Mewett v Commonwealth of Australia [2000] FCA 1045

FEDERAL COURT OF AUSTRALIA

Mewett v Commonweath of Australia [2000] FCA 1045 ROBERT JOHN MEWETT v COMMONWEALTH OF AUSTRALIA NG 376 OF 1994 JUDGE: WHITLAM J DATE: 3 AUGUST 2000 PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 376 OF 1994

BETWEEN: ROBERT JOHN MEWETT

APPLICANT

AND: COMMONWEATH OF AUSTRALIA

RESPONDENT

JUDGE: WHITLAM J

DATE OF ORDER: 3 AUGUST 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The parties bring in short minutes of a proposed order giving effect to these reasons and of proposed directions with respect to the further conduct of the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 376 OF 1994

BETWEEN: ROBERT JOHN MEWETT

APPLICANT

AND: COMMONWEATH OF AUSTRALIA

RESPONDENT

JUDGE: WHITLAM J

DATE: 3 AUGUST 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This proceeding was commenced in the High Court on 20 June 1994. It involves an action against the respondent ("the Commonwealth") for damages for negligence and breach of duty. By consent, the action was remitted to the New South Wales District Registry of this Court. 2 The damages are claimed for what is identified in the applicant's statement of claim as acute psychological injury resulting in post traumatic stress disorder ("PTSD"). The applicant allegedly suffered this injury whilst serving in the Australian Navy on the vessel HMAS Kimbla as it was proceeding out of Port Phillip Bay in Victoria on 31 August 1979. 3 By its amended defence the Commonwealth pleads that the action is barred by virtue of s 5(1A) of the Limitation of Actions Act 1958 (Vic), which provides: "(1A) An action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than six years from, and the cause of action shall be taken to have accrued on, the date on which the person first knows- (a) that he has suffered those personal injuries; and (b) that those personal injuries were caused by the act or omission of some person." Pursuant to Order 29, rule 2 of the Federal Court Rules, a Judge of the Court ordered that the issue under s 5(1A) be decided before trial separately from the other issues in the proceeding. 4 The evidence adduced by the applicant on the hearing of the question under Order 29 consisted of a voluminous documentary tender and the applicant's own testimony. The applicant resides in England and was cross-examined by video link. The Commonwealth made only a very limited tender of certain material used by its counsel in cross-examination of the applicant. Before dealing with this evidence, it is necessary to mention an unusual feature of this case. 5 The applicant was born a male, but has undergone gender reassignment surgery and now lives as a female. However, the applicant is married to a woman, who is referred to by the applicant as "my wife". The given names of the applicant in the affidavits that have been read are male names. However, when called for cross-examination, the applicant gave the name Romana Jane Mewett and said that she was formerly know as Robert John Mewett. The applicant was addressed as a female whilst giving evidence. Accordingly, whilst the name of the applicant in the proceeding has not been amended, it will be more courteous and convenient in what follows to vary pronouns used to refer to the applicant according to the chronological context. 6 The applicant was born on 14 December 1955 in the seaside resort of Torquay in south-western England. He joined the British Navy on 7 June 1971, where he served as a radio electrical mechanic. At the end of December 1975, whilst visiting Australia, the applicant married his first wife. On 27 February 1978 he joined the Australian Navy, where he trained as an electronic technician, initially in Victoria. The applicant's first posting to a ship in the Australian Navy was HMAS Kimbla. 7 The incident on 31 August 1979 is well documented. The report of the Naval Board of Inquiry is in evidence. The vessel encountered extremely violent and steep seas. One seaman was swept overboard and drowned. Other men were injured. The ship was not watertight and water entered the lower decks. The commanding officer of HMAS Kimbla was later censured for subjecting his ship and the men under his command to a hazardous situation. 8 The applicant knew the dead man and was involved in the care of the injured men on board before the vessel reached port later that day. She deposed in the most vivid terms to the gradual onset of nightmares about the incident, of intrusive thoughts about "the tragedy", of alcohol abuse, of domestic discord, of headaches, of feelings of isolation, of palpitations and fatigue, and of anger and apprehension. 9 During the 1980s the applicant was posted as an electronic technician at sea and on shore in various parts of Australia. His first wife and four children moved around with him. The applicant was promoted twice. However, during a three-year posting in Darwin at the end of the 1980s, his wife left him and went to live in Perth with the children. 10 In mid-March 1990, whilst based in Sydney, the applicant threatened to commit suicide by jumping from the fifth floor of a hotel. He was sent for an urgent psychiatric assessment at Concord Hospital, where he was seen next day by Dr Danielle Vandenberg, a psychiatry registrar. She took a history of work and family problems with intermittent feelings of depression and anxiety over the past six months. Her impression was that the applicant was "most likely to have an Adjustment Reaction with Depressed Mood". 11 The applicant was given no treatment and, after a short period of leave, returned to his ship. Soon after he was posted to HMAS Stirling, the Navy command base in Western Australia, where he rejoined his family. After further training in Victoria, the applicant returned to Perth in July 1990 where he joined the ship HMAS Moresby. Because of his alleged suicide attempt concern was expressed by the ship's medic about his suitability for sea service. The applicant was referred by the command's medical officer for psychiatric assessment. However, he first saw Valmai Stevens, who was employed by the Navy in the Psychology Section at HMAS Stirling as senior psychologist. Ms Stevens apparently agreed that the applicant was fit to travel on HMAS Moresby during a seven-day transit from Perth to Darwin. However, two days into the voyage, the applicant's wife made certain allegations against him which led to his being "evacuated" from HMAS Moresby on 26 August 1990 on the advice of Ms Stevens and a chaplain. According to the applicant, he was held "under a sort of arrest . . . pending the outcome of assessment for discharge". During this period following his return, the applicant says that Ms Stevens suggested that there was a connexion between the incident on HMAS Kimbla and his problems. 12 In any event, on 29 August 1990 he was seen by Dr Terry Gidley, a consultant psychiatrist. It is worth setting out in full the doctor's subsequent report: "P.O. Mewett aged 35 presents with a long standing history of cross dressing and also with a fairly long history of marital difficulties. In addition after an accident on HMAS Kimbla 10 years ago, in which a young sailor was killed, P.O. Mewett has shown lasting distress and a preoccupation with that event. Recent parasuicidal behaviour has arisen as a consequence of his various stress experiences. He is angry, currently, at being removed from his ship summarily and without explanation, although he now seems to understand the Navy's concern that his medical condition might impact on his security risk status. He certainly seems willing to cooperate with ongoing treatment. His psychosexual problems relate to his early life where he was assaulted by a male teacher and where he simultaneously felt rejected by his mother. These circumstances could have certainly affected the development of his sexual identity which in turn has had an impact on ongoing sexual behaviour. There is no doubt that his marriage has been a source of ongoing conflict. His wife would appear to have problems in her own right, for which she is now consulting a psychiatrist. He also describes her as being hostile towards his career in the Navy and particularly the requirement that he spends long periods away from home and their 4 children. In the past it has never been arranged for him to have psychiatric or psychological treatment, so it may be fortuitous in a sense that issues have come to a head now. He appears to want to preserve his career in the Navy, so this situation should serve as an additional motivation for therapy. On examination A neatly dressed, fit looking man, who was reasonably composed during the interview. A good historian. Anxiety was evident particularly when he discussed the accident on HMAS Kimbla. There was no obvious suicidal ideation. He was quite open when he talked about his sexual behaviour. He impressed as being intelligent and also a fairly resourceful personality with obsessional traits. He had good insight. Diagnosis Chronic post traumatic stress disorder. Developmental sexual problems and current marital difficulties. With ongoing treatment there are reasonable possibilities of him being able to continue to provide effective service to the Navy. It is a good idea that he is temporarily reclassified so as to facilitate psychiatric and psychological treatment. Valmai Stevens is prepared to see him for post traumatic counselling while he also attends me for further exploration of the dynamics of his cross dressing behaviour. Family tensions may ease as result of his wife's psychiatric treatment at Fremantle Hospital." 13 The applicant is adamant that at no time prior to August 1990 was he aware that he suffered from PTSD. The applicant came under the care of Dr Gidley, from whom he received supportive psychotherapy and psychotropic medication, and of Ms Stevens, from whom he received "PTSD debriefing". The applicant separated from his first wife in September 1990. In a progress report dated 8 October 1990 to the command medical officer, Ms Stevens noted: "2. There appear to be two other critical incidents preceding the HMAS KIMBLA incident. The initial one was aboard HMS AJAX when there was a life threatening electrical fire in which he was directly involved. During this incident he suffered a laceration to his left thigh. There is associated pain in this area during dissociative episodes. The other incident (of a lesser nature) was aboard the same ship when it was disabled. There have been stress reactions of varying intensity during each ventilatory session." 14 The applicant remained attached to HMAS Stirling until March 1992. He appears to have done no normal work during this period. Instead, the applicant occupied himself as a part of Ms Stevens' Critical Incidents Stress Management ("CISM") team. Minutes of meetings of the CISM team are in evidence. In April 1991 the applicant and Ms Stevens visited the United States in order to attend the First World Congress on Stress, Trauma and Coping in Baltimore. The applicant prepared a training paper on PTSD for the CISM team. This paper was tendered by the Commonwealth and admitted in evidence as exhibit 1. In this paper the applicant referred to the incident on HMS Ajax during his service in the British Navy as "the start of my disorder". 15 The applicant continued to work in the Psychology Section at HMAS Stirling whilst he was under psychiatric and psychological care. However, on 13 November 1991 Ms Stevens coyly reported to the command medical officer that she had "not been involved in a therapy program" with the applicant "for many months". By 1992 the applicant and Ms Stevens were living together in a de facto marital relationship. 16 In March 1992 the applicant was posted to Sydney. He had regained his "security clearance" and returned to his normal duties for the Navy in electronic communications working in an office building in the central business district. He lived, together with Ms Stevens, in Navy housing at Hornsby. 17 In Sydney the applicant came under the care of another consultant psychiatrist, Dr Duncan Wallace, to whom he was referred in July 1992. Dr Wallace's file on the applicant has been admitted in evidence as exhibit 2. In a report dated 4 September 1992 Dr Wallace remarked that the applicant was aware of "all aspects of his disorder". By this stage the applicant was unable to perform his duties and had sought compensation from the Commonwealth for PTSD. Dr Wallace recommended that he be discharged from the Navy. He was discharged medically unfit 28 January 1993, since when he has received a pension for PTSD. 18 The applicant continued under the care of Dr Wallace and moved to Kogarah. In August 1993 he was referred to another consultant psychiatrist, Dr Cornelis Greenway, who subsequently reported to his solicitors: "My reason for seeing him has nothing to do with his post traumatic stress disorder, but rather with his gender dysphoria. When I saw him he had already been medically discharged from the navy. He was also being treated with Anafranil. Briefly Mr. Mewett had been cross-dressing for ten or eleven years, although he had worked very hard at suppressing his feelings. He had initially cross-dressed at the age of ten, having always had a fascination for his mother's clothes. Initially there was some sexual arousal, but this soon disappeared. He states that at the age of twelve he was sexually molested, but his gender dysphoria pre-dates this. He was married and was hetrosexually [sic] active. This marriage ended at about the time of the difficulty with the navy and no doubt his wife's behaviour placed an additional burden on him. Since I have seen him he has started living full time as a female. He has started taking hormones and has been seen by an endocrinologist. I have also had a second psychiatric opinion regarding his gender dysphoria. His wife (he has remarried) reports that he is much calmer and less aggressive since he has started living as a female. I do not really feel that I can contribute much to the issue of post traumatic stress disorder. This was certainly mentioned and Mr. Mewett did mention symptoms in keeping with a P.T.S.D. However, this has not been why I have seen him and it has not been an area that I have greatly explored – leaving it to Dr. Wallace." 19 The second psychiatric opinion was that of Dr Anthony Orsmond, whom the applicant saw in December 1993 and January 1994. Dr Orsmond reported that he had also not been seeing the applicant for the sequelae of an accident at sea, but for "psychiatric assessment regarding the patient's male to female transsexualism". However, he noted "no obvious evidence" of PTSD during interview. 20 The applicant confirmed that, after being told by Dr Greenway that she was a transsexual, she renounced her male identity. She now presents as a woman and lives as a woman. After taking female hormones and undergoing various depilatory procedures under the care of an endocrinologist, Professor A W Steinbeck, the applicant had a gender re-alignment operation in October 1994. 21 At the beginning of 1995 the applicant married Ms Stevens. In March 1995 they left Australia to live in England, where they settled in her native town of Torquay. The applicant is now under the care of Dr Michael Bowman, a consultant psychiatrist in London. 22 The essential features of the applicant's life outlined above serve to indicate the complexities of her damages claim. There is a mass of detail in evidence. However, it should be noted that at the outset Dr Gidley distinguished the applicant's chronic PTSD from the developmental sexual problems and marital problems that the applicant was also suffering. Unravelling the effect of all these matters on the applicant will be extremely difficult. Dr Wallace's notes are, by themselves, full of excruciating stories. It is also apparent that the panoply of the applicant's problems has continued up to the present time. But the diagnosis of PTSD by both Dr Gidley and Dr Wallace remains unaffected. Each attributes that condition to the incident on HMAS Kimbla. 23 The evidence before me does not define the clinical disorder known as PTSD. However, it has been assumed in argument that one element of such a definition is a stressor criterion that involves exposure to a traumatic event. Plainly the incident on HMAS Kimbla was such an event. Counsel for the Commonwealth seized on the two incidents aboard HMS Ajax in order to pursue the applicant about his perception and response to those events. At trial this may ultimately prove to be a not unfruitful exercise. However, for present purposes the opinions of the psychiatrists are unaffected and the foundation for their opinions is unshaken. So too with the applicant's symptoms. Counsel for the Commonwealth made the most of the applicant's manifold problems over the course of his/her life to link them to the symptoms of which he has complained since 1979. Again, that might prove fruitful terrain at trial but, whilst the applicant had some inkling of his other problems, he had no reason to realize that he was suffering PTSD until August 1990. I accept the applicant's evidence about when he acquired that knowledge. The very fact that many of his problems antedated 1979 would make it less likely that he would know the causes and origins of his subsequent symptoms. 24 The applicant's total immersion in the language of clinical psychology since that time makes her an unusual witness. She was anxious to engage in debate with counsel for the Commonwealth about the definition of PTSD in various editions of the "DSM", which I took to be a reference to a well-known American medical manual. Indeed, Dr Wallace comments in one of his reports on the applicant's familiarity and use of such publications. In cross-examination counsel for the Commonwealth also made extensive use of diaries kept by the applicant over the years. I was invited to draw unfavourable inferences about the applicant's credibility from the non-production of diaries for certain periods. However, on the material before me (which consists solely of the applicant's answers), I am unable to see how I could do so. At trial, of course, the applicant will bear the onus of proving that her pain and suffering and any economic loss were caused by the Commonwealth's breach of duty to the seamen aboard HMAS Kimbla on 31 August 1979. As I have said, the evidence before me is not particularly instructive about the nature of PTSD. Dr Gidley's diagnosis of other personality disorders may be significant. The prior existence of PTSD is at least a possibility. Whilst Watts v Rake (1960) 108 CLR 158 will, no doubt, get a good airing at trial, any glib recitation of symptoms may excite suspicion. 25 However, for present purposes the Commonwealth bears the onus of showing that the applicant's claim is statute-barred: Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 at 71-77. I do not understand it to be contended that PTSD is not relevantly a disorder for the purposes of s 5(1A). In any event, it plainly is such a disorder. Further, the word "knows" in s 5(1A) is used in the sense of "clearly understands": see Perry v The Royal Women's Hospital (unreported, Supreme Court of Victoria, 14 May 1991) per Beach J at pp 17-23. 26 It follows from my finding as to when the applicant first realized that he was suffering from PTSD that the Commonwealth has failed to establish that this action was brought out of time. The appropriate order is that the relevant plea in the Commonwealth's amended defence be struck out. However, since no precise question for decision has been formulated, I shall refrain from pronouncing such an order today. The parties will be directed to bring in short minutes of a proposed order giving effect to these reasons and of proposed directions with respect to the further conduct of the proceeding. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.