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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWSC 779
Decision Date: 2 August 2007

CaseChat Overview and Summary

Covington-Thomas brought a claim against the Commonwealth of Australia for damages resulting from the Melbourne/Voyager collision, in which the plaintiff was injured. The Commonwealth admitted negligence but contested the extent of the damages, particularly those related to the plaintiff’s post-traumatic stress disorder (PTSD) and alcoholism, as well as the costs of treatment for alcoholism. The central issue for the court was to determine the causation of the plaintiff's PTSD and alcoholism in relation to the collision, and the admissibility of certain medical expenses for treatment of alcoholism, as well as the impact on the plaintiff’s future career prospects within the Navy.

The court examined the evidence regarding the onset and progression of the plaintiff's PTSD and alcoholism, assessing whether these conditions were a direct consequence of the collision. It considered the expert testimony and medical reports to establish a causal link between the collision and the plaintiff's mental health issues and alcoholism. Additionally, the court deliberated on the necessity and reasonableness of the expenses incurred for alcoholism treatment, taking into account the plaintiff's future career aspirations within the Navy. The court applied principles of causation and the foreseeability of the injuries to determine the extent of the damages recoverable.

The court concluded that the plaintiff's PTSD and alcoholism were directly caused by the collision, thereby accepting the admissibility of the related medical expenses. However, the court exercised its discretion to discount the damages to reflect the probabilities of the plaintiff’s future career in the Navy, considering the inherent vicissitudes of such a career path. The court awarded damages that balanced the plaintiff's need for rehabilitation against the realistic prospects of continued employment in the Navy.

The final orders included a determination of the total damages recoverable, reflecting the court’s assessment of the plaintiff's condition, treatment costs, and the discount applied for future career prospects. The court ordered the Commonwealth to pay the plaintiff the calculated damages, taking into account the admitted negligence and the specific issues of causation and recovery of expenses.

Orders