Covington-Thomas v Commonwealth of Australia

[2007] NSWSC 779

CITATION:	Covington-Thomas v Cth of Australia [2007] NSWSC 779
HEARING DATE(S):	30/10/06-31/10/06 01/11/06-03/11/06 06/11/06-07/11/06 10/11/06 13/11/06-14/11/06 16/11/06-17/11/06 20/11/06-23/11/06 28/11/06-29/11/06 01/12/06 12/12/06-13/12/06 02/03/07 22/03/07 03/04/07 11/04/07 17/05/07 28/05/07-30/05/07 21/06/07
JUDGMENT DATE :	2 August 2007
JURISDICTION:	Common Law
JUDGMENT OF:	Kirby J
DECISION:	(1) There should be a verdict for the plaintiff in a sum to be calculated and agreed, reflecting these reasons; (2) The defendant should pay the plaintiff's costs.
CATCHWORDS:	NEGLIGENCE - Melbourne/Voyager collision claim for damages - breach of duty admitted - issue of causation - PTSD and alcoholism - recovery medical expenses for clinics re alcoholism - future career in Navy - discount to reflect probabilities - vicissitudes.
LEGISLATION CITED:	Evidence Act 1995 Supreme Court Act 1970
CASES CITED:	Jones v Dunkel (1959) 101 CLR 298 March v Stramare Pty Limited (1991) 171 CLR 506 Shorey v PT Limited (2003) 197 ALR 410 Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310 Ringrow Pty Limited v BP Australia Ltd [2003] FCA 933 Connex Group v Butt [2004] NSWSC 673 Young v Coupe [2004] NSWSC 999 ASIC v Rich (2005) 216 ALR 320 State Government Insurance Commission v Oakley (1990) ATR 81-003 GIO of New South Wales v Aboushadi (1999) ATR 81-531 Shaw Savill and Albion Company Limited v The Commonwealth (1940) 66 CLR 344 Jeffries v Roads and Traffic Authority of NSW (C of A, unreported, 28.11.97) Simonius Vischer & Co v Holt and Thompson (1979) 2 NSWLR 322 McLean v Commonwealth of Australia (NSWSC, unreported 28.2.97) Stankowski v Commonwealth of Australia [2004] NSWSC 198 Aussems v Commonwealth of Australia [2005] NSWSC 217 Brittain v Commonwealth of Australia [2005] NSWSC 641 Blaxter v The Commonwealth [2005] NSWSC 941 Golden Eagle International Trading Pty Ltd & Ors v Zhang (2007) 234 ALR 131 Malec v J C Hutton Pty Limited (1990) 169 CLR 638 Norris v Blake [No 2] (1997) 41 NSWLR 49 Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 Medlin v State Government Insurance Commission (1994-95) 182 CLR 1
PARTIES:	Peter Norman Covington-Thomas (Plaintiff) Commonwealth of Australia (Defendant)
FILE NUMBER(S):	SC 21243/95
COUNSEL:	G Melick SC/W Walsh/Ms K Sant (Plaintiff) C Barry QC/M Dicker (Defendant)
SOLICITORS:	James Taylor (Plaintiff) Australian Government Solicitor - Cth (Defendant)

I N D E X

Para No

1. INTRODUCTION

The broad issues. 3

The plaintiff as an historian. 12

2. EARLY NAVAL CAREER

The plaintiff's childhood. 36

The plaintiff's early Naval career. 57

The Melbourne/Voyager Collision. 79

The observations of family members. 117

Career after the collision and before Vietnam. 132

The incident involving the Enterprise. 163

When did the plaintiff first suffer nightmares? 175

Naval career before HMAS Vendetta 201

The plaintiff's wife. 209

3. VIETNAM AND DISCHARGE

HMAS Vendetta and Vietnam. 215

Discharge from the Navy. 235

4. LIFE AFTER DISCHARGE FROM THE NAVY 1970-1990

The years between 1970 and 1982. 259

Psychiatric examination 1980. 282

Move to Maryborough. 303

The move to Bendigo. 324

St Luke's Family Care Centre. 338

Application for a pension. 366

The advertisement. 376

The move to Queensland. 386

Treatment by Dr Gelb. 411

Dr Parsons. 449

5. THE MEDICAL EVIDENCE

The medical witnesses. 459 Causation. 467

The Diagnostic Criteria for PTSD. 470

Professor Alexander McFarlane. 471

Dr Ian Parkin. 481

Dr Brendan Holwill. 494

Dr Gelb. 508

Dr Champion. 527

Dr Jonathon Phillips. 557

Professor Christopher Tennant. 605

Conclusion. 629

General damages. 641

The "Battle Defence". 652

Interest on General Damages. 660

Medical expenses. 663

Claim in respect of clinics. 668

Life expectancy. 691

Discount on future medical and pharmaceutical

expenses. 702

Loss of earning capacity. 708

Naval career before discharge. 712

Reasons for leaving the Navy. 723

What rank was it likely the plaintiff would have

achieved? 728

When is it likely the plaintiff would have retired? 754

Past earnings. 763

Vicissitudes. 775

Naval pension. 779

Orders. 782

*****

1. INTRODUCTION

1 KIRBY J: Peter Covington-Thomas (the plaintiff) seeks damages from the Commonwealth (the defendant) arising out of the collision between HMAS Melbourne and HMAS Voyager on the night of 10 February 1964. The collision resulted in the loss of HMAS Voyager and the death of 82 men. Mr Covington-Thomas was an Able Seaman on board HMAS Melbourne.

2 The Commonwealth has admitted that the collision occurred as a consequence of negligence. It does not admit, however, that Mr Covington-Thomas suffered loss or damage thereby.

The broad issues.

3 On 3 April 1996, Mr Covington-Thomas, then aged 54 years, gave notice to his employer. He had been working as a childcare worker for the St Luke's Family Care Centre, an Anglican refuge for delinquent and disabled children in Bendigo. At the time he gave notice, he had already separated from his wife. They divorced later the same year. Mr Covington-Thomas ceased work on 8 May 1996 (Ex 1). He has not worked since. Shortly after, he left Bendigo for Queensland.

4 Once in Queensland, Mr Covington-Thomas saw a general practitioner. He was visably distressed. His level of alcohol consumption was alarming. He drank, on average, a bottle of whisky each day, as well as beer and other spirits. His general practitioner referred him to a psychiatrist, Dr Seabridge. A diagnosis of major depression and alcohol abuse was made. Mr Covington-Thomas began treatment. The treatment has continued until this day. He still does not work. It appeared to be common ground that since 1996 he has remained psychiatrically disturbed and unfit for work.

5 What brought Mr Covington-Thomas to such a state? It is the plaintiff's case that following the Melbourne/Voyager collision he suffered from an undiagnosed psychiatric condition, Post Traumatic Stress Disorder (PTSD). Before the collision he had been a sailor full of promise who loved the Navy. He saw the Navy as his life. He had been selected by the Admiral as one of his personal staff. After the collision, in subtle and not so subtle ways, his life had been transformed. He sought to maximise his time on shore, and thereby minimise his time at sea. He resolved to leave the Navy upon the expiration of his contracted term of nine years. According to the plaintiff, his psychiatric condition (PTSD) was aggravated by further trauma during his remaining years in the service and before his discharge, when serving on HMAS Vendetta in Vietnam.

6 It was common ground that, before 1995, Mr Covington-Thomas had not complained of psychiatric difficulties arising from the Melbourne/Voyager collision. It was submitted, nonetheless, that a close examination of his life following the collision demonstrated the unrecognised but unmistakable signs of the PTSD which was later diagnosed. His condition deteriorated in the 1990s such that, by 1996, to use the psychiatric term, he "decompensated". He sought refuge in Queensland where he has remained.

7 The defendant responded, first, by drawing attention to the significant disadvantage which the Commonwealth faced in meeting the plaintiff's case by reason of delay. Notice of the claim was first given three decades after the collision. The court should, in these circumstances, test allegations made so long after the event by reference to contemporaneous documents and contemporaneous accounts. Such evidence demonstrated, as the plaintiff acknowledged, that there had been no attribution of psychological or psychiatric difficulties to the Melbourne/Voyager collision in the 30 years following that collision. Indeed, the plaintiff, after the collision, continued to perform within the Navy at a very high level, consistently being rated "superior". He was commended for his efficiency when serving in Vietnam.

8 The defendant drew attention to the circumstances in which Mr Covington-Thomas made his claim. In 1995 he responded to an advertisement inserted by a solicitor in a newspaper. The advertisement invited enquiry concerning possible rights to compensation arising out of the Melbourne/Voyager collision. Mr Covington-Thomas then spoke to that solicitor and was referred to a psychiatrist, Dr Wu. Having provided that psychiatrist with a history, Mr Covington-Thomas was told that his difficulties over the years, and at that time, had been caused by a psychiatric condition known as PTSD arising from the Melbourne/Voyager collision. Dr Champion, a psychiatrist qualified by the Commonwealth, claimed this sequence made Mr Covington-Thomas vulnerable to "motivation and suggestion". By "motivation", he meant the quest for compensation.

9 The defendant submitted, moreover, that Mr Covington-Thomas was a person who had a troubled childhood. He was therefore vulnerable to psychiatric disturbance. A number of things had happened in his life before his breakdown in 1996 which were adverse. In 1976, he and his wife lost a baby ten days after that baby's birth. His wife then turned away from him. She was repeatedly unfaithful. They eventually separated and divorced. His work at the Anglican Refuge was stressful and became too much for him. According to the defendant, these events, and especially the combination of adverse circumstances in 1996, furnished a far more plausible explanation for his breakdown and psychiatric symptoms than the collision 32 years earlier.

10 In the alternative, the defendant said that insofar as Mr Covington-Thomas suffered a psychiatric reaction to the Melbourne/Voyager collision, it was a less serious condition than PTSD, namely an adjustment disorder, which has since resolved.

11 Before describing what happened on 10 February 1964, I should say something concerning the plaintiff as an historian.

The plaintiff as an historian.

12 The defendant, in submissions, was critical of the way in which the plaintiff answered questions. Mr Covington-Thomas had not, according to the defendant, attempted to answer questions "frankly and accurately" (Defendant's Submissions ("DS") p15). The following was said: (DS p15 para 18)

"18. The Plaintiff presented in an extraordinary way. At the commencement of his cross-examination he paused for very lengthy periods of time before answering questions. The inference is that he wished to give considered answers which he thought would be consistent with histories provided to medical practitioners."

13 The plaintiff certainly paused for lengthy periods before answering a number of questions put to him in cross examination. He was asked for an explanation: (T119)

"BARRY: Q. When I have been asking you questions this afternoon you have paused for varying periods between 30 seconds and a minute approximately before answering those questions, haven't you?
A. Yes.
Q. Why?
A. Because I want to be sure I give you an honest answer back.
Q. Have you been thinking about what the best answer to the question might be before you sought to answer it?
A. No, I've been trying to think of the right question to - the right answer to your question.
Q. What do you mean by 'the right answer'?
A. Well, whether the question you put to me was right or wrong.
Q. You weren't considering about whether or not the answer that you were proposing to give was true?
A. Yes."

14 Mr Covington-Thomas added: (T120)

"Q. But you have serious problems with your memory, don't you?
A. I do have some memory problems."

15 Mr Covington-Thomas has seen many doctors. He has provided each with a history. He has, over the years, also completed forms either seeking a pension from the Department of Veterans' Affairs or disability benefits from the Department of Social Security. He has been required by these forms to identify his symptoms and their date of commencement. The histories, and the answers he has provided in various forms, were often inconsistent.

16 There were four difficulties. First, there was the problem of delay. The plaintiff has, in part, the same difficulty as the defendant. He is dealing with an extraordinarily long period. The Melbourne/Voyager collision occurred more than 40 years ago. The medical examinations have been undertaken and the forms completed in the past decade, that is 30 years later.

17 Secondly, during most of that decade the plaintiff has been psychiatrically disturbed, drinking heavily and, since 1996, taking significant medication.

18 Thirdly, the plaintiff by nature appears to be a fairly rigid man. He is a man with strong views, some of them wrong-headed. As I will shortly describe, one of the symptoms he manifested from the outset was an unwillingness to speak about his traumatic experiences within the Navy, whether Melbourne/Voyager or Vietnam. He asserted that it was simply too painful to do so. In 1994 he determined, however, that he would apply to the Department of Veterans' Affairs for a pension (Ex A, p200). He reached that decision at a time when there had been a significant deterioration in his mental health and it appeared that his marriage was about to break up. He said he understood that the application related to war service (T82). He saw a psychiatrist, Dr Parkin. He provided a history which was confined to his experiences in Vietnam. He made no reference to the Melbourne/Voyager collision since, to his mind, it had no relevance to his war service. Dr Parkin, as I will later recount, diagnosed PTSD arising from Mr Covington-Thomas' Vietnam experience (Ex 15, p64). Mr Covington-Thomas was therefore awarded a partial pension (Ex A, p233).

19 Within a year or so, having seen and responded to an advertisement inserted by a solicitor concerning the Melbourne/Voyager collision, Mr Covington-Thomas saw Dr Wu, psychiatrist, on 23 December 1995. Again he provided a history. On this occasion the history he provided was confined to the Melbourne/Voyager collision and the evolution of his symptoms in the years that followed. He did not mention Vietnam. Dr Wu diagnosed PTSD arising out of Melbourne/Voyager. The following was put to Mr Covington-Thomas in cross examination: (T272)

"Q. Can you offer any explanation as to why you would not have told Dr Parkin about your experience during the aftermath of the Melbourne/Voyager collision, and why you would not have told Dr Wu about the experiences in Vietnam involving the shelling of the villages if they had had the psychological effect on you that you claim they have had?
A. Because I was seeing them specifically about two different events. I was not seeing them both for both events. So those, the - I saw Dr Wu with regard to the Voyager/Melbourne accident, I saw Dr Parkin about my service in Vietnam. So, I can't understand why I would go off into another area when that was not what I was there to see the doctor about."

20 The cross examination continued: (T272)

"BARRY: Q. Was that the reason why in the case of one doctor there's a history which includes only one kind of experience, namely Melbourne/Voyager, and the other doctor there is a history which includes only the Vietnam, Vietnamese experience; that is, that you saw them as two quite separate things?
A. Yes."

21 Mr Covington-Thomas refrained from discussing his Vietnam experience with Drs Champion and Phillips (Ex 15, p4, 70). The same was true of Dr Spira, a neurophysician retained by the defendant (Ex 15, p90). Mr Covington-Thomas has since recognised that his Vietnam experience exacerbated the symptoms arising out of the Melbourne/Voyager incident (T273), such that it was relevant for doctors to enquire about Vietnam, and for him to answer their inquiries.

22 The final difficulty with Mr Covington-Thomas as an historian is that he has, in some respects, a poor memory and poor concentration. The explanation, or part of the explanation, may be that he has suffered brain damage. Mr Covington-Thomas was examined by Dr Spira on 22 June 2003 at the request of the Commonwealth. In a report of 22 August 2003, Dr Spira said this: (Ex 15, p91)

"Initially I will deal with the point central to your request, namely the question of whether Mr Covington-Thomas demonstrates evidence of brain damage. In objective terms such evidence is lacking and in the interview situation Mr Covington-Thomas comes across as a cognitively intact individual who is very much in command of his faculties. He clearly comprehended the significance of the consultation and he acted in a way appropriate to his intentions and steered the consultation according to his own wishes. At no stage did he demonstrate any evidence of cognitive dysfunction nor were there formal signs of frontal lobe or cerebellar brain damage to suggest a chronic alcohol-related brain syndrome."

23 Dr Spira added: (Ex 15, p91)

"I note from the report of the clinical neuropsychologist (Linda Troy) dated 1st November, 1999 that Mr Covington-Thomas was considered to be '... alert and cooperative throughout the interview ...' and that his memory appeared to be intact within the context of the interview. This can be said of his situation during his consultation with me. I agree with Ms Troy that there is a high level of anxiety operating in Mr Covington-Thomas' presentation and this would have had some influence on his performance in structured cognitive testing. Overall her assessment reveals features consistent with anxiety and depression but I do not accept her comment to the effect that the impairment necessarily denoted the effects of chronic alcohol abuse. In fact the degree to which Mr Covington-Thomas has any alcohol-related brain, cardiac or liver dysfunction is unclear and these aspects require more detailed assessments than an isolated psychometric test. Mr Covington-Thomas' comments to me regarding these aspects led me to believe that he in fact has a significantly overvalued sense of alcohol-related dysfunction in all three of these domains."

24 Before expressing a definitive view, Dr Spira saw the need for further investigation, which he described as follows: (Ex 15, p91)

"I would need to see updated psychometrics, MR scans of brain, liver function tests, a repeat cardiological assessment and EMG and nerve conduction studies to determine whether there is in fact any significant alcohol-related disorder operating in Mr Covington-Thomas' case."

25 The plaintiff also saw a consultant psychologist, Dr Roldan, at the request of the Commonwealth. The interview, however, was terminated before it had been completed, in circumstances which I will later describe. Shortly before the hearing, Professor Richard Clark, the head of the School of Psychology at Flinders University, saw the plaintiff at the request of his solicitor. Professor Clark's results were consistent with those obtained by Dr Roldan (T616). Broadly, Professor Clark performed two sets of tests. The first were standard neuropsychological tests where the results were as follows: (Ex G, p2)

"Behavioural testing of cognitive function identified some difficulties with new auditory verbal learning and memory, with delayed recall of a list of words falling at the 18th percentile (recalling only 3 out of a list of 12 words), and subsequent recognition of these words at the 2nd percentile (recognising only 7 of the 12 words). Visual short term memory span was at the 8th percentile.
Information processing speed was slowed on a number of tasks of sustained attention (<=11th percentile). There were a number of indications of some loss in aspects of executive functioning, particularly during visual information processing (<=13th percentile).
At the same time, Mr Covington-Thomas performed well within the normal range on measures such as dextral skill, verbal fluency, time estimation and simple reaction time.
A behavioural test of symptom validity scored within normal range."

26 The tests are not a direct measure of brain function and can be influenced by the co-operation, or lack of co-operation, of the patient (T614). The second set of tests were a measure of brain activity by means of an EEG. The results cannot be controlled by the patient, nor faked (T615). The test results were described by Professor Clark in these terms: (Ex G, p2)

"Psychophysiological testing identified abnormalities in a number of measures of brain stability, including the delta, theta and beta bands of resting EEG. The abnormal theta/beta ratio evident for Mr Covington-Thomas can be indicative of attention or concentration problems. In addition, there was significantly reduced amplitude in the P3 component of the brain event-related potential obtained during both auditory and visual tasks of information processing. This is commonly seen in psychopathological conditions involving disturbances of cognition, including PTSD, as we know from our own published studies.
Psychological testing indicated significant levels of depression, stress and anxiety, and some minor difficulties with social affect."
(emphasis added)

27 Professor Clark's conclusion was expressed in these terms: (Ex G, p3)

"Testing provided both behavioural and psychophysiological indicators of disturbed cognition, reflecting difficulties with aspects of memory, concentration, processing speed and executive function. These difficulties appear to me mild to moderate in severity. Mr Covington-Thomas has severe difficulties with mood and affect, which may explain part of his cognitive profile. Some consideration may need to be given to the effects of his medication regime on cognitive function; Deptran and Alprazolam may produce drowsiness and/or affect motor function, though the latter tested normal for Mr Covington-Thomas."

28 As to the cause of such damage, Professor Clark said this: (T617)

"Q. In your report you also set out PTSD anxiety?
A. Anxiety disorders, mood disorders, PTSD a lot of the abnormalities in the brain rhythms are found in these sort of psychopathologies."

29 Professor Clark added: (T620)

"Q. ... Consumption of alcohol in large quantities over a long period of time is capable of causing brain damage?
A. Absolutely.
Q. And it is certainly capable of causing the kind of deficits that you found on testing?
A. As previously stated."

30 The alcohol consumption described by Mr Covington-Thomas suggested significant tolerance (T621). Such tolerance had, no doubt, been developed over a significant period (T621), although, whether it would take ten years or more or less, Professor Clark did not feel qualified to say (T621). With such a complex history, and so many potential causes, it would now be almost impossible, in Professor Clark's view, to determine the precise cause of Mr Covington-Thomas' brain damage (T621).

31 A number of witnesses, in the course of their evidence, spontaneously described Mr Covington-Thomas as a person of integrity. Ms Margaret Griffiths, a social worker at St Luke's Refuge, who worked with him for six years, described Mr Covington-Thomas as a "highly ethical man" (T446). Mr Howard Payne, a neighbour from Maryborough called by the defendant, said this: (T768)

"... I didn't really ever have to, but if I had to trust him with my life I would have trusted him with my life, and my wife and my daughter. I just felt he was a very honourable individual, and I had no qualms about trusting him with my home, my car or anything."

32 Dr Pereira was Mr Covington-Thomas' local doctor at Bendigo during the years 1989 until January 1995. He saw him many times, as I will later describe. Dr Pereira gave the following evidence: (T889)

"Q. Did he ever, during this time that he was under your care, seek to take advantage of the fact that his back had been accepted as a workers compensation injury --
A. No.
Q. -- by WorkCover?
A. No. To me Mr Covington-Thomas seemed a very honest man. He didn't exploit any WorkCover disability that he had. He could have, but he didn't."

33 I also formed a favourable impression of Mr Covington-Thomas. His time in the Navy had stamped his personality. He felt the need to be brave when giving his evidence. He did not break down, although occasionally he was close to tears. He appeared to have a strong sense of duty. He was painfully aware of the fallibility of his memory, especially in respect of dates. That, I believe, was the explanation for his caution when giving evidence, rather than an anxiety to call to mind accounts he had previously given, so that his evidence might be consistent. He struck me as honest. There were, as I will describe, opportunities for him to fabricate symptoms to his advantage had he been so minded. It would, for instance, have been easy for him to have claimed fear when rejoining the Melbourne after the collision. He did not do so. The defendant, in the course of his evidence, did not suggest, in terms, that he was lying, although it was suggested that in some respects he was exaggerating. The approach of the defendant was, I believe, accurately summarised by the plaintiff's submissions in these words: (Plaintiff's Submissions ("PS") p5, para 6)

"6. Unfortunately Mr Covington-Thomas' injury together with exacerbating factors causes his recollections of events to be, at times, unreliable. Furthermore, when reporting symptoms to examining doctors he has related slightly differing dates as the onset of such symptoms. It does not seem to be suggested that this is the result of deliberate falsehoods on his part but merely the product of his unreliable memory. An obvious example is the different time frames he gives for the onset of his nightmares involving the Melbourne Voyager collision."

34 Ultimately, a diagnosis of PTSD depends upon the plaintiff meeting criteria established in the diagnostic manual known as DSM-IV. I will, in the context of the medical evidence, set out the six criteria. In broad terms, evidence of the following must be present:

· The A Criteria: exposure to a significant traumatic event which threatens death or serious bodily injury.

· The B Criteria: re-experiencing that event in a variety of ways, including nightmares and flashbacks.

· The C Criteria: avoidant behaviour and a numbing of general responsiveness.

· The D Criteria: persistent symptoms of increased arousal in various ways.

· The E Criteria: duration of symptoms (in respect of Criteria A, B, C and D) for more than a month.

· The F Criteria: the disturbance must cause clinically significant distress or impairment of social, occupational or other important areas.

35 I will examine, in more or less chronological order, the evidence concerning Mr Covington-Thomas' life before and after the collision. I will focus upon matters relevant to the diagnosis. As I do so I will make various findings. I will then examine the medical evidence. The opinions offered by each expert may need to be reviewed in the light of the findings that have been made.

2. EARLY NAVAL CAREER

The plaintiff's childhood.

36 Adverse childhood experiences may, according to the psychiatric evidence, leave a person vulnerable to later psychiatric illness. Mr Covington-Thomas was born on 9 June 1942 at Hayes, Middlesex, England. He lived with his parents in London. The history he gave Professor McFarlane included the following: (Ex F, p40)

"He remembers living with his maternal grandmother during the war and how a V2 rocket landed in the vicinity of his grandmother's house as he was hiding under a blanket in the bomb shelter and he was covered with shattered glass. He and his mother went to live for a time with an uncle and aunt in Yorkshire."

37 The plaintiff had no personal recollection of this episode. He was a baby. He identified the source of this information. It was a story that his grandmother and mother had recounted many times. No doubt, as a baby, he would have absorbed some of the drama. Nonetheless, the episode appears to have little relevance.

38 However, in 1946, when the plaintiff was four years old, his parents separated. There was the suggestion that the marriage had been bigamous and indeed that his father had married three times (including the marriage to the plaintiff's mother). There was no evidence as to when that became clear. The plaintiff and his mother remained in England after the separation until 1949 when Mr Covington-Thomas was seven years old. Before leaving England he apparently saw his father. His aunt, Mrs Sampson, said this: (T293)

"A. I have a picture of him, I must have gone over on holiday, because he is sitting in a boat with his father and his grandparents and I think they were on the Thames, on a boat ride on the Thames."

39 The same aunt had moved to Australia in 1934 and lived in Victoria. The plaintiff's mother travelled to Australia with the plaintiff, arriving on 26 December 1949. His mother, at least for a time, was unhappy after her arrival. The plaintiff provided Professor McFarlane with the following account: (Ex F, p40)

"When they first arrived his mother worked as a house keeper in a large home in Ringwood in Melbourne. He remembers his mother crying herself to sleep at night, but then moving across the road into a caravan. He said that was one of many moves."

40 Mr Covington-Thomas' early schooling was disrupted as his mother searched for a suitable place to live. He attended five primary schools. In psychological terms, this was said to be adverse, presumably because it was unsettling, preventing or inhibiting scholastic advancement and the forming of friendships.

41 Soon after their arrival in Australia, and when he was still only eight years old, Mr Covington-Thomas was sexually abused by a male who lived next door. He gave the following evidence: (T21/22)

"Q. Did anything else out of the ordinary happen to you, I am talking about an incident with your elderly neighbour?
A. That was at Croydon North, when we lived there.
Q. How old were you then?
A. Eight.
Q. What happened?
A. Nothing happened until we got the walls of the house up. When they were up he used to lure me over to the fence say: 'Want some lollies and want some ice cream?' I went over there and he fondled me.
Q. Whereabouts did he fondle you?
A. Genitals.
Q. Anything more than that?
A. (No answer).
Q. How did you feel about that?
A. He didn't hurt me and I was getting lollies and I was getting ice creams."

42 Mr Covington-Thomas said that he had forgotten that episode until 1996 when he was working at the St Luke's Refuge as a childcare worker. He was involved in court proceedings concerning a 13 year old girl. The child had been abused by her father. Her evidence triggered a memory of his own abuse, which caused him to weep and break down. It is a matter which had some prominence in the defendant's submissions (DS p16, para 21(a); p81 para 266).

43 Professor McFarlane acknowledged that it was a matter relevant to the plaintiff's vulnerability to psychiatric distress (T698). I accept that evidence. However, its importance can be overstated. Professor McFarlane said that it was important that neither his boyhood experience nor the court episode in 1996 had themselves caused nightmares (T697). Moreover, Dr Parkin, an experienced psychiatrist, placed some emphasis upon the absence of penetration. He said this: (T571)

"Q. From a psychiatric point of view, is the sexual assault of a child a matter of any psychiatric significance when it comes to considering subsequent development of psychiatric disability?
A. Yes, I have mentioned that in my subsequent report and I have also given my opinion on that. That is, that with abuse it's really the degree of abuse that causes the problem. And that in this case he described it as something where he had a bit of fun and he got some lollies at the end of it. He was not pushed beyond where he wanted to go. Now my experience in seeing victims of sexual abuse is that they tend to fall into two categories: one where they are truly abused and taken well beyond where they want to go with that, and they are severely traumatised by that; there are those who are exposed to sexual experiences, potentially against their will, where there is no great pressure in it. My experience with that is that tends to lead to a somewhat more promiscuous sexualised adult, but otherwise the person is not greatly damaged.
Q. Are you seriously suggesting that this boy being sexually assaulted by this man when he was a boy at the age of 8 years of age, on several occasions, did not cause any subsequent psychiatric deterioration?
A. Yes."

44 Mr Covington-Thomas, when examined by Dr Parkin, was asked to rank various suggested "stressors" on a scale of one to ten, identifying the original stress and that experienced at the time of the examination (October 2006). The table is a useful index of Mr Covington-Thomas' perception. It was as follows: (Ex F, p163)

Description of Stress	Original Stress	Current Stress
The loss of his biological father	0	0
The move to Australia	0	0
His stepfather's arrival in their lives	1	0
His childhood sexual abuse	0	0
Mother away for a year	0	0
Sent to work at 14	0	0
Melbourne/Voyager incident	10	10
Seeing aircraft carrier on the Hobart	2	0
Posted to the Vendetta	8-9	9
South Vietnam incident	8	8
Daughter's death	6	0
End of marriage	7	0
Child care job	8	2-3
Mother's death	7	0

45 It will be noticed that Mr Covington-Thomas rated the sexual assault as causing zero stress at the time and zero in 2006. On the other hand, his emotional reaction during the court case, provoking long forgotten memories, does suggest some trauma. I accept that there was no penetration. I think it likely, as I will later explain, that Mr Covington-Thomas' break down was in large part a reflection of his fragile psychological state (caused by a number of factors), rather than the trauma associated with the assault when he was eight years old.

46 Returning to Mr Covington-Thomas' early life, some time after their arrival in Australia his mother met an Englishman, Tom, who was employed in the merchant navy. He became the plaintiff's stepfather. A child, a half sister to the plaintiff, Mrs Marian Schniuger, was born in 1954. Mrs Schniuger gave evidence. She said her relationship with her brother was very close before he joined the Navy (T425). She elaborated as follows: (T425)

"Q. Can you describe your relationship with, I will call him your brother, prior to him joining the Navy?
A. Well, it was a very close one. My brother was always very kind to me. He looked after me a lot. Because he was 12 years old he sort of took care of me and he was terrific to me. Looked after me when I was ill. Took me to the movies. He was a very kind brother."

47 In looking after his sister, Mr Covington-Thomas missed time from school, which further disrupted his education. He, nonetheless, received quite good school reports. He was obviously a bright pupil. His conduct was described as "very good".

48 Mr Covington-Thomas' relationship with his stepfather, however, was not good. Indeed, he told Dr Patel that he hated him (T379). He believed his stepfather, having formed a relationship with his mother, regarded him as "baggage". Dr Parkin acknowledged that such an attitude would not help a child's self esteem (T572). On one occasion his stepfather struck him. However, Mr Covington-Thomas, when giving evidence, said he only did so because the plaintiff had provoked him.

49 When Mr Covington-Thomas was about 11 years old his mother went to England. She was gone about eight months. At the time he thought she was returning for a holiday. He later learned that she went to England to obtain a divorce in order that she could marry Tom. The plaintiff had no particular recollection of distress upon her departure.

50 At the age of 14 years, Mr Covington-Thomas' stepfather determined that he should leave school because he was not doing well enough (T20). He immediately secured a job as a salesman in a shop. He later obtained a job in a factory, fabricating wrought iron. He completed a welding certificate at the Swinburne Technical School at the same time. However, he was laid off during the credit squeeze of 1961. It was in these circumstances that he turned his attention to the Services, making application to the Police, the Army and the Navy.

51 Unquestionably, Mr Covington-Thomas' early life was harsh. The separation of his parents, the loss of his relationship with his father, the need to adjust to a new country, the sexual molestation at the age of eight years, his disrupted schooling, combined with the attitude of his stepfather, were all adverse to a greater or lesser degree. Dr Gelb, his treating psychiatrist, summarised these experiences in these words: (T526)

"A. He had a pretty, pretty terrible, brutal childhood didn't he."

52 However, this notwithstanding, those who knew him said that he had coped well with such adversity. His aunt, Mrs Sampson, saw him often as he was growing up. He lived "across the oval" in a small country town in Victoria. He would come to see her quite often. He would "pop in" after school (T285). She described their relationship as very close. She said this: (T285)

"Q. What was he like as a boy and as a teenager?
A. Very cheeky. I remember that. He was very cheeky and very loving. Very loving. Always up to tricks.
Q. Did you notice how he got on with his fellow children - playmates?
A. All right. Yes, he was fine. People in the Montrose, they all liked Peter."

53 The daughter of Mrs Sampson, Ms Susan Wood, said much the same thing. Her evidence was in these terms: (T299)

"Q. And what was the nature of your relationship with him prior to him joining the navy?
A. A very good one, excellent.
Q. What - how did you interact with each other?
A. Very caring, fun-loving; yes, very outgoing.
Q. Did you see much of him?
A. I saw a lot of Peter."

54 Mr Covington-Thomas' sister, Mrs Schniuger, gave the following description of his personality before the collision: (T425/6)

"Q. And how was his general demeanour and interaction with other people?
A. Oh, he was great. I mean, he was a very social young man. Had a lot of friends. Went out a fair bit. Happy sort of person. Intensely interested in nature. Intensely interested in things around him."

55 Mr Furnell, a seaman who was also a member of the Admiral's barge crew, described the plaintiff as a "fairly happy-go-lucky chap" before the collision (T460). He was good company (T466). Mr Covington-Thomas, in his evidence, said that he made friends easily at school (T20). He participated in school sports. He was involved in the local church and various groups associated with the church (T23).

56 As mentioned, the relevance of Mr Covington-Thomas' adverse childhood experiences was that they made him vulnerable to psychiatric disorder. However, Professor McFarlane stated, and I accept, that such vulnerability diminishes with time. Professor McFarlane, under cross examination, said this: (T712)

"Q. This man was highly vulnerable to the development of psychiatric disorder in later life as a result of his childhood, wasn't he?
A. In fact, your Honour, his vulnerability is actually in early adulthood and again this study we have done following up the children of the Ash Wednesday bush fires we precisely look at this question because we have a population who weren't exposed to the fires and we have extensively looked at these issues of childhood diversity and the nature of their parenting relationships and these are factors that tend to be identified in late adolescence or early adulthood or that is the period of maximal onset of those conditions and with a man such as Mr Covington-Thomas he was obviously screened when he went into the Navy and one would have presumed that they would have picked him up and not accepted him if he had been disturbed at that point. The vulnerability is then more so than in later life. If you have got through your adult life and you get to your late middle age, all probability is that you are going to fair fairly well, the prevalence of psychiatric disorder goes down in the middle age and early old age."

The plaintiff's early Naval career.

57 Having lost his job in 1961 during the credit squeeze, Mr Covington-Thomas applied to join the Victorian Police Force. His application was rejected. He was told that he was not tall enough. It was also said, without elaboration, that he had applied to join the Army but was rejected on medical grounds. He then sought to join the Navy. On 30 June 1961 he was medically examined. The examination was unremarkable except for a history of enuresis (or bed wetting) to the age of six years. Lower on the same page, the medical officer referred to "enuresis ... nightly until the age of ten years". Mr Covington-Thomas had no recollection of bed wetting continuing to the age of ten years, or having suggested that it had. The significance of that history, in whichever version, was explored in cross examination. Dr Gelb said this: (T523)

"Q. Did you know about his enuresis, that is bed wetting, up until at least the age of six?
A. I did, but that's not unusual at all.
Q. It is indicative, is it not, of anxiety?
A. No - not at the age of six, no. That would not concern me. A paediatrician now would not be advising any specific intervention up to the age of six. It would be another thing if he was 12."

58 Professor McFarlane said much the same thing: (T712/713)

"Q. What is the significance of a child bed wetting until the age of say six years?
A. It sometimes represents slow neuronal development but there are many healthy adults who will wet the bed even to the age of 11 or 12. It is once it gets up to about that age you really see it as a significant issue of neurological development."

59 The issue of bed wetting can therefore be put to one side. However, because of that history, or as a matter of routine, Mr Covington-Thomas was referred to psychologist. Again the assessment was unremarkable, although the psychologist noted that he had an obsessive personality structure (Ex A, p6/7). He was, nonetheless, accepted as a recruit in the Navy, forming part of the intake of July 1961. His enlistment dated from 31 July 1961. He began six months training at the shore base, HMAS Cerberus. His training continued until 16 February 1962 (Ex A, p10). During that period he underwent a follow-up psychological assessment on 30 August 1961, which was satisfactory. He had an interest in radar. However, he also had a limited education. The psychologist noted that his real interests appeared to be practical. He thought him suitable for gunnery and so recommended (Ex A, p7). Mr Covington-Thomas was happy with that recommendation (T24). An aspect of gunnery included plotting targets by means of radar and computers (T24).

60 The Navy required the successful completion of certain examinations in basic education (ETI). Commander Halley described these examinations as "about the bottom of the barrel" in terms of educational standards (T781). Surprisingly, Mr Covington-Thomas did not pass the examination at his first attempt. He did so at his second attempt (Ex A, p8/9). On 15 February 1962, he was promoted to the rank of Ordinary Seaman QMG (Ex A, p10) having passed a further medical examination on the same day (Ex A, p12).

61 Mr Covington-Thomas was then assigned to HMAS Queensborough, which he joined on 17 February 1962. He remained there for a period of four months (until 9 June 1962) (Ex A, p10). During that time he obtained his Helmsman's Certificate (Ex A, p13). On 7 August 1962, he joined HMAS Sydney for a short time. On 28 December 1962, he was posted to HMAS Melbourne, where he remained for some time. He was on HMAS Melbourne at the time of the collision on 10 February 1964.

62 On 22 January 1963, Mr Covington-Thomas underwent a further medical examination to determine his suitability for submarine service. His emotional stability was assessed as "normal" (Ex A, p96). On 15 June 1963, he was promoted to the rank of Able Seaman (Ex A, p10).

63 On 1 July 1963, Mr Covington-Thomas was appointed a Bowman on the Admiral's barge on board HMAS Melbourne. Each sailor, in the course of his service, was regularly assessed by his superior officer. His performance was evaluated, as explained by Commander Halley: (T786/7)

"Q. Because prior to 1969, or in fact in 1969 and earlier you were only allowed a small percentage of 'superior', then the next rating down was 'very good' and then 'good', and then 'satisfactory'?
A. Yes.
Q. Then 'fair' and then 'unsatisfactory'?
A. That's right.
Q. And most people would score in the 'satisfactory' to 'good' area, and if you were above average you would get 'very good', if you were well and truly great you would get 'superior'?
A. Yes.
Q. You agree?
A. Yes, I quite agree."

64 When undertaking training at HMAS Cerebrus and Queenborough, Mr Covington-Thomas was ranked "satisfactory". Whilst on the Melbourne he was ranked "superior". He was then invited to become a member of the Admiral's Staff. One does not apply to become part of the Admiral's Staff. You are appointed if you demonstrate potential (T36). Again Commodore Halley explained: (T777)

"Q. You can assume that he held the position as bowman of the Admiral's Barge?
A. Correct.
Q. Was that a position of some significance?
A. Yes. Admirals pick their staff carefully, and if they don't measure up they get moved around."

65 The defendant, in submissions, said this: (DS p89)

"293. It is not surprising that the admiral chose the Plaintiff to be a bowman if the Plaintiff 'spoke with a nice British educated accent' and 'always stood straight and held his head up' . Such presentation may have caught the eye of the admiral and the Plaintiff's superior officers and, as a seaman, enabled him to achieve the superior ratings that he achieved. ... "

66 I reject that submission. It trivialises the plaintiff's significant achievement, which he managed to repeat again and again until the end of his service. Indeed, Commander Wilson, who at one time was Mr Covington-Thomas' commanding officer (on HMAS Vendetta), when shown his efficiency ratings during his entire (nine year) service (Ex A, p11) said this: (T1107)

"Q. (Shown Exhibit A). Page 11
A. Looking at this, I would have to say he was a very good sailor, yep."

67 On 1 January 1964, Mr Covington-Thomas' rank was reclassified as Able Seaman Quarter Master Gunner (Ex A, p10).

68 Mr Covington-Thomas presented as an intelligent and articulate individual, and a person with strong views. According to an estimate of his intelligence before the collision (there being the suggestion of brain damage since), he was ranked in the top several percent of the population. I have no doubt that, in his early years, he was both keen and impressive. He gave evidence that in those early years he loved the Navy. He said this: (T34)

"A. Yes, in - prior to the accident my aim was to stay in the Navy as long as I could and they'd have to kick me out if they wanted me out, because I wanted to do my full term."

69 There is a 20 year qualifying period for a full Naval pension. Mr Covington-Thomas, indeed, hoped that he could stay longer, and achieve a higher ranking. His evidence was as follows: (T34)

"Q. And did you - when did you sort of form the view that you wanted to stay in the Navy?
A. Well, it was actually seeing people who'd got to, like, higher - junior NCOs who were actually doing the change over and going over to Dartmouth and doing the course over there.
Q. And what sort of course was the Dartmouth course?
A. That was to take them from an ordinary rank to an officer rank."

70 Indeed, before the collision, Mr Covington-Thomas made enquiries concerning the completion of the necessary educational qualifications for a higher ranking. He said this: (T35)

"A. Well, I started sounding out the system about getting myself to a higher education, to go past the normal standard education for the service when I joined as an ordinary - as an adult recruit. ET1 was all you needed, which was about year 8 or 9. I've forgotten which now. But you had to have your HET or your matriculation, which - if you wanted to become an officer and I had sounded it out and found out that I could actually do maybe one subject at a time until I had the required number of subjects."

71 Mr Covington-Thomas, however, did not, before the collision (nor, indeed, before his discharge) undertake further general education to matriculation level (T308).

72 A number of witnesses, mainly family members, described Mr Covington-Thomas' love of the Navy before the collision. His aunt, Mrs Sampson, said this: (T285)

"Q. Prior to the collision did he ever say anything about his naval life?
A. Yes. He used to talk about it. Yes, before, yes when he first went in the navy.
Q. Can you recall what he said about the navy before the collision?
A. Yes. He would - not a lot, but he was just excited because he was in the navy and that's what he wanted."

73 Mrs Sampson's daughter, then a ten year old girl, saw a lot of Mr Covington-Thomas when he visited the family on leave. She remembered him as very happy before the collision, enjoying his Naval service (T299). His sister, Mrs Schniuger, although a few years younger, had the same impression. He would tell her about shipboard life, and was very enthusiastic (T426). He visited her at school in his uniform and made a presentation concerning the Navy to her class (T426). Mrs Schniuger also provided the following recollection: (T427)

"Q. Did he say anything (about) to you about his long term intentions in relation to the Navy?
A. Yes. Because he was studying, he was studying for maths. He hadn't gone very far in school and so he was studying for a test because he told me he wanted to go far in the Navy. He wanted to become an officer and the only way he could become an officer was to actually do some additional study. So I clearly remember him studying for a test."

74 Mrs Schniuger presented as an intelligent woman. She worked as a school teacher. She was not cross examined (T429). I accept that, before the collision, the plaintiff intended to make the Navy his career and remain in the service for at least 20 years, perhaps more, depending upon advancement. I accept that he had ambitions to become an officer and complete the educational qualifications necessary to achieve that rank. I will return to this issue (infra para [708ff]).

75 Mr Covington-Thomas described his drinking habits before the collision. He grew up in a family that had wine with their meals. He was permitted wine after the age of 13 years (T25). He said, however, that before joining the Navy, he did not go to hotels (T25). He thought that he had been drunk twice before the collision, the first time when he was 19 years old in Hong Kong with the Navy and the second time on his 21st birthday. Apart from that he drank moderately with friends (T25). There was no suggestion from family members that alcohol was a problem before the collision (Mrs Schniuger T428; Susan Wood T299).

76 Mr John Fernell met Mr Covington-Thomas about four weeks before the collision. He had been made a member of the Admiral's Barge crew. He went with Mr Covington-Thomas and other seamen occasionally to bars before the collision. Mr Fernell added: (T465)

"Q. Did you have a particular place?
A. Anywhere uptown. Usually we'd go to the bars down near the wharf, then venture uptown later, take in a movie or whatever.
Q. And he enjoyed a drink?
A. He wasn't excessive in the drinking. He, well, he's drinking along with the rest of us, you know."

77 On the evidence, Mr Covington-Thomas could only be regarded as a moderate, occasional drinker before the collision.

78 Against that background, let me deal with the night of the collision.

The Melbourne/Voyager collision.

79 On the evening of 10 February 1964, Naval exercises were conducted 20 miles off Jervis Bay in deep water. The exercises began at 7.45 pm, simulating the recovery of an aircraft that had ditched in the sea. Both HMAS Melbourne and HMAS Voyager had been "darkened", with only operational lighting. At 8.56 pm the Voyager passed in front of the carrier and the two vessels collided. HMAS Voyager was cut in two with each section sliding down the side of the aircraft carrier. The bow section rolled over completely, scraping down the Melbourne's port side. Within minutes it sank. The after section "defiantly remained afloat" (Ex 3, p1).

80 At the time of the collision, Mr Covington-Thomas was off duty in the cafeteria watching a movie. He felt the shudder of the collision. It felt as though the ship had run aground, which he recognised was absurd because they were at sea. A direction was then given through the broadcast system for all hands to report to emergency stations. Mr Covington-Thomas immediately rushed to his emergency station which was on 3 Deck, adjacent to the Admiral's barge. To quote from a statement he prepared in 1996 to assist his psychiatrist, he then witnessed the following: (Ex 3, p2)

"… I was on my own and I could hear something scraping down our ship's side, and cracking sounds, which turned out to be Melbourne's radio whip aerials which had been lowered to the horizontal position for flying stations, plus I could hear yelling. I looked forward and saw what I took to be part of a ship floating down past us, there was red emergency lighting on her and I could just make out people moving on her.
My immediate thoughts were we have hit a ship and I can hear what sounds like steam escaping. Being aware of what steam and superheated steam are capable of, I took shelter until it had passed. I then started lowering the guard rails preparatory to the barge being run out on the Gantry Davits and being lowered, at this time more people including the remainder of the barge crew … "

81 When giving evidence, Mr Covington-Thomas elaborated. He said this: (T29)

"A. … The object went down the ship's side. You could hear hissing of steam. So scared. Because when you hear hissing steam you immediately think of super-heated steam and that cuts straight through you. So (I) hid around behind a bulkhead whilst it went past."

82 He was told that the vessel was HMAS Voyager. He described how he then felt, in these words: (T29)

"Q. How did you feel?
A. It is a very ordinary feeling. You are just a ship, as a family. Any other ship is part of that family. So when something happens to another ship it is like it is happening to part of your family. It doesn't matter whether you know anybody on there or not, you are all part. It is a tight-knit group. Everybody relies on everybody else that is just how it goes.
Q. Did you in fact know anybody aboard HMAS Voyager?
A. Yes, Rex Hemsley.
Q. How did you know him?
A. His mother and my mother were very good friends. I had met him on occasions. I would not say he was a real mate of mine, but I knew him. Mum had told me when he left he got posted to Voyager so I knew he was aboard."

83 The Admiral's barge was lowered into the water and became one of the vessels that assisted in the rescue. The barge, it should be explained, would not ordinarily take part in such an operation. Commander Halley said this: (T790)

"Q. … You agree the Admiral's barge was not a very seaworthy barge?
A. Up to a point, yes. It was designed for, as I mentioned before lunch, taking the Admiral from say the wharf of the steps out to the carrier or the flag ships to a buoy. It didn't do long trips like the master boats and taking it offshore to barge which was miles away."

84 There was a small crew. Sublieutenant Hiron was directed to take charge. He was not ordinarily part of the Admiral's barge crew. He said that he had not previously driven that barge (T324), although he was familiar with similar craft. He was then aged 23 years. Petty Officer Muir was the Coxswain. Mr Covington-Thomas was the bowman and Mr John Fernell, the mechanical engineer.

85 Within days of the collision, Sub Lieutenant Hiron prepared a report. Captain Robertson incorporated that report and others into his report of 19 February 1964 to the Admiral (Ex A, p25 and esp pp35-7). The Admiral's barge was the first to reach the stern of the Voyager. Sub Lieutenant Hiron described what happened as follows: (Ex A, p35/36)

"28. … When we reached Voyager we went to her starboard side where about four rafts were tied alongside. There were still about 20 men on deck so we passed them a line and told them to swim to the barge. They, however must have thought it would be safer to get into the rafts than to try to board the barge in the heavy swell. At this time they let go our stern line which immediately wrapped around our port propeller jamming it and partly jamming the rudder. While trying to get clear, the stern swung in and was holed about 1 foot above the waterline. The rafts would not drift clear of the ship so we took them in tow. The men in the first raft could not find anywhere to secure our line so they all hung on to it. … "

86 Mr Covington-Thomas remembered a lot of noise. He said this: (T30)

"A. you have the noise of men yelling. You have the noise of people screaming. Hauled one chap out and he screamed and passed out. He had rather massive chest injuries.
Q. Any noise from the stern section?
A. Noise would be the grating of metal, because there was twisted metal around and wire ropes over the side. There was portage over the side. Just her sort of moving with the sea. That and people running around."

87 The plaintiff described his role in these terms: (T30)

"A. I was actually handling the men and placing them down in the forehead cabin. I thought the leading engineer mechanic on the barge was helping me but confusion was raging at the time. I must have had somebody else helping with the bodies, putting them down."

88 The injured were covered with blood and oil. Mr Fernell gave evidence that there were sharks in the water and, indeed, that he "clouted" a shark with a boathook or paddle. Commander Halley, on board the Melbourne, said that there had been no reports of sharks (T775). No finding is required. Even if, 43 years later, Mr Fernell were misrecollecting what happened that night, it is not difficult to accept that, in deep water, he and others believed there were sharks and that added to the terror.

89 The life rafts containing the injured were towed back to the Melbourne. Mr Covington-Thomas had a recollection of an argument between the young Sub Lieutenant and the more experienced Coxswain as to how best to disembark the survivors. Mr Fernell heard a discussion between the Sub Lieutenant and the Coxswain once they had reached the Melbourne, although he did not hear what was said (T461). Mr Hiron, the Sub Lieutenant, and Mr Muir, the Petty Officer, did not believe there was an argument. Again, it is unnecessary to resolve this conflict. The survivors were taken on board the Melbourne.

90 The barge then made a second run to the Voyager. The Coxswain, Mr Muir, now an elderly man (having joined the Navy in 1945 and been discharged in 1974), gave the following evidence, referring to the occasion when the barge came alongside the Melbourne for the first time to discharge survivors, before venturing forth again. He said this: (T741)

"… I came back to the ship and as far as I know the bowman at the time was, went up the companion way and left the boat. And later on I went back to the area and I was looking for survivors. … "

91 In cross examination it was put that he was wrong in his recollection and that the bowman (Mr Covington-Thomas ) remained on board. He responded as follows: (T745)

"A. Well I think he disappeared after the first trip.
Q. Buy you may be wrong about that?
A. I could be wrong, but I'm pretty certain that's what happened."

92 I have no doubt that Mr Muir is wrong. First, the other members of the barge crew did not support that suggestion. Mr Fernell remembered the plaintiff being on board. Mr Hiron, the Sub-lieutenant said this: (T800)

783 The calculations, once made, should be agreed. The matter can then be brought back before me and judgment entered in the appropriate sum.

784 I therefore make the following orders:

1. That there should be a verdict for the plaintiff in a sum to be calculated and agreed, reflecting these reasons.

2. The defendant should pay the plaintiff's costs.

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