Blaxter v The Commonwealth [2006] NSWSC 744

New South Wales Supreme Court

CITATION : Blaxter v The Commonwealth [2006] NSWSC 744

HEARING DATE(S) : 25/11/2005

JUDGMENT DATE : 18 August 2006

JURISDICTION : Common Law Division

JUDGMENT OF : Hidden J at 1

DECISION : Lump sum award for economic loss.

CATCHWORDS : DAMAGES: - Voyager/Melbourne collision - psychological injury - economic loss - whether plaintiff's earning capacity in civilian life affected

State of NSW v Moss (2000) 54 NSWLR 536 CASES CITED : Chappel v Hart (1998) 195 CLR 232 Medlin v State Government Insurance Commission (1994 – 1995) 182 CLR Wentworth v Woollahra Municipal Council & Ors (1982) 149 CLR 672

PARTIES : Lawerence Gary Blaxter (plaintiff) The Commonwealth of Australia (defendant)

FILE NUMBER(S) : SC 20777 of 1997

COUNSEL : A G Melick SC with K Sant (plaintiff) R E Williams QC with I McLachlan (defendant)

SOLICITORS : James Taylor & Co (plaintiff) Australian Government Solicitor (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J

Friday 18 August 2006

20777/1997 Lawerence Gary Blaxter v The Commonwealth of Australia

SUPPLEMENTARY JUDGMENT 1 HIDDEN J: When I gave judgment in this matter (Blaxter v The Commonwealth [2005] NSWSC 941) I invited further submissions on the question whether the plaintiff's earning capacity in civilian life had been reduced by his psychological injury: see par [60]. I have received submissions from the parties about that matter, both written and oral, and I shall turn to it in a moment. 2 I also invited counsel to inform me if I had made any technical error in the judgment or had failed to deal with any relevant matter: par [61]. Senior counsel for the plaintiff interpreted this as an invitation to re-argue the question whether the plaintiff's leaving the navy was attributable to his psychological injury. Senior counsel for the defendant opposed that course, relying on Wentworth v Woollahra Municipal Council & Ors (1982) 149 CLR 672 and other authorities for the proposition that it is only in extremely rare circumstances that a court would re-open a judgment which it has pronounced. 3 What I said at par [60] was not an invitation to re-argue this issue, which I dealt with at pars [56] - [59]. However, in deference to the further submissions I have received, it is appropriate that I expand upon those reasons somewhat. 4 Among his reasons for deciding not to remain with the Navy the plaintiff referred, in evidence in chief, to his nightmares and his fear of going back to sea, including his fear of confined spaces (p. 38 of the transcript). It was argued that this was sufficient to establish his psychological condition as a material cause of his leaving the Navy, even though that decision might have been influenced, even primarily motivated, by his disillusionment with the Service following his treatment on the morning after the collision. Senior counsel referred to Medlin v State Government Insurance Commission (1994 – 1995) 182 CLR 1. However, I am not satisfied that the plaintiff's psychological injury had any part to play in his leaving the Navy and, for that reason, the principles enunciated in Medlin are not applicable. 5 Any link between the psychological injury and his leaving the Navy finds no support in the psychiatric evidence. As I set out in my judgment, in the history he provided to the psychiatrists his disillusionment with the Navy was the only reason he gave for leaving it. There was no psychiatric evidence to the effect that this was the result of his lack of insight into his condition and that, in truth, that condition may well have contributed to his decision. In my view, his evidence in chief was significantly weakened by cross-examination based upon those psychiatrists' reports (pp 69-71 of transcript). 6 His credibility generally was seriously damaged by the material which I summarised at pars [36] - [40] of the judgment. Unlike his account of his psychological symptoms, his evidence about this aspect was not supported by other witnesses, particularly by Mrs Saunders or his present wife. In any event, it is one thing to say one that, as one would expect after his experience, he was fearful of going back to sea. It is quite another to say that his decision to leave the Navy was attributable to his psychological injury. 7 That is sufficient to dispose of the issue. However, I should record another argument for the plaintiff which was based upon a passage from the judgment of McHugh J in Chappel v Hart (1998) 195 CLR 232 at 247-8: …….once the plaintiff proves that the defendant breached a duty to warn of a risk and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of causal connection. An evidentiary onus then rests on the defendant to point to other evidence suggesting that no causal connection exists. Examples of such evidence are: evidence which indicates that the plaintiff would not have acted on the warning because of lack of choice or personal inclination; evidence that no alternative course of action would have eliminated or reduced the risk of injury. Once the defendant points to such evidence, the onus lies on the plaintiff to prove that in all the circumstances a causal connection existed between the failure to warn and the injury suffered by the plaintiff. 8 It was submitted that, given that the plaintiff suffered a psychological injury as a result of the collision and that his decision to leave the Navy was proximate in time to that injury, the defendant bore an evidentiary onus to point to evidence justifying a conclusion that the two things were not causally connected. If there were such an onus, I consider that it would have been discharged by the evidence of what the plaintiff said to the psychiatrists. 9 However, I do not accept that the defendant bore that onus. McHugh J was speaking in the context of a case in which the breach of duty alleged was the failure by a doctor to warn a patient of the risk inherent in an operative procedure. The patient underwent the procedure and the risk came home. As senior counsel for the defendant observed, it is difficult for a plaintiff in such a case to prove that he or she would not have taken the risk if there had been a warning because such evidence is necessarily coloured by the fact that the risk eventuated. It was this to which the passage in McHugh J's judgment was directed. The present is not such a case. 10 Let me turn, then, to the matter about which I did invite further argument. My concern was that final submissions on behalf of the plaintiff about economic loss were directed almost entirely that the proposition that his psychological injury had impeded his progress in the Navy and led to his leaving it. The discrete question whether, if that claim were not made out, it might nevertheless be shown that the psychological injury had affected his earning capacity in civilian life received no more than passing reference. More attention had been paid to it, although still briefly, in the defendant's written submissions. 11 In supplementary submissions, senior counsel for the plaintiff addressed the issue in such a way as effectively to reinstate the claim for loss of naval earnings in another guise. It was argued that the plaintiff's psychological injury had impeded his progress in civilian employment, and that the best yardstick to measure that loss of earning capacity was by reference to what he might have earned if he had remained in the Navy and realised his ambition to attain the rank of chief petty officer. This was advanced as a practical, indeed conservative, assessment of the remuneration he might have achieved in civilian life but for his injury. 12 I reviewed the plaintiff's civilian employment at pars [32] - [35] of my judgment. I found that he had at all times been a competent and reliable employee, who did not appear to have any difficulty relating to his fellow workers. I found that his employment had not been significantly impaired by his undoubted drinking problem: see par [48]. Nevertheless, he gave evidence that he was unable to handle pressure and, for that reason, felt that he could not undertake positions of responsibility (p 65 of the transcript). This was supported by the evidence of his wife: see par [45] of my judgment. I am satisfied that his earning capacity was reduced in that way and that, but for his psychological injury, he could have achieved more responsible and stimulating employment. 13 The difficulty lies in determining how that loss should be compensated. The evidence about it is slender, but that should not lead to the claim being rejected: cf. State of NSW v Moss (2000) 54 NSWLR 536, per Heydon JA at [66] ff. The task of assessment is lightened to some extent by the fact that, unlike Moss, it does not involve any projection into the future. The plaintiff is now at normal retiring age and his working life is behind him. 14 Nevertheless, it is not at any easy task. Senior counsel for the defendant argued that the plaintiff should not now be permitted to make out a case on this issue based upon his projected progression and earnings if he had remained in the navy, as this was not the way in which his case had been presented at the trial. That is so but, in any event, such evidence as there is on the issue simply cannot support that approach. This is not a case in which an estimate can be made in a more or less mathematical way, based upon expected earnings in a particular occupation. I can do no more than make a broad assessment, arriving at a lump sum as a buffer or cushion. 15 In so doing, I note that the plaintiff worked in civilian life from 1967, when he left the navy, until 1991, when he moved to Iluka: a period of about twenty-four years. He appeared effectively to have retired on moving to Iluka, and it cannot be said on the evidence that his ceasing employment was the product of his psychological injury. Nevertheless, I think it appropriate to make some allowance for the possibility that he might have worked longer in a more rewarding position. This is, of course, speculative and any such allowance could only be small. It is also appropriate to have regard, in the defendant's favour, to the extent to which his prospects of employment were impaired by his hearing loss. 16 Doing the best I can, I would award $70,000 as a buffer. Neither party has made any submission about costs, which should follow the event. The defendant is to pay the plaintiff's costs. I request the parties to bring in short minutes to give effect to my decision. **********