Wright v Commonwealth of Australia
[2005] VSCA 309
•20 December 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 4814 of 2000
| CARL HENNING WRIGHT (AS EXECUTOR OF THE WILL OF LINDSAY JOHN STAFFORD, DECEASED) | |
| Appellant | |
| v. | |
| COMMONWEALTH OF AUSTRALIA | Respondent |
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JUDGES: | WARREN, C.J., MAXWELL, P. and NETTLE, J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 October 2005 | |
DATE OF JUDGMENT: | 20 December 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 309 | |
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LIMITATION OF ACTIONS – Personal injuries – “Disease or disorder” – “Insidious disease or disorder” – “Contracted” – Whether post-traumatic stress disorder an insidious disease or disorder contracted – Accrual of cause of action – Whether post-traumatic stress disorder such that its contraction “could not be known” – Whether proceedings commenced within six years from the date on which victim first knew that he had suffered personal injuries – Clark v Stingel [2005] VSCA 107 considered and explained – Damages – Assessment of damages – Whether damages for pain and suffering and loss of earnings excessive – Limitation of Actions Act 1958, ss.5(1)(a), 5(1A) and 23A.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J.H. Kennan S.C., with Mr K.D. Mueller | Hollows Lawyers |
For the Respondent | Mr T.J. Casey Q.C., with | Australian Government Solicitor |
WARREN, C.J.
MAXWELL, P.
NETTLE, J.A.:
This is an appeal from a judgment of a judge of the Common Law Division, given on 30 June 2005. The appellant’s claim was for damages for psychiatric injuries causing post traumatic stress disorder (“PTSD”) suffered by Lindsay John Stafford, deceased, following the collision of HMAS Melbourne and HMAS Voyager on 10 February 1964. The judge held that the appellant was not entitled to the protection of s.5(1A) of the Limitations of Actions Act 1958, and therefore that the claim was time barred, but that, if the claim had come within s.5(1A), the appellant would have been entitled to damages in the amount of $255,000 for loss of earning capacity and pain and suffering.
The principal ground of appeal is that the judge misunderstood or misapplied the decision in Clark v Stingel.[1]
[1][2005] VSCA 107.
In Clark this court decided by a majority of three to two that the operation of s.5(1A) of the Limitation of Actions Act is confined to cases of disease or disorder “contracted” at or about the time of the tortious act or omission but of which the contraction “could not be known” either then or within six years of contraction.[2]
[2]Ibid at [85]-[87] per Eames, J.A.
In this case the judge found that the PTSD suffered by the deceased was a “disorder”, and that it was contracted soon after the collision. He further held that the disorder was “symptomatically present” from soon after the collision,[3] and that the fact that the deceased had contracted the disorder was capable of being known either at or shortly after the time when the symptoms first presented. His Honour concluded that it followed from Clark that the PTSD suffered by the deceased was not a disease or disorder to which s.5(1A) applied.
[3]Wright v Commonwealth of Australia [2005] VSC 200 at [372].
Summary of the Facts
In 1964, the appellant John Lindsay Stafford, was a Chief Naval Shipwright on board the HMAS Melbourne (“Melbourne”). On the evening of 10 February 1964, when Stafford was 34 years of age, HMAS Melbourne collided with another Australian navy vessel, the HMAS Voyager (“Voyager”). The appellant commenced a proceeding by writ filed 28 March 2000 against the Commonwealth of Australia claiming damages for psychiatric injuries allegedly suffered in consequence of the collision between the Melbourne and the Voyager. Stafford died on 7 October 2004 and the action was continued by his executor, one Carl Henning Wright, pursuant to s. 29 of the Administration and Probate Act 1958.
The full history and background with respect to this matter was set out in the reasons of the trial judge. The salient facts on appeal are as follows.
Upon completion of his five-year apprenticeship as a cabinet-maker, Stafford enlisted in the Royal Australian Navy (“the Navy”) on 13 February 1951, aged 21. He married several years later, in July 1955, and there were two children born of the marriage, the elder being born in May 1956, and the younger in August 1958. Stafford was discharged from the Navy on 12 February 1971 after 20 years service, after which period of time he became entitled to a pension. By the time he left the Navy, he had attained the rank of Chief Petty Officer Naval Shipwright. Stafford had achieved that rank about seven years previously in 1964, the year of the Melbourne-Voyager collision. This was despite the fact that he had advanced through all previous promotions in the minimum authorised time.
According to evidence led by the appellant at trial, a clear demarcation could be drawn between the actions, activities and personality of the deceased before the collision, as opposed to Stafford’s later conduct and the characteristics he exhibited almost immediately afterward.
Prior to the collision, the deceased, his wife, daughter, colleagues and friends gave evidence that the deceased enjoyed sports, socialised with neighbours and friends, had a good marriage and family life, enjoyed a good relationship with his children, was “outgoing” and “full of fun”, imbibed only moderate amounts of alcohol and was a sound sleeper. His work reports were also glowing with praise. He was also viewed by some colleagues as a leader and easy to get along with.
Immediately after the collision, Stafford recollected seeing damage in the bow section of the Melbourne. He said that he saw the broken remnants of the lavatories and could see the ocean through the holes in the ship. He dispatched shipwrights to different parts of the ship to assist with the shoring up of the collision bulkhead and to assist with other matters. He later discovered that the Voyager had cut across the bows of the Melbourne and was cut in half. He said that he believed that his younger brother may have been on board the Voyager and there were other people he knew on the Voyager who could have been injured. He learned later that night that his brother had not in fact been on board the Voyager. However, he said that he turned his mind to and suffered various images of what might have occurred had the circumstances been different, including injuries which the apprentices and shipwrights he was supervising could have sustained. He said that he was worried for the men serving under him and that he remained concerned for the return journey to Sydney.
As for his life following the collision, Stafford himself claimed that he suffered “flashbacks” to the events immediately after the accident occurred. He said that he had problems sleeping as a result and he had the “hot and cold sweats”. Both the deceased’s widow, Elizabeth Stafford, and his colleague Lincoln, who was on board with Stafford after the collision, agree that he had trouble sleeping. He said that memories associated with the collision induced bowel problems. Stafford also stated that he felt “stressed” and was “depressed” almost directly after the accident occurred. He complained that he was affected by irritability and a quick temper when it came to friends and family members and that his social life suffered, practically disappearing altogether. The evidence of Elizabeth Stafford and Annette Wright (his daughter) concurred with his evidence in this respect. He was after this time apparently easy to anger and often used a leather strap to discipline his children. Mrs Stafford also agreed with her husband’s evidence that subsequent to the collision he imbibed more alcohol, often drinking at home (though the deceased denied having a drinking problem), and that his sleep patterns were disturbed. Both the deceased’s wife and daughter did not admit to making the connection between his behaviour and the collision until recently before the trial. Stafford’s work reports furthermore recorded the first hint of criticism levied against him in his employment capacity approximately 10 months after the accident. An entry made by his superior on 23 December 1964 noted that Stafford “has performed duties as Chief [Naval Shipwright] satisfactorily and has supervised staff very well”. It then went on to say however that he “[a]ppears to resent suggestions regarding changes on …. involving staff and work to be carried out. Consider he will appreciate this advice as he progresses”. He was also reportedly much more serious than previously, intolerant and irritable, and far more reticent and unreasonable in his dealings with subordinates.
The trial judge concluded that Stafford voluntarily discharged himself from the Navy in 1971 for reasons unrelated to the collision and PTSD. He commenced work as a maintenance fitter at MacRobertson Miller Airlines (“MMA”) from 1973 until 1990. He suffered a left ankle fracture in 1989 and received workers’ compensation as a result of that injury until his termination with MMA. He received benefits totalling approximately $134,000 at that time as well as $15,000 for settlement of a common law claim initiated by him. From 1990, he suffered a spate of extremely serious ill health, including, but not limited to, the following: lymphocyte leukaemia, carcinoma of the colon, cancer of the bladder, bowel disorders and possibly bowel cancer, and heart problems.
The appellant at trial claimed that the negligent acts and omissions of the respondent’s servants or agents caused the Melbourne-Voyager collision and that he suffered post-traumatic stress disorder (PTSD) as a result. The appellant also alleged that PTSD “and its related sequelae” are a disease or disorder contracted by the deceased within the meaning of s. 5(1A) of the Limitation of Actions Act 1958. The appellant further alleged that Stafford first had knowledge of his condition and its cause in or about 2000.
The respondent at trial accepted that its servants or agents breached the duty owed to take reasonable care to prevent the deceased from suffering injury. Nevertheless, the respondent denied that Stafford had suffered PTSD as a result of the collision and challenged the assertion that PTSD fell within s.5(1A) or that the deceased first knew he suffered from those injuries and that they were caused by the collision in or about 2000. The respondent pleaded that the appellant’s action was statute-barred on account of s.5(1)(a) of the Limitation of Actions Act 1958. The appellant, for its part, pleaded that the respondent was estopped from reliance on s.5(1)(a).
The ratio in Clark v Stingel
The appellant’s first contention is, in effect, that Clark really had nothing to do with this case and should have been ignored. In the appellant’s submission, Clark turned in the end on the fact that the PTSD alleged to have been suffered in that case was of a late onset variety and so was not contracted within the six year limitation period. Thus, according to the appellant, the decision in Clark stands as authority for no more than that a disease or disorder is incapable of coming within the reach of s.5(1A) if it is not contracted within the six year limitation period. In the appellant’s submission, the statement in Clark [4] that s.5(1A) only applies “…to situations where it was invariably the case that the fact that a person was suffering from a disease or disorder could not be known at the moment of its contraction or within, at most, six years of its contraction” was mere obiter dictum.
[4][2005] VSCA 107 at [87] per Eames, J.A.
In our opinion that contention is not persuasive. As we read Clark, the statement about what “could not be known” was part of the ratio decidendi. It was the basis of resolving the principal question of whether a disease or disorder which was not contracted until after the expiration of the limitation period was an “insidious disease” and therefore one to which s.5(1A) applied. As the majority in Clark put it:
“ …[counsel for the appellant] also submitted that even if it was essential that the ‘disorder’ be of an insidious kind that description was apt to cover the situation here. Why, he submitted, was this condition of post-traumatic stress disorder not a disorder of an insidious kind? For this argument [counsel] appeared to apply to the expression ‘insidious disorder’ the meaning that it was a disorder that was insidious because it did not come into existence until long after the tortious act or omission occurred which was its cause. In my view, the more apt meaning, and the way in which the expression had been applied to s.5(1A) when used in the decided cases to which I have referred, is that a disease or disorder was insidious because its contraction could not be known at the time of contraction, its existence only being discovered much later.”[5]
[5][2005] VSCA 107 at [84], per Eames, J.A. (Our emphasis).
No argument was advanced that Clark was wrongly decided (although we note that, on 18 November 2005, the High Court granted the plaintiff in that case special leave to appeal the decision). We therefore proceed on the basis that the task of this Court, as it was for the trial judge, is to apply Clark to the facts of this case. We observe that the decision in Clark was delivered after the trial in this matter but while the judgment was reserved. His Honour, subsequently heard submissions by the parties as to the application of Clark to this case and then further reserved his judgment. It was conceded before us that the interpretation argument with respect to s.5(1A) of the Limitations of Actions Act 1958 was not made below. Indeed, this component of the appeal was not ventilated in any way before his Honour.
It becomes necessary, therefore, to examine closely what was meant by the phrase “could not be known” as used in Clark.
The meaning of “could not be known”
The appellant contends that, accepting that s.5(1A) operates as stated in Clark, the requirement that the disease or disorder “could not be known” in the limitation period should be viewed as a subjective requirement (and so has the meaning that the disease or disorder “was not known” to the victim during the limitation period), as opposed to an objective requirement (such as that the disease or disorder “could not be known to a reasonable physician or specialist medical practitioner assuming that such were consulted”). In the result, in the appellant’s submission, the conditions for the engagement of s.5(1A) were satisfied in this case.
The respondent, on the other hand, contends that “could not be known” means “was incapable of being known”. It argues that the learned judge was correct when he said that:
“...at the heart of Clark lie the twin notions that a disease or disorder is described as one which is ‘contracted’ because its contraction invariably could not and would not be then known by the victim, the reasons being that the time of contraction is at least most often uncertain and in any event that the disease or disorder is not then of an extent to enable it to be known; and that the victim’s knowledge that he or she suffers from the same will be long delayed because of the time lapse until the disease or disorder progresses to the point at which it declares itself.”[6]
[6][2005] VSC 200 at [371].
There are certainly passages in the majority judgment in Clark which suggest that the test was intended to be an objective one. Thus, Eames, J.A. said:
“In my opinion, s.5(1A) is intended only to apply to situations where it was invariably the case that the fact that a person was suffering the disease or disorder could not be known at the moment of its contraction or within, at most, six years of its contraction. Giving s.5(1A) that interpretation provides a fair balance in the legislation between the interests of proposed plaintiffs and defendants. Post-traumatic stress disorder could arise within a six year period and be known to have been suffered, as indeed might the individual symptoms be known before they combined to constitute post-traumatic stress disorder. An action within time could then be brought, but where such a disorder did not arise within six years s.23A provided the opportunity for the person suffering the disorder to seek leave to bring an action. This is an interpretation of the legislation which is logical, makes it workable, and entirely accords with the expressed intention of the Parliament.”[7]
[7][2005] VSCA 107 at [87] (emphasis in the original).
At the same time, a number of other passages in the majority judgment express the test in subjective terms, that is, by reference to what the injured person actually knew. They are:
1) First, in paragraph [75] of the judgment, where it was said that:
“…That would also be consistent with [the section’s] intended application being to the onset of disguised diseases. The section, in my view, postulates the cause of action arising at a time when the victim of the tortious act or omission would not know that time had commenced to run, the cause of action having accrued upon there being damage caused by the breach. In the case of an insidious disease the fact that the disease had been contracted would not be known or, indeed, be knowable.”[8]
[8]Our emphasis.
2) Secondly, at paragraph [80] of the judgment, where the majority referred with approval to the observation of Chernov, J.A. in Mazzeo[9] that:
[9]Mazzeo v Caleandro Guastalegname & Co (2000) 3 V.R. 172.
“Secondly, the terms and operation of s.5(1A) suggest that it relates only to personal injuries which ordinarily take a considerable period of time to manifest themselves to the injured person…”[10]
[10]Our emphasis.
3)Thirdly, to similar effect, the following appears at paragraph [86] of the judgment:
“In my view, as I have said, the section was intended to cover diseases contracted at or about the time of the tortious act or omission but which were not then known to have been contracted.”[11]
[11]Our emphasis.
4) Fourthly, in paragraphs [88] and [89] of the judgment, it is said that:
“…the dichotomy is better expressed as between insidious diseases and disorders, on the one hand, and, on the other hand, frank (i.e. not disguised) diseases or disorders, the contraction of which are neither unduly delayed nor disguised…
…It is only when the injury is a disease or disorder of an insidious kind, in the sense that it is contracted but not known to exist until much later, with which the section is concerned.“[12]
The sense of each of those passages appears to be that the section applies to a disease or disorder the contraction of which is so disguised from the victim that the victim does not know that he or she has contracted it.
[12]Our emphasis.
The respondent contends that the history of s.5(1A)[13] makes plain that the purpose of s.5(1A) was to accord special treatment only to insidious diseases or disorders “such as asbestosis or pneumoconiosis”, the relevant characteristic of which is that they are incapable of diagnosis (even by the most skilled specialist medical practitioner) until after the limitation period has expired. It follows, it is said, that, whatever might now be thought about the consequences, it is plain that Parliament did not intend the section to apply to a disease or disorder unless its contraction were so disguised as to render it incapable of diagnosis by the most skilled specialist at any time during the limitation period. According to that view of the matter, it is not sufficient to engage the section that a disease or disorder is so disguised from the victim that he or she does not perceive the need to seek medical advice. In the respondent’s submission, so much was plainly recognised in the reasoning of the majority in Clark.
[13]Which is traced in the majority judgment in Clark [2005] VSCA 107 at [65]-[71].
We disagree. It is true that the history of the legislation shows that the section was created to deal with “insidious diseases”. And it is true that asbestosis and pneumoconiosis were cited in the Chief Justice’s Law Reform Committee report as exemplars of “insidious diseases”.[14] It is also true that much of what is said in the majority judgment in Clark may be seen as informed by an understanding of the effects of asbestosis and pneumoconiosis. But we see little in the history of the legislation, or in what was said about it in the majority judgment in Clark, which implies that asbestosis and pneumoconiosis were thought by Parliament to be in all cases incapable of diagnosis within a period of six years; and even less to suggest that it was regarded as being of the essence of the class of insidious diseases to which the section would apply that all of them would in all cases be incapable of diagnosis within the space of six years.
[14]We proceed on the basis that it is permissible and appropriate to have regard to the report pursuant to s.35A of the Interpretation of Legislation Act 1984 and also as a matter of common law: Black-Clawson Ltd v Papierwerke A.G. [1975] A.C. 591 at 614, 629 and 638; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 C.L.R. 384 at 408.
To begin with, the thrust of the relevant passages from the majority judgment in Clark appears to be that an “insidious disease or disorder” for the purposes of s.5(1A) may (scil. but may not always) be incapable of diagnosis during the limitation period. Thus it was said:
“67By way of explanation for those recommendations, the sub-committee reported the difficulties which had arisen in the interpretation of the English legislation because it had drawn no distinction between ‘personal injury cases arising out of personal accident and those which are based on disease’. To treat them the same way was ‘undesirable’, the sub-committee reported. In discussing problems which s.23A had created the sub-committee observed:
‘Although the section was to some extent inspired by the problems associated with contracting of disease, it was drafted to deal compendiously with problems in all the areas of personal injuries. We contend that if the problem relating to contracting disease is dealt with separately, then exercise of the required jurisdiction can be very much simplified.’
68In recommending a provision along the lines of what became s.5(1A) the sub-committee, citing a series of decisions of the courts in Victoria and the UK, reported:
‘Insidious diseases such as asbestosis and pneumoconiosis have given rise to extension of time applications because the limitation period commonly expires before the victim knows that he has the disease and that it was caused by some act or omission of his employer …’ (My emphasis.)
69The government did not accept all of the committee’s recommendations. It abolished s.5(6) and adopted a two tiered approach. First, a six year limitation period was introduced by s.5(1)(a) for actions founded on simple contract and on tort, including breach of statutory duty, and, secondly, by s.5(1A), a six year period was to apply to actions for personal injuries ‘consisting of a disease or disorder contracted by any person’. The Attorney General said in his Second Reading Speech[15]:
‘In broad terms the committee recommended that disease or disorder claims, such as asbestosis or pneumoconiosis, be treated differently from all other personal injury claims. The committee recommended a standard limitation period for all personal injury claims with a broad discretion in the courts to extend that period where it is just and reasonable to do so. The committee also recommended guidelines to assist a court in the exercise of its discretion.’ (Our emphasis.)
70In many places in his speech the Attorney emphasised that in the new legislation disease and disorder cases were treated differently from other cases. Thus, the Attorney General spoke of how knowledge of the disease or disorder, and of there being someone responsible for it, ‘may not come to the injured person until many years after the disease or disorder starts to develop’, and of the disease and disorder cases being placed in a separate category so that the victim will no longer have to apply for an extension of time ‘simply because the disease or disorder was not discovered until after the expiration of the limitation period.’ (The emphasis is ours in both cases.) Later, he again spoke of ‘the particular difficulties in disease and disorder cases concerning the possible expiration of the limitation period before the injured person knows he has a cause of action’.
71The Attorney said that by way of contrast with those disease and disorder cases, and the way in which they were treated under s.5(1A), for other cases an extension of the limitation period from three to six years was justified, because normally six years will be adequate time to afford ‘an injured person sufficient time to seek medical, legal and other expert advice, concerning all aspects of his injury, to identify the person responsible and institute proceedings to recover damages for the injury’. He added, however, that even in those cases ‘the precise nature and extent of injuries suffered by a person may not be fully determined for some years after the accident which caused those injuries’, and because a six year limitation could therefore operate unfairly in some cases, s.23A would allow for an application to be made seeking the exercise of discretion by the court to extend the time for the commencement of proceedings.”
[15]Hansard, Legislative Assembly, Second Reading Speech, 14 December 1982, p.2765.
In the second place, it is notable that the passage from the Report of the Chief Justice’s Law Reform Committee, which is set out in paragraph 68 of the Clark judgment, records that the limitation period commonly expires before the victim knows that he or she has the disease. It is not suggested that the nature of insidious disease is such that it invariably expires before the limitation period or that it cannot ever be diagnosed within the limitation period. The logical implication is that the diseases or disorders to which s.5(1A) was intended to apply include those of which it may have been possible to learn within the limitation period but of which the victim did not in fact learn during that period.
In the third place, in the passage of the Second Reading Speech which is recorded in pararaph 70 of the judgment, it is to be observed that the Attorney General spoke of the possibility that knowledge of the disease or disorder “may not come to the injured person until many years after the disease or disorder starts to develop”. Further, the Attorney spoke of the disease and disorder cases being placed in a separate category so that the victim will no longer have to apply for an extension of time “simply because the disease or disorder was not discovered until after the expiration of the limitation period” and of “the particular difficulties in disease and disorder cases concerning the possible expiration of the limitation period before the injured person knows he has a cause of action”. In our view these references effectively negate the possibility that the Parliament had in mind that “insidious diseases” must be such that knowledge cannot ever come to the injured person during the limitation period; or that they are invariably such that they cannot be discovered, as opposed to being such that they may not be discovered; or that the limitation period will always expire before the injured person knows that he or she has the disease, as opposed to that being a possibility.
In the fourth place, there is another passage from the Second Reading Speech,[16] in which it was said that the amendments to the Limitation of Actions Act (ie. the introduction of s.5(1A) and the modification of s.23A) would produce among other benefits:
“A recognition of and provision for the particular difficulties in disease and disorder cases concerning the possible expiration of the limitation period before the injured person knows he has a cause of action.”[17]
[16]Not referred to in the Clark majority judgment.
[17]Our emphasis.
In the fifth place, there is nothing inherent in the expression “insidious disease or disorder” which requires, or even necessarily implies, that a disease or disorder cannot qualify as “insidious” unless it is incapable of diagnosis within the limitation period. According to the ordinary meaning of the word, something is insidious if it is “proceeding or operating secretly or subtly so as not to excite suspicion”.[18] According to medical usage, an insidious disease is one “without marked symptoms” or one “not appearing to be as bad as it really is”[19] or one “…that comes on slowly, without obvious symptoms at first, so that the person is not aware of it developing”.[20] Therefore, even allowing for such limitions as may be thought to be implied by the exemplars of asbestosis and pneumoconiosis, it would not be an abuse of language to describe anthracosis or even industrial nephritis as an insidious disease or disorder; despite that at some point within a six year limitation period either might well be susceptible to expert diagnosis. Furthermore, given that the purpose of the section was to extend time automatically in the case of “disguised” diseases and disorders, why should Parliament have envisaged as a condition precedent to the operation of the section any greater degree of disguise than was necessary to keep the contraction of the disease hidden from the victim?
[18]Oxford English Dictionary, 2nd Ed.
[19]University of Newcastle upon Tyne, On-Line Medical Dictionary; MIMS On-Line Medical Dictionary.
[20]Medline Plus, Medical Encyclopaedia.
In the sixth place, unless the level of knowledge required, for the purposes of the classification of a disease or disorder as one of the kind to which s.5(1A) applies is the same as the level of knowledge necessary to make time start to run under the section, the section would be productive of irrational and capricious results. For example, in the case of a disease which was incapable of diagnosis within the limitation period, but was capable of diagnosis very shortly after expiration of the limitation period, time would not begin to run until and unless the victim actually submitted himself or herself for diagnosis and thereby acquired knowledge; possibly many years later. Conversely, in the case of a disease or disorder which was capable of diagnosis very shortly before the end of the limitation period, but which was not in fact diagnosed until very shortly after the expiration of that period, the victim would be barred from bringing suit even if he or she instituted a proceeding immediately following diagnosis. It is true, as the respondent submitted, that the victim in the latter case might have a very good claim for extension of time under s.23A (assuming that s.5(1A) did not apply). But that possibility does not explain why Parliament should set out to achieve by the enactment of s.5(1A) the “’absurd’, ‘extraordinary’, ‘capricious’, ‘irrational’ or ‘obscure’”[21] inequities certain to follow from making the test of knowledge for the purposes of insidiousness a higher and more demanding test than that of knowledge for the purposes of starting time to run.[22]
[21]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 C.L.R. 297 at 321, per Mason and Wilson, JJ.
[22]cf. Deming No. 456 Pty Ltd v. Brisbane Unit Development Corporation Pty Ltd (1983) 155 C.L.R. 129 at 151; Paget v. JLT Workers Compensation Services Pty Ltd and Glenelg Shire Council [2005] VSCA 144 at [29], per Callaway, J.A.; Calder v. Uzelac [2003] VSCA 175 at [10], per Buchanan, J.A.; Commonwealth v. Dinnison (1995) 56 F.C.R. 389; Cranbrook School v. Stanley [2002] NSWCA 290 at [68], per Heydon, J.A.
Finally, once one moves away from a test of subjective knowledge, how is one to say which one of the other possible standards of knowledge is most likely to have been intended? The respondent put its case on the basis that “could not have been known” means the same thing as that the disease or disorder does not manifest symptoms during the limitation period; or, putting it another way, that if there are symptoms from which the existence of the disease is capable of being diagnosed during the limitation period, it cannot be said that the contraction of the disease or disorder cannot be known during the limitation period. But as the judge below pointed out,[23] such an idea rests on assumptions about the symptomatology of insidious diseases and disorders which are neither warranted by the evidence nor likely always to be accurate.
[23][2005] VSC 200 at [372] at fn. 270.
Common sense and ordinary human experience dictate that what may appear to one medical practitioner as an absence of symptoms may appear to another as the indicia of disease or disorder. Equally, what may be thought of at one level of the medical discourse as an accurate conception of the gestation period of a disease or disorder may be perceived at another level of understanding as no more than a poor approximation. In the same way, what may at one level of specialisation represent the generally-accepted limits of diagnostic capacity may at a higher level of specialisation be seen as but a misconception based on ignorance of available testing procedures. Mutatis mutandis, it is the same in every profession.
If, then “could not be known” did not mean “could not be known to the victim unaided”, would it mean ”could not be known to the victim aided by a general practitioner with such knowledge of the symptomatology of the disease or disorder as it may be supposed that a general practitioner would have”, or would it mean ”could not have been known to the victim if he or she had sought the advice of a specialist medical practitioner with such level of knowledge of the symptomatology of the disease or disorder as it may be supposed that the specialist would have”? If then it were the latter, would the matter be decided on the basis of what a reasonably competent specialist might be thought likely to have turned up, or would one be required to assume the level of skill which in the scheme of things may be confined to a handful of leading specialists or even the leading specialist in the field?[24] If then it were the latter, how widely would the net need be cast? Would it have to be decided on the basis of such specialist expertise as was available to the victim in his or her home town (which, after all, could well be none if the victim lived outside one of the capital cities), or would it have to be assessed on the basis of the specialist talent available in the victim’s state of residence, or would one need to look beyond that to the best qualified and most skilled specialists in the land or, depending upon the particular disease or disorder, even perhaps beyond that to whatever may be available abroad? Just as importantly, would one assume that the specialist would have ordered pathology testing and, if so, partial testing or a full suite of tests including a biopsy and whatever other procedures of that kind may have been available, or would one assume - as it seems to us might well be the case -that, given the low level of symptomatology likely to be observed upon first presentation, the specialist decided to hold off from full testing, in the reasonable hope of avoiding the invasion and distress which that may entail, until as it turned out the limitation period had passed?
[24]cf. Chappel v Hart (1998) 195 C.L.R. 232.
It may be added that questions of the kind just posed assume particular significance in this case, given that the deceased was twice medically examined by Navy physicians during the limitation period, and that neither detected the existence of PTSD; even though it is now clear on the evidence that the deceased was suffering from the condition at the time.
The respondent argues that the expression “could not have been known” leaves no room for doubt. It says that the plain and ordinary meaning of the expression is the converse of what could conceivably have been known; and thus that a disease is not within the purview of the section unless incapable of detection (within the limitation period) by the best and most skilled medical practitioners using the best and most extensive testing procedures available to the profession at the time. But, apart from the semantic rigour of that contention, we see little to commend it. According to a number of previous decisions of this Court,[25] the words of s.5(1A) are susceptible to a number of interpretations. Where, however, the words of a statute are found to be so susceptible, the Court prefers the interpretation which avoids inconvenience and injustice.[26]
[25]Clark v. Stingel, supra; Rita Mazzeo v. Caleandro Guastalegname & Co. (2001) V.R. 172.
[26]CooperBrooks (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981) 147 C.L.R. 297 at 305, per Gibbs, C.J.
In our judgment it would be productive of great inconvenience and even greater injustice if the application of s.5(1A) were to turn upon the quality (or lack of it) of the medical advice available to the victim. Equally, if the effect of a disease or disorder were to prevent the victim detecting the need for medical advice, it would be inconvenient and unjust if the application of s.5(1A) were to turn on whether the disease or disorder were otherwise fortuitously detected. Conversely, it would be most convenient, and it would be just, and therefore it makes evident sense, that s.5(1A) should apply to a disease or disorder contracted at or about the time of a tortious act or omission and howsoever disguised from the victim that he or she remains ignorant of its contraction until after the limitation period. Consequently, we infer that the majority in Clark chose that latter interpretation. With respect, that is what we take them to have meant by the expression “could not have been known”.
The respondent argues that so to construe s.5(1A) would deprive s.23A of most of its useful operation. We reject that argument also. As the reasoning in Clark makes clear, s.5(1A) is confined to insidious diseases and disorders, which is to say those that are contracted at or about the time of the tort and of a nature so disguised that the victim does not learn of contraction until after expiration of the limitation period. Sections 5(1)(a) and 23A deal with the remainder of compensable injuries.
The appeal should be allowed
The respondent concedes[27] that PTSD of the kind which the deceased was found to have suffered was contracted at or about the time of the collision of HMAS Melbourne and HMAS Voyager. It was not late onset PTSD of the kind considered in Clark. The respondent also concedes that the PTSD contracted by the deceased was of a kind that was so disguised that the deceased did not know of its contraction during the limitation period. As the judge below found, the disorder so affected the deceased that he was unable himself to detect that he was suffering the symptoms of the disorder. The respondent further concedes that if the expression “could not be known,” as employed in Clark, means “was not known to the deceased (as opposed to what conceivably might have been discovered by a specialist if the deceased had been examined by such a specialist)” the PTSD would be a disease or disorder to which s.5(1A) applies.
[27]Subject to the notice of contention which is dealt with below.
It follows, for the reasons which we have given, that the appeal should be allowed.
The notice of contention
The respondent contends by way of notice of contention that the judgment below ought to be upheld on the basis that it was not open to the judge on the evidence to find that the deceased ever suffered symptoms of re-experiencing the traumatic event in any of the five ways nominated in Criterion B of DSM IV[28] and accordingly that his Honour should have determined that the deceased had not suffered PTSD and that the judge below erred in holding or finding that the deceased contracted PTSD. Criterion B is to do with re-experiencing the traumatic event.
[28]Which was the variety of PTSD which the deceased was found to have suffered.
We reject that contention. The judge summarised the evidence on which he based his finding as to the satisfaction of Criterion B as follows:
“267.As to criterion B, I am satisfied by the evidence of the plaintiff, Mrs Stafford and Lincoln that the plaintiff suffered from sleep disturbance from a time proximate to the collision; and that this was very probably accompanied by recurrent distressing dreams about that event. Pertinent nightmares, as Professor Hopwood noted, are one of the most common presentations by persons suffering from PTSD.
268.Further as to criterion B, the question was much debated at trial whether, in response to cues symbolising the event, the plaintiff suffered recurrent intrusive recollections of the collision, flashbacks, distress or arousal. I am satisfied that the plaintiff engaged in conduct which constituted avoidance, which likely implies that there were specific cues which precipitated intrusive recollections, flashbacks, distress or arousal. But I will not reason in that way so as to conclude positively that the plaintiff did suffer such responses. I need reach no positive conclusions about the matter; and I do not do so.
269.Medical evidence which I have accepted, as in the case of criterion A, supports my conclusion that criterion B was satisfied. Contrary medical opinion, for reasons discussed, did not rest on a sound factual foundation.”
The respondent next contends that there was no evidence as to the content of the recurrent nightmares and points to the fact that the deceased gave evidence de bene esse that he did not recollect the dreams and that when undergoing structured testing had answered no to the questions: “Have you experienced painful images of memories of your experiences which you couldn’t get out of your mind even though you may have wanted to?”; and “Have you had repeated dreams of violence, death or other themes related to your experience?”
That contention, however, overlooks the evidence of Mrs Stafford, the deceased’s widow, that before the collision the deceased had been a good sleeper who had gone straight to sleep and that after the collision he had been a very poor sleeper who had nightmares sometimes twice a week, sometimes not, other times two to three times per week, and that he would moan and groan and say “Watch out. Mind the water”. Professor McFarlane was of the opinion that the fact that the deceased had slept well before the collision and that after it he would wake up in a sweat and sleep walk was strongly suggestive that the dream content was likely to be related to the trauma.
There was also evidence given by Dr Fellows-Smith and Dr Stain that the deceased’s failure or refusal to disclose the contents of his dreams was part of an avoidance or denial process which was a consequence of the disorder. Dr Fellows-Smith observed that there were particular indications that the deceased avoided talking about the trauma, of which one example was that the deceased had not spoken to his brother, Terry, about the incident since the collision, even though for a while after the accident the deceased had believed that Terry was on the Voyager. In turn that evidence was backed by the opinions of Professor McFarlane and Dr Stain and Professor Hopwood. Professor McFarlane said that the most common form of avoidance is avoidance of any thoughts and feelings. Dr Stain explained that while the deceased did not want to talk about the collision and wanted to block it out, he admitted to a disturbed sleep pattern and displayed strong cognitive avoidance which met the criteria for PTSD. In Dr Stains’ opinion, therefore, the denial of dreams or recurring memories was an indicator of avoided reminders. Professor Hopwood gave evidence that while a majority of PTSD sufferers are aware of the troubling nature of reliving the events some of them are not. Some deny psychological symptoms for fear of being asked to describe events that they find overwhelmingly arousing to discuss.
The significance of the de bene esse examination also needs to be seen in context. Dr Fellows-Smith viewed the video tape of the examination and noted that the deceased had an avoidant style and a consequent tendency when giving evidence to deny symptoms. He observed that the deceased had difficulty verbalising his traumatic memories and became distracted and distressed when pressed by counsel. Dr Fellows-Smith explained that those recollections needed to be drawn out and that by bringing the deceased to a more comfortable state of mind he was indeed able to obtain a history of recurring memories and indicia of persistently re-experienced “second-hand traumas”. Dr Fellows-Smith set out those recurrent memories and experiences in some detail and it is of particular significance that the deceased’s intrusive thoughts included the concern that if a party of shipwrights were unsuccessful the bulkhead would collapse and the ship sink. In Dr Fellows-Smith’s opinion those recurring memories plainly satisfied criterion B.
The respondent next contends that it was not open to conclude that the deceased had satisfied criterion B because of the competing possible inference of alcohol abuse. We do not accept that contention either. Experts called on each side, Professor McFarlane and Professor Shalev, were both of the opinion that chronic PTSD is linked to alcohol abuse and that, while PTSD and alcohol abuse are separate disorders, PTSD sufferers may use alcohol to sleep better and to reduce invasive recollections of the trauma. In any event, the evidence before the trial judge was that the diagnosis of PTSD involves skilled clinical assessment. That is to say, there is no foolproof objective method of determining PTSD. Diagnosis is entirely clinical, based on the presence of specific symptoms as recognised by skilled clinicians. Given the other evidence to which we have referred it was in our opinion plainly open to the judge to accept Dr Stain’s diagnosis that the deceased did in fact have recurring memories which satisfied criterion B.
Whether damages excessive
The respondent further contends that the judge’s assessment of damages for pain and suffering in the sum of $180,000 was manifestly excessive, and the respondent points to the fact the deceased gave evidence that while for a time after the accident he became disillusioned with the Navy he was able to overcome that and continued to be superior in efficiency and was proud of his Naval record. The respondent did not otherwise, that is save for the pain and suffering component, challenge the assessment of damages. It is submitted that upon the evidence the deceased did not seem to have much insight into his condition, and it is noted in particular that when medically examined at the time of re-engagement in 1965 and again at the time of his discharge in 1970 he made no complaints about emotional instability or mental incapacity. Further when his wife complained to him about the excessive drinking habits which he developed following the accident he would say that there was nothing wrong with him. The respondent points to the fact that the deceased did not leave the Navy because he was affected by his condition but because of personal reasons, to assist his wife with his son, and that after some temporary employment he settled to a position with MacRobertson Miller Airlines which he enjoyed and in which he worked well and had planned to remain until he reached 65 years of age. He enjoyed boating and playing golf and he was a member of the Raffa Club. It was only because he suffered a very significant injury to his left foot and ankle during the course of his employment in 1989 that he was compulsorily retired in 1990 at the age of 61 years and he did not seek any work thereafter.
Further reliance is placed on the fact that the deceased suffered serious health problems during the 1990’s. In 1990, following compulsory retirement, he was diagnosed with chronic lymphocyte leukaemia and, in February 1995, when he was 65 years of age, he was found to have colon cancer which had spread and he underwent surgery for bowel cancer. In March 1995, he was found to have tumours in his bladder and he underwent intensive radiotherapy which caused him to suffer chronic diarrhoea. Following the radiotherapy he suffered recurring episodes of small bowel obstruction leading to 40 to 45 hospital admissions over a space of a few years. In time he came also to suffer from multiple skin cancers and breathlessness on exertion. He underwent open heart surgery for the replacement of an aortic valve and had a pacemaker fitted to control atrial fibrillation. Then in mid 2002 he was found to have further cancer in the bladder and underwent chemotherapy before unsuccessful bladder salvage surgery was attempted in 2004. Finally, while he made six applications to the Department of Veterans Affairs for pension in respect of bowel cancer, bladder cancer, colon cancer, impotence, loss of hearing and skin disorder, he never mentioned any symptoms of PTSD. In a statutory declaration dated 28 January 1998, he deposed to the extent to which his physiological ailments affected his life in a way which it is said leaves little room for such of the effects of PTSD as he may have experienced. In short, it is contended that the deceased’s condition was so wretched as the result of his physical maladies, and consequently that his enjoyment of life was so reduced, that there could have been very little room for further reduction in the quality of life as a result of the effects of the PTSD.
In the respondent’s contention, when one has regard to all of that evidence, and bears in mind that the two largest amounts of general damages for pain and suffering yet awarded in this State are $450,000 (where an outstanding athlete at the height of his powers was rendered quadriplegic)[29] and $500,000 (which went to a plaintiff who was so incapacitated as a result of his injuries as to be completely paralysed in every respect except for his head)[30], a sum of $180,000 was plainly manifestly excessive. In the respondent’s submission, the very top of the range would have been in the order of $80,000 to $90,000.
[29] Toomey v Scolaro’s Concrete Construction Pty Ltd ( in liq) and Ors (No 2) [2000] VSC 279.
[30]Foscolos v Footscray Youth Club (2002) Aust Torts Reports 81-658; [2002] VSC 148.
The appellant resists that contention. He submits that the judge’s assessment was if anything conservative, and in any event well within the range of damages commonly awarded for PTSD injuries. Further, and while recognising that it is not always helpful to attempt comparisons with other cases, the appellant points by way of example to a number of recent matters in which comparable verdicts have been awarded. They include: Commonwealth v Stankowski[31] (13 April 2005): $150,000 (Melbourne-Voyager case); Naidu v Group 4 Securitas[32] (24 June 2005) (injury at work): $150,000 (would have awarded $200,000 but for statutory restraint); Russell v Commonwealth[33] (12 November 1999) (Melbourne-Voyager): $150,000; and SB v New South Wales[34] (14 December 2004) (failure to properly care for ward of state): $195,000. Finally, the appellant invokes the settled rule “that an appellate court will not disturb a primary judge’s award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered”[35]. In the appellant’s submission the respondent has not demonstrated that the trial judge fell into any such error.
[31][2005] NSWCA 106.
[32][2005] NSWSC 618.
[33][1999] VSC 437.
[34][2004] VSC 514.
[35]Wilson v Peisley (1975) 50 A.L.J.R. 207; 7 A.L.R. 571 at 585; Commonwealth of Australia v Elliott [2004] NSWCA 360 at [36].
There is force in the appellant’s submission. Some of the evidence showed that injuries suffered by the deceased as a result of the PTSD had a profound adverse impact on the deceased’s relationships with his wife, children, workmates and friends. It led the deceased to give up the sort of leadership role to which by temperament and training he had once naturally been suited and to withdraw to a socially isolated job devoid of prospects for advancement. In the result, he went from being a young and happily married man and father, with an excellent employment future and a very satisfactory marriage, to a man whose prospects for advancement were over and whose marriage and relationships with his children were irreparably damaged. On that view of the evidence, the plaintiff was 35 years old at the time that he suffered the injury and at that point he should have had the best years of his life ahead of him. He was getting on well in the Navy, and he had a young family with children of five and seven years. His family life was happy and stable, his wife was supportive of his naval career, and he enjoyed a good and rewarding relationship with his young children. He had a good social and recreational life. He advanced rapidly in the Navy and had pride in his job, and he commanded the admiration of his superiors and colleagues. He was a born leader; in charge of 100 apprentices over a 2 year period. After the collision, he was a changed man. He became disillusioned with the Navy, he became very hard with his men, he became short tempered and he became very intolerant of other people. He could not get any enjoyment from his home life, and he became a real problem at home to the point where his wife and children felt more comfortable with him away than at home. He went from being a caring father to becoming violent towards his children. He was unable to talk to his wife or indeed anyone else about his problems. His relationship with his wife and the children became destructive. He suffered nightmares and developed a dependence on alcohol. These are the considerations which go to the essence of the enjoyment of life and thus the loss of that enjoyment which the deceased incurred.
So to say is not to suggest that the evidence was all one way. There was direct evidence both ways and, as we view the totality of the evidence, it was open to draw inferences either way on approximately half a dozen critical issues. Accordingly, we would allow that the trial judge’s conclusion as to the effect of the PTSD upon the deceased’s enjoyment of life was not the only conclusion that was reasonably open. But, as we view the matter, one need only state the evidence, as we have done, to be convinced that the judge’s conclusion was one view of the evidence that was reasonably open. And, for present purposes, that is enough to dispose of the respondent’s contention. An appellate court cannot make its own assessment “upon its own view of the evidence, or upon inferences drawn from the accepted facts in a sense other than a sense open to the trial judge, which favoured the judgment, and use that assessment as the basis of a decision as to the adequacy of the judge’s assessment.”[36] As we have said, in a case like this we can only interfere if we are convinced that the trial judge has acted on a wrong principle of law or misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered. In the end we are far from convinced that the trial judge committed any error of that kind.
[36]Wilson v Peisley (1975) 7 A.L.R. 571 at 575.
In the respondent’s written submissions it was further contended that the trial judge erred in the assessment of damages for loss of earnings by adopting as a comparator the earnings of one Leslie Passmore, who was for some time a clerk, credit manager and inspector of traffic services at MacRobertson Miller Airlines. The argument as thus formulated was that the deceased lacked the management skills of Passmore and was thereby limited to what was characterised as the lesser and presumably therefore less well paid skills of a maintenance supervisor. It was said to follow that it was not open to the judge to conclude that but for the PTSD the deceased would have been capable of earning more money than Passmore.
The essence of that argument was, however, abandoned in the course of oral submissions – it was conceded that Passmore was an appropriate comparator – and replaced with a contention that although it was open to the judge to assess loss of income on the basis of what Passmore earned, there was no evidence to support the judge’s addition of 10% to that amount. We do not accept that contention.
In order to explain why, it assists to record the relevant part of the judge’s reasons. On this aspect of the matter his Honour said that:
“300 I … find that –
· The plaintiff’s work with MMA, and his earnings in that employment, reflected his capacity for work as affected by his PTSD.
· Had it not been for his PTSD, the plaintiff would probably have been suited to get and been able to get in civilian life supervisory work within the area of his broad expertise. Such work would have been better paying than was his job with MMA. Although he would not have been suited to perform Passmore’s job as a project officer, the salary earned by Passmore reflects the minimum amount which the plaintiff ought to have been able to earn in civilian life in suitable employment if it was not for his PTSD. Defendant’s counsel, I note, was prepared to concede that Passmore’s salary was a guide to what the plaintiff could have earned in suitable civilian employment on an assumption that he did suffer from PTSD and that what was being considered was his capacity had such a condition not been present. Suitable employment, according to the defendant’s submission was a job similar to that performed by Passmore, “supervising, say, a team of maintenance workers”.
· Robbins’ evidence does not provide a sound basis for estimating what the plaintiff could have earned in suitable civilian employment had he remained uninjured. That witness gave evidence that he left the Navy after 20 years’ service in 1979 (? or 1980), at the same rank as the plaintiff had done, and with roughly comparable skills – although he was, he said, probably a bit more inured to the Navy than the plaintiff when he left, because he knew nothing else. He had obtained work as a dock master at a slipway, earning about $24,000 he thought. Later he became a marine supervisor on construction work, earning “about $50, 54, 55 thousand”. Later still he started up a sandblasting business. He got sick and had to leave it, he thought in 1990. His net income was then “somewhere around 70 thousand”.
· Robbins’ evidence pertinently lacked both precision and detail. It would be guesswork whether the plaintiff could have translated his skills into earnings of such dimensions had he not suffered from PTSD. The earning capacity of two men with the same skills may well not coincide. Personal factors, amongst others, are likely to intrude.
· Further, it appears that Robbins brought and settled a claim for PTSD. If his claim had any merit, it might be argued that he earned amounts substantially in excess of the plaintiff’s actual earnings despite injury. Even if that was no reliable guide to the plaintiff’s actual earning capacity when suffering from PTSD, it would render more doubtful still relying upon Robbins’ earnings post-1979 as a guide to the plaintiff’s earning capacity had he remained uninjured. It could be said, for instance, that if uninjured Robbins might have earned still larger amounts. But again that would be a doubtful guide to the value in weekly dollar terms of the plaintiff’s earning capacity if uninjured.
· All in all, the plaintiff’s earning capacity in suitable supervisory work, had he not suffered PTSD, very likely exceeded, expressed in weekly dollar terms, the amount earned by Passmore. It is impossible to express the difference recisely. Acknowledging a want of precise evidence, I consider that adding 10% to Passmore’s earnings from time to time would be a modest reflection of the likely difference.[37]
[37]Our emphasis.
It will be apparent that the critical part of that analysis for present purposes is his Honour’s finding that, had it not been for his PTSD, the deceased would probably have been suited to get, and been able to get, in civilian life supervisory work within the area of his broad expertise and that work would have been better paying than was his job with MMA. In brief substance, the nub of the respondent’s complaint is that it was just not open on the evidence to reach that view. The question therefore is simple: was it open on the evidence to take that view?
In our judgment it was open on the evidence to reach that view. It is true that it rested to some degree on speculation. Obviously, one cannot know that, but for the PTSD, the deceased would not have been content to remain where he was. But the judge did not pretend a level of satisfaction of that kind. His Honour approached the matter on the basis that it was to some degree permissible to speculate - and plainly he was entitled to do so. As Brennan and Dawson, JJ. put it in Malec v J.C. Hutton, (upon which the judge made clear that he based his assessment):
“…earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false - for the plaintiff has been injured - the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past. Lord Diplock said in Mallett v McMonagle[38]:
‘The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.’” [39]
[38][1970] A.C. 166 at 176.
[39](1990) 169 C.L.R. 638 at 639-640.
Once it is recalled that the deceased had reached the rank of chief naval shipwright, which is to say the equivalent of a chief petty officer, and therefore was of the most senior non-commissioned rank in the naval service, and that he had done so in very short time with the glowing commendation of his commanding officers and peers, we do not wonder that his Honour was persuaded that the sort of money which the deceased might have commanded in civilian life (were it not for the PTSD) would have exceeded the potential of a clerk, credit manager and inspector of traffic services. The allowance of 10%, although speculative in the sense which we have explained, was a modest estimate of the increment.
Finally, the respondent contends that the fact was that the deceased suffered from a very serious ankle injury in early 1990, which left him for a time incapable of performing even light work, and about which the deceased’s treating surgeon opined at the time that the deceased was capable “only of light workshop type duties”. According to the surgeon, the deceased’s prognosis was that there would likely be progressive degenerative arthritis over the next five to ten years with the possibility of a fusion operation, and, in the surgeon’s opinion, the deceased was incapacitated for work which involved being on his feet for protracted periods, climbing, squatting, walking on uneven or soft surfaces or generally putting a lot of pressure through the left ankle as by operating a clutch or other machinery. Although there was no evidence as to the sort of physical demands likely to be imposed by supervisory work within the area of the deceased’s broad expertise to which the judge referred, the respondent contends that it is likely that the deceased would not have been working in an office but rather in a role which required performance of at least some of the activities mentioned by the surgeon. And therefore, it was said, his earning capacity would have been significantly diminished. In the respondent’s submission, the judge erred in not describing the sort of supervisory role which he had in mind, and in the absence of identification of the kind of role in view, the assessment of loss of earnings is mere and unacceptable guesswork.
We do not accept that contention either. The judge found that, but for the ankle injury, the deceased is likely to have remained at MacRobertson Miller Airlines until he was retrenched and that, but for the PTSD, it is likely that he would have sought work thereafter. As the judge put it, the deceased’s history was that of a man who worked rather than did nothing and the probability was that he would have been suited to get and been able to get supervisory work within the area of his broad expertise. It is implicit in that description that the sort of work which the judge had in mind was supervisory work which did not entail the kind of physical stresses which the surgeon recommended the deceased avoid. And plainly it requires no great leap of imagination to conceive of any number of significant supervisory roles that would be available to someone with the amalgam of trade skills and management qualities that the deceased had acquired in the Navy, which would not involve the deceased being on his feet for protracted periods, or climbing, squatting or walking on uneven or soft surfaces, or generally putting a lot of pressure through the left ankle.
It is true that the deceased had shown a propensity after leaving the Navy to be away from management and in the field without the stress or responsibility that management entails. It may be allowed therefore that had he continued in that bent it would have necessitated him being for long periods on his feet and doing the other things which the surgeon considered were contra-indicated. But the point is that, upon the expert opinion evidence which the judge accepted, the deceased’s abrogation of management responsibilities was the product of the PTSD. Whereas before the Voyager disaster the deceased had been a talented senior non-commissioned officer with a proven capacity for management and supervision, after contracting PTSD he repudiated all responsibility of that kind. It follows that but for the PTSD there was good reason to suppose that the deceased would have sought and obtained just the sort of non-physical supervisory position that his Honour posited.
As it was, the judge allowed for only a 50% chance that the deceased would have returned to work following his ankle injury (had he not contracted PTSD) and further discounted the deceased’s earning capacity to one third of his notional earning capacity to allow for the risk of retrenchment. The resultant figure of $12,000 allowed for damages for loss of earnings for the period 1 April 1991 to 17 November 1994, could hardly be regarded as excessive or, with respect, other than the product of a reasoned and rigorous analysis.
Conclusion
For the reasons given, we would allow the appeal, set aside the judgment below, and in lieu thereof we would give judgment for the appellant for damages in the sum of $255,000 .
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