in the order of 4.5 knots. It is not known for how long the vessel travelled at slow ahead before attaining 4.5 knots, however it took over 24 hours for the vessel to reach Sydney from the area of Jervis Bay. At that time of year it was getting light at 4.26am, i.e. even before sunrise (5.25am). There was thus likely to have been adequate light at the time the plaintiff says he went up onto the Flight Deck and saw back towards the scene of the collision. There is a formula for calculating the number of nautical miles between the eye of an observer and the horizon. It was agreed that this formula is:

v height of eye of observer x 1.15 = nautical miles to the horizon

20 There is no doubt in my mind that Mr Stankowski believed what he said in relation to what he saw the next morning. He may not have been completely accurate as to the time at which he made his observation, but I accept that his evidence was both truthful and accurate in relation to what he observed.

21 The plaintiff said that the sailors aboard Melbourne were instructed not to discuss the collision, or the events that followed it, when they reached Sydney. His evidence is supported by the report made to the Flag Officer Commanding Her Majesty’s Australian Fleet by Captain Robertson on 19 February 1964. This meant that the events and their effects, if any, on those who were involved in them were bottled up rather than expressed.

22 Having observed the plaintiff, read the official reports and other material tendered concerning the collision and its aftermath, I accept the evidence of the plaintiff in relation to his involvement in, and initial effect on him of, the collision and its aftermath.

23 My conclusion in relation to the foregoing matter is strengthened by the fact that the events at the time of and following the collision, as deposed to by the plaintiff, were not gainsaid. True it is that the hearing was conducted almost 40 years after the events. However as was clear from the conduct of the case by the defendant, there was a multitude of records within the possession of the defendant, including, but not limited to, statements taken from persons involved in the events, and there had been quick follow up by the Navy for the Royal Commission that followed on the heels of the events. When these considerations are combined with the resources of the defendant, including those resources thrown into the litigation arising out of the sinking of Voyager, the absence of any evidence to the contrary of the plaintiff’s evidence is relevant. Although it is at best a minor matter rather than a forceful factor in relation to his credibility, it says something about the credibility of the plaintiff.

24 The plaintiff said that when he came ashore he and is mates, in effect, took to the bottle. The feelings experienced by the plaintiff were exacerbated when, late on his first night ashore, he was called a murderer by some civilians as he was drinking in an hotel. Drinking to excess became a common occurrence for the plaintiff after the collision. He would drink until he had to be “carried back on board or stagger back on board”. He had not engaged in behaviour of that kind prior to the collision. Furthermore his excessive drinking persisted even after he left the Navy in 1973 when his 12 year period of enlistment came to an end. At one stage it was sufficiently bad to put his employment in jeopardy. This occurred in or about 1985, and as a consequence, he moderated his intake of alcohol. This was beneficial for his health, although the alcoholic excesses prior to that time had taken their toll.

25 The plaintiff remained on board Melbourne until March 1965. He said that he did not feel comfortable living below decks and asked to be transferred closer to the weather decks. His next posting was to Manus Island where he was watch keeper of the powerhouse. Apparently the atmosphere of the tropical island suited him better than being confined below decks. He found the atmosphere on Manus Island “very unwinding, very relaxing”. However, he continued to drink more than he should, but slept well, at least in the early part of his stay, in a bunk near to a door with big louvre windows. Apparently the room did not have any doors and was very open. However, it was whilst on Manus Island that he claims to have had his first nightmare concerning the events surrounding the sinking of the Voyager.

26 The first nightmare occurred in the latter part of his posting to Manus Island. He described it as “very nasty”, and although he had others, it was the first that shook him most. He described the nightmares as involving him and a bunch of other men “trapped in a mess in a sinking ship and going down in very, very black water”. The evidence indicates that once he had experienced such nightmares they were recurrent. He gave a history of recurrent nightmares to Dr Holwill. Dr Holwill was a consulting psychiatrist who spent some time as a psychiatrist at the Repatriation General Hospital at Heidelberg, Victoria. He had made a particular study of veterans and, in company with a Dr Kitson, had undertaken a study to establish a formal treatment programme for veterans with Post Traumatic Stress Disorder (PTSD). The plaintiff also gave a history of nightmares to another psychiatrist, Professor McFarlane. One of these was that he was drowning in a black sea. Another was that he saw himself hanging over boom nets with the people looking up at him turning into skeletons with their flesh falling from their bones. Outside the context of litigation he told Dr Robert Black, to whom he had been referred by his General Practitioner, of dreams involving him drowning in a black sea – nightmares that Dr Black thought would probably never leave him. This is significant because in my opinion it indicates that not only had the plaintiff complained to his General Practitioner of problems that had necessitated reference for treatment, but it also suggests that nightmares may well have been discussed with his General Practitioner, quite outside the context of litigation.

27 The plaintiff’s wife of 31 years, Vera Stankowski, gave evidence. She was a bank officer and presented as a responsible, sensible, truthful person. At the time she and the plaintiff were married in May 1972 she had known him for approximately 18 months, that is, she first met him about six years after the collision. At that time, he drank a great deal, and continued to do so until he had a problem with his superiors at his employment at Moomba. She confirmed that he had been told that if he did not “smarten himself up” in relation to his drinking, his job would be at risk. After that he moderated his drinking.

28 Mrs Stankowski also gave evidence of the plaintiff being referred to a PTSD programme and that following this, and with the benefit of anti-stress medication from his local general practitioner, “he has become a different person to live with, having been moody prior to that time”. Mrs Stankowski also gave evidence about nightmares experienced by her husband. She described how he would wake with a gasp, get up, walk about and look out the window. When she would ask him what the problem was “he’d just say a nightmare and he wouldn’t say any more about it”. This evidence, if accepted, has significance in at least two respects. First it confirms the plaintiff’s evidence of nightmares over an extended period. Second, it supports a conclusion, which accords with my impression of the plaintiff in the witness box, that he was a man of few words to the point of being taciturn; a man who saw himself as tough and not susceptible to weaknesses that may afflict other people; a man who did not talk about his problems or afflictions.

29 Changes in the plaintiff that occurred after the collision were noted by people other than the plaintiff and his wife. Mrs Peach, who first came to know the plaintiff in 1961, knew him as a very happy, cheerful type of person who would socialise and sometimes have a drink but never a great amount. After the collision he was depressed and would just sit very quietly. She also noticed “a definite difference in him” and that he drank a lot more alcohol than he had previously. This change was observed by her from the time she first saw him after he had returned to Sydney following the collision and was on furlough. This continued up to the time she and her husband moved from suburban Adelaide to Ceduna, which is in the country. She stated:

“His character had changed. It definitely had changed. He wasn’t the happy-go-lucky type of lad that he used to be.“

30 The cross examination of Mrs Peach was to the effect that sailors had “a significant tradition” of drinking when they came ashore and that she had seen many of them “pretty tipsy”. Mrs Peach said that this was not always the case, although it was true of some. The cross examination did not in any way seek to undercut her evidence about the change in the plaintiff following the sinking of the Voyager. There is no reason based on the cross examination or on my impression of her in the witness box to treat her other than as a witness of truth. I accept her evidence.

31 Another witness who spoke about the change in the plaintiff following the collision was Mr Neil Windle. He had served with the plaintiff in the Royal Australian Navy. They fraternised in the course of their work and socially and were both transferred to Melbourne at about the same time. Mr Windle was on board Melbourne at the time of the collision. He described the plaintiff as “outgoing, extroverted … friendly” prior to the collision. By comparison he said that after the collision he recalled the plaintiff when he went ashore “getting completely drunk”. What is more his smoking increased to the extent of posing an annoyance for Mr Windle. Several complaints by Mr Windle urging the plaintiff to cut down on his smoking were to no avail.

32 Mr Windle described his observation of the plaintiff following the collision as follows:

“There was a visible change in his character. He became moody and short tempered. In fact, he did get in trouble several times for his temper and trouble. He was a moody person and still was a drinker... His drinking had increased and I know that because when he came back drunk to get in his bunk he had to stand on my bunk to use it as a platform to get in, and he used it as a springboard so I knew every time he came back drunk.

Q. How often did this occur?

A. Every time he went ashore.”

33 From the foregoing it can be seen that there was evidence from several sources confirming the change in the plaintiff following the collision. There is also evidence confirmatory of the fact that he had recurrent nightmares that had extended over a very, very long period. I am satisfied that from a time very shortly after the collision the plaintiff underwent a change. He drank to excess, whereas before he had been a very moderate drinker. He smoked excessively, whereas before he had not. He became depressed, whereas before he has been happy, friendly and outgoing. I am further satisfied that from the time he was at Manus Island he experienced nightmares that were frequent, persistent and redolent of the events surrounding the sinking of Voyager by Melbourne on 10 February 1964.

34 I am conscious of the several and protracted attacks that were made on the plaintiff’s credit. In the written submissions filed on behalf of the defendant there is one section that deals with the plaintiff’s credit (para 5); another with his nightmares, their content and frequency (para 6).

35 The defendant submitted that the plaintiff’s account as given in the witness box was inherently unreliable and should not be accepted. It further submitted that his evidence did not accord with the facts, was grossly inconsistent and that such inconsistency was amply established objectively. The defendant went so far as to submit that his account was, at least to an extent, a conscious exaggeration or deliberate falsehood or the product of suggestion and education.

36 The matters relied on in the relevant section of the written submissions in support of the submissions set out in the foregoing paragraph are:

(i) the plaintiff’s account of the circumstances in which he saw an advertisement by a solicitor by the name of Taylor seeking to have persons who had been on either of the vessels involved in the collision contact him, with a view to possible legal action being taken;

(ii) the plaintiff exaggerated in an affidavit sworn in March 1999;

(iii) the extent to which the plaintiff’s drinking habits changed after the collision;

(iv) the absence of any assertion of recurrent nightmares between 1966 and 1995.

37 The first matter relied on by the defendant is, as the written submissions concede, relatively inconsequential in the case proper. However, it was argued that it was significant in relation to the plaintiff’s credit and that it showed that the plaintiff was a man who was willing to dissemble and that it further indicated that the plaintiff and his wife had “put their heads together to promote a falsehood”. No such suggestion was put to Mrs Stankowski. No such suggestion was put to the plaintiff. Each of them was cross examined about having seen the advertisement, when and in what circumstances but the purport of such cross examination was that it was associated with the emergence of the plaintiff’s symptoms. This was directed to a proposition that the symptoms he claimed to experience related to his desire to make a claim i.e. to litigation, rather than to them being a genuine result of the collision.

38 The cross examination of Mr Windle proceeded on the basis that he and the plaintiff were close friends. He was then questioned as to whether he had talked to the plaintiff about making a claim arising out of the sinking of Voyager. Mr Windle in fact made a claim seven and a half years ago, i.e. in or about April 1996. He said he and the plaintiff both took the local paper, The Advertiser, and that at some stage the plaintiff referred to an advertisement, sponsored by Mr Taylor, that had appeared in such paper and asked Mr Windle if he was going to approach Mr Taylor. This was because Mr Windle had been discharged from the Navy on medical grounds. Mr Windle thought that this occurred on a social occasion when they were “having a drink or two together”. It was Mr Windle’s belief that they had both seen the advertisement in the paper and that this prompted the discussion and Mr Windle’s response. Mr Windle’s claim arising out of the sinking of the Voyager was made through Mr Taylor, a Victorian solicitor. Mr Windle was shown a copy of an advertisement that had appeared in The Advertiser (exhibit 4) but he was unable to say that it was exactly the same but he thought it was similar.

39 The submission made on behalf of the defendant approaches the comparison between what the plaintiff and his wife said about the circumstances in which they first became aware of an advertisement by Mr Taylor directed to persons who had been involved in the events of 10 February 1964 and what Mr Windle said, on the basis that the plaintiff and his wife had only ever seen such an advertisement on one occasion. The defendant further posits his proposition as to the adverse effect on the credit of the plaintiff and his wife on the basis that what was said by them in relation to the events when they were on the Great Ocean Road in Victoria is inconsistent with Mr Windle’s evidence. I do not agree.

40 The discussion between Mr Windle and the plaintiff to which Mr Windle deposed, was not suggested to the plaintiff to have been the first occasion on which the plaintiff had seen a relevant advertisement by Mr Taylor. Furthermore there is nothing in his cross examination to suggest that he saw only one such advertisement. In addition the evidence of Mr Windle suggests that the discussion took place in the second quarter of 1996. It is clear that the plaintiff first approached Mr Taylor in October 1995. It is established by the evidence that in October 1995 the plaintiff completed a questionnaire for Mr Taylor’s firm i.e. some six months before the conversation deposed to by Mr Windle. The evidence does not establish the interval between the occasion on which the plaintiff saw the advertisement whilst on the Great Ocean Road in Victoria and the time of his first contact with Mr Taylor. However, seeing Mr Taylor’s advertisement for the first time must have preceded the contact. Thus on proper analysis there is in my opinion no inconsistency of the kind asserted in the written submissions of the defendant. Such analysis does not give rise to an inference adverse to the credit of the plaintiff. In this context it should also be remembered that when the plaintiff was recalled after Mr Windle had given his evidence there was no cross examination directed towards the “falsehood” or “that the plaintiff and Mrs Stankowski have out there heads together to promote a falsehood” as was asserted in the defendant’s written submissions.

As to (ii):

41 The second matter relied on by the defendant namely, that the plaintiff exaggerated in an affidavit sworn in March 1999, in support of an application for an extension of time within which to commence proceedings related principally on the use of the word “panic” that is to be found in such affidavit. At the outset of the cross examination the plaintiff was asked if there was anything that he would like to draw attention to as inaccurate. It was the plaintiff who drew attention to the word “panic”, saying “I would today amend it to very, very hurriedly” in relation to his manner of movement. The same word occurred in another context, namely in relation to what had happened. The plaintiff indicated that someone said the ship “had hit a plane, but there was still panic and uncertainty”. This clearly relates to the general atmosphere at the time, rather than to the response of the plaintiff. However, engrafted on to that statement was a question: “You weren’t panicked at any time were you?” To which the plaintiff replied: “Very, very, very uneasy, sir”. He also said that the word “panic” was “a little bit strong”, indeed an exaggeration.

42 I observed the plaintiff closely during his cross-examination. I formed the view that he tried to the best of his ability to describe his responses, and those of his shipmates, in the aftermath of the collision. He was not a man of many words, somewhat wooden and stoic in his approach and I formed the view that a few of the more colourful phrases on his affidavit were not characteristic of him.

43 To the same effect was the cross examination directed towards a statement in the affidavit that the plaintiff “was still in a state of shock and disbelief” at some stage after the collision. It was suggested to him that: “It is an exaggeration isn’t it to say you were in complete disbelief and terror?” The plaintiff denied this. What is more the plaintiff’s affidavit does not say that he was “in a state of shock and terror”. It does say that he was “in a state of shock and disbelief”. This is a perfectly understandable response. Because personnel are trained to deal with emergency situations does not mean that they may not be shocked when such situations occur. A major collision between two naval vessels is likely to be a source of disbelief and shock for even well trained personnel. Furthermore one would expect that where there was lack of knowledge about the safety of Melbourne, a person on Melbourne may fear for his life. It has never been suggested in the course of the case that even strong, trained, disciplined men may not feel fear when confronted with what might be a life-threatening event. In this context it is relevant to note that the plaintiff said: “We were pretty scared”.

44 A close reading of the passages in the transcript relied on by the defendant under this heading do not substantiate the submission made by the defendant that the plaintiff was “a man willing to advance a spurious basis to provide a path of retreat”, nor do they undermine the general credibility of the plaintiff. I have come to this conclusion notwithstanding that the solicitor for the plaintiff did not give evidence. In this regard however it should be remembered that the questions relied on were directed to credit, not to an issue in the case.

45 The submission relating to the extent to which the plaintiff drank to excess after the collision depended on the fact that:

(a) Doctor Holwill records in his history that following the collision the plaintiff “took to drinking very heavily”. Whereas previously he had never drunk more than two glasses of beer at a time. In essence this is substantiated by Mrs Peach and Mr Windle. However the history also records that the plaintiff “was inebriated every night. That was while he was on shore leave in Sydney and later when he was at sea… and this was easy to do as he smuggled liquor aboard”;

(b) no history of drinking before Manus Island appears in Professor McFarlane’s notes;

(c) the plaintiff told one of the defendant’s doctors, Dr Roldan, that following the collision he ”learnt how to smuggle spirits and other alcoholic beverages on board” and that “he was drinking a combination of aftershave lotion, cordial, lemon and water”.

(d) he told another of the defendant’s doctors, Dr Champion, that in the mid 1970’s and late 1980’s “he would drink up to seven dozen bottles of beer in a two week period”.

(e) there was an absence of assertion of recurrent nightmares between 1966 and 1995.

46 The plaintiff was cross-examined at length about his drinking habits. He deposed to having commenced heavy drinking only after the collision. The commencement date was in close proximity to the collision. This was supported by the evidence of Mr Windle, whose evidence in this regard was not challenged. The plaintiff was not asked whether he drank at sea. It was not suggested to him that he did not. He would not be the first sailor to do so. Furthermore it was never put to the plaintiff that he had not smuggled alcohol aboard a ship on which he was serving. For a sailor to have done so would not be novel or unheard of. No questions were asked of the plaintiff as to whether or not he had drunk the exotic concoction referred to by Dr Roldan. Moreover it should be noted that Dr Roldan’s report records that this was not a continuous state, but occurred only “at times”. In addition, an exotic concoction of the kind referred to may well be resorted to by a person who is addicted to alcohol or is a really heavy drinker, as the evidence suggests the plaintiff came to be. Persons addicted to or dependant on alcohol who are deprived of their drug of choice are known to be prepared to drink almost anything to satisfy their craving.

47 The absence of a history of drinking referred to in paragraph 45(b) above is just not correct. In the handwritten notes (exhibit J) that were taken by Professor McFarlane, he records events “After accident in 1964.” These notes include “Started to drink a lot…”.

48 The statement made to Dr Champion about the extent of the plaintiff’s drinking in the 1970’s and 1980’s is not remarkable for a person addicted to alcohol or even for a heavy drinker. The consumption of alcohol disclosed by the plaintiff to Dr Champion is six bottles per day. For a person who is a heavy drinker or an alcoholic, this is not an indication of exaggeration.

49 The suggestion that the plaintiff did not assert recurrent nightmares is not correct either. The plaintiff said that he had his first nightmare while he was at Manus Island. It was “very nasty”. He also said at the same time “I had more but that was the one that I recall that shook me the most”. Later in the course of his examination in chief he was asked if he had any nightmares after leaving Manus Island , to which he replied: “I have had them periodically ever since”. He said that in a particular month he “might have two or three bad ones (nightmares)”, and then a gap. The fact that he had nightmares is confirmed by Mrs Stankowski, although her evidence is that he was not forthcoming to her about their content. In my opinion this is understandable in view of the type of person he is. It is also understandable that for quite some time he did not make complaint to others about what he was experiencing.

50 The plaintiff is a man who has spent most of his life working in a male milieu. He was in the Navy for many years. He has worked at Moomba for very many years. The work on which he has been engaged is hard work. The plaintiff has clearly chosen such work and the milieux in which it is performed. He is a powerfully built man, who gives the impression of taking considerable pride in his masculinity. In colloquial language he could properly be described as “macho”. Like “Balmain boys”, such men do not cry; nor do they admit to weakness, or what they regard as weakness. Such men would not, in my opinion, be expected to admit publicly to recurrent nightmares. The plaintiff’s limited response to his wife to whom it was apparent that he was having a nightmare and which he admitted to her, is indicative of this.

51 In its written submissions the defendant was critical of the fact that the content of the nightmares suffered by him was not recorded. This was the criticism made of the plaintiff’s General Practitioner. It is also a criticism made in relation to the PTSD course. The defendant, whilst conceding that the plaintiff reported “terrifying nightmares” was critical that their content was not disclosed. A like criticism was made in relation to Dr Holwill to whom it is said that no account of the content of the nightmares was given. I do not think that a criticism of this kind is realistic or significant, unless the content of the questions asked of the plaintiff and the answers given by him are known. Furthermore, it is a criticism that was made even after the plaintiff had been diagnosed as suffering from PTSD at the PTSD clinic at the relevant Repatriation General Hospital.

52 The foregoing in my opinion provide an adequate explanation, an explanation that I accept, as to why the plaintiff did not complain of nightmares for some time, even after they first occurred. Although the defendant submits that the plaintiff’s first reference to nightmares is to be attributed to the plaintiff’s desire to obtain monetary compensation, I do not think this is correct. Standing alone such reference is also consistent with the plaintiff having progressed to a stage that he could no longer put up with the concatenation of symptoms from which he was suffering, one of which was the nightmares that he was experiencing. In this context it should be noted in passing that when the plaintiff sought treatment for his PTSD through a Commonwealth agency, his symptoms improved.

53 It is well known that war service, or what are perceived to be life-threatening events, can and do produce adverse psychological effects. Many war veterans took a long time to admit to such things as fear, flash-backs, intrusive thoughts, nightmares and other psychological sequelae of their experiences. Such matters are common knowledge, such as a jury would take notice of, applying their common sense and experience. Is a judge in any different position?

54 When each of the matters raised by the defendant in its written submissions under the heading of “Credit” is analysed, and when they are all taken in concert they do not, in my opinion, destroy or significantly impugn the credit of the plaintiff. In my opinion he presented as a credible witness. He conceded a number of matters adverse to his own interest and I accept him, in essence, as a witness of truth who in material respects was accurate, but who, by virtue of effluxion of time and other circumstances had some lapses of memory in respects which do not materially impact on my factual findings.

55 I do not think that Mrs Stankowski exaggerated. I do not think that she tried to make a better case for her husband than the facts support. She was a calm, considered lady who was in responsible employment. She was impressive in the witness box. I accept her as an essentially truthful and accurate witness.

56 Reference has been made to a PTSD programme in which the plaintiff participated. That came about in the following way. The plaintiff was required by the Commonwealth to attend for examination by Dr Phillips. This occurred in October 1998. Dr Phillips, whose report was not ultimately admitted into evidence, apparently diagnosed the plaintiff as suffering from PTSD. Then in or about October 1999, the condition of the plaintiff was reported on by a senior staff specialist at that hospital, Dr Linda McCarthy, who expressed the opinion:

“According to DSM IV criteria he has a diagnosis of chronic PTSD.

…

57 The plaintiff responded favourably to this course and to having prescribed for him anti-stress medication, for his depression and medication for his sleeping problems. Two of the drugs nominated were arima and diazepam. The combination of drugs and the PTSD course has had the effect that over the period since about 1999 and the time of the trial, the plaintiff has gradually been feeling somewhat better. He is in partial remission, as Professor McFarlane testified.

58 The plaintiff was also required to see a number of other specialist medical practitioner nominated by the defendant. These included Drs Champion and Roldan. However they saw him purely in a medicolegal context and did not offer any treatment or prescribe any medication. I shall return to the diagnoses by various medical practitioners later in this judgment.

59 I am satisfied that:

· the plaintiff was aboard Melbourne when it collided with and sank Voyager with great loss of life and injury to many sailors;

· the event was traumatic and frightening for the plaintiff. At least for a time it was perceived by him as potentially life threatening, as he was unable to know whether Melbourne was going to sink or not. His response in this regard was quite reasonable in view of the fact that damage control crews were moving hurriedly through the ship to the bow section and it was obvious that something serious had occurred that involved Melbourne;

· the plaintiff went up on deck and saw a section of Voyager that had obviously been severed from the other section of that vessel. It was apparent that sailors in Voyager were at risk of death. The emotional impact of this on the plaintiff was exacerbated by the fact that he had friends aboard Voyager, including one very close friend, Nick Diepenbroke;

· whilst on deck the plaintiff saw the aft end of Voyager still afloat, from which steam was roaring and smoke was pouring. He observed members of Voyager’s crew jumping in the water, and later saw the stern section of Voyager sink to the bottom. At that time the plaintiff was still unaware of the condition of Melbourne and as to whether it too might sink, thereby threatening the lives of members of the crew, including himself;

· the plaintiff took part in the rescue operation together with many other members of the crew of Melbourne. These involved, amongst other things, assisting survivors to come aboard Melbourne from rescue boats that had been launched to pick up survivors. The survivors were in many instances covered with fuel oil and a number of them were obviously injured. They looked stunned and in some cases presented as shocked and vacant eyed, as if dead. The plaintiff was conscious of the fact that he could well have been aboard Voyager, like his friends;

· the crew of Melbourne were instructed not to discuss the events of the collision and its aftermath, especially with the media. This resulted in a bottling up of the fear and other emotions generated in the plaintiff by the events of 10/11 February 1964;

· following the collision the plaintiff, who had previously been quite abstemious in relation to alcohol and a light smoker, quickly became a heavy drinker. This involved frequent drunkenness – a quite marked change from his former habit and character. His use of cigarettes increased;

· from being a very happy, outgoing, cheerful type of person, he became depressed, much quieter, moody and short tempered; a person who tended to just sit and not engage with other people;

· following the collision the plaintiff had what are commonly called flash-backs or ruminations in respect of the events surrounding the collision and its aftermath. These were sometimes stronger than at other times but were frequent and recurrent. They were also distressing for him. In addition, at least from 1966 he had distressing dreams that involved images that could psychologically be related to the events of 10 February 1966. These were frequent, recurrent and had continued with varying intensity up to the time of trial;

· the plaintiff avoided situations that might have the effect of reminding him of the events in question. He did not attend Anzac Day marches or reunions, or become involved in Returned Servicemen’s clubs or activities. Furthermore, even quite recently he became upset at television images of the Prime Minister waving farewell to ships of the Royal Australian Navy departing for the Persian Gulf;

· the plaintiff had difficulty in discussing the collision and the events associated with it. His reaction was to shy away from any such discussion so that generally he would talk about the events only with a fellow crew member who had been involved in the events and was a close friend. Even at the time of trial he remained diffident about discussing the events in his evidence;

· he sought to be transferred to a higher deck when he returned as part of the crew of Melbourne following the repair of the severe damage caused by the collision. He also tended to sleep on deck more, often fully clothed and with a torch at the ready. Whilst this may, in part, be accounted for by the fact that Melbourne had been designed for use in the North Atlantic and was regarded as a hot, uncomfortable ship below decks, she was air conditioned and the plaintiff had not felt the necessity to sleep on deck prior to the collision. This behaviour on the part of the plaintiff was characterised as avoidant behaviour by at least two of the medical experts. It also continued when the plaintiff was transferred to another naval vessel that was not hot or stuffy;

· the plaintiff sought sleeping arrangements that gave a feeling of openness, space and light; in contrast to the confined spaces characteristic of the below decks situation in Melbourne;

· the observations made by others, for example Mrs Peach and Mr Windle, that the plaintiff became quiet, tended not to engage with others, was moody and short tempered, continued even after he was married in May 1972. After his marriage he remained silent, moody, sometimes very withdrawn. His wife was unable to get him to talk to her. Furthermore he eschewed many social activities and would only engage in them with people he knew and trusted;

· the plaintiff tended to be withdrawn from family life, unable to talk about his feelings and unable to trust other people. He experienced difficulty in expressing emotion;

· difficulty in sleeping has been a manifestation in the plaintiff’s life since the collision. At times he drank to excess in order that he might sleep. This stratagem proved not to be successful. Furthermore when he does sleep it is frequently broken. Nightmares contribute to this;

· irritability with his family and in the workplace is characteristic of the plaintiff. He tends to snap at people. The relationship with his wife and family has been very stressed because of the outbursts of anger by the plaintiff;

· although the plaintiff said that his concentration was not good, it did not prevent him from holding down his job in the Navy and has not prevented him remaining in responsible employment at Moomba. The question of impaired concentration is difficult to judge for an external observer and probably just as difficult to judge for the subject. Although I am satisfied that the plaintiff believes he has impaired concentration and that he does have it to some degree, I do not think that it is a significant impairment;

· the plaintiff tended to make sure that the doors and windows were locked and that some lights were kept on in the house at night. He is very watchful and cautious about a line of escape in fresh situations. Behaviour of this kind was translated into psychological language by the defendant’s Dr Roldan as “hyper-vigilance”. It was described in the same way by the defendant’s Dr Champion;

· since the collision the plaintiff has undergone a significant change in his attitude to life and people. His withdrawal from much social contact has had a detrimental effect on his relationship with his wife, children and friends. His excessive drinking, which began after the collision, became a problem in his work environment and led to a threat of loss of employment;

· the plaintiff has been adversely affected by the nightmares that he has experienced, the flash backs, his excessive drinking and his inability to relate to others. His life has been diminished as a consequence of the various matters referred to earlier in these reasons.

60 In the light of these factual findings it is necessary to examine the medical evidence. The principal oral evidence was given by Dr Holwill and Professor McFarlane, on behalf of the plaintiff; by Drs Roldan and Champion on behalf of the defendant. In addition, there is evidence that the plaintiff was reviewed by the Director of Psychiatry at the Repatriation General Hospital, Daw Park, and by a senior clinical psychologist, Mr Queale. There are no reports in evidence from either of these practitioners. There is a report in evidence from Dr Kee Liew of 8 March 2002. It states that:

“Mr Stankowski has been a patient of the practice since 1979. He has been treated for PTSD and depression related to events surrounding the accident involving HMS (sic) Melbourne.”

61 The plaintiff’s solicitor referred him to a psychiatrist, Dr Wu, who, unfortunately, died. The plaintiff saw Dr Wu in late 1995 in a motel room in Adelaide for approximately one hour. It is apparent from the evidence that Dr Wu’s diagnosis of the plaintiff was not PTSD but rather a psychiatric or psychological condition described as dysthymic disorder, which:

“The trauma of the collision between HMAS Melbourne and HMAS Voyager and subsequent experience within the Navy, would have been sufficient to initiate and maintain ….” (Exhibit S, tab 5)

plaintiff’s

62 The principal contest in relation to the medical issued raised by the case was between Dr Holwill and Professor McFarlane on the one hand and Drs Roldan and Champion on the other. In large part the contest depended on the interpretation of the criteria for the diagnosis of PTSD that are included in the Diagnostic and Statistical Manual for Mental Disorders, fourth edition, that is generally known as DSM-IV and their application to the plaintiff’s condition and history. The DSM-IV was published by the American Psychiatric Association and became effective on 1 October 1996. It included what is described as ICD-9-CM. The DSM-IV, as published in 1996, has been the subject of revision in 2000. The ICD-9-CM is an equivalent of DSM-IV published as part of the World Health Organisation’s volume known as “The International Classification of Disease”. It includes a specific section on psychiatric disorders. A revision of that document, ICD-10, has been published. However the criteria in ICD-9 and ICD-10 are not precisely the same as those in DSM-IV. It is unnecessary to detail the differences between the two sets of standards, suffice it to say that both standards are empirical, should not be regarded in the same way as a statute, but should be interpreted and applied reasonably flexibly. One matter that should be perhaps adverted to is that ICD-10 places more emphasis on the objective circumstances of the event and in this sense differs from criterion A2 in DSM-IV. PTSD involves the development of certain symptoms following exposure to an extreme traumatic stressor involving direct, personal experience. The highest rates of it, ranging from between one third and more than one half of those exposed, are to be found amongst people involved in, inter alia, military combat situations. Such situations would be apt to include the collision between Voyager and Melbourne on 10 February 1964. PTSD can occur at any age and there may be a delay of months or even years before symptoms appear.

63 DSM-IV sets out diagnostic criteria that are grouped under six headings or criteria (A to F). Each of the criteria has various subheadings and each looks to compliance with all or one or more of the indicators referred to in respect of each criterion.

64 Dr Holwill is a consulting psychiatrist. He had held staff positions at the Royal Melbourne Hospital, been senior lecturer in psychiatry at the University of Melbourne and was later responsible for the conduct of the Affective Disorders and Lithium Clinic. In the course of his career he was transferred to the Repatriation General Hospital, Heidelberg, where he was senior consultant. In 1992 he went into private practice and in that practice has been looking after a large number of veterans. He has published a number of learned papers and, together with another specialist, he undertook a study of morbidity rates (psychological illness) amongst veterans. He was clearly a psychiatrist of the highest qualifications and experience. He was of the firm opinion that the plaintiff was suffering from PTSD that was chronic and moderately severe. He expressed the view that:

“The development of Mr Stankowski’s chronic psychiatric condition is directly attributable to his experiences aboard HMAS Melbourne at the time of the collision with HMAS Voyager and to no other significant factors. It would be a minor contribution to his overall level of Post Traumatic Stress Disorder by his experiences whilst serving in South Vietnam.”

and

“Mr Stankowski’s quality of life has been seriously, adversely affected by experiences at the time of the collision, as has the quality of life of his family. It is unlikely that there will be any further significant improvement in his condition with the passage of time or ongoing treatment.”

65 In the course of his evidence Dr Holwill dealt with the phenomenon that people such as the plaintiff:

“… typically try and deny their symptoms to themselves. They often feel ashamed of having symptoms and are very reluctant to admit to others that they have symptoms, even to medical people.”

66 He was then asked:

“Q. Doctor, is there any medical hypothesis or theory as to why it is that police officers or former police officers or members of the armed forces or ex members of the armed forces should engage in the sort of denial you’ve spoken of?

A. Well, I mean, first of all it is a clinically observed fact that they do. The explanation probably lies in the sort of people that they are and the sort of service that they have decided to undertake, whether in the armed services or in the police force, and they typically have a belief that they should be strong, that they should serve their community or their country, that they should be brave and they should be able to tolerate these things on the basis that they are trained for it. So when they develop symptoms they often try and hide it from their colleagues or comrades fearing that they will be perceived as weak and they feel shame about the symptoms and try and deny it to themselves and see themselves as a failure.”

67 Dr Holwill was cross examined for almost a complete day. It was an appropriate, carefully constructed, well researched cross examination, but it did not cause Dr Holwill to recant or to deflect from the opinion that he had expressed. Much of the cross examination depended on taking parts of histories given at different times to different people or included in various documents that were brought into being in a range of circumstances. In adhering to his opinion Dr Holwill relied on a history taken by him that is supported by the specific findings of fact set out in paragraph 59 above as well as the more general evidence given by the plaintiff and his witnesses referred to in the text of this judgment. Furthermore, it should be remembered that s 72 of the Evidence Act 1995, provides that the hearsay rule of exclusion does not apply to evidence of a representation about a person’s health, feelings, sensations or state of mind.

68 The evidence of Dr Holwill was convincing and I accept it.

69 Professor McFarlane was a mainstay in the plaintiff’s case. He is a person who possesses formidable qualifications and experience. His knowledge of PTSD is encyclopaedic. His association with the formulation of the DSM-IV was intimate. He is Professor and Head of the Department of Psychiatry at the University of Adelaide and has been so for some 13 years. He holds a doctorate in medicine and is a Fellow of the Royal Australian and New Zealand College of Psychiatrists. He holds a Diploma of Psychotherapy. He is the senior advisor to the Director General Health Service Branch on Mental Health and senior psychiatric advisor to the Australian Centre for Post Traumatic Mental Health. His various appointments and positions over the years from 1976 to the present, extend over three pages of his curriculum vitae. He has won numerous prizes, scholarships and awards and has written and had published some 150 learned papers. He is the co-author of a recent book on Treatment Planning for Trauma Survivors with PTSD (2000). In addition, he has published three other books on traumatic stress and PTSD and was a member of the DSM-IV sub-committee for the editing and compilation of that manual. He has studied a range of different traumas and their effects. One was an earthquake in China that killed 800 people. He also acted as an advisor in relation to the Kobe earthquake that killed 30,000 people. In the field of military trauma he wrote a report for the United Nations Compensation Commission about the Iraq occupation of Kuwait. Subsequently he acted as an advisor to the government of Kuwait and in the months preceding the most recent war in Iraq he wrote a report for the government about how to deal with chemical and biological attacks, because of the importance of psychological elements in such matters. Closer to home is a Group Captain in the Royal Australian Air Force in the Medical Specialist Reserve. He has also been involved as the scientific advisor in relation to the study of veterans of the Gulf War.

70 In addition, Professor McFarlane sees and treats patients, particularly in the field of trauma related psychological disabilities. He sees and has seen many patients suffering from PTSD. He is a medical professional with outstanding qualifications and experience both national and international. He was a most impressive witness. It is no exaggeration to say that he was, in my experience, one of the best equipped and impressive medical witnesses that I have seen.

71 In the course of his evidence Professor McFarlane analysed each of the criteria included in DSM-IV for the diagnosis of PTSD, insofar as they related to the plaintiff. He said that certain of the criteria were self evident, some were critical and some involved clinical judgment. He expressed the opinion that criteria A1 and 2 had been met. Both of these were specified as requirements for meeting DSM-IV criteria for PTSD. He further expressed the opinion that criteria B1, 2, and 5 had also been met. Dr Roldan, for the defendant accepted that there was evidence establishing criteria B1, 2, 4 and 5. The DSM-IV requirements are that for only one of these matters needed to be met. He said that in respect of criterion C, factors 1, 2 and 5 had been met. DSM-IV required at least three of the factors under this heading to be present. In addition there was strong evidence of criterion C4. Dr Roldan agreed that criteria C2 and 4 had been established and that the history he obtained went a long way to satisfying criterion C5. Professor McFarlane testified that the plaintiff satisfied criteria D1, 2, 3 and 4. The defendant’s Dr Roldan agreed that there was evidence to satisfy criteria D2, 3 and 4. DSM-IV required the presence of only two (or more) of the factors listed under this heading. It was accepted that if the plaintiff’s symptoms commenced soon after the accident and have continued since, criterion E was met. Similarly it was not gainsaid that if the disturbance produced clinically significant distress or impairment of the kind that I have found, criterion F was met.

72 Professor McFarlane was of the opinion that:

“Mr Stankowski has a post traumatic stress disorder that is in partial remission, following his involvement in the Repatriation Hospital program and the prescription of anti-depressant medication. In particular his avoidance symptoms, interpersonal withdrawal, irritability and mood have improved. Furthermore his alcohol abuse has very significantly decreased in recent times.”

73 Professor McFarlane was cross-examined by senior counsel of long experience and acknowledged skill in the art of cross-examination. His cross-examination extended over the course of two full days. Various possible scenarios were put to him arising out of parts of histories given by the plaintiff either to medical practitioners or taken from various documents. The delay in the emergence of nightmares was also dealt with. The plaintiff’s drinking problems and possible alternative explanations for them were put to the Professor. The plaintiff’s ability to perform his naval duties, achieve promotion and hold down a responsible job at Moomba for any years were adverted to, as were many other matters too numerous to detail in these reasons. Reference was also made to various learned papers, of which Professor McFarlane demonstrated a knowledge, even without having the papers put before him. He further demonstrated his encyclopaedic knowledge of the subject and the literature relating to it. It is fair to say that virtually nothing that could have been put to Professor McFarlane was not put to him. It was a very searching, thorough cross-examination conducted with real skill. Various matters that were the subject of the cross-examination were suggested to be inconsistent with the diagnosis arrived at by Professor McFarlane. Professor McFarlane did not agree. He adhered to his opinion and, in the course of dealing with the various matters raised he not only dealt with them convincingly but further demonstrated the depth of his knowledge and experience of PTSD and associated mental disorders.

74 I accept the opinion of Professor McFarlane.

75 Dr Fernando Roldan is a consulting clinical psychologist and neuro psychologist, the latter being a further specialisation within clinical psychology. At the time of giving his evidence he was a consultant in clinical psychology and neuropsychology at Cumberland Hospital, Parramatta, and had been since mid 1993. Between 1996 and 2002 he was a consultant in clinical psychology and neuropsychology at the Commonwealth Rehabilitation services at Parramatta. His experience prior to 1996 had been as a clinical psychologist in the Community Mental Health Division at St George Hospital and in private practice or lecturing at the ACT Health Commission in Canberra. Between August and November 1987 he was a locum clinical psychologist at the Vietnam Counselling Veterans service, Canberra, prior to which he spent some time with the CSIRO.

76 Dr Roldan saw the plaintiff in March and June 2002. He subsequently prepared a report dated 25 April 2003 in which he detailed the history taken from the plaintiff and the tests that he conducted. He made a functional and clinical assessment of the plaintiff and, under the heading “Document Review”, included extracts from the plaintiff’s naval records and a report from the late Dr Wu. In the final analysis he said:

“In my opinion the objective evidence available to me indicates that it is unlikely that Mr Stankowski developed a formal psychological disorder as a consequence of the accident in question. That is not to say that Mr Stankowski may not have been distressed by the events of 10.02.64.

…

In my opinion, the available objective evidence indicates that any psychological distress that Mr Stankowski may have experienced in relation to the accident did not result in the level, range and duration of psychological and behavioural disruption that is now claimed and if there was any such disruption that it is likely to have been very short lived. In my opinion, the evidence available to me suggests that Mr Stankowski is now engaging in a distorted and self-serving report of his history due to the potential for monetary compensation that such report carries with it.”

77 From the foregoing it can be seen that Dr Roldan characterised the plaintiff as untruthful and as having embarked on a deliberate course of deception for the purposes of obtaining monetary compensation. That conclusion in part depended on the assessment of the plaintiff and his history by Dr Roldan. It is an assessment of the plaintiff and his truthfulness with which I have already disagreed. Moreover his conclusion does not in terms negate the existence of a psychological disturbance or its causal connection with the collision. In the very passages referred to in paragraph 76 above, Dr Roldan accepts:

(i) that the plaintiff may have been distressed or upset by the events of 10 February 1964;

(ii) that the plaintiff may have experienced psychological and behavioural disruption as a result of the collision;

is likely to have been very short lived

78 The cross examination of Dr Roldan took him through each of the criteria in DSM-IV and related them to various paragraphs of the witnesses report in which he recorded various information given to him by the plaintiff. He accepted that criteria A1 and 2 had been met. Initially he did not agree that criterion A2 had been met, but a little later conceded that, if what the plaintiff had told him in answer to specific questions directed towards such criterion were to be accepted, then criterion A2 had been met. His problem with the meeting of the criterion was that he did not accept what the plaintiff said. In this regard it should be said that the factual findings are matters for the Court, not the expert witness. In rejecting parts of the history given by the plaintiff that were not obviously absurd, I am concerned that Dr Roldan may have strayed beyond his field of expertise. The same methodology was applied to the various other criteria in cross-examination, as a result of which Dr Roldan conceded that if the history given to him by the plaintiff were correct, then each of criteria B1, B2, B4, B5, C1, C2, C4, C5, C7, D2, D3, D4, E and F were met. The difference therefore between Dr Roldan on the one hand and Dr Holwill and Professor McFarlane on the other, was that the two last mentioned specialists formed their opinions on the basis of the history they were given, whereas Dr Roldan formed his opinion largely on the basis of the rejection of such history. The essence of the histories on which Dr Holwill and Professor McFarlane formed their opinions are in accordance with the essential facts that I have found; Dr Roldan’s relevant rejections are not.

79 The second medical witness called by the defendant was Dr JR Champion who was a member of the Royal Australian and New Zealand College of Psychiatrists (1976). In 1972-1973 Dr Champion was the Registrar at the Neuropsychiatric Institute and between 1976 and 1978 was the visiting psychiatrist to the Renal Unit at Sydney Hospital. He had extensive experience in general psychiatry and deposed to a special interest in the area of post traumatic stress disorder and other manifestations of stress related psychopathology.

80 Dr Champion reported that he had seen the plaintiff at his Mosman rooms on 7 March 2002. Although Dr Champion prepared six reports for the Australian Government Solicitor concerning the plaintiff, this was the only occasion that he saw the plaintiff. Dr Champion took a history from the plaintiff as to his personality and background. He noted his mien, reviewed a number of documents, referred to a number of older learned papers and expressed the view:

“On the basis of the history he now gives as set out in his written statement it would seem likely that he may have suffered with a mild PTSD.”

“not convinced… that the history he now gives and that present in his written statement, in terms of his emotional reactions and the behavioural changes claimed, can be relied upon as an accurate indication of the presence of that condition”.

“I do not believe that Mr Stankowski has suffered with PTSD as a result of his experiences in the Melbourne/Voyager collision. I believe that Mr Stankowski has been currently focussed upon these experiences as an explanation for some of the difficulties he has experienced in relation to personality vulnerability, alcohol consumption and anxiety/depression.

81 There are a number of difficulties standing in the way of accepting this conclusion. The first is that it involves a rejection of the plaintiff’s history – a history that is substantially in accordance with the facts as I have found them. One example of this is the rapid onset of excessive consumption of alcohol; another is the change in his personality that came closely on the heels of the collision. A second difficulty is that a vulnerable personality may more readily be adversely affected psychologically by an event such as the collision. A third difficulty in the way of accepting the opinion proffered by Dr Champion is that the plaintiff experienced a partial remission in symptoms as a result of his attendance at the PTSD course conducted by the Commonwealth and taking the drugs that were prescribed for him. A fourth difficulty is that the methodology used by Dr Champion in eliciting the plaintiff’s history was open to criticism in that it was contrary to that utilised by every other expert called in the case, including Dr Roldan. A fifth difficulty arises out of the cross-examination of Dr Champion. In his cross examination he was taken through the histories given by the plaintiff and questioned as to whether or not they fulfilled various of the criteria. The upshot of this was that Dr Champion agreed that criteria A1, possibly A2, B4, B5, C2, C5, C6, D2, D3, D4, E and F were satisfied. Those matters of history which gave rise to this concession are supported by the findings of fact that I have made. In relation to criterion A2, Dr Champion’s concession was qualified on the basis that the material put to him went “some of the way” towards the fulfilment of this criterion. He did not accept that criterion B2 had been satisfied. The view that he expressed in relation to criterion B2 had two bases. This was that he, “personally” did not subscribe to the theory of symbolic transfer. The other depended on the interpretation of the criterion.

82 Whilst the concessions made by Dr Champion are valuable to the plaintiff’s case and ultimately supportive of the diagnosis of PTSD made by Dr Holwill and Professor McFarlane, they are not, perhaps, as important as they appear to have been to the parties during the course of the case. The cross-examination to elicit them was lengthy. However, as the first extract from the report of Dr Champion referred to in paragraph 80 above indicates, if the history given by the plaintiff as set out in Dr Champion’s report is accepted, then the plaintiff did suffer PTSD. Such history, as I have said, accords with the findings of fact that I have made. Furthermore the use of the adjective “mild” is not warranted. It is not in accordance with what the plaintiff experienced over many years, albeit that he is somewhat better since the PTSD course and appropriate pharmacotherapy.

83 Having analysing the medical evidence I am satisfied that the plaintiff suffers from severe, chronic PTSD that was caused by his exposure to and involvement in the events surrounding the collision between Melbourne and Voyager on 10 February 1964. Most of the effects of PTSD have been present from a time proximate to the collision. They have resulted in a change of attitude to life, depression, excessive consumption of alcohol, difficulties with marital, family and other relationships and nightmares that have been recurrent since 1966. There are other less significant manifestations of PTSD referred to in the medical evidence from which I accept the plaintiff has suffered. The PTSD has had a significant adverse effect on his life. Although he has improved somewhat since he attended the PTSD Clinic conducted by the Commonwealth and pharmacological intervention, he still suffers from symptoms. These include nightmares, which are unlikely to ever disappear. He will need drug therapy and psychiatric help in the future.

84 PTSD is a psychiatric disorder. The occurrence of psychiatric disorders of the same or cognate kind as a result of wartime trauma is well known. Going back to the 1860’s the effect of traumatic incidents in producing psychiatric disturbances was well known. Studies done in relation to World War I and World l War II veterans have demonstrated the causal relationship between involvement of service personnel in traumatic events and the development of psychiatric disorders. They have been variously described in everyday speech. A common description used following World War I was “shell shock”, no doubt related to the trench warfare experience of troops in Europe. A common description following the warfare in the jungles in which a large part of World War II was fought was “troppo”. According to Professor McFarlane, they are the same thing. Studies relating to Vietnam veterans have been undertaken with a similar outcome. The World Health Organisation’s publications of the late 1940’s and the early 1960’s recognise the problem. I have no doubt that it was not only foreseeable, but likely, that some of the sailors involved in the traumatic events of 10 February 1964 would suffer psychological injury, as the plaintiff did.

85 The plaintiff is entitled to damages.

Damages

A. General

86 I have already detailed many of the adverse effects to the plaintiff as a result of the PTSD from which he suffered. For a period in the order of 40 he has suffered from these effects, although I am conscious that the recurrent nightmares did not commence until 1966 and that since 1999 or thereabouts (after he had attended the PTSD Clinic conducted by the Commonwealth at Daw Park and with the benefit of prescribed drugs) he improved somewhat, but by no means completely. I am satisfied that he continues to suffer and will suffer intrusive thoughts, nightmares, depression, a feeling of alienation as well as other symptoms of PTSD.

87 The defendant submitted that the plaintiff “makes non-specific claims of ongoing impact upon his life”, that “the PTSD course which he attended addressed his problems in large measure” and that “there is no warrant to compensate him for his alcohol abuse in the 1970’s and early 1980’s”. In addition it has been advanced in diminution of his claim that he was “unaware of any impact over the 30 odd years before he was advised that he had PTSD”. These submissions do less than justice to the plaintiff and are inconsistent with the findings that have been made. The effects of PTSD on the plaintiff have been chronicled many times. They are significant and continuing. It is not correct to say that the effect of the PTSD Clinic “addressed his problems in large measure”. The plaintiff said that he thought it helped. This is confirmed by what he said to various doctors. But it helped only to a degree. He still experiences significant problems and needs medication. The fact that he was unaware of the causal relationship between the traumatic experiences in which he was involved on 10 February 1964 and, for example, his excessive drinking, his change in character or personality, his depression and his nightmares does not detract from their impact on him. Professor McFarlane gives ample evidence of the effects on people who do not know why they have changed, why they feel as they do, why they have detrimental experiences like depression, intrusive thoughts and nightmares. Having all those things, whilst not knowing why or denying their effects, in my opinion, is more likely to make the situation worse than to minimise it.

88 There is no standard figure for the general damages to which the plaintiff is entitled. The touchstone is reasonableness. A most important factor in assessing the general damages is the length of time for which the plaintiff has suffered from the effects of PTSD and that he will probably continue to suffer from them for the rest of his life, albeit at a level somewhat reduced from that which he experienced up to about late 1999. Doing the best I can I think an amount of $150,000 for general damages is appropriate. This amount relates to a total period of some 65 years, 40 of which have already gone by. The mathematical relationship between 40 years and 65 years is in the order of two thirds. However when regard is had to the fact that there has been a diminution to an extent to his symptoms since late 1999, I think it appropriate to allocate three quarters of the amount of $150,000 to the past and the residue to the future. On the basis of such an award the plaintiff is entitled to interest on that part of the damages that relate to the past. Senior counsel for the plaintiff has submitted that the rate at which interest should be allowed is 2%. At this rate of interest the amount to be awarded to the plaintiff by way of interest is $89,437.50.

89 I award the plaintiff $239,437.50 in respect of general damages and interest.

90 The defendant conceded that if Professor McFarlane was accepted, as he has been, the plaintiff is entitled “to some small sum to meet the possibility that the plaintiff will attend for further psychiatric assistance”. The plaintiff was born on 20 April 1945. He is now 59. He has a statistical life expectancy of approximately 22 years. The evidence of Professor McFarlane was that the plaintiff should see a psychiatrist on an occasional basis “probably every three months”. Such visits would cost between $180 to $200 for a standard 45 minute consultation. I think it is unlikely, having regard to the history of the plaintiff and the kind of man he is, that he would visit a psychiatrist as frequently as once every three months, so the figure of $12,277 calculated by the actuary needs to be reduced. I think the correct approach is to include a conventional sum of $7,500 to cover this aspect of the plaintiff’s damages.

91 I award the plaintiff $7,500 to cover the cost of future psychiatric consultations.

92 Senior counsel for the plaintiff has also claimed the costs of future medical treatment in the written submissions that have been prepared. Professor McFarlane considered the plaintiff’s condition to be relatively stable but this appears to be dependant on the use of prescribed drugs. The cost of his antidepressant at the present time is approximately $50 per month and he is likely to have to remain on that for life. Given his life expectancy the figure to be included in the judgment for antidepressants is $9,694.86. However in addition to this provision should be made for the cost of medication to help the plaintiff to sleep. In the absence of precise evidence as to the cost of such medication, I am of opinion that the appropriate approach for this item is to add a sum to the figure of $9,694.86 and as a consequence to award a round figure of $12,500 in respect of future medication.

93 I award an amount of $12,500 in respect of the costs of future medication. In doing so I note that it has been conceded by the defendant through its counsel that in the event that the plaintiff is found to have compensable PTSD, he has no entitlement to government assistance for the cost of such medication.

94 The plaintiff has also claimed that as a result of the psychiatric injury that he sustained he lost the value of the pension he would have received had he served 20 years in the Royal Australian Navy. The plaintiff enlisted on 8 January 1961 when he was 15 years and 9 months old. His period of enlistment was for 12 years. He left the Navy at the end of his period of enlistment. He said in his evidence that prior to the collision he intended to remain in the Navy for the rest of his working life. Had he remained in the Navy for 20 years from the age of 18, he would have been entitled to a Navy pension. When he was cross-examined about this aspect of his claim he said that it was his intention prior to the collision that at the end of his 12 years of enlistment he “would have probably signed on” again. He then intended to make the Navy his career. However he said that after the collision he “would rather not go back to sea” and had he signed on again he would have had to do so. As a result he said that he left the Navy when his initial term of enlistment expired.

95 I have no doubt that at age 15 years and 9 months or even at 19 years of age, the plaintiff may have been quite determined to make the Navy his career. But attitudes change over time and the possibility that he may not have re-joined the Navy in 1973 must be regarded as real. On 27 May 1972, he married a lady he had known for approximately 18 months, during most of which time he had been at sea. Even after he was married he was at sea most of the time. The result was that he and his wife saw each other for two weeks when they were married, one weekend the following August and thereafter not until he actually got out of the Navy. This is a consideration that goes to the likelihood of a young man re-joining the Navy. However, whilst he may not have rejoined, many young men who have wives whom they seldom see because of sea duties, still join or rejoin the Navy. The plaintiff and his wife did not have their first child until August 1974, so there would have been no pressure to leave the Navy arising from such a consideration. Furthermore it is relevant to note that for 25 years he has worked at Moomba, spending two weeks in Moomba and two weeks at home. Notwithstanding this he and his wife are still together. Mrs Stankowski would appear to be a person who tolerates the absence of her husband.

96 I do not doubt the sincerity of the plaintiff in saying that he had intended to rejoin the Navy when his term of enlistment expired in 1973. Whether he would have done so is however, another matter. At this remove in time it is difficult to determine whether he would or would not have rejoined the Navy. However there is a significant prospect that he might have done so, i.e. that there was such a chance.

97 I think the correct approach to this aspect of the plaintiff’s claim is to assess damages on the basis of assessing the degree of probability that he would have rejoined the Navy or might have done so and to adjust the award of damages to reflect the degree of probability. This is the approach that was adopted by Deane, Gaudron and McHugh JJ in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643. Such an approach allows damages to be awarded even though the degree of probability is less than 50%, provided that it is not so low as to be regarded as speculative.

98 I am satisfied that there was a chance that the plaintiff would have rejoined the Navy in 1973 had he not suffered the adverse effects of the psychological disorder that resulted from his involvement in the collision between Voyager and Melbourne. That chance is certainly not speculative. It is however less than 50%. The assessment of the degree of probability of such an event occurring is a matter of judgment. I assess the chance that was lost at a degree of probability of 25%.

99 The actuaries calculations relating to the level of pension and its present value make certain assumptions as to the possible promotion of the plaintiff had he re-enlisted in the Navy and remained as an enlisted man until he had completed 20 years of service. Their figures vary according to the assumption made as to the rank attained. I think it would be appropriate to take a figure of $300,000 as the present full lump sum value of pension rights, the chance to secure which was lost by the plaintiff. This figure is based on a mathematical computation. It takes no account of the vicissitudes of life. Whilst all such vicissitudes are not adverse, many are, especially in the way of life assumed for the purposes of this element of the damages. In my opinion a discount of 25% is appropriate for the vicissitudes of life. This reduces the figure of $300,000 to $225,000. This figure needs to be further reduced to the 25% referred to above as the assessment of the chance. The result is $56,250.

100 I award the plaintiff $56,250 in respect of the losses consequent upon the loss of the chance of rejoining the Navy in 1981.

101 To this sum there must be added interest. No calculations have been submitted by either of the parties in relation to the figure of $56,250. A person retiring from the Navy after 20 years service is entitled to take a proportion of his pension by way of a lump sum on retirement and the residue by way of periodic payments over the period of his life and the life of his spouse. These are indexed in accordance with the Consumer Price Index on the first payday in each July. On the assumptions made by the actuary, the capital sum that would be paid for a full pension after 20 years service would have been $24,733. Interest has to be calculated on 25% of this amount. In addition interest has to be calculated on 25% of the residue of the pension that would have been paid progressively over the period of 23.2 years that has elapsed since January 1981, when the plaintiff would on the assumptions relevant to the present matter under consideration, have retired from the Navy. Since that sum is paid progressively it must be reduced by a factor of 50% to reflect the periodic payments. For the purposes of calculating interest I have adopted an average rate of 10%.

102 On the bases referred to above, the total figure for interest to date in respect of the plaintiff’s loss of the chance to earn a full Navy pension is $62,163.64.

103 I award the plaintiff $62,163.64 as interest on the sum of $56,250 awarded in respect of the loss by the plaintiff of the chance of rejoining the Navy in 1981.

Summary

104 I award damages to the plaintiff as follows:

(i) $239,437.50 for general damages and interest on the component relating to the past;

(ii) $7,500 to cover the cost of future psychiatric consultations;

(iii) $12,500 to cover the cost of future medication;

(iv) $56,250 in respect of the lost chance of rejoining the Navy in 1981;

(v) $62,163.64 as interest on the amount referred to in (iv) above.

Orders

105 (i) There will be a verdict and judgment for the plaintiff in the sum of $377,851.14;

(ii) The defendant is to pay the plaintiff’s costs.

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Last Modified: 03/26/2004

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Citations

Stankowski v Commonwealth of Australia [2004] NSWSC 198

Most Recent Citation

Covington-Thomas v Commonwealth of Australia [2007] NSWSC 779

Cases Citing This Decision

1

Covington-Thomas v Commonwealth of Australia [2007] NSWSC 779

Cases Cited

1

Statutory Material Cited

1

Malec v JC Hutton Pty Ltd [1990] HCA 20

CITATION:	Stankowski v Commonwealth of Australia [2004] NSWSC 198 revised - 24/03/2004
HEARING DATE(S):	29/09/2003 - 02/10/2003, 07/10/2003 - 08/10/2003, 10/10/2003, 13/10/2003 - 17/10/2003, 20/10/2003 - 22/10/2003, 20/11/2003, 16/12/2003
JUDGMENT DATE:	22 March 2004
JUDGMENT OF:	O'Keefe J
DECISION:	(1) Verdict and judgment for the plaintiff for $377,851.14; (2) The defendant to pay the plaintiff's costs.
CATCHWORDS:	Negligence - Maritime collision - Collision - Voyager - Melbourne - Psychological injury - Post Traumatic Stress Disorder - PTSD - Loss of chance - Pension - Damages
LEGISLATION CITED:	Evidence Act 1995, s 72
CASES CITED:	Malec v JC Hutton (1990) 169 CLR 638
PARTIES :	Stephen Stankowski Commonwealth of Australia
FILE NUMBER(S):	SC 21240/95
COUNSEL:	Mr AG Melick SC, Dr K Sant - Plaintiff Mr RJ Burbidge QC, Mr GT Johnson - Defendant
SOLICITORS:	James Taylor & Co - Plaintiff Australian Government Solicitor - Defendant