FEDERAL COURT OF AUSTRALIA

 

 

 

Magnus v South Pacific Air Motive Pty Ltd [2001] FCA 465

damages – Assessment of damages for nervous shock – Circumstances in which damages are available – Necessity for psychological injury – Claims made by parents of schoolboys involved in plane crash – Boys not physically injured – In respect of each parent, whether there was a psychological injury – Extent of injury – Damages assessed.

Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 referred to.

McLoughlin v O’Brian [1983] AC 410 referred to.

Jaensch v Coffey (1984) 155 CLR 549 applied.

Morgan v Tame (2000) 49 NSWLR 21 applied.

KENNETH MAGNUS v SOUTH PACIFIC AIR MOTIVE PTY LIMITED, GROUP AIR PTY LIMITED, CIVIL AVIATION SAFETY AUTHORITY

 

NG194 of 1997

 

 

 

WILCOX J

SYDNEY

27 APRIL 2001

 

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG194 of 1997

 

BETWEEN:	KENNETH MAGNUS APPLICANT
AND:	SOUTH PACIFIC AIR MOTIVE PTY LIMITED FIRST RESPONDENT   GROUP AIR PTY LIMITED SECOND RESPONDENT   CIVIL AVIATION SAFETY AUTHORITY THIRD RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	27 APRIL 2001
WHERE MADE:	SYDNEY

 

THE COURT ORDERS THAT:

 

1.                  The proceeding be listed for mention at 9.30am on Friday, 25 May 2001.

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	NG194 of 1997

 

BETWEEN:	KENNETH MAGNUS APPLICANT
AND:	SOUTH PACIFIC AIR MOTIVE PTY LIMITED FIRST RESPONDENT   GROUP AIR PTY LIMITED SECOND RESPONDENT   CIVIL AVIATION SAFETY AUTHORITY THIRD RESPONDENT

 

JUDGE:	WILCOX J
DATE:	27 APRIL 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1                     These reasons for judgment deal with the assessment of the damages sustained by three persons on whose behalf this proceeding has been brought: Kenneth Magnus, the applicant in the proceeding, Marilyn Ann Magnus, wife of the applicant and a group member, and James Garrey Hall Maxwell, another group member.

The proceeding

2                     The assessment of damages occurs under unusual circumstances.  There has not yet been a determination of liability.  The assessment is made at this stage at the request of the parties, and in the hope that it will lead to resolution of these three claims by consent, as has already occurred in relation to all other persons on whose behalf the proceeding was brought, other than Annabel Webb.

3                     The proceeding arises out of an incident that occurred on 24 April 1994 when a DC3 aircraft apparently owned by South Pacific Air Motive Pty Ltd (“South Pacific”), the first respondent, and operated by Group Air Pty Ltd (“Group Air”), the second respondent, crashed into Botany Bay, Sydney.  The aircraft had just taken off from Sydney (Kingsford Smith) Airport on a charter flight to Norfolk Island.  The aircraft was carrying 21 passengers, most of whom were members of the Scots College school band, and a crew of four.  Apparently, the engine malfunctioned shortly after take-off and the pilot decided to ditch the plane.  Only one person, the flight attendant, Ms Webb, sustained physical injuries.  However, it is suggested in this proceeding that many of the passengers sustained psychological injuries.  Further, it is claimed that some of the boys’ parents suffered psychological injuries as a consequence of seeing the aircraft descend into the bay and/or of hearing about the event.

4                     The proceeding was commenced on 17 March 1997, more than three years after the crash.  The significance of that fact was discussed in an earlier judgment delivered by me in this proceeding (Magnus v South Pacific Air Motive Pty Ltd & Ors (1997) 78 FCR 456) and judgments delivered by members of a Full Court (Beaumont, Hill and Sackville JJ) on appeal against my decision (South Pacific Air Motive Pty Ltd v Magnus [1998] FCA 1107; 157 ALR 443).  The upshot of those decisions is that Part IV of the Civil Aviation (Carriers’ Liability) Act 1959 operates to exclude the causes of action pleaded on behalf of passengers (but not non-passengers) against South Pacific and Group Air, in respect of both physical and psychological injuries.

5                     The earlier judgments did not affect the claims against the two then remaining respondents, Civil Aviation Safety Authority (“CASA”) and Airservices Australia (“Airservices”).  However, on 8 May 2000, I made a consent order dismissing Airservices from the proceeding.  This left three respondents: South Pacific, Group Air and CASA.

6                     After delivery of the Full Court’s decision, there was considerable delay whilst the parties discussed amongst themselves the appropriate way to proceed with the case.  I was informed at directions hearings that there was a major dispute between South Pacific and Group Air, on the one hand, and CASA, on the other, as to who was primarily to blame for the incident.  I was told that curial resolution of that issue would involve a lengthy hearing, with evidence being adduced from a number of expert witnesses, some of whom would need to come from overseas countries.  It was said the hearing would be extremely costly, and the cost would be disproportionate to the likely damages.

7                     Unsurprisingly in this situation, I suggested the parties ought to attempt to settle the claims, especially as it seemed someone must have been at fault.  I understand there were negotiations, but to no avail.  Finally, on 6 October 1999, I was asked to take the unusual course of directing a hearing, in the first instance, to quantify the damages suffered by the applicant and each of the group members, as a result of the aircraft crash, this being done without prejudice to the respondents’ denials of liability.  I was told that, if damages were assessed, the claims might settle without the need for a trial on liability.  I agreed to this suggestion and set aside five days for hearing some of the claims.

8                     During the five day hearing, from 27 to 31 March 2000, I heard the whole of the evidence concerning the claims of Mr and Mrs Magnus and Dr Maxwell, and their respective sons, and part of the evidence relating to Ms Webb.  I made directions about written submissions and reserved my decision.  Written submissions were provided.  However, shortly afterwards, I was informed the parties had entered new negotiations.  I was asked not to deliver judgment at that stage.

9                     The matter again drifted on, although this time with some progress being made.  On 20 December 2000 I was informed all claims had been settled, with the exception of the claims of Mr and Mrs Magnus, Dr Maxwell and Ms Webb.  I was asked to deliver judgment in relation to each of the first three claims.  I now do so.

10                  I will deal separately with each of the three subject claims.  However, before I do so, it is convenient to say something about the relevant law.

The law

11                  In Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 at 394, Windeyer J drew a distinction between non-compensable sorrow or “shock” and “nervous shock” sounding in damages.  He said:

“Sorrow does not sound in damages.  A plaintiff in an action of negligence cannot recover damages for a ‘shock’, however grievous, which was no more than an immediate emotional response to a distressing experience sudden, severe and saddening.  It is, however, today a known medical fact that severe emotional distress can be the starting point of a lasting disorder of mind or body, some form of psychoneurosis or a psychosomatic illness.  For that, if it be the result of a tortious act, damages may be had.  It is in that consequential sense that the term ‘nervous shock’ has come into the law.”

12                  In McLoughlin v O’Brian [1983] AC 410 at 431, Lord Bridge of Harwich said:

“The common law gives no damages for the emotional distress which any normal person experiences when someone he loves is killed or injured.  Anxiety and depression are normal human emotions.  Yet an anxiety neurosis or a reactive depression may be recognisable psychiatric illnesses, with or without psychosomatic symptoms.  So, the first hurdle which a plaintiff claiming damages of the kind in question must surmount is to establish that he is suffering, not merely grief, distress or any other normal emotion, but a positive psychiatric illness.

13                  McLoughlin v O’Brian was considered by the High Court of Australia in Jaensch v Coffey (1984) 155 CLR 549.  The only issue in that case was whether the defendant owed a duty of care to the plaintiff (the wife of an injured motor cyclist who attended the hospital but not the scene of the accident).  As it was established that the wife suffered serious psychological (and resultant physical) injuries as a result of her husband’s accident and hospitalisation, it was not essential for the Court to consider what constitutes compensable nervous shock.  Nonetheless, some members of the Court (in particular, Brennan J) made some observations about this subject.  At 559 Brennan J adopted the words “any recognizable psychiatric illness” (used by Lord Denning MR in Hinz v Berry (1970) 2 QB 40 at 42) as a description of compensable “nervous shock”.  At 566-567, his Honour observed:

“The notion of psychiatric illness induced by shock is a compound, not a simple, idea.  Its element are, on the one hand, psychiatric illness and, on the other, shock which causes it.  Liability in negligence for nervous shock depends upon the reasonable foreseeability of both elements and of the causal relationship between them.  …  I understand ‘shock’ in this context to mean the sudden sensory perception – that is, by seeing, hearing or touching – of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff’s mind and causes a recognizable psychiatric illness.  A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential.  If mere knowledge of a distressing phenomenon sufficed, the bearers of sad tidings, able to foresee the depressing effect of what they have to impart, might be held liable as tortfeasors.”

14                  Brennan J went on to point out that the capacity of a phenomenon to cause a person who perceives it to suffer a psychiatric illness depends in part upon the distressing effects of the phenomenon that are manifest to be perceived by anybody and in part upon any special significance the phenomenon may have for a particular perceiver.  However, “a psychiatric illness may be induced by shock when a distressing phenomenon is perceived by a plaintiff for whom it has no special significance”.  Brennan J went on at 567-568:

“No doubt it is true to say that the more distressing and dramatic an event, the more likely it is to cause shock to those who perceive it.  The scene of a road accident where an injured victim is to be seen is usually more distressing and dramatic, more inherently shocking, than the scene in a hospital ward where the victim is recovering from his injuries.  There is, however, no legal principle which precludes a plaintiff from relying on phenomena other than the scene of an accident or the scene of a potential accident. …  I know of no principle which precludes a plaintiff from relying on any phenomenon which is a reasonably foreseeable result of the defendant’s carelessness.  It is a question of fact whether it is reasonably foreseeable that the sudden perception of that phenomenon might induce psychiatric illness.”

15                  Brennan J observed at 568-569 that some people are naturally more robust, and less sensitive, than others:

“Yet reasonable foreseeability is an objective criterion of duty, and a general standard of susceptibility must be postulated.  At least to that extent it is possible to confine consideration of the question whether it is reasonably foreseeable that the perception of a particular phenomenon might induce in the plaintiff a psychiatric illness.  Some general guidelines apply.  The first guideline is this: the question ‘whether there is duty owing to members of the public who come within the ambit of the act, must generally depend on a normal standard of susceptibility’: per Lord Wright in Bourhill v Young [1943] AC 92 at 110.  Unless a plaintiff’s extraordinary susceptibility to psychiatric illness induced by shock is known to the defendant, the existence of a duty of care owed to the plaintiff is to be determined upon the assumption that he is of a normal standard of susceptibility.  Secondly, if it is reasonably foreseeable that the phenomenon might be perceived by a person or class of persons for whom it has a special significance – for example, the parent of a child injured in a road accident who comes upon the scene – the question whether it is reasonably foreseeable that the perception of the phenomenon by that person or a member of that class might induce a psychiatric illness must be decided in the light of the heightened susceptibility which the special significance of the phenomenon would be expected to produce.”

16                  In Jaensch v Coffey, Deane J (with whom Gibbs CJ agreed) said at 601:

“… it must now be accepted that any realistic assessment of the reasonably foreseeable consequences of an accident involving actual or threatened serious bodily injury must, in an appropriate case, include the possibility of injury in the form of nervous shock being sustained by a wide range of persons not physically injured in the accident …”

17                  It is unnecessary to refer to all the cases in which reference has been made to Jaensch v Coffey.  However, I should mention a recent decision of the New South Wales Court of Appeal, which was cited to me on behalf of South Pacific and Group Air, Morgan v Tame (2000) 49 NSWLR 21.  The case was unusual.  Although the respondent was involved in a motor traffic accident, her claim of nervous shock was not brought against the driver of the other vehicle.  The claim did not arise out of anything that occurred during the course of the accident but out of an error by the police officer who investigated the accident.  It seems that, when he completed the usual police accident report, the officer inadvertently attributed to the respondent the blood-alcohol reading of the other driver.  Upon the respondent learning of this fact, she suffered a depressive illness and sued the police officer for damages.  The respondent succeeded at trial but the Court of Appeal allowed an appeal.  The Court held that, in the circumstances of the case, no duty of care arose.  All members of the Court held that the law imposes a duty to take reasonable care to avoid psychiatric injury only in relation to a person of normal fortitude; and, also, that, in the absence of negligently inflicted physical damage, psychiatric damage must result from a sudden impact to the sensory system, rather than a gradual deterioration in mental health.

Mr Magnus’ claim

(i)                 The factual evidence

18                  Mr Magnus is a barrister by profession.  At the date of the air crash he was aged 44 years.  He was married to Marilyn Ann Magnus, a group member.  Mr and Mrs Magnus had three children, the eldest of whom, Christopher, was then aged 16 years, a student at Scots College and a member of the school band.  He was a passenger on the aircraft that was scheduled to travel to Norfolk Island, but which ditched in Botany Bay.

19                  On Sunday, 24 April 1994 Mr and Mrs Magnus drove Christopher to the Flight Services section of Sydney airport, arriving just before 8am.  With other parents and friends, Mr and Mrs Magnus waited until the passengers boarded, at about 8.45am.  They took some photographs.  When boarding was complete, the aircraft taxied to its take-off point.

20                  Most of the parents departed, but Mr and Mrs Magnus remained on the tarmac chatting to a friend.  Mr Magnus said that, as they were chatting, the DC-3 came into site behind the domestic terminals, already airborne and climbing eastwards toward Botany Bay. Mr Magnus watched it rise for 10 to 15 seconds.  He then noticed it was losing altitude.  The nose was pointing downwards.  Mr Magnus lost sight of the aeroplane as it went behind some trees and shrubs.  Mr Magnus said nobody spoke for a moment, “it seemed like a moment frozen in time”.  He called out “lets go” and he and Mrs Magnus walked briskly to their car and drove along Southern Cross Drive.  Near the overpass tunnel they were overtaken by an airport security van with flashing lights.  They drove through the tunnel and stopped the car.  Mr Magnus said: “By this time, I felt nauseous.  My body felt numb all over.”  He asked a man what had happened and was told “a plane has just gone into the drink”.

21                  Mr and Mrs Magnus drove back to a car park near the airport.  They spoke to bystanders and learned a DC3 had gone into the water and had already sunk.  There was no sign of the plane but a policeman said he had heard on the radio “they have recovered everyone on board”.  Mr Magnus said in his affidavit:

“As soon as I heard the policeman use the word ‘recovered’ my worst suspicions were confirmed.  I thought he was talking about bodies”.

22                  Mr Magnus noticed his wife was extremely upset.  She was shaking and appeared agitated.  Mrs Magnus approached two police officers who had arrived in a vehicle.  She tried to enter their car but they blocked her entry and advised her to return to Flight Services.  Mr Magnus described his emotions in this way:

“I was confronted with an overwhelming urge to get to the aircraft.  I felt like I was running on 100% adrenalin.  I was going with my emotions.  I was convinced that Christopher was dead.  I knew I had to go and see, but I did not know what I had to see.  I could not analyse anything.  For the first time since Christopher was born I felt that I was helpless to protect him.  I had pictures of wading in water through body parts looking for my son.  It was an unreal situation.”

23                  Mr and Mrs Magnus hurried to their car, which was parked nearby.  As they entered the car, a squad of about 15 police and emergency service vehicles rushed by with sirens and lights on.  Mr Magnus drove in behind the last of these vehicles and followed them to a boat ramp on the shore of Botany Bay near the oil refinery.  As they neared the boat ramp, their car was stopped by a police officer.  Mr Magnus told the police officer their son was on the plane.  He let them pass.  Mr and Mrs Magnus alighted from the car and walked to an elevated point where they could see the beach.  A man approached and asked whether they recognised anyone.  They then noticed a fishing boat, crowded with people, that was approaching the beach.  Two boys disembarked from the boat.  Mr Magnus recognised them as band members.  He and his wife ran to them and asked were they OK.  One of them said: “I’m OK.  Everybody is alright.  We all got off”.  They asked where was Christopher and were told he got into one of the other boats.  They were assured he was alright.

24                  Mr and Mrs Magnus commenced to walk along the beach with the two boys.  As they did so, another boat approached.  Christopher jumped off it and waded ashore.  He was alright but was taken by ambulance to Prince Henry Hospital for a checkup.  Mr Magnus said they had a long wait at the hospital – three or four hours.  During that time he took photographs of some of the boys, including Christopher.  He said he “had this weird urge to take photographs of Christopher”.

25                  A couple of days after the ditching, a 747 aeroplane crashed in Japan.  Mr Magnus said he was “agitated” by news coverage of the crash, especially television footage of the crash debris.

26                  In his affidavit, Mr Magnus described his (and his wife’s) subsequent behaviour:

“In the weeks immediately following the DC-3 crash, neither Marilyn nor I slept well.  I was existing on a couple of hour’s sleep each night.  I found myself drawn into continually discussing the crash with Marilyn, family and friends.  We received constant phone calls from relatives and friends concerned about Christopher, as well as telephone calls from news reporters.  Marilyn and I started drinking alcohol on an increasing basis, especially whenever we were discussing the crash.  At the time, I had a substantial wine cellar which Marilyn and I depleted within two months following the crash.  We were drinking two to three bottles of wine per day.  I found myself thinking:

‘There is no point saving or keeping anything for tomorrow because you never know what is around the corner.’

I became very possessive of Christopher.  I kept touching him just to reassure myself he was still alive.  I drove him to school every morning and picked him up every afternoon.  I was concerned about Christopher getting onto any other form of transport.”

27                  In oral evidence, Mr Magnus said that, before the crash, he used not to keep touching his son; prior to that date, transport to or from school by him “was irregular”.

28                  Mr Magnus also said he suffered “regular bouts of depression for a period of up to nine months following the crash”; he had not previously suffered from depression.

29                  Mr Magnus said that, in May 1994, his wife suggested to him they each needed counselling.  They attended a counselling session at the War Memorial Hospital, Waverley.  Mr Magnus did not find it helpful.  Subsequently, he discussed his feelings with his general practitioner, Dr Eugene Molodysky, including heavy drinking, sleeplessness, forgetfulness and his state of anxiety.  Apparently, Dr Molodysky did not provide any particular form of treatment.  He did not give evidence in this proceeding.

30                  Mr Magnus was referred by his solicitors to a consultant psychiatrist, Dr Mary Jurek, who did give evidence.  Mr Magnus did not undertake any psychiatric treatment.  He also saw three psychiatrists nominated by solicitors for the respondents.

31                  Mr Magnus does not claim the problems he recounted led to him sustaining economic loss.  At the time of the crash, he was at the private Bar.  In November 1997 he became a Crown Prosecutor.  Mr Magnus said he had difficulties, after 1994, in coping with the stresses of practise; but he never sought an adjournment, or returned a brief, on account of those difficulties.

32                  In the course of cross-examination, Mr D Grieve QC, senior counsel for South Pacific and Group Air, established that Mr Magnus had been concerned about his son’s safety for about 45 minutes; from take-off at about 8.45am until learning he was safe at about 9.30am.  Mr Magnus said that, during this period, he “was terrified”; he was concerned that his son had been killed.  He agreed this concern and terror was reflected in his rejoicing when he learned Christopher was alive and well.

33                  Mr G M Gregg, counsel for CASA, put to Mr Magnus that his wife had been told by a police officer near the car parking area, that he (the police officer) had heard that everyone on the plane was alright.  Mr Magnus denied being told this.  He added that, in any event, he would not necessarily have been reassured; the police officer had told him he knew very little about what occurred. 

34                  Mr Magnus also said that, in the period of about six months after the crash, he experienced an “obsessive need” to revisit the airport and the car park that overlooked the crash site.  He said he returned dozens of times.  Some of these visits made him feel calmer.  Mr Magnus said his preoccupation with the crash lessened after six months.  However, he claimed to continue to have some problems: bouts of anxiety when coming across news items relating to aircraft crashes, sleep disturbance, fear of flying, some reduction in work efficiency and some degree of social withdrawal.  Mr Magnus said he became angry when he read the Bureau of Air Safety (“BASI”) report into the accident; but he denied he had brought the proceeding as an act of revenge, or for the purpose of public condemnation of the respondents.

(ii)               The psychiatrists’ evidence

35                  Dr Jurek saw Mr Magnus on 30 June 1996.  She obtained a history of the events of 24 April 1994, and of its aftermath so far as Mr Magnus as concerned, which was broadly consistent with Mr Magnus’ evidence.  She also took some family history.

36                  Dr Jurek found Mr Magnus “was not deeply depressed, suicidal or psychotic” but she thought he suffered post traumatic stress disorder, “although he appears to be gradually recovering”.  Dr Jurek said:

“He may have been sensitised to the development of this condition by the sudden death of his father at a young age.  In addition, the history of the miscarried twins in the pregnancy preceding his own and the false expectation of a twin pregnancy in his wife’s first pregnancy may have contributed to the notion that his son was both dead and alive.

As a result of the above traumatic situation, Mr Magnus has suffered a number of physical and psychological symptoms.  These include initial shock, confusion and denial of the situation, anxiety and substance abuse, disturbed sleep with repetitive dreams and nightmares, diminished appetite and weight loss, social withdrawal and lack of motivation to engage in sports and interests.  His short term memory and concentration are impaired with an effect on his work load.  His avoidance of air travel and fear of flying have limited some of his work opportunities in country areas.  He will not fly to country, interstate and overseas locations.

I would recommend a period of psychiatric treatment to help him integrate this traumatic experience better.  Such treatment should be undertaken at a weekly frequency for a period of about six to twelve months.  This may be costed at the current Australian Medical Association rate of $190.00 per 45 minute session.  The prognosis with appropriate treatment is favourable.”

37                  In cross-examination Dr Jurek said she did not think Mr Magnus was still suffering post traumatic stress disorder, when she saw him on 30 July 1996; but he remained susceptible to a recurrence.  She was firm in her opinion that he had previously suffered from this disorder.  Dr Jurek said that, in forming that opinion, she had particularly been influenced by Mr Magnus’ abuse of alcohol.  However, she also placed weight on Mr Magnus’ behaviour in returning to the crash scene and other aspects of his history.

38                  The first psychiatric examination of Mr Magnus carried out on behalf of a respondent, was by Dr Eli Revai on 6 April 1999.  Counsel for the applicant - not counsel for any respondent – tendered a report of that date addressed to the solicitors for South Pacific and Group Air.  That report contained an extensive history and account of symptoms that were consistent with Mr Magnus’ evidence.  Dr Revai expressed the following opinion:

“Mr Kenneth Magnus is a forty-eight year old barrister at law, now a police prosecutor, who witnessed a DC-3 carrying his son and the Scots College Pipe Band crash into Botany Bay.  Fortunately no one was injured but since that time, Mr Magnus has been preoccupied with the events of the crash.  It appears to me that after the incident, he may have developed some dissociative phenomena, for example, the feeling that he had to constantly touch his son to confirm that he was not dead.  On the negative side, Mr Magnus began drinking to excess which would have heightened any psychological symptoms that he had an could have also accounted for the decrease in his concentration and as a consequence, his memory.  This could have also played a part in the development of Mr Magnus’ sleep disorder.

Unfortunately, other than for self-medicating with a depressant, i.e. alcohol, he has not had any treatment for his symptoms.  Fortunately, he was able to continue working and denied that his work performance was inferior to that of before the crash, even though Mr Magnus told me that he had difficulty remembering events.

As regards the psychiatric diagnosis, it appears that Mr Magnus has developed an anxiety disorder as a consequence of what he witnessed that day at Sydney Airport and has not done himself any service by drinking to excess.  Unfortunately, he is resistant to any medical treatment, which I believe could have foreshortened the chronicity of his symptoms.  Unfortunately, due to the medico-legal aspect of the matter, whenever Mr Magnus is reminded of a court hearing or has contact from his legal advisers, this brings back that day in 1994.  I believe that Mr Magnus should be seeing a psychiatrist and should be on some antidepressant medication.  I do not believe that he will require this treatment long term.  I would think that a few consultations would be sufficient.”

Dr Revai was not cross-examined.

39                  Dr Maxine Walden, a psychiatrist, saw Mr Magnus, at the request of the solicitors for CASA, on 20 October 1999.  She also took a history from him that was consistent with his evidence in this case.  She noted current complaints of anger when he has to think about the crash or the court case and sleep interruptions.  Dr Walden said Mr Magnus reported “that he sometimes felt depressed when matters relating to the incident came up, but did not describe any pervasive mood disturbance”.  He believed “his concentration was somewhat reduced and cited the example of having to read briefs 2 to 3 times in order to assimilate the material sometimes”.

40                  Dr Walden offered this opinion:

“I consider that Mr Magnus was upset about the incident involving his son, but do not consider that he developed a recognisable psychiatric illness as a result of it.  I note the report of Dr Mary Jurek diagnosing a Post-traumatic Stress Disorder and an episode of substance abuse.  With respect, I do not agree with either of these diagnoses.

With regards to Post-traumatic Stress Disorder, while Mr Magnus does describe some recurrent, distressing dreams of the event, he does not describe the persistent avoidance of stimuli associated with the trauma.  In fact, he describes exactly the opposite, recurrently seeking information that reminded him of the incident and feeling somewhat calmer in doing this.

He describes some difficulty concentrating and some disturbance in his sleep, which are associated with Post-traumatic Stress Disorder but are by no means exclusive to it.  Not only do these symptoms occur in a wide variety of psychiatric disorders, they also occur as part of a normal human emotional reaction.  Finally, his disturbance after the incident did not cause clinically significant distress or impairment in important areas of his functioning.

With regards to a diagnosis of substance abuse, Mr Magnus describes consuming alcohol greater than the safe recommended levels, consuming around 1 to 1½ bottles of wine over two separate 6-month periods.  However, substance abuse is not defined on the basis of consumption alone and requires a maladaptive pattern of substance use with recurrent and significant adverse consequences related to it.  Mr Magnus does not fulfil the DSM-IV Criteria for Alcohol Abuse.  He did not fail to fulfil major role obligations at work, school or home, did not continue to use in situations in which it was physically hazardous, did not have recurrent substance related legal problems and did not continue to use despite persistent or recurrent social or interpersonal problems caused or exacerbated by the substance.  His alcohol consumption was excessive for a period of time, but did not meet the DSM-IV Criteria for Substance Abuse.

Currently, Mr Magnus describes being angry and preoccupied transiently with the incident when there is a matter relating to the court case.  I consider this to be within the realms of a normal emotional reaction and do not consider that it indicates psychiatric illness.

In summary, I do not consider that Ms Magnus [sic] suffered or continues to suffer from a diagnosable recognised psychiatric disorder as a result of the crash of the aircraft.”

41                  Mr Magnus saw Dr Rod Milton, another psychiatrist, at the request of South Pacific and Group Air.  Dr Milton also took a history consistent with the evidence of Mr Magnus.  He had the reports of both Dr Jurek and Dr Walden.

42                  Under the heading “Opinion”, Dr Milton referred to the World Health Organisation’s Glossary of Mental Disorders, now apparently called ICD-10, which is currently used in Europe.  Dr Milton did not suggest he had used this publication in forming his opinion.

43                  Dr Milton also referred to a publication of the American Psychiatric Association, Diagnostic and Statistical Manual, now in its fourth edition (“DSM-IV”).  He said successive editions had changed to such an extent that there was controversy about the validity of the work; in particular about the definition of some disorders and whether they ought to be included in the work.  He said:

“What began as an attempt to categorise mental illness in a simple practical fashion in 1967 became increasingly complex over time, and progressively subject to political issues within and without psychiatry, without necessarily being more accurate or reliable.  Indeed, the reverse might apply in that as the number of categories of disease increases, the classifications increasingly include many behaviours that were once regarded as aspects of everyday life, character or morality, e.g. alcohol abuse, so that these are now included as diseases.”

44                  Dr Milton went on to refer to “increasing concern in the community about awards accorded in courts for damages, allegedly for injuries or health problems, often without foundation”.  He cited two books that allegedly express this concern, and what he claimed to have been erroneous awards in respect of birth defects.  He terminated two pages of discussion on this point by saying:

“It is clear, therefore, that there are serious doubts about a tendency to interpret as disease emotions and behaviour that would in the past have been regarded as normal distress.  Thus, it might not be sufficient for a court to award damages merely on the basis of a diagnosis based on the Diagnostic and Statistical Manual, but to consider each case individually and to determine whether psychiatrists were realistic in regarding the person’s reaction as constituting disease.”

45                  Turning at last to Mr Magnus’s case, Dr Milton said:

“Mr Magnus had a frightening experience.  He felt agitated and distressed, but was able to act appropriately at the time and afterwards.  He felt vulnerable and he dwelt on the matter for months.  He dreamed about it, drank more than he should have done, and he lost weight, which he later regained.  He socialised less, and at times had a few problems with work, but nonetheless continued to work as an effective legal practitioner.  His distress eventually settled.  His response to the incident did not, in my view, constitute psychiatric disease.

Dr Jurek diagnosed a post-traumatic stress disorder and substance abuse (alcohol).  Even if one accepts the Diagnostic and Statistical Manual as a valid index of psychiatric disease and the conditions listed in it as meriting compensation, the date supplied in Dr Jurek’s report do not establish that Mr Magnus suffers or suffered the diseases stated.

Persons with post-traumatic stress disorder are said to avoid anything to do with the traumatic event.  To return to the scene of the event, to collect photographs associated with it, and to read the official report of the event, indicate that ‘avoidance behaviour’, as described in the DSM-4, did not occur.

Dr Jurek diagnosed substance abuse.  In order to qualify for this ‘diagnosis’ according to the Diagnostic and Statistical Manual, the person must have had a maladaptive pattern of substance abuse leading to clinically significant impairment or distress over a twelve-month period.  The impairment can result in failure to fulfil major role obligations at work, or home, or caring properly for children.  Mr Magnus did not meet these criteria.

As I understand it, compensation is not awarded merely for distress.  I can appreciate and sympathise with Mr Magnus’s feelings of outrage that his son’s life was put at risk by inadequate engine servicing, inaccurate loading calculations, poor flying, and insufficient supervision by a government authority.  I can appreciate his anger at the military authorities for not supplying a regular, properly serviced military aeroplane but submitting the flight for private contract.  Commercial issues should take second place to public safety but that is not always the case, and to think one’s son was exposed to the risk of death or injury by that is very distressing.  Such a feeling of outrage is normal and does not constitute psychiatric disease.  Mr Magnus was appropriately troubled by what happened, but did not become ill.  Currently he is emotionally distressed because of the litigation process.”

46                  Counsel for both sets of respondents read an affidavit of another psychiatrist, Dr John Ellard, dated 16 February 2000, to which was annexed a letter of 21 January 2000.  Dr Ellard had earlier reported to the solicitors for CASA on some of the group members.  On 21 January 2000 he felt moved to write to the solicitors referring to the difficulty in distinguishing between a “normal response” and an “illness”.  Dr Ellard said:

“Generally there is no problem but the fact is that there is no satisfactory definition of a disease and no satisfactory definition of health.

Psychiatry shares the general problem.  All would agree that schizophrenia and bipolar disorder are reasonably regarded as diseases even though there is not always manifest disability.  For example, there are a few people with firmly encapsulated delusions which do not affect their life at all.  On the other hand, bereavement can produce much distress and suffering but is regarded as normal.

The general issue of the limits of normality has been much written about in both the medical and the psychiatric field.  There were two articles in the latest edition of the American Journal of Psychiatry for example.  Even though the theoretical problem remains, generally clinical judgment and common sense will suffice to make a distinction.

The relevant issue here is the boundary between normal anxiety and phobic anxiety.”

47                  Dr Ellard enclosed some extracts from DSM-IV, one of which, he said, “shows that those compiling DSM-IV were well aware of this difficulty and that placing people into formal categories may not always be either logical or helpful, particularly in forensic settings”.  He said there was an issue about “the boundary between normal anxiety and phobic anxiety, the latter being a ‘disorder’.”  Dr Ellard asserted that “[a]ny reasonable person involved in an aircraft crash would be apprehensive about boarding aeroplanes in the future”; plainly, he did not think this constituted a phobia or other psychiatric disorder.  His letter did not say what, in his opinion, would constitute such a condition.

(iii)             Conclusions

48                  I do not find it necessary to reproduce in these reasons the extensive written submissions of counsel in relation to Mr Magnus’ case.  I have given them careful consideration in reaching the conclusions set out below.

49                  I accept the evidence of Mr Magnus as to the events of 24 April 1994 and as to his feelings and conduct at that time.  Although a period of only about 45 minutes passed between the take-off of the aeroplane and Mr Magnus’ learning that Christopher was safe, those minutes must have been extremely stressful to him.  I have no hesitation in finding he sustained serious shock.

50                  Contrary to the submission of counsel for the applicant, Mr J Rowe, the Court ought not adopt a “subjective” approach to determination of the question whether Mr Magnus suffered a psychiatric illness as a consequence of that shock.  As Morgan v Tame has recently reaffirmed, the duty of care in respect of nervous shock applies only to a person of normal fortitude; the “eggshell skull” principle is a rule of compensation, not of liability: see per Spigelman CJ at paras 21 to 30 and Mason P at para 129.  Normal fortitude is a matter of judicial notice; it does not depend on psychiatric evidence: see Morgan v Tame paras 11, 12 and 130.

51                  It is not suggested by any counsel that Mr Magnus was other than a person of normal fortitude on 24 April 1994.  Nor does the evidence provide any basis for such a suggestion; Mr Magnus had no prior history of psychological problems.  The real issue in the case, so far as he is concerned, is whether or not he sustained a psychological injury as a result of the shock he experienced on that day.

52                  As will be apparent from the summary of evidence set out above, there is a difference of opinion, as between Dr Jurek and Dr Walden, as to whether Mr Magnus suffered post traumatic stress disorder.  Dr Jurek was subjected to a lengthy and intensive cross-examination concerning her opinion.  Notwithstanding that cross-examination, she adhered to her opinion, and was impressive in doing so.  I reject the criticism that was put to her in cross-examination, and repeated in counsel’s submissions, that she approached her task with a predetermination to find psychiatric injury.  I think she carried out her task in a careful and professional manner.  She gave cogent reasons for her conclusions.  All of this inclines me to accept Dr Jurek’s view about the suffering of post traumatic stress disorder.

53                  On the other hand, Dr Walden was not cross-examined.  I do not know the reason for this omission.  Perhaps Mr Rowe thought Dr Walden’s evidence about post traumatic stress disorder did not conflict with that of Dr Jurek on the same subject.  In his written submissions in reply, Mr Rowe said:

“The evidence is that Dr. Jurek did not rely on DSM IV in reaching her diagnosis.  She conceded that a diagnosis relying on DSM IV may not reach the same conclusion.  The Respondents psychiatrists adduced evidence that DSM IV was inappropriate to be applied to the circumstances of this case.  The Respondents doctors then made a diagnosis under DSM IV.  There is no conflict in the evidence.  Therefore there is no basis to submit that in not cross-examining the Respondents doctors there should be any criticism of the weight to be given to the evidence of Dr. Jurek

54                  It is true that Dr Jurek did not rely on DSM-IV in reaching her diagnosis.  For reasons she explained in cross-examination, she thought DSM-IV to be an inappropriate guide.  It is also true that Dr Milton criticised DSM-IV; and it is fair to say that, nevertheless, Dr Milton based his rejection of Dr Jurek’s opinion directly on that work.  However, it is not fair to make the same comment about Dr Walden.  She did not criticise DSM-IV, or apply it in relation to the issue of post-traumatic stress disorder.  Her reason for rejecting Dr Jurek’s diagnosis of post-traumatic stress disorder was that Mr Magnus did “not describe the persistent avoidance of stimuli associated with the trauma”.  Dr Walden and Dr Jurek were at issue on the question of Mr Magnus having suffered post-traumatic stress disorder, without either of them having directly relied on DSM-IV in forming her opinion.

55                  Having regard to the fact that Dr Walden was not challenged in respect of her view about that issue, it would not be appropriate for me to adopt Dr Jurek’s view about it.  However, it does not follow I should find Mr Magnus did not suffer a psychological injury.  Dr Jurek also found substance abuse.  Dr Walden disagreed, but her disagreement on that issue was expressly and exclusively based on criteria expressed in DSM-IV.  Dr Milton criticised DSM-IV in his report.  Dr Jurek expressed criticisms in the course of her oral evidence.  Dr Ellard pointed out difficulties associated with DSM-IV “and that placing people into formal categories may not always be either logical or helpful, particularly in forensic settings”.  Importantly, no witness positively endorsed DSM-IV.  Accordingly, Dr Walden’s opinion about substance abuse is one based entirely on a publication whose correctness is left unsupported by evidence.  As such it cannot carry any weight.  It would be different if Dr Walden had provided other reasons for rejecting Dr Jurek’s view about substance abuse.

56                  I also take into account that Dr Revai considered Mr Magnus had developed disassociate phenomena and had begun drinking to excess after the plane crash.  Dr Revai thought Mr Magnus had “developed an anxiety disorder as a consequence of what he witnessed” on 24 April 1994.  These views were not challenged by cross-examination or refuted by evidence.

57                  In this situation, I must conclude the evidence establishes that Mr Magnus sustained nervous shock, within the meaning of the authorities mentioned above.  Mr Magnus is entitled to recover damages in respect of the sequelae of that shock.

58                  Specification of an appropriate amount of damages, in a case such as this, is always a difficult matter.  It is impossible to articulate reasons for selecting one figure rather than another.  One can only make a judgment as to the amount of damages that seems appropriate: see Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167 at 182-183.  Typically, one side thinks the selected figure unrealistically low; the other side thinks it quite excessive.  That will probably be the situation in this case.

59                  On the one hand, there is no doubt that Mr Magnus suffered an agonising experience on the morning of 24 April 1994.  It may be impossible for anyone who has not been in that situation fully to comprehend the stress that was occasioned to Mr Magnus by sight of the descent of the aeroplane carrying his son, and the agony of the ensuing 45 minutes until he learned Christopher was safe and well.  I also accept that Mr Magnus suffered significant sequelae which were distressful to him and which have taken a long time to resolve.

60                  On the other hand, there is no claim for economic loss.  Mr Magnus suffered no physical injury and, it seems, no permanent psychological injury.  However painful and disturbing the episode, it is now in the past.  No doubt, an unpleasant or upsetting memory will return from time to time; but there is no need to take into account any significant future problem.

61                  Having regard to these matters, my judgment is that Mr Magnus’ damages may appropriately be assessed in the sum of $25,000, to which I would add $7,000 by way of interest (being 4% for seven years).

62                  If judgment was being entered in favour of Mr Magnus at this time, I would assess his damages at $32,000.

Mrs Magnus’ claim

(i)                 The factual evidence

63                  Mrs Magnus was born in November 1950.  She is a schoolteacher.  She revealed in her affidavit that she had suffered mild depression for a period of about two years when her children were small, but she said in oral evidence this cleared up long before the crash on 24 April 1994.

64                  Mrs Magnus gave an account of the events of 24 April that was consistent with that of her husband, except that she understood a policeman to say to her: “I think they are all OK”.  Notwithstanding this, she described her emotions, when she got back into the car to follow the police and emergency vehicles, in this way:

“I remember felling sick in the stomach.  I was still shaking and trembling and in shock.  I was convinced that I had lost a child.”

65                  Mrs Magnus said that, after she and her husband met up with Christopher, she kissed him and asked him whether he was OK.  He said he was.  Mrs Magnus deposed:

“By this stage, I felt completely numb.  It was like a totally unreal experience, as if it wasn’t happening to me.  I had put my son on a plane, which had taken off.  The next thing I knew, I was seeing him come in on a boat dripping wet.  It somehow didn’t make sense.  I think that when I thought that Chris was dead, and then saw him alive, my mind could not adjust to everything that had happened.  I was in a complete state of shock and the whole thing just didn’t feel real.”

66                  Mrs Magnus said the feeling of unreality persisted when she got home.  The crash was reported on the radio and she received phone calls from many people.  She was unable to work on the two days after Anzac Day, 26 and 27 April.  She returned to work on Thursday, 28 April.  In her affidavit, Mrs Magnus said:

“Even at this time, I was still feeling sick, nauseous, I was pale and in shock.  The whole situation still felt unreal.  Nevertheless, I returned to work.  I found that I could not concentrate on teaching and was often in tears.  I persisted at school for about a week.  I remember speaking with the school psychologist, Fay Radom and she suggested that I take some time off work.  I was strongly encouraged to do this, which I did and had about one week off.”

67                  After the week, Mrs Magnus returned to work.  But she said that, for the rest of the term, until the end of June, “my life was a blur”.

“During that period, I had difficulty sleeping, I was not eating properly and I was having difficulty coping with my day to day life.  After about two weeks following the crash, I started dry reaching [sic] for a couple of days.  This occurred after Ken and I went to a dinner party at some friends of ours.  I had been feeling very low, however I thought that I could cope with dinner with our friends.  As it turned out, there were some people we did not know there and I just couldn’t cope with meeting new people and trying to make conversation with them.  I couldn’t eat a thing at the dinner party, and when I got home I started dry reaching.  The general feeling of nausea stayed with me for several weeks following the crash.

In my mind, I still thought Chris was dead, even though I could see him and touch him and knew he was alive.”

68                  Mrs Magnus found helpful the session that she and her husband had with the counsellors at the War Memorial Hospital.  She was informed she was in shock and going through a grief reaction; at the time she saw the plane descend, she had it in her mind that Christopher had died.  This had set off a grieving reaction which continued notwithstanding her knowledge that he was alive.

69                  Mrs Magnus described a preoccupation with Christopher’s childhood photographs, she thinking of him in the past tense as if he was dead.  She said:

“For the first couple of months after the crash, … I began to think that everything was meaningless.  Life seemed to have lost its meaning and there seemed no point in hanging onto material things.  I remember thinking that I would have done anything to avoid having to have gone through what we had been through.  I remember thinking that I didn’t care if had [sic] lost my house or other material possessions, so long as my family was intact.  It was during this period, that Ken and I started to drink through the wine that we had in our cellar.  A lot of this wine was good wine, however we thought, ‘what’s the point of keeping it’, so we drank about two or three bottles a night.  This went on for a couple of months.

For the first couple of months after the crash, I became completely obsessed with the crash.  It was the only thing that was on my mind, and I would talk about it with anyone and everyone, including strangers.  Ken and I returned to the crash site probably four or five times and we would talk about what had happened.  It was during this period that I put together an album of photographs and newspaper clippings about the crash.”

70                  Mrs Magnus said that, in the second half of 1994, she developed a rash on her torso, and started to lose large chunks of hair.  She had many sleepless nights and withdrew from friends.  She felt she neglected her daughters, to some extent.

71                  Apparently it was not until May 1995, when Mrs Magnus took nine weeks long service leave in order to recuperate, that she began to feel like her old self.

72                  During cross-examination, Mrs Magnus said she was not relieved by the police officer telling her he thought everyone on the plane was OK.  She does not recall having told her husband of this statement.  Other police cars came along and they followed them.  She was asked how she could have been convinced she had lost her child when she had been told they were OK.  She replied: “they were my feelings”.  She said that, when she met Christopher and kissed him, she knew it was him but it did not fell like “as if a miracle had happened”; she felt “totally detached from what I was doing”.

(ii)               The psychiatric evidence

73                  Dr Jurek saw Mrs Magnus on 9 August 1996.  She took a history from Mrs Magnus that was consistent with her evidence.  This included an account of the effect of the incident on Mrs Magnus.  Dr Jurek reported that, during the consultation, Mrs Magnus’ “mood was depressed and she cried when discussing the incident and her subsequent symptoms”.  Dr Jurek thought her behaviour appropriate, and that she was not suicidal or psychotic.  However, Dr Jurek thought Mrs Magnus was suffering from reactive depression and had had a temporary period of substance abuse.  Dr Jurek said:

“The most striking symptom is the belief that her son was dead and the difficulty to accept that he was alive.  In this denial, she may have been sensitised by her early experiences within her family, especially her mother’s tendency to denial.

This period also overlaps with her father’s admission in a nursing home for senile dementia and his death earlier this year.  During this time, she received little support from her mother who was obviously involved in her own problems.  To this extent, her own self-absorption following this incident is understandable.

Mrs Magnus experienced a number of physical symptoms such as loss of hair, a rash, nausea and vomiting.  In addition, she experienced psychological symptoms such as depression, crying, sleep disturbance, difficulty in concentration, poor work performance, lack of motivation, social withdrawal and a feeling of ‘going mad’.

Her temporary substance abuse was perhaps related to her strong identification with her husband and his means of coping with the trauma.  Their ability to become closer emotionally, talk about the incident and empathise with each other probably helped them work through the trauma more effectively than were they to do so alone.”

74                  Mrs Magnus was seen by Dr John Shand, psychiatrist, on behalf of South Pacific and Group Air.  But Dr Shand was not called to give evidence.  She was also seen by Dr Walden, on 20 October 1999.  Dr Walden noted a similar history.  However, she considered Mrs Magnus’ symptoms “are insufficient to diagnose an episode of Major Depression according to DSM-IV Criteria”.  She went on:

“Currently, Ms Magnus does not suffer from any psychiatric disorder.  At the time of the incident in 1994, Ms Magnus describes being very upset and having difficulty believing that her son was actually alive.  She repeatedly talked about the incident and accompanied her husband to look at the site and to go over photos of her son and media coverage for about six months.  She describes feeling somewhat depressed and that the joy had gone out of day to day activities over about 12 months.  She describes some restless sleep and a change in her weight.  However, these symptoms are insufficient to diagnose an episode of Major Depression according to DSM-IV Criteria.

I do not consider it likely that Ms Magnus fulfilled the diagnostic criteria for an Adjustment Disorder with depressed mood.  Her feelings of depression were not clinically significant in that there was neither marked distress in excess of what might be expected after the stressor, nor was there significant impairment in functioning.

I consider it likely that Ms Magnus had some feelings of unhappiness which fell short of a diagnosis of depressive illness.  The period in question was complicated by the fact that ms Magnus’s father was dying in a nursing home of senile dementia.  She described this as ‘an agonising experience’.  In addition, her mother was preoccupied with her husband’s illness and Ms Magnus felt neglected by her mother after the plane crash.  She stated she has still not truly forgiven her mother for this, though understands the cause of her mother’s preoccupation.

I note Dr Jurek diagnosed substance abuse.  With respect, I do not agree with this diagnosis.  Whilst Ms Magnus consumed more alcohol than a safe recommended level over a period of six months, she does not describe the features required for a DSM-IV Diagnosis of Substance Abuse.

The diagnosis does not depend on quantity of alcohol consumed only.  It also required other features, namely recurrent failure to fulfil major role obligations at work, school or home, recurrent use in situations in which it is physically hazardous, recurrent substance related legal problems, and continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effect of the substance.  None of these features was present in Ms Magnus.

In conclusion, I do not consider that Ms Magnus suffers of [sic] has suffered from a diagnosable recognised psychiatric disorder as a result of the crash of the aircraft.”

(iii)             Conclusions

75                  Once again there is a situation that Dr Walden expressed opinions on which she was not cross-examined.  So it would not be appropriate for me to reject her views, to the extent they are inconsistent with those of Dr Jurek.

76                  However, it is apparent from her report that Dr Walden analysed Mrs Magnus’ position solely by reference to the question whether she fulfilled the criteria stated in DSM-IV.  This is true of each of the disabilities to which she gave consideration:  major depression, adjustment disorder with depressed mood and substance abuse.  As I pointed out in connection with Mr Magnus, there is no evidence supporting the application in this proceeding of DSM-IV criteria, and some evidence casting doubt on the validity of those criteria.  As Dr Walden based her opinions about each of the disabilities solely on the DSM-IV criteria, I cannot accord those opinions any weight.

77                  Dr Jurek did not rely on DSM-IV.  She relied on her general training and experience and gave cogent reasons for believing that Mrs Magnus was suffering from reactive depression when she saw her, over three years earlier than Dr Walden, and had previously suffered substance abuse.  I accept her opinion, the more readily because Dr Shand was not called to dispute it and because of the limited basis of Dr Walden’s contrary view.  Further, as it seems to me, Dr Jurek’s opinion addressed what she described as Mrs Magnus’ “most striking symptom”: her difficulty in accepting that Christopher was alive.  This, indeed, is a striking feature of Mrs Magnus’ evidence.  It was explored at some length by counsel in cross-examination, but I was not asked to reject this, or any other, aspect of Mrs Magnus’ evidence.  I do not do so; Mrs Magnus was an impressive witness.  Yet, if one accepts Mrs Magnus’ claim that she had difficulty believing that Christopher was alive, and behaved as if he were not, there is clearly a need for some explanation of this phenomenon.  Dr Jurek provides an explanation.  Dr Walden does not.  Despite the fact that she had Dr Jurek’s report, Dr Walden did not even address the issue.

78                  I find Mrs Magnus sustained a psychological injury as a result of the shock she experienced on 24 April 1994.  Although there are differences between her symptoms and those of her husband, as well as some similarities, I am unable to differentiate between the scale of the two claims.  Everything I said about Mr Magnus’ claim, in paras 59 and 60 above, applies equally to Mrs Magnus.

79                  I assess Mrs Magnus’ claim, also, at $25,000; to which I would add $7,000 interest if I were entering judgment in her favour at this time.

Dr Maxwell’s claim

(i)                 The factual evidence

80                  Dr Maxwell is a marine biologist who was born in Scotland in April 1949.  He and his wife came to Australia in 1977.  Dr and Mrs Maxwell have three children.  Their eldest child, Andrew, was a member of the Scots College band and a passenger on the flight to Norfolk Island on 24 April 1994.

81                  At about 7am on 24 April, Dr Maxwell drove Andrew to the school and put him on the bus chartered to take the band to the airport.  At that time he learned the party was to travel on a DC-3 aircraft.  Dr Maxwell was scheduled to fly out of Sydney that evening for Tokyo, on business, and it was planned that his wife would pick Andrew up from the airport on his return from Norfolk Island.  After Dr Maxwell returned home, he had breakfast.  He then realised that a DC-3 was a slower plane than he had envisaged would be used.  So he decided to ring the airport to ascertain the scheduled time of return on Tuesday.  At about 9.10am he telephoned Flight Facilities at the airport and spoke to the Flight Movement Co‑ordinator, Amanda Curr-Parkes.  As soon as he referred to the “DC-3 to Norfolk Island”; Ms Curr-Parkes interrupted to say: “I’m sorry.  All I can tell you is what the Safety Officer has just told me and that is that the plane has slipped off the runway”.  Dr Maxwell tried again but received the same reply.  He put the phone down feeling puzzled and annoyed.

82                  Dr Maxwell then phoned the Federal Airport Corporation.  After some time, he was answered.  He requested information “on an incident concerning the DC-3 that was going to Norfolk Island this morning”.  He was told he would need to call Police Headquarters in the city.  He did so and spoke to a man who said: “I only know what I have heard over the police radio”.  Dr Maxwell pressed for more information.  The man said:

“All I have been able to glean from the radio traffic, is that there are 24 recovered from the plane at this time.”

83                  In his affidavit, Dr Maxwell said he felt numb and puzzled.  “No one had said to me that the plane had crashed, yet this man was talking about the ‘recovery of 24 people’.  I could not make sense of it.  I became even more concerned.”

84                  Dr Maxwell decided to go to the airport.  He drove to the fly-over on General Holmes Drive, from where he had a view of the runways.  But he could not see the plane, so he decided to go to Flight Facilities.  As he waited at a road intersection to turn, a series of rescue vehicles hurtled through the red traffic light.  He said:

“At that point it suddenly hit me.  I felt like my body and my mind were fighting each other.  I remember feeling slightly faint.  I also felt a general numbness throughout my body.  At last, I was able to turn at the traffic lights and get back onto General Holmes Drive travelling in the direction of the airport.”

85                  Dr Maxwell sped after the convoy of emergency vehicles.  He followed them to a point where he had a clear view of Botany Bay.  But he saw nothing.  So he returned to the airport and went to Flight Facilities, arriving about 10.10am.  He recognised the father of one of the boys and asked what had happened.  He was told the plane had crashed into the bay from about 500 feet.  Dr Maxwell said:

“At that point and in an instant, I felt a chill.  I felt faint.  Time stood still.  I could not understand why people were moving about so normally.  I observed a 747 slowing [sic] climbing, almost suspended, in the air making a boring deep continuous drone as it climbed into the blue sky.  I kept thinking:

‘Surely, at a time like this, they close the airport.  That’s it, it’s a mistake, someone has made a mistake.  They will come back into the terminal in a bus in a minute from where it slipped off the runway.’

I then brought myself around to realise that the airport did not need to close in the event of a crash into the sea.  That also explained why I could not see wreckage.  I concluded that the aircraft had broken up on impact.  I kept thinking:

‘Twenty four recovered at this stage.  Twenty four what?’”

86                  There was a television news crew at Flight Facilities.  One of the crew had a police radio scanner.  Dr Maxwell overhead a police conversation over the scanner about a diver being deployed from the air rescue helicopter.  He went on:

“I concluded that it was for the purpose of recovering bodies from the wreck, I then experienced more feelings of confusion and other mixed emotions.  It was difficult for me to sort them out.  I kept hoping that our son would be alright.  Different thoughts kept coming in and out of my head.  At one point I contemplated jumping into my car and driving through the crash gate onto the runway to get down to the crash site.  I dismissed that thought very quickly.  My mind started racing ahead.  I thought about looking other parents in the eye if my son had been spared and theirs had not.  I started praying for a miracle, that they would all survive.  However, common sense kept telling that it was not possible in the circumstances.  I started hoping that Andrew did not suffer.  I hoped that they all did not suffer.  I started thinking that I should have been in Andrew’s place, that he was too young to have such an experience.”

87                  Dr Maxwell thought he should call his wife, to prepare her for the worst.  At about 10.20am he called home.  His wife told him she had received a call from the school and that the boys are alright.  He called out to other parents that the boys were OK.  But in his evidence he went on:

“My mind was blank.  I felt a numbing disbelief.  My thoughts and fears had been reversed.  I had prepared myself for the loss of a loved one. 

88                  Dr Maxwell told his wife he did not think the boys would simply be going back to school.  Only then did he realise she still thought the plane had slipped from the runway.  He told her what had really happened:

“There was then a short period of silence.  I then heard Morag moan and sob.  I felt terrible because she was there without me.  We said little for several minutes.  I gave Morag the telephone number from where I was calling.  It seemed to me that she may obtain more immediate information than I would on site.”

89                  Mrs Maxwell rang back 15 minutes later to report that she had heard from Andrew, that he was at Prince Henry Hospital and ready to be picked up.  Dr Maxwell went to the hospital where he waited for about two hours until Andrew was able to leave.

90                  As a result of the crash, Dr Maxwell postponed for two days his departure for Japan.  While he was in Japan, a China Airlines plane crashed at Nagoya.  Dr Maxwell watched news bulletins listing the names of the dead.  This “brought back and revitalised the feeling I had gone through on 24 April 1994 … I felt part of the crash due to my experience on 24 April 1994.”

91                  Dr Maxwell had intended to travel to China, although apparently not on the same trip as his Japan visit.  As a result of the combination of the 24 April crash and the Nagoya crash, he let this plan lapse.

92                  Dr Maxwell recounted a feeling at a school football match on 3 June 1994.  It struck him what a gap there would have been in the teams if the boys had been killed in the crash.  He became anxious and slept poorly that night.  On 5 June he was unable to go to work.  He experienced flashbacks of the events of 24 April and became tearful.  He sought counselling and made contact with a social worker at Prince of Wales Hospital.  The social worker counselled him and referred him to Dr Julian Parmegiani, a psychiatrist in private practice.

93                  Dr Maxwell first saw Dr Parmegiani on 9 June 1994.  He subsequently attended ten treatment sessions, the last being on 15 October 1996. 

94                  Dr Maxwell was re-invited to visit China and did so, although he said he was “very uncomfortable about taking this trip because of what might happen to the plane”.

95                  Dr Maxwell detailed the following experiences, as a result of the plane crash:

“(a)     extreme anxiety on 24 April 1994 during the course of the events of that day as described above, including, the trauma of communicating to my wife that our son had been killed in a plane crash;

(b)               continuing anxiety, gradually diminishing in frequency and in intensity, but triggered by independent events related to aircraft crashes, aircraft travel and the sound of emergency vehicles;

(c)               continuing bouts of depression, especially in periods leading up to aircraft travel;

(d)               regular sleep disturbance until about October 1996;

(e)               continuing regular nightmares, especially for a period of about 3 months following the plane crash, and, thereafter, gradually decreasing in frequency;

(f)                continuing recurring images of the dead body of my son and me having to identify the body, gradually decreasing in frequency with the passage of time, but revived spontaneously on hearing of air crash related events;

(g)               a loss of working efficiency for a period of, at least, 6 weeks, following the air craft crash due to the inability to concentrate together with anxiety;

(h)               continuing substance abuse (alcohol);

(i)                 a deterioration in the relationship with my wife since the DC-3 crash.  We are currently undergoing marriage counselling;

(j)                continuing social withdrawal, gradually improving with the passage of time but only with great effort.”

96                  Dr Maxwell also said he suffered a loss of earning capacity for at least six weeks after the crash, but he could not quantify the loss.  However, he was able to detail what were claimed to be treatment and counselling expenses totalling $3,337.70.

97                  Tragically, in February 1999, Dr Maxwell sustained a stroke.  This disability has seriously affected Dr Maxwell’s ability to speak, with the result that cross-examination was difficult and had to be truncated.  I bear this in mind in assessing his evidence.

(ii)               Psychiatric evidence

98                  Dr Parmegiani wrote a report, dated 28 July 1997, in which he said that Dr Maxwell presented, on 9 June 1994:

“with symptoms of anxiety, which included poor concentration, shortness of breath and insomnia.  He experienced intrusive and distressing memories of his son’s air crash, and images of his son drowning whilst trapped in the aircraft.  Mr Maxwell had nightmares of the event, and he avoided reminders.  He had no prior history of mental illness, and his symptoms were the direct result of the event which occurred on 24 April 1994.”

99                  Dr Parmegiani said that, under treatment, Dr Maxwell’s symptoms “improved significantly, but he continued to experience periods of anxiety and depression which lasted up to three days when reminded of the crash”.  He noted that, in June 1996, Andrew “left again with the school band, and Mr Maxwell had a panic attack”.  He went on:

“Mr Maxwell still thought about the air crash regularly, and he continued to feel uncomfortable on aeroplanes.  His symptoms were exacerbated by the outcome of the investigations into the air crash, as Mr Maxwell discovered that negligence was involved.

I expect his symptoms will continue to decrease over time, but not disappear altogether.  Mr Maxwell remained able to function in his occupation, and the main impact of his symptoms has been on his quality of life.”

100               Under cross-examination it emerged that Dr Parmegiani’s note was that Dr Maxwell was aware of the plane crash (said to be from 500 metres) as he drove to the airport; not that he had found out about the crash only after reaching Flight Facilities.  Dr Parmegiani also noted some episodes in Dr Maxwell’s earlier life when he had been exposed to life-threatening dangers.  Dr Parmegiani thought those episodes probably made him vulnerable; however, they had not affected him occupationally or resulted in any psychological problem.

101               Dr Parmegiani said he did not diagnose post traumatic stress disorder on his first consultation on 9 June 1994; it would have been too early to do that.  But he made this diagnosis later, during the course of treating Dr Maxwell.

102               Dr Parmegiani noticed an initial improvement in Dr Maxwell’s condition over the course of treatment but he said Dr Maxwell “found out what did happen [in the accident] in the [BASI] report and he came back very upset about it”.  He thought that litigation, if prolonged over many years, was also adverse to his health.

103               Notwithstanding Dr Milton’s comments about DSM-IV, Mr Grieve took Dr Parmegiani through the criteria in that work concerning post traumatic stress disorder.  Despite Mr Grieve’s contrary suggestions in respect of some criteria, Dr Parmegiani maintained Dr Maxwell fulfilled those criteria.  He adhered to his opinion that Dr Maxwell suffered post traumatic stress disorder as a result of the events of 24 April 1994.  He said he “was acute, he got better” but, by October 1996 “by definition you would have to call it chronic”.

104               In answer to Mr Gregg, Dr Parmegiani agreed that the earlier experiences of Dr Maxwell (“past stressors”) were “huge emotional baggage” that Dr Maxwell was carrying; they had never been treated until Dr Parmegiani performed a desensitisation procedure called EMDR treatment.  Mr Gregg also elicited that Dr Maxwell’s marital problems pre-existed the incident of 24 April 1994 and was associated with his wife’s depression and Dr Maxwell’s feeling of guilt at bringing her to Australia.  Dr Parmegiani also agreed that, when he last saw Dr Maxwell on 2 December 1998, he was managing increasingly well.

105               Dr Jurek saw Dr Maxwell on 19 November 1997.  She took a history that was consistent with Dr Maxwell’s evidence and the information obtained by Dr Parmegiani in relation to Dr Maxwell’s past stressors.  She concluded he was suffering from chronic adjustment disorder with anxiety and depressed mood, substance abuse (alcohol) and marital problems.  Dr Jurek said:

“Since the DC3 incident Dr Maxwell has complained of a disturbed sleep pattern and restlessness.  Whilst earlier in the piece he was quite depressed and weepy he does not feel that way any more.

Dr Maxwell admitted that, in addition to the development of marital problems, his alcohol consumption has increased considerably since the DC3 incident.  Dr Maxwell and his wife are currently having Marital Counselling and this should continue for the time being.

In my opinion at the time of the incident Dr Maxwell suffered Acute Anxiety until he learned that his son was alright and subsequently he has developed a Chronic Adjustment Disorder with Anxiety and Depressed mood and Substance Abuse (alcohol).

I have read the report of Dr Parmegiani and although Dr Maxwell may well have had Post Traumatic Stress Disorder at the time of seeing Dr Parmegiani, he does not now exhibit the diagnostic symptoms as defined in DSM-IV.

In my opinion the above conditions are directly related to the DC3 aircraft incident.  Dr Maxwell would benefit from a period of psychiatric treatment at a fortnightly frequency for about 6 months.  This may be costed at the current AMA rate of $196.00 per 45 minute session.  Such fees are adjusted annually.  The prognosis with appropriate treatment is reasonably good.”

106               Under cross-examination, Dr Jurek said she thought Dr Maxwell was “moderately affected” by chronic adjustment disorder with anxiety and depressed mood.  At that time he had just finished a course of treatment by Dr Parmegiani, “so he was obviously less affected than he might have been had I seen him before that”.  From his history, she thought Dr Maxwell may earlier have been severely affected.  However, she said the history did not suggest to her that Dr Maxwell had suffered post traumatic stress disorder.

107               Dr Walden saw Dr Maxwell on 24 February 2000, after his stroke.  He was accompanied by Andrew; nonetheless, Dr Walden reported that Dr Maxwell’s disabilities severely limited her capacity to assess Dr Maxwell.  He could only answer yes/no questions.  However, Dr Walden had copies of earlier statements about the crash and its aftermath, made by both Dr Maxwell and his wife, the reports of Dr Parmegiani and Dr Jurek and Dr Parmegiani’s clinical notes.  With Dr Maxwell’s permission, Dr Walden also had a private conversation with Andrew, in the course of which he said his father had been drinking excessively for some time – he thought about three years – before the air crash.

108               Understandably in the circumstances, Dr Walden’s report consists mainly of a critique of the documents she was given.  She accepted that “Dr Maxwell suffered some anxiety symptoms a few weeks after the DC-3 crash on 24 April 1999” which were “in part related to the crash, but largely appear to focus on previous traumas in Dr Maxwell’s life”.  She gave no reasons for the latter opinion.  Nor did she explain why these incidents (which had all occurred more than 20 years earlier) became so important within weeks of 24 April 1994.  Dr Walden thought that a diagnosis of adjustment disorder would have been more appropriate than Dr Parmegiani’s diagnosis of post traumatic stress disorder.

109               Dr Walden’s diagnosis of adjustment disorder coincides with Dr Jurek’s view, except that Dr Jurek added the qualification “chronic”.  Dr Walden preferred “transient”.

(iii)             Conclusion

110               It is common ground that Dr Maxwell suffered a psychological injury as a result of the shock he received on 24 April 1994.  For present purposes, it does not really matter whether this injury was post traumatic stress disorder, as Dr Parmegiani thought, or adjustment disorder, as Dr Jurek and Dr Walden agreed.  Nor does it matter, for purposes of determining whether there exists a “nervous shock” claim, whether or not that condition is properly to be described as chronic.

111               It is not suggested on behalf of Dr Maxwell that his stroke is related to the events of 24 April 1994.  The stroke is relevant to this case only in that it has inhibited exploration of Dr Maxwell’s history and symptoms, both by Dr Walden and at trial.  However, enough has emerged to indicate that Dr Maxwell’s problems were exacerbated by two factors unrelated to the air crash of 24 April 1994: his prior excessive drinking and long-standing marital difficulties.

112               Dr Maxwell made the claim that the crash caused him to suffer a considerable loss of earnings.  However, there is no evidence to substantiate that claim.  He was able to fly to Japan only two days later.  The abandonment of his trip to China may have resulted in a loss of earnings but, as he himself wrote, it is not possible to say whether that was the case.  Under the circumstances I would not be justified in awarding damages for loss of earnings.

113               I think I should allow something for the counselling expenses incurred by Dr Maxwell.  The difficulty is to determine what expenses flowed from the subject incident, as distinct from other causes.  There are expenses connected with counselling by Relationships Australia, but I infer this was marital counselling.  Although Dr Maxwell’s marital situation would not have been assisted by the events of 24 April 1994, it would go too far for me to assume those events triggered the need for counselling.  There are also expenses related to a seminar, apparently arising out of Dr Maxwell’s experience.  However, in the absence of adequate explanation, these should not be allowed.

114               A total sum of $1,733.70 is claimed for consultation fees paid to Dr Parmegiani.  To this is added taxi fares of $430 incurred in connection with those consultations.  The total sum is $2,163.70.  However, the consultations were partly directed to the prior stressors, so I propose to allow only $1,500 of that expenditure.

115               I think the effect of the events of 24 April 1994 on Dr Maxwell was severe, but not as severe as on Mr or Mrs Magnus.  Dr Maxwell’s journey to the airport, to find out what was meant by the plane slipping off the runway, must have been a stressful event; especially having regard to talk of “recovery of 24 people”, whatever that might mean.  But I find it difficult to put this experience in the same category as that of Mr and Mrs Magnus in seeing the plane carrying their son descend toward the water.  Although Dr Maxwell thought for a time that Andrew was dead, he was under that misconception for a lesser time than that during which Mr and Mrs Magnus believed Christopher had been killed.  More importantly, and without minimising them, the sequelae of the crash suffered by Dr Maxwell seem to have been less severe than those suffered by either Mr or Mrs Magnus.  Consequently, I think the appropriate allowance for Dr Maxwell’s general damages is lower than for Mr and Mrs Magnus.

116               I propose to assess general damages for Dr Maxwell at $15,000, to which I will add the out of pocket allowance of $1,500, a total of $16,500.  If I were entering judgment at this time, I would add interest of $4,620, and enter judgment for $21,120.

Disposition

117               It is not appropriate to make any orders at this stage.  I hope the above assessments will enable the parties to agree on orders disposing of the claims of Mr and Mrs Magnus and Dr Maxwell.  I also hope they will be able to agree on a method of resolution of Ms Webb’s claim.

118               I will list the matter for mention on Friday, 25 May at 9.30am.

I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:              27 April 2001

Counsel for the Applicant:	J Rowe
Solicitors for the Applicant:	Coleman & Greig
Counsel for the First and Second Respondents:	D A Grieve QC
Solicitors for the First and Second Respondents:	Norton White
Counsel for the Third Respondent:	G M Gregg
Solicitors for the Third Respondent:	Corrs Chambers Westgarth
Date of Hearing:	27-31 March 2000