Brian Finlay Hill v The Commonwealth of Australia [2003] NSWSC 1025

New South Wales Supreme Court

CITATION : Brian Finlay Hill v The Commonwealth of Australia [2003] NSWSC 1025 HEARING DATE(S) : 29-30/09/03,1-3/10/03,7/10/03,8/10/03, 10/10/03,14-16/10/03 JUDGMENT DATE : 11 November 2003

JUDGMENT OF : Cripps AJ DECISION : verdict for the defendant

CATCHWORDS : post traumatic stress disorder - negligence - reliability of history LEGISLATION CITED : Commonwealth Employees Compensation Act 1930-1971 Delegate-Safety Rehabilitation and Compensation Act 1988 Huysse v Snowy Mountains Hydro-Electric Authority (1975) 1 NSW LR 401. CASES CITED : Makita (Australia) Pty Limited v Sprowles 52 NSWLR 705 Pastras v The Commonwealth 9 FLR 152 Ramsay v Watson (1961) 108 CLR 642 PARTIES : Brian Finlay Hill - Plainitff The Commonwealth of Australia - Defendant FILE NUMBER(S) : SC 21147/96 COUNSEL : P Faris QC and C Thomson - Plainitff R Williams QC and I McLachlin - Defendant SOLICITORS : James Taylor & Co - Plaintiff Australian Government Solicitor - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Cripps AJ

11 November 2003

21147/96 - Brian Finlay HILL v COMMONWEALTH OF AUSTRALIA

JUDGMENT 1 HIS HONOUR: On 10 February, 1964 the plaintiff, Mr Hill, was a naval rating on board the HMAS Melbourne when it collided with the HMAS Voyager resulting in the sinking of the Voyager and the loss of eighty two lives. 2 In 1996 the plaintiff commenced proceedings in the Supreme Court of New South Wales against the Commonwealth of Australia alleging that the collision was the result of negligence on the part of officers and crew of the Voyager and/or officers and crew of the Melbourne. In 1997 the plaintiff was granted an extension of time within which to bring the proceedings against the Commonwealth. 3 The plaintiff has alleged that by reason of the negligence of the Commonwealth he suffered a psychiatric illness (or psychiatric illnesses) categorised as post traumatic stress disorder and/or alcohol substance abuse disorder and dependency and/or adjustment disorder with mixed anxiety and depressed mood and/or general anxiety disorder. 4 The plaintiff's alleges that by reason of one or more of the classified psychiatric illnesses referred to above he was discharged from the navy in December 1964. He claims that by reason of his discharge he lost the opportunity to move upwards in the ranks and to achieve the rank of Chief Petty Officer or Warrant Officer. He does not dispute that after leaving the navy he was employed or self-employed from 1965 to 2000. He alleges, however, that his earning capacity was seriously impaired by reason of his psychiatric condition and he claims damages for loss of earning capacity, loss of superannuation benefits, and, as well, as general damages for pain and suffering and loss of enjoyment of life. 5 In his amended statement pursuant to Pt 33 r 8A Particulars the plaintiff alleged that as a consequence of the collision he sustained: "major depressive illness which is chronic, post traumatic stress disorder, chronic generalised anxiety state, substance abuse disorder being alcoholism, insomnia and sleep problems, poor concentration, claustrophobia, fear of impending disaster, amnesia, diarrhoea, impotency, poly alcoholic neuritis, poor short term memory, introspection and isolation, panicky, lacks insight into his alcohol problem. The plaintiff suffers from alcohol blackouts, chronic peptic ulcer." 6 The plaintiff has also alleged that as a consequence of the collision he "has undergone a vagotomy and gastrectomy and developed hypertension". 7 The plaintiff has given evidence that he was diagnosed with prostrate cancer in 1992. I do not, however, understand it to be part of the plaintiff's claim that the onset of prostrate cancer was referrable to the collision. Moreover it now seems that the plaintiff does not claim that the numerous physical ailments and hospital procedures are the consequence of his psychiatric condition although he maintains, as I would understand it, that those that are referrable to alcoholism are relevantly the consequence of the collision. 8 The plaintiff was not physically injured at the time of the collision. As I have said he was a rating onboard the Melbourne and he was below deck when it happened. His essential claim against the Commonwealth is that by reason of the negligence by those for whom it was responsible, he suffered a psychiatric illness or illnesses. His primary claim is that he suffered from post traumatic stress disorder and that as a consequence of that condition he resorted to alcohol to self medicate which, in due course, resulted in him becoming an alcoholic. As I have said other than the consequences flowing from alcoholism I did not understand the plaintiff in final address to attempt to connect any of the serious physical illnesses the plaintiff has had since 1964 to the collision. 9 The plaintiff alleges he left the navy towards the end of 1964 because he had lost confidence. The naval records, which will be referred to in due course, disclose that the plaintiff wished to be discharged and that he was diagnosed as suffering from an "anxiety state". 10 The plaintiff has alleged that since leaving the navy he has been unable to work as efficiently as he could have worked had he not suffered a psychiatric illness and that the alcoholism consequent upon self medication for that illness has resulted in the breakdown of two subsequent marriages and three suicide attempts - one in 1972, another and much more serious one in January 2002 and a third in July 2003. 11 The Commonwealth does not deny the collision was the result of carelessness on the part of those for whom it was responsible. It does not dispute that it owed the plaintiff a duty of care and that the collision was the consequence of carelessness. However, it disputes the plaintiff's claim that he suffered an injury for which it is responsible consequent upon the collision.