Covington-Thomas v Cth of Australia

Covington-Thomas v Cth of Australia - [2007] NSWSC 779 - NSWSC 2007 case summary — Zoe

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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.

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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

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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

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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."

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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) "Q. When you first got back to the life rafts, and the survivors and life rafts, did any of the crew on the barge leave the barge at that stage? A. I didn't think so. I couldn't guarantee they didn't, but I didn't think so. We had survivors, some survivors, on board the barge so people did leave but I don't know who they were. But we still had enough crew to go back again, so I presumed no-one had got off." 93 There were only three crew, and the remaining members would surely recall Mr Covington-Thomas' absence had he left. 94 Secondly, Mr Covington-Thomas was required, as were all sailors, to complete a questionnaire as to his involvement immediately after the collision, His response included the following: (Ex A, p20) " What part did you play in the rescue operations? Towed three life rafts from Voyager to Melbourne. Also picked up the deceased Lt Cook and A/B Parker (as a member of the crew of the barge)." 95 The recovery of the bodies occurred on the second trip, as I will shortly describe. 96 Mr Muir was giving evidence of an event that occurred more than four decades ago. He had no note to assist his recollection. The only contemporaneous account he provided was the response he gave to the same questionnaire completed by Mr Covington-Thomas. His answers contained no reference to the bowman having left part way through the rescue operation (Ex K). He had first been asked to recall the event, for the purposes of giving evidence, about a month before (T744). After the second trip, Sub Lt Hiron left the barge, as did Mr Covington-Thomas. A decision was made to send the barge to Jervis Bay under the charge of Petty Officer Muir, assisted by Able Seaman Fernell. The barge was used to transport the two bodies recovered from Jervis Bay. Mr Muir, I believe, has confused the timing of Mr Covington-Thomas' departure. 97 Returning to the rescue operation, the barge went out to the Voyager again. There were no further men either on the vessel or in the water (Ex A, p36). Sub Lieutenant Hiron then determined that they would search for bodies, locating debris drifting in the water. Amongst the debris there were two bodies. In the statement by Mr Covington-Thomas to his psychiatrist, he said this: (Ex 3, p3) "We were then directed to go and search for any survivors in the sea surrounding Voyager which we did, finding the body of Mr H S Parker (Civil Technical Officer, HMA Naval Dockyard Williamstown Vic). The finding of him and getting his remains aboard are very hazy for me, I was informed later that we had used our boat-hooks to get him inboard. I would add at this time I was not feeling at all well, I had been this way since delivering the injured people from the life rafts back to the Melbourne." 98 When giving evidence, Mr Covington-Thomas described his state of mind concerning this aspect as being "no recollection", rather than "a hazy recollection". He said this: (T31) "Q. When you went back the second time, did you recover any more people? A. No. We circled around. Apparently we picked up two deceased people in the water. Q. When you say apparently, what can you recall about that? A. I don't recall it. I was told by the other crew member that I helped him to bring in two deceased people to the aft cabin. I just … HIS HONOUR: You have waved your hand. You are indicating you do not have a recollection of that. A. That is blocked out, that segment of it." 99 Although some time was spent in cross examination concerning that difference, I believe it to be unimportant. One may feel one has a hazy recollection after another has provided a detailed account of one's involvement. 100 This aspect has some importance since it is one of the ways in which a person may manifest symptoms of avoidance (Criterion C in DSM IV). That criterion includes the following: "C(3) (an) inability to recall an important aspect of the trauma." 101 I accept that Mr Covington-Thomas meets that aspect of Criterion C. 102 Upon the return journey to the Melbourne, the barge passed the floating stern of the Voyager at the moment that it sank (at 0017 hours) (Ex A, p37), it being the closest boat to the Voyager at that time. Having reached HMAS Melbourne, an attempt was made to winch the barge on board. Mr Covington-Thomas, in his statement of 1996, described what happened in these words: (Ex 3, p3) " … Two extra sailors were provided to help keep her steady whilst hoisting. That meant we had the three crew, plus the Sub-Lieutenant, Mr Parker's body, and a fair amount of sea-water which had entered the boat via the hole in the starboard quarter making us quite heavy. In fact after we were hooked up for raising, and as we started to rise, the electric winches burnt out from the excessive load placed on them and we were left hanging at the mercy of the sea which had risen slightly. The sea began to smash us into the ship's side and at the same time the boats after disengaging gear was ripped out of the inside of the boat's hull and on the deck of the boat. We were now hanging vertically in the water, getting slammed into the ship's side and hanging on for grim life unable to do anything. Onboard the ship they were frantically working to lower the barge, eventually they were able to lower us by hand back into the sea where we disconnected. Leading Engineering Mechanic Fennel was able to get the one and only engine we had remaining started and we were directed to 'Lay Off' and await further orders. Within a short time we were ordered alongside and all people were ordered off except Petty Officer Muir and Leading Engineering Mechanic Fennel. Mr Parker's body still remained in the after cabin. Petty Officer Muir was directed to take the barge to HMAS Creswell in Jervis Bay accompanied by one of the Minesweepers that had arrived on the scene. Needless to say I was upset at being taken off the barge." (emphasis added) 103 When giving evidence, Mr Covington-Thomas said he "thought they were going to die" (T32). Mr Fernell, when he gave evidence, described the same incident. As he did so, he illustrated the angle of the barge at the moment the winch gave way, with his arm (T462). The boat was not vertical, but at an angle of between 30 and 45 degrees (T469). Mr Muir, likewise, gave a demonstration, which he agreed was "almost vertical" (T742). Mr Hiron gave a demonstration, but the transcript does not record the angle. He described what happened in these words: (T799) "A. We hooked onto the barge to hoist it and we got six, ten feet clear of the water when the winch fuse blew and left us hanging. And the next wave picked up the stern, well, picked up the barge and dropped it (witness indicated) on the chains and ripped out the after, after chains which secured us to the hoisting winch and left us hanging by the bow." 104 There was a 15 foot swell (Ex A, p36). Whatever the angle, it was obviously a terrifying experience. I accept that Mr Covington-Thomas believed he may be killed or seriously injured. 105 Once finally on board, Mr Covington-Thomas went to the hangar deck where the survivors were being treated. He searched for, and found, Rex Hemsley. 106 The Melbourne ultimately returned to Sydney at dawn on Wednesday 12 February 1964. Some sailors, including Mr Covington-Thomas, were permitted leave. Mr Covington-Thomas, in his statement to the psychiatrist, said this: (Ex 3, p3) "When Melbourne returned to Sydney we were not allowed off the ship in uniform as it was felt that our ship's name on our caps would make people denigrate us. So on top of everything else we felt that we had a cloud of shame hanging over us. In those early days I think all that I felt was intense shame for what I felt we had done to our mates." 107 The claim concerning a direction not to wear uniform was a matter of some controversy. Commander Halley believed that all sailors who went ashore wore their uniform (T776). He acknowledged, however, that similar assertions had been made in many other Voyager cases. Again, it is perhaps unnecessary to make a finding. Whilst I believe it probable that some, including Mr Covington-Thomas, did not wear their uniforms ashore, the possibility must be acknowledged that his, and other sailors', recollections have been coloured by the shame and apprehension those on board the Melbourne felt concerning the loss of the Voyager. 108 Once ashore, Mr Covington-Thomas met up with Mr Fernell. They went to a hotel in Woolloomooloo and, in his words, "drunk ourselves into oblivion" (T41). He explained how he felt: (T43) "A. Guilty feelings. Q. Anything else? A. Yes, I couldn't - I found it terribly hard to understand why it occurred. Knowing as I did those people who were serving on the bridge at the port and starboard lookout, their responsibility if there is something happening. So the starboard lookout would be generally the first person to give the message that there was something amiss." 109 He later discussed these feelings with the first psychiatrist who treated him, Dr Seabridge, in 1996. He said this: (T380) "A. … I had a bit of a guilt trip over it. That I was not there to see it and help in it not happening. There was a very near accident prior to Voyager/Melbourne and I was on the starboard side on the Admiral's bridge taking a note from his secretary up to him. He and all his staff were up the port side because we were going to flying stations. We had a type 12 frigate as our escort and subsequently would be our rescue destroyer. I took a couple of sights on her as she was turning to port and it appeared it was turning towards us. I took another fix and it was still calling on us. I called out to the admiral - and I can't remember whether it was the HMAS Yarra or Parramatta - but either one of those type of frigates and sirens got blown and we peeled off to port to the left and Parramatta peeled off to the left as well. She was brought alongside and the captain was taken up into the rear admiral's sea cabin and got a thorough dressing down. Then sent back over to Parramatta and continued the exercise. I carried a guilt trip that I had seen on that occasion, yet I was not there when the Voyager/Melbourne happened. He said to me: 'It is not your fault.' He said: 'You can't feel guilty about that. You can't be in that particular station all that time. I had carried it all the time', and I had taken it on as a guilt trip that I was not there I came to the understanding, yes, I could not be there all the time." 110 Mr Fernell gave evidence concerning his meeting with the plaintiff at the hotel after they went ashore. His evidence was in these terms: (T463) "A. Well, we went ashore one night and got pretty well stoned and he was in a pretty bad state at the time. Q. When you say pretty bad state, what do you mean? A. Well, he was breaking down in tears, you know. He was emotional, upset over this. So was I for that matter, but I didn't sort of, you know - tried to hold myself together. Q. When you say breaking down in tears, what is it you actually observed about him? A. Well, he was very emotionally distressed about the loss of life and I'm sure he knew some of the crew members. I knew one and -- Q. Did he say anything about any people at all? A. Yes. About the families losing their father as - yes." 111 HMAS Melbourne required repairs. According to the Naval records, Mr Covington-Thomas went on leave on 9 March 1964 (Ex A, p10). He returned from leave on 30 March 1964. He rejoined the Melbourne on 28 April 1964. 112 There was no issue between the parties, and there can be no question, that the collision between the HMAS Melbourne and HMAS Voyager and Mr Covington-Thomas' involvement in the rescue satisfied Criterion A of DSM IV, which is in these terms: "A. The person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, (2) the person's response involved intense fear, helplessness, or horror. … " 113 DSM IV makes the following further statement in respect of the individual's exposure to the trauma: (Ex C) "The severity, duration, and proximity of an individual's exposure to the traumatic event are the most important factors affecting the likelihood of developing this disorder." 114 Professor McFarlane gave the following evidence in which he identified matters relevant to the severity of the traumatic event in Criterion A. He said this: (T717) "The intensity of life threat, your personal knowledge of the victim, the amount of death and life lost, ones proximity to the victim and their suffering, the extent of loss of property. There re multiple factors that influence the severity of a traumatic event. One can see something from a distance, as against being intensely immersed in it. Obviously the Melbourne/Voyager disaster is an experience of the higher end magnitude. So, I mean, an event of a similar magnitude is the Bali bombing, the first Bali bombing, 88 people killed in that event and, I don't know, I uses that is something more proximate to our memories." 115 Dr Champion, qualified by the defendant, acknowledged that the Melbourne/Voyager collision, from the perspective of someone on the Admiral's barge, was "a most traumatic experience" (T831). Taking up the words of DSM IV, the exposure of Mr Covington-Thomas to the trauma was severe. It extended over several hours. There were a number of discrete episodes, each distressing, and in the case of the failed winch, life threatening. Mr Covington-Thomas was directly and closely involved. 116 Before turning to Mr Covington-Thomas' uncertain recollection of the time at which he manifested various symptoms, it may be useful to recount the observations of those who knew him well in the period following the collision.

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The observations of family members. 117 Three family members gave evidence. Mrs Sylvia Sampson, it will be recalled, was Mr Covington-Thomas' favourite aunt. I have referred to her already (supra para [52ff]). At the time she gave evidence, she was 85 years old. She had only recently been asked to call to mind the matters which were the subject of her evidence (T290). She acknowledged that it was not easy to remember things that happened 43 years ago (T291). Nonetheless, she presented as a most intelligent and articulate woman, who appeared to have a good recollection. 118 Mrs Sampson said that she recalled hearing about the collision. A "couple of months later" Peter came home on leave (T286). He looked terrible. He saw her three or four times in the course of his leave. He put his arms around her and cried each time. Mrs Sampson said this: (T287) "Q. Did he say anything about what was causing him to cry? A. Yes. Q. At that time? A. No. He didn't say exactly. He just said 'It was a nightmare. I'm just living in a nightmare.' He would never talk about the accident. I tried to get him to talk about it." 119 Avoidant behaviour under Criterion B of DSM IV includes avoidance of conversation associated with the trauma (Ex C). Re-experiencing the event through recurrent intrusive recollections or nightmares are also aspects of Criterion B (Ex C). 120 Later that year, at Christmas (which was about 10 months after the collision), Mrs Sampson saw her nephew again. She said he "wasn't the same" (T287). Again he cried. Whereas previously he had been a boisterous young man, always cheeky, how now appeared always to be quiet (T287/8). 121 Mrs Sampson was aware that, in 1965, Mr Covington-Thomas went to America in connection with HMAS Hobart. She saw him less frequently. He had changed (T288). In respect of the nightmares, Mrs Sampson was asked the following: (T289) "Q. When he came back from America did he say anything to you about anything that was occurring to him? A. Yes. He had nightmares, shocking nightmares. I remember that. He had very bad nightmares. He just couldn't get rid of them. Q. And was that the first time that he told you he had been having nightmares? A. Yes - no, not really. No, not really. He had told me that before. Q. When had he told you that before? A. That was - I think it was even before he went away. Q. Before he went away where? A. To America. Q. As well as tell you about nightmares, can you recall anything else that he said about the accident? A. He said it was terrible - 'It was horrible. It was horrible.' But he just wouldn't - he would not talk to me about it. He would just say that it was horrible and he had nightmares." 122 In cross examination, Mrs Sampson reaffirmed that evidence. She said this: (T295) "Q. Is what your clearest recollection is about the events after the collision that when you saw him he used to be upset and he told you what a horrible thing it was? A. Yes. Q. that is what stands out in your mind, is it not? A. Yes. He always broke down and said - he just said 'It is a nightmare, I'm in a nightmare' and this nightmare business, and he used to sob his heart out, and I would say to him, you know, 'Come on, tell me about it' and he said 'I can't talk about it'." 123 Mrs Sampson's daughter, Mrs Susan Wood, also gave evidence. She was a 13 year old girl at the time of the collision. She remembered accurately that he came home on leave two or three months after the collision (T300). She saw that he was unhappy. He was with her mother and crying (T300). She also made the following observations: (T300) "Q. Apart from the fact you said he was unhappy and crying, did you notice anything else about him? A. He was very silent, very quiet; completely the opposite to what he was. We really didn't - yes, he wasn't the fun guy any more." 124 Mrs Wood saw Mr Covington-Thomas again at Christmas. Her observations were as follows: (T300) "A. He was drinking very heavily. Q. What did you observe about him drinking? A. He was knocking it back, and as a 13 year old I had never seen anyone pick up a drink and just - I know that's - just throw it back. Q. Was that one drink or more than one drink? A. More than one. Q. And what can you saw about his character or demeanour at Christmas time? A. He was very sullen, very quiet." 125 The plaintiff never discussed the collision with her. She only saw him in tears on the one occasion, that is, with her mother a few weeks after the collision. She described that occasion in these terms: (301) "A. He was holding on to my mum and he was sobbing and she was - she had her arms around him. I can remember her saying 'What's wrong?' But then I also just walked away." 126 Mrs Wood rarely saw Mr Covington-Thomas after that. She later moved to Darwin. He went to Vietnam. They lost touch. 127 Mr Covington-Thomas' sister, Mrs Marion Schniuger, was eight years old at the time of the collision. She was, as I have remarked, an intelligent woman, and I accept her observations. She described her brother, when coming home on leave immediately after the collision, in these terms: (T428) "Q. What can you say about your brother's behaviour, demeanour or anything he said when he came home on leave? A. Well, he was very unlike he normally was when he came on leave. Q. In what way? A. He was very withdrawn. He was unhappy, he was morose, quiet. Normally when Peter came home he was always sort of full of life and running me around on his back and playing with me and teasing me, but he wasn't like that at all. He was very, very withdrawn. Q. Do you remember anything happening? A. Well, I remember very clearly him walking through the door and he just looked at my mother and my mother went to him and hugged him. He was pale and what I remember most, apart from the fact that he was withdrawn, was the fact that he was chain-smoking. Now, previously, previous to that he had smoked, but he was smoking very heavily." 128 She was asked about his drinking habits before and after the collision. She said this: (T428) "Q. All right. Prior to the collision had you observed anything about your brother's drinking habits? A. Not a great deal. He'd always had a glass or two social drinking. I'd never seen him drunk, but in our house it was never the sort of thing about you don't drink. We were, you know, my parents drank. But he was a social drinker. Q. Did you notice any changes after the collision? A. I never saw him drunk or anything. No, I can't say I saw huge change after the collision." 129 Her brother never discussed the collision with her (T428). 130 Mrs Schniuger also gave the following evidence, which I believe is important to an understanding of Mr Covington-Thomas' attitude to the Navy after the collision. She said this: (T429) "Q. Did you notice anything about the topics which he discussed as compared to prior to the collision? A. Yes. Q. What was that? A. That prior to the collision he used to talk a lot abut the Navy. He used to talk about being on the ship, some of the duties he had. He talked about all the travel, the opportunities and, you know, he gave the impression that he really wanted to go on with life in the Navy. That he wanted to get promoted. He was very enthusiastic about it. But after the Voyager incident, after the Voyager crash, he would still talk about New Guinea, the places he visited, what he did actually in the places he visited, but he didn't really say very much about the Navy." 131 I will return to this evidence later. I accept the observations of these family members, which were substantially unchallenged (DS p22ff: cf PS p20). It is clear that the plaintiff's symptoms were not short lived, that is, confined to the first period of leave. They were still present at Christmas that year and beyond. Criterion F requires that the duration of the disturbance (that is, the symptoms in Criteria B, C and D) persist for more than a month. A change to sullenness and quietness may be a symptom of "clinically significant distress or impairment" in social functioning (Criterion F). I will return to this issue.

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Career after the collision and before Vietnam. 132 I have been dealing with the observations of family members after the collision. Let me turn to Mr Covington-Thomas' perception concerning his psychiatric health in the years following the collision. He saw many doctors before giving evidence, being experts retained either by his solicitors or the Commonwealth. From time to time he gave markedly different accounts as to the time at which particular symptoms, important to a diagnosis of PTSD, first manifested. The inconsistencies were most striking in the context of the time at which he first experienced nightmares concerning the collision, and flashbacks. Both are important aspects of Criterion B. He also, on occasions, nominated dates well after the collision, and often after Vietnam, when he first noticed some psychological deterioration. In respect of other symptoms, he was reasonably consistent, and his recollections were vivid and plausible. 133 Discrepancies in timing in respect of the onset of symptoms are relevant in a number of ways. First, there is, in respect of PTSD, a distinction made between cases where the condition manifests within weeks and months of the traumatic event, so that the onset is regarded as more or less immediate, and "delayed onset PTSD". Delayed onset is much more unusual and is defined by DSM IV in these terms: (Ex C) " With Delayed Onset. This specifier indicates that at least 6 months have passed between the traumatic event and the onset of the symptoms." 134 DSM IV, in describing the course of PTSD, added these words: (Ex C) "Post Traumatic Stress Disorder can occur at any age, including childhood. Symptoms usually begin within the first 3 months after the trauma, although there may be a delay of months, or even years, before symptoms appear. Frequently, a person's reaction to a trauma initially meets criteria for Acute Stress Disorder in the immediate aftermath of the trauma. The symptoms of the disorder and the relative predominance of re-experiencing, avoidance, and hyper-arousal symptoms may vary over time. Duration of the symptoms varies, with complete recovery occurring within 3 months in approximately half of cases, with many others having persisting symptoms for longer than 12 months after the trauma. In some cases, the course is characterized by a waxing and waning of symptoms. Symptom reactivation may occur in response to reminders of the original trauma, life stressors, or new traumatic events." 135 Secondly, the discrepancies are obviously relevant to Mr Covington-Thomas' reliability as a witness. If his account of important symptoms, such as nightmares and flashbacks, is unreliable, the issue arises whether it can be accepted, as a matter of probability, that he has PTSD or, if he does, whether it can be related to the Melbourne/Voyager collision. 136 Let me begin, however, by dealing with aspects of Mr Covington-Thomas' career before he was sent to Vietnam, and the symptoms he described which are less controversial, or at least consistent. 137 On 30 March 1964, Mr Covington-Thomas returned from leave. He was still part of the Admiral's personal staff. His service record states that he was then attached to HMAS Sydney until 27 April 1964, no doubt whilst the Melbourne was undergoing a refit (Ex A, p10). He rejoined the Melbourne on 28 April 1964, where he remained until August the following year. There was a significant break during that period where he was on shore undertaking various courses (3.9.64 to 18.2.65) before rejoining HMAS Melbourne. He then remained on the Melbourne (occasionally being housed at HMAS Penguin) until August 1965. 138 Mr Covington-Thomas told Professor McFarlane, in his first interview (19.3.03), that he had no problems going back to sea (Ex F, p254K; T686). However, he added, when giving evidence, that if he had had a choice, he would have preferred to have remained at HMAS Cerberus, being a shore base (T50). He was asked the following: (T49/50) "Q. How did you feel about going back to HMAS Melbourne then? A. It didn't disturb me as much as I thought it might because of her size. Unless you're going to get something bigger than her, you feel a bit more secure on an aircraft carrier, it's the biggest ship of the fleet. Q. How did you feel about going back to sea after your leave after the collision? A. Well, you do as you're told. If you're ordered to do something you do it. And in my time you didn't, you didn't sort of inquire as to why you had to do it or what, you just did as you were told." 139 By June 1964, or thereabouts, he noticed symptoms which he now associates with depression; feeling down, lethargic, lacking in motivation (T126/127). He was emotionally labile. Small occurrences would reduce him to tears (T143). His pattern of drinking changed (T130). He smuggled alcohol (usually small bottles of whisky) on board ship. Mr Covington-Thomas, during this period, completed a Leading Seaman's Course at HMAS Cerberus with high marks. Whilst doing that course he noticed a number of other changes. He began to withdraw. The plaintiff said this: (T101) "HIS HONOUR: Q. Just in terms of social withdrawal, what was it that you noticed about your health and what was the context that caused you to think that you had to some extent become withdrawn? A. It was like more that I was maybe in some ways starting to become a bit of a loner. So instead of going off with a number of friends drinking and socialising, I would find myself more inclined to be on my own or maybe one or two people mainly with me. Q. Can you remember the context of that in terms of where you were or what you were doing or what ship you were on? A. Yes. It would be on course in Cerberus. I was not one for going in with the people from the courses and drinking most of the night. I would keep myself in my cabin." 140 Mr Covington-Thomas said that he also noticed problems with concentration, so that he had to study a lot more than he had in the past (T138). 141 In August 1963, that is before the collision, Mr Covington-Thomas had applied to become a Leading Patrolman. A Leading Patrolman is the police officer on board ship. There was a convention that the Admiral's staff, being an elite, could more or less choose where they wanted to go in terms of their career (T66A). On 29 September 1964, Mr Covington-Thomas was interviewed by a Navy psychologist in respect of his application. The report was in these terms: (Ex A, p8) "Applied for L/Patrolman while on Melbourne - August 1963 - on admirals staff. ETI - second attempt. Claims not to be interested in QMG - has tried hard but just not interested in. Claims has always had L/Patrolman in mind, wanted to be a policeman before he joined the RAN but too short. Probably rather authoritarian, could prove rigid and overzealous, but should mellow with time. Seems to be functioning well, very keen on regulating work and seems capable of passing the course. Some doubt on the personal handling side as noted, but overall much more impressive than some I've seen and recommended." 142 The position was ultimately offered to him. However, Mr Covington-Thomas decided not to take it up. He preferred an alternative, which was available, being posted to HMAS Hobart. He identified his reasons in the following evidence: (T66A) "Q. When you were asked where do you want to go, what did you understand your options to be? A. Okay. I could have stayed ashore for a short period of time and done a leading patrolman's course. I decided I didn't want to do that because I don't know what ship I am going to get on. If it was anything smaller than an aircraft carrier or going to be a daring class destroyer, so I said I won't do that. They said you can go (to) America and go to school over there and then commission the Hobart and bring it back to Australia. I thought it was going to give me a fair bit of time ashore, schooling. Hopefully would not get a job for res des, for any -- Q. When you say res des? A. Rescue destroyer." 143 The plaintiff was referring to a rescue destroyer working with an aircraft carrier, just as HMAS Voyager had worked with HMAS Melbourne. 144 There was, according to Mr Covington-Thomas, an attitudinal change at this time which he encapsulated in the history he later gave Dr Wu, the psychiatrist who first diagnosed PTSD in December 1995 (Ex F, p189): (T270) "Dying to get to sea, but following the collision between HMAS Melbourne and HMAS Voyager, dying to get back to shore." 145 The change was also reflected in the contrast made by his sister concerning her conversations with her brother about the Navy, before and after the collision, in the evidence already recounted (supra para [130]). Whereas he told her in detail about shipboard life before the collision, after he confined his comments to the places he had visited, such as New Guinea. He did not talk about the Navy. 146 There was further confirmation of that change the following year, when on board HMAS Hobart. Mr Covington-Thomas described to Mr Fernell, a member of the same crew, that he was determined to leave the Navy once his contract had expired. I will deal with Mr Covington-Thomas' time on HMAS Hobart below. For the moment, I am attempting to describe events as they unfolded, chronologically. 147 Mr Covington-Thomas saw advantage in being posted to HMAS Hobart. The Hobart was being built in the USA, with an American guided missile system known as DDG. Extensive training in America would be required (and was ultimately undertaken). There was the opportunity for travel and an extended period on shore. Once the vessel had been brought back to Australia, there was the promise or prospect of a teaching position concerning the guided missile system at HMAS Cerberus, a shore base. Mr Covington-Thomas said this, referring to the nine year period that he had contracted to remain in the Navy: (T53) "Q. How did you feel after the collision? How did you feel about remaining in the Navy? A. Well, I wanted to remain ashore and I thought by going to Cerberus and doing my course and only for the fact that the fleet, fleeting officer had said we need someone in Cerberus who can do short course training on the DDG systems which is the Hobart Brisbane, at destroyers, and I was the only one that they had who could teach that weapon system. So I was, they asked, put me in some - I don't know whether it's in here. I was to remain in Cerberus to actually teach that particular system. So I thought with the way my time in the Cerberus was going that I would finish out my time in Cerberus." 148 Before taking up the position on HMAS Hobart, however, Mr Covington-Thomas was, during 1965, either at HMAS Kuttabul or on board the HMAS Melbourne. His efficiency was assessed on at least three occasions and judged to be, respectively, "superior", "superior" and "superior in all respects" (Ex A, p11). On 3 September 1965, he was promoted to Acting Leading Seaman Quartermaster Gunner (Ex A, p10). He was medically examined and passed as fit. A further medical examination was undertaken on 1 October 1965 to determine that he was fit for overseas service. Again, he was classified as fit. It may be inferred that he said nothing concerning any difficulties, psychiatric or otherwise, he may then have been experiencing. Mr Covington-Thomas ultimately joined the crew of the HMAS Hobart in the United Stated on 16 December 1965. He remained with that ship for a little over one year (21 December 1966). 149 Evidence was given by Mr Brian Morton, who also served on HMAS Hobart and who undertook the same courses in weapon systems as Mr Covington-Thomas. There were seven in the group (Ex 20). The first course was undertaken at HMAS Cerberus. Mr Morton said this concerning Mr Covington-Thomas: (T916) "Q. In that three month period when you were doing the course at Cerberus, what did you observe, if anything, about his personality and his functioning? A. I thought he was very keen. I remember him saying, I thought he said his father was a regimental sergeant. He was British and spoke with a nice British educated accent. He always stood straight and held his head up and always shouted in a strong voice. That was quite noticeable. Q. What about his personality, how did he get on with yourself and other men? A. Everyone I could not fault except for the two bottom ones were a little bit on the slack side. So I think it was the competition that made us pick out the ones that were keen." 150 A further course was undertaken in January/February 1965. Mr Covington-Thomas did not, according to Mr Morton, manifest a "funny attitude" (T917). They got on well. Mr Covington-Thomas appeared to relate well to others. 151 They met again in the USA, although they were each doing different courses (T917). Both were stationed in the United States for just under 12 months, moving around a good deal, especially once the vessel had been commissioned. They had different stations on board the vessel but saw each other at mealtimes. Mr Covington-Thomas appeared to be much the same to Mr Morton as when they first met (T917). After the ship returned to Australia, they each left HMAS Hobart and their careers took different paths. Mr Morton had not seen Mr Covington-Thomas since. Mr Morton served in Vietnam. 152 Mr Morton had himself later been diagnosed with PTSD arising from his Vietnam service. He was therefore familiar with the symptoms, which he identified in these words: (T918) "Q. What are the symptoms that you now recognise? A. Nervous, angry at times, just being very quiet, getting away from crowds. This is in my own experience. Wanting to do something that will get your mind off the stress and I turn to work. I became a workaholic and also a fitness fanatic. I went on for 27 years doing this. I wasn't going to tell anyone who was going to help. I was going to go ahead not telling anyone at all." 153 Mr Morton was then asked the following: (T918) "Q. Mr Thomas, did he display any of the symptoms that you now recognise as being characteristic of the symptoms that you know? OBJECTION. A. No, he didn't. QUESTION ALLOWED." 154 Mr Morton's observations must be understood in the context of the condition he was describing. It is in the nature of PTSD that persons who suffer from it may mask their symptoms. Dr Gelb, a psychiatrist, gave the following evidence: (T546) "A … quite characteristically of post-traumatic stress disorder sufferers - able to mask many of the symptoms. But as so frequently happens, remember we are dealing with about 15 per cent of people exposed to trauma, of these 15 per cent of the way they present, they seem to do okay for quite a long period of time and then it all falls down like a deck of cards." 155 Indeed, Mr Morton himself appears to have successfully masked his symptoms before his collapse. He described what happened in cross examination: (T918) "WALSH: Q. Mr Barry has asked you some questions about your post-traumatic stress disorder. When you first suffered post-traumatic stress disorder did you think your friends or acquaintances were aware you were having those sort of problems? A. No, they weren't, no." 156 Mr Morton described how he felt: (T919/920) "Q. You had been suffering symptoms of that disorder from when you left the navy until your diagnosis? A. Probably early the '70s. I started to feel something that was going on, but I didn't want to tell anyone my story. I would handle myself with all this workaholic business, doing push ups and making funny jokes to make myself laugh. I still do that, make myself laugh that is. Q. Prior to your discharge, did you suffer from post-traumatic stress disorder? A. I didn't know. I used to get angry at people, people not working properly and I used to swear and carry on. We used to do duty parade and I would march them off in the morning and lunchtime. If someone was late I would go off my face. I didn't recognise that was post-traumatic stress disorder." 157 Mr Morton described how he became concerned, as did Mr Covington-Thomas (T56) with the strict adherence to rules and procedures (T920). It appears that he even managed to conceal what was going on in his head from his wife. He said this: (T920/21) "Q. What precipitated the pronouncement symptoms in yourself? What caused you to seek treatment for that post-traumatic stress disorder? A. Just that I had a breakdown. My knees started to go. I thought it was my knees because I used to run everywhere, jog, boots, whatever. That helped me keep my stress level okay. Once I couldn't do that I started to get angry. Couldn't get rid of the stress so I fell in a heap and my wife came home and saw me crying. I tried to hide everything. She wanted to know what was going on. I told her part of the story. I didn't tell any single soul what happened to make me that way." 158 The description provided by Mr Morton is not dissimilar to that given by Mr Covington-Thomas. The following explanation provided by the plaintiff concerning his success in the Navy, notwithstanding the symptoms he was experiencing, is instructive. Mr Covington-Thomas said this: (T239) "Q. Do you disagree with the proposition that you in fact did very well in that course? A. Well, my attitude right the way through, and had been my attitude all my life, that whatever you work at you do to the best of your ability. And if that doesn't come up to scratch well then whoever is employing you has the chance to say, 'Well you haven't done what I want of you so you're sacked', and I was never sacked at all ever in my life, in my working life. And what I'm trying to do on any of these courses that I did, and how I'm working is I'm working to the best I can possibly do. So if they say to me 'Well you did very well, you passed the course very well', well then I've achieved what I was trying to achieve. …" 159 The cross examination continued: (T240) "BARRY: Q. If you were having any trouble functioning, it was not affecting what you were doing in the navy. Do you agree with that? A. I kept --- " 160 There was an interruption. Mr Covington-Thomas then completed his answer as follows: (T240) "A. What happened during that accident, which was in my head, stayed there, it never left me. But I tried my best not to let it affect me in the courses that I subsequently did, and to get the promotions that I did. I, I felt I was coping with what had happened, I thought this was - everybody had been in it would have to be feeling the same. HIS HONOUR: Q. How were you feeling? A. Well, I was, I was able to do the course. I was, I didn't let that get on top of me and stop me from doing what I had to do or what I was ordered to do. BARRY: Q. What I'm putting to you, just to be clear about it, you were not in any way impaired in completing the courses that you were doing; you agree with that? A. No, I didn't let it get on top of me." 161 Mr Morton, incidentally, did not know that Mr Covington-Thomas had been on the Melbourne and involved in the collision with HMAS Voyager. Plainly Mr Covington-Thomas never spoke about it. Mr Covington-Thomas in evidence, said this: (T252) "A. … But the thing about this accident, your Honour, is that to talk about it causes anxiety. So what you do is you avoid talking about it. It is the easy way out. It is a cop out but it is the easy way out. If you're not bringing it present to your mind all the time it is an easy way out of it, so you don't talk about it. In fact people I have been close to, I mean really close to, don't even know about it. So, you just don't talk about it." 162 There was a further aspect concerning PTSD which is relevant in this context. Professor McFarlane agreed that many individuals who suffered from PTSD or depression were able to perform in the workplace, even at a very high level (T656). The difficulty is that the condition may, in time, evolve and worsen. Adverse circumstances may arise which add to the stress and may ultimately trigger collapse.

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The incident involving the Enterprise. 163 In late 1965, whilst HMAS Hobart was off the coast of Virginia performing exercises, an incident occurred. The Hobart entered an area where the Americans were also exercising. The American fleet included the massive nuclear aircraft carrier, the USS Enterprise. Mr Covington-Thomas saw the Enterprise on the horizon. He described how it came about as follows: (T54) "Q. Can you recall any incident at all? A. Yes, there was one incident where I was doing a mixture of tracking of aircraft and ASW (antisubmarine warfare) exercise where we would actually be chasing a conventional submarine and in the midst of that exercise a nuclear submarine that should not have been in our area happened to come into our area and our captain, because being the sort of captain he was, decided it would be more fun to chase a nuclear submarine than a conventional one so he took after it. And USS Long Beach actually came and told us, our captain exactly where to go so we had to pull off and it was at that time, and I had just come out of director because I was director officer and was standing on the flag deck and out on the horizon was the Enterprise and I just - oh, so many memories flashing back and oh please don't, please, go away from her, and that's precisely what we did. But whilst that was happening I stood on the deck watching it happening because - I was pretty upset and bit shaky." 164 When cross examined, Mr Covington-Thomas added the following: (T159) "A. … We were travelling towards the USS Enterprise, which is a huge, huge nuclear powered aircraft carrier, and her escort was the USS Longbeach, which is a nuclear powered, almost cruiser-sized vessel, that came up and flashed us to go back to the area where we belonged, and I froze on the deck and watched that carrier until it disappeared. There was no way I was going below deck and it be close." 165 The cross examination continued: (T159) "BARRY: Q. What, were you apprehensive that you might come to a collision with the USS Enterprise; is that why you stayed on the deck and watched it? A. Of course. Q. And, having watched it go out of sight, did you then go back to your normal duties? A. A bit shaken, but yes. Q. But you were otherwise able to do your normal duties? A. Yes." 166 There was no order that he go below deck. He simply chose to remain on deck until the USS Enterprise had disappeared over the horizon (T191/192). 167 It was suggested by the defendant in cross examination that Mr Covington-Thomas' reaction was normal. Attention was drawn to the way in which Mr Covington-Thomas described the incident in the statement he composed in 1996 for his psychiatrist, Dr Gelb. His statement was in these terms: (Ex 3, p4) "Later, when I was being posted to HMAS Hobart that was being built in Detroit, Michigan USA, I started to have nightmares about the collision, and I started to fear that we may be ordered to act as ResDes whilst over there. I had this fear that history would repeat itself. Thankfully we only met one aircraft carrier whilst there and that was the USS Enterprise off the coast of Virginia. When we finished our exercise and everybody went below decks, I remained there till she disappeared over the horizon. I just could not go below, I had to see her disappear. … " 168 In the context of that statement, the following was put: (T212/213) "Q. See, what I am suggesting to you, Mr Covington-Thomas , is that what you have said in that paragraph has the same content as what you had earlier referred to when you referred to the incident on the HMAS Hobart and the exposure to the USS Enterprise, namely, you had a fear associated with aircraft carriers? A. Yes, I did. Q. And bearing in mind the experience that you had had of being on the Melbourne at the time that it collided with the Voyager, would you agree that it would be a perfectly normal reaction, for anyone to have been in that situation, to be apprehensive about aircraft carriers, if had you been in a major accident as tragic as the Melbourne Voyager collision, which involved an aircraft carrier? A. Of course." 169 The cross examination continued: (T215) "BARRY: Q. Mr Covington-Thomas, what I am suggesting to you is that the kind of experience that you had been involved in the Melbourne Voyager collision is the kind of experience that would make anyone apprehensive about being in the vicinity of aircraft carriers, do you agree with that? A. Well, 'anyone' is a very broad term. I would say anybody who was in a situation I was during that accident would feel quite differently I feel to may be even members of HMAS Melbourne who were not actually involved in the operations, the recovery of people who were wounded, the recovery of people who are deceased and handling them is a lot different to somebody else who may be standing on the flight deck and going 'oh' and the panic of the two ships coming together. Their, their view of it would be different to my view of it because they weren't there. They were only - there was very few people that actually handled wounded and, well, nobody handled the deceased other than we did that I have been told. So I would think they would have a different outlook on it to what I have." 170 Mr Fernell was a crew member of HMAS Hobart. It will be remembered that he had also been a crew member of the Admiral's barge involved in the rescue and that, after the collision, they had gone ashore and got drunk (supra para [108]). Although Mr Fernell worked in a different area of HMAS Hobart, they occasionally saw each other in the mess at meal times. Mr Fernell remembered a number of conversations. It was clear from his evidence, which I accept, that Mr Covington-Thomas had determined, by the time he was on HMAS Hobart, that he would leave the Navy at the end of his nine year term. Mr Fernell said this: (T464) "Q. What can you recall about the conversation? A. Well, he was still very emotionally upset, and so was I for that matter, but he did mention something about leaving the Forces, you know, when his time expires and that, something to the effect, that he was doing some of the trials over there. There was an aircraft carrier on the horizon or something that he was a bit concerned about something. Q. Did he say anything bout his feelings about aircraft carriers? A. Yeah. He seemed for some reason or other upset because of the Melbourne cutting the other ship in half, and I can't say I share the same problem but, you know, I knew where he was coming from sort of thing. Q. Do you recall any mention of the name of the aircraft carrier? A. Yes. It was the HMS - HMAU United States ship Enterprise. One of their first nuclear carriers. Q. Did he say anything to you in that conversation about what he did when he saw the Enterprise? A. Yes. He was a bit worried about going back below deck. At the time they were doing some shooting exercises or something. There was all sorts of trials going on using the ship that had just been commissioned and Enterprise appeared with, I think there was a submarine there as well during this exercise." 171 Mr Fernell, in cross examination, added the following: (T470) "Q. What was his drinking habits when he was on the Hobart, any different from anyone else? A. I would not put him down as a heavy drinker by any means. You could still see the same traumatic effect on him at the Hobart. The conversation on the east coast about the aircraft carrier and what he was going to do after he finished his time. You could see he was distraught over it. Q. I am asking about his drinking, did he appear to drink any more or any less than other members of the crew? A. From those days I sort of didn't go drinking a lot, drinking with him. I was back with - used to call them fish heads, seamen." 172 He explained that "fish heads" were regarded as inferior. 173 The defendant submitted that Mr Covington-Thomas' reaction to the USS Enterprise did not suggest psychiatric illness. It was an entirely normal reaction. Attention was drawn to the evidence of Dr Champion, a psychiatrist qualified by the Commonwealth for the purposes of giving evidence. Dr Champion provided the following comment upon this incident: (T819) "Q. You refer to what you call a normal response, and what I am trying to identify is what you regard as a normal response, as distinct from an abnormal response? A. Well, Mr Covington-Thomas obviously had memories and did have an emotional response at the time and seeing the Enterprise on the horizon, he told me, gave him cause for concern, and he wasn't able to go below, or didn't wish to go below, while it was there but as soon as it was gone he was able to go below. He didn't express to me at the time, or give me the impression, that this was a very significant - that he was terrified at the time or that he was incapacitated by emotion. This was simply one event that caused him concern. I think - I just forget the words - yes, I think that probably that would be close. Q. In general terms, is that the way human beings learn? A. That's part - that's why we have avoidance responses." 174 Mr Covington-Thomas, on a number of occasions, gave his evidence in a flat almost mechanical way, even when describing what had obviously been painful experiences, including the collision itself. I have already remarked that he did not, in the course of his evidence, break down. He appeared to regard it as his duty, at least in public, to maintain a "stiff upper lip". However, I do not doubt that he felt deeply emotional and troubled by the collision and other matters that he was describing, including the sighting of the USS Enterprise. I do not believe that his reaction was "normal". Rather, I accept that it was a manifestation of his troubled psychological state. It is instructive that, in respect of the same subjects, when talking to his friends since his diagnosis, he wept frequently. Michelle McGowan, whom he had known well for ten years, for instance, gave the following evidence: (T482) "Q. Now I'm aware you have provided a statement. I just want to ask you about a few matters that are dealt with in that statement. Firstly, from time to time had he ever discussed with you his involvement in the Melbourne Voyager collision? A. Yes. Q. And under what circumstances has he discussed that with you? A. Sometimes it comes up in conversations between he and I, other times it's been when he has phoned me feeling distressed and it's been that conversation. Q. But when the topic comes up who usually initiates the topic? A. I do. Q. And are you able to say anything, I don't want to talk about anything on the telephone now, I only want to talk about when you have face-to-face discussions with him. Can you tell us what you observe about him when he discusses that incident? A. He becomes agitated. He most often will put his head in his hands and sobs uncontrollably. He always sobs uncontrollably."

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When did the plaintiff first suffer nightmares? 175 It is convenient, in this context, to deal with the contradictory accounts given by Mr Covington-Thomas concerning the onset of nightmares, flashbacks and other psychological symptoms. In the histories he provided to a number of doctors, he associated those symptoms (which are the core of PTSD according to Professor Tennant) (T971) with the appearance of the USS Enterprise upon the horizon at the end of 1965, that is, after the elapse of a little less than two years. However, when giving evidence in chief, Mr Covington-Thomas said this: (T43) "Q. All right, prior to the collision, can you tell us anything about your sleeping habits? A. I had no problem sleeping. Q. What about after the collision? A. It progressively got worse, it wasn't like bang straight into it, but it was a progression with nightmares that got worse and worse as time moved on. Q. You said 'nightmares', can you describe what you mean by nightmares, and what you can recall? A. Yes I can, it's actually seeing that part of the Voyager coming, banging down the ship's side. I see that. I see us getting alongside the state of the, of what was left of her. The people running around on it, the blood, the oil, the injured people, the screams. That is what I would see, and in a nightmare that's, the noise is there (witness indicates). Q. Which noise? A. The yelling and screaming, the grinding of metal upon metal. Whereas if I have a flashback it, there's no noise, it's just actually the images." 176 Mr Covington-Thomas also described having "flashbacks", that is, seeing images of the night of the collision when he was awake (T43). The plaintiff acknowledged the difficulty in specifying when he first experienced nightmares and flashbacks. He said this: (T44) "Q. I go back to the nightmares. When can you recall the nightmares starting? A. That's a rather difficult question, you can't really put a pinpoint on the day or a night on something like that. Q. Was it a matter of days, weeks, months, or years after the collision, are you able to be any more precise in those sort of terms? A. It's so long ago. That's a hard question. To try and give a truthful answer. I - that's the sort, this strips, it creeps up on you, it's insidious." 177 Mr Covington-Thomas said that, after he had seen a psychiatrist in 1996, he was given medication to reduce the incidence of nightmares (T47). Indeed, since he has received psychiatric help, and been given appropriate medication, he has not had nightmares, unless he falls asleep in the afternoon (T45). 178 When cross examined the next day, Mr Covington-Thomas said that he thought the nightmares started late in 1964, rather than the week after the collision (T101). He was then taken to the histories he had given various doctors. He gave what the defendant termed a "second version" to Dr Holwill, a psychiatrist qualified by his own solicitors. Dr Holwill's report of 27 February 2002 recorded the following: (Ex F, p21) "Following the collision, Mr Covington-Thomas began experiencing frequent nightmares of the collision. These did not occur straight away but there was a slow onset over months to a year or two. They steadily worsened in frequency and he woke from them in a distressed state, sweating with tremor. … " 179 Mr Covington-Thomas affirmed in his evidence that nightmares, which may occur several times a week, were often associated with sweating and tremor. He agreed that during his time in the Navy he had been housed in confined quarters with other seamen. It had never been reported to him that he had screamed out during the night (T162). 180 There was what the defendant termed "a third version", which associated the nightmares (and the flashbacks) with the appearance of the USS Enterprise on the horizon at the end of 1965. The defendant pointed to the account provided by Mr Covington-Thomas to his treating psychiatrist, Dr Gelb, in the 1996 statement (Ex 3, p4), which has already been quoted. He saw Professor McFarlane on 19 March 2003, whose report (24 March 2003) included the following history: (Ex F, p35, 254K) "He said that he does not believe he had any difficulties with his sleep or nightmares in the immediate aftermath and says that these probably began two to three years later. He said that his first trip back to sea was on the HMAS Hobart, a DDG frigate. He remembers having an acute sense of anxiety when the USS Enterprise, a nuclear aircraft carrier, emerged 12 miles away on the horizon. He says that he did not go below decks until she had disappeared." 181 The history to Dr Philllips, as recorded in his report of 3 December 1994 to the Commonwealth, included the following: (Ex 15, p75) · "The aircraft carrier USS Enterprise entered the training area and he recalls not being able to proceed below deck despite an order to do so. He found himself compelled to watch USS enterprise until the carrier was out of sight. · He began to have flashbacks of the collision between HMAS Melbourne and HMAS Voyager at around that time. · He began also to have nightmares linked thematically with the naval collision. Mr Covington (sic) said that not a day has passed since then without some intrusive thoughts regarding his experiences on HMAS Melbourne." 182 Mr Covington-Thomas saw Dr Spira, a neurophysician, in June 2003. He gave what the defendant termed "a fourth version" when he said that "the flashbacks and nightmares commenced … about three years after the Voyager disaster" (Ex 15, p90). 183 He gave "a fifth version" to Dr Champion, psychiatrist retained by the Commonwealth (report 29 May 2003), which Dr Champion recorded in these terms: (Ex 15, p43) "He told me the nightmares had commenced three or four years after the events … " 184 Given that the accounts provided to Dr Spira and to Dr Champion were estimates given 40 years after the event, some latitude must be given. That said, there is nonetheless a significant difference, as Mr Covington-Thomas acknowledged (T178, 188, 193, 195), between the suggestion that the nightmares and flashbacks began in the year of the collision and that they began after seeing the USS Enterprise. He could offer no explanation. 185 What findings should be made, as a matter of probability? I have previously described Mr Covington-Thomas as an historian (supra para [12ff]). There are reasons, which do not reflect upon him adversely, why, in recounting his symptoms, he may provide inconsistent accounts. More than that, the psychiatric condition from which it is suggested he is suffering, may add to his difficulties. 186 First, PTSD is not like a broken leg. If someone breaks their leg, it would be surprising if they were to provide markedly different accounts as to the circumstances in which it happened, and when it became apparent. In the nature of things, a broken leg happens at a defined moment which ordinarily the victim can be expected to remember. PTSD, on the other hand, is, or can be, a progressive condition, which often broadens as it evolves. Dr Parkin provided the following explanation in the context of one of the symptoms, avoidance (Criteria C): (T599) "A. The avoidance is often specific and, but may be generalised in time. This is a general psychiatric phenomena in all sorts of issues such as phobias, et cetera, that don't relate to PTSD. They may start out quite specific and as the person becomes more and more troubled, it gets generalised to broader categories. It may, for instance, in this man's case, it may have been not wanting to be on a destroyer of the same class as the Voyager and not wanting to be associated with aircraft carriers, or may then broaden into not wanting to be on a naval ship, then may broaden into not wanting to be at sea at all. It really does depend on how the person deals with the problem and, as I am saying, as it gets worse it tends to get broader." 187 I accept that it is more difficult to accurately pinpoint symptoms which are evolving. Mr Covington-Thomas repeatedly alluded to that difficulty (T65A, 124). When pressed in cross examination, the inconsistencies having been drawn to his attention, he said this: (T208/209) "Q. And the truth of the matter is that you (have) really can't remember one way or another what your condition was 43 years ago? A. No. I remember what things were happening to me but putting timeframes on them is a little bit difficult. It is just - the accident happened. I saw what I saw. The nightmares started occurring. Flashbacks were occurring. They kept going until I sought active service again and up to date I think they've, somewhere along the line, I think they must have plateaued out until where I actually got on medication to help me with my depression et cetera. Then I stopped having nightmares but the flashbacks remained. I can't say to you, sir, that on such and such a date on such and such a year X happened or Y happened. It is just --- " 188 Secondly, the difficulties are compounded by a further characteristic of PTSD, or those who suffer from it. They may suppress or mask their symptoms. Denial can, at times, be a healthy defence (Prof Tennant: T1247). Dr Gelb, the plaintiff's treating psychiatrist, said that it was a characteristic of PTSD sufferers that they are able to mask many of the symptoms (T546). They may endeavour, by various strategies, as described for instance by Mr Morton (supra para [156ff]), to cope with and suppress their symptoms until eventually they can no longer do so. The strategies of denial and the suppression of symptoms, where they are is used, would I believe, add to the difficulties of reliably recounting when symptoms first presented. 189 Thirdly, there is the further difficulty occasioned by a lack of insight on the part of the patient, in this case Mr Covington-Thomas. The plaintiff, according to his evidence, did not understand what was happening to him. He did not seek help. He gave the following evidence in the context of a medical examination on 1 October 1965 arranged by the Navy in respect of overseas service on HMAS Hobart: (T251) "Q. What emotional problems were you having at the time of this examination on 1 October 1965? A. As we have discussed before about the accident between Voyager Melbourne, and as I - I could be corrected - but I think I made the comment that I - well, that I coped with whatever - because I didn't think there was anything wrong with me. I was doing my job to the best of my ability. If I hadn't I wouldn't have been where I was there, going for an overseas medical. … " 190 Mr Covington-Thomas said nothing to the doctor who medically examined him about difficulties he was then experiencing. When asked for an explanation, he responded as follows: (T252) "Q. Why not? A. I thought it was just whatever it was was running around in my head. I didn't - and I would be -- Q. Mr Covington-Thomas, did you think you were the same man before the collision as you were after the collision? A. No." 191 Later, the plaintiff gave the following evidence: (T380) "Q. If you had not seen Dr Wu, you would not have mentioned Melbourne/Voyager, would you? A. I avoided talking about it. I thought it was one of those things. It is in your head and you get on with your work. You deal with it. I didn't know anything about post traumatic stress disorder. I didn't realise I had a problem I had going on all the time. I thought it was natural. You deal with it. Deal with it internally." 192 Professor Tennant, the Professor of Psychiatry at the University of Sydney, gave evidence on behalf of the defendant. He was shown an article by Scott and Davison in the course of cross examination. The article, in a passage which was put to him and which was under the heading "Recognition of patients with PTSD", included the following comment by the authors: (T1227) "Many patients fail to seek medical help as they do not recognise that they have a problem." 193 Professor Tennant agreed that they may occur (T1227). 194 Professor McFarlane referred to the question of insight in the following evidence: (T720) "I think … often people don't understand the link between experiences and symptoms. … And I think that is an issue generally with Mr Covington-Thomas, that he is not good at really understanding where his distress comes from. … " 195 Alluding to the evidence of the plaintiff's aunt, Mrs Sampson, who remembered Mr Covington-Thomas referring to nightmares well before joining HMAS Hobart (supra para [117ff]), Professor McFarlane said this: (T720) " … I think what is important with him is if there are third parties who have been able to, to whom he reported these symptoms at some point following any event, if some third party knows that was present and has reported to the Court and there are credible witness[es] I personally would place particular significance upon that. Because the memories if they remain active in an individual's mind are clearly the drivers of their distress if things in their environment that resonate with that memory, you can see how that is becoming substantial, creating this cycle of vigilance and anxiety and if, as Mr Melick put to me, what his aunt said is correct, it would seem to me that is a substantial matter." 196 Professor McFarlane recognised that the history which he was asked to assume (involving nightmares soon after the incident), was different from the history provided by Mr Covington-Thomas when he saw him in 2003, after which he diagnosed delayed PTSD (T633). In that context, Professor McFarlene said this: (T633) " … as is often the case in people who supposedly have a delayed onset of post traumatic stress disorder they have symptomatic distress and as often is the case worsens with time that they then accurately begin to recall it. So in this, that would be the way my opinion would be modified." 197 Later Professor McFarlane elaborated in these terms: (T718) "A. Your Honour, people's description of their current distress I generally believe is much more accurate than their recollection of what they were like ten or fifteen or twenty years ago because so often their recall is influenced by their current state of mind. It is a bit like if I asked you if you had the flu fifteen years ago can you tell m about the symptoms you had. It can be extremely difficult at times. And so that I think there is a general difficulty in retrospective history and it is one of the reasons why when we do research we try to identify people who have had a traumatic experience immediately afterwards and then follow them. So we are not dependant upon their recall and that does demonstrate in fact that many people particularly have trouble recalling their symptoms early after events, for some reason they tend to minimise them and forget them ." (emphasis added) 198 When asked about the relevance of the different histories provided by Mr Covington-Thomas, Professor McFarlane made the following comment: (T637) "HIS HONOUR: Q. … You are being asked to assume at various times, including to you, he has given differing histories as to onset of various symptoms, including nightmares, and the issue is what significance (if any) are these differences in relating history? A. Well, in many regards, your Honour, a plaintiff who ---" 199 The answer was interrupted by an objection. The objection having been dealt with, Professor McFarlane continued as follows: (T637) "A. If somebody has a highly practiced account which is identical in every report, if anything that would make me more suspicious because it would suggest that an individual has learned a story, whereas I think it's reasonable that people often have a significant difficulty in recalling the onset of symptoms and can be unsure about … " 200 I am therefore left with contradictory accounts by the plaintiff as to when he first suffered from nightmares. The version given in evidence is that they began within a matter of months. That version, although different from other accounts, is supported by the evidence of Mrs Sampson, which I accept. I think it likely that Mr Covington-Thomas did suffer nightmares and intrusive thoughts and images (which he called "flashbacks') within a month or so of the collision, and that they became progressively worse to the point that he found them impossible to ignore. I think it probable that he had reached that point by the time he was serving on HMAS Hobart and saw the USS Enterprise on the horizon.

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Naval career before HMAS Vendetta. 201 It will be remembered that Mr Covington-Thomas was posted to HMAS Hobart, which was then being commissioned in the USA. He remained with that vessel from 16 December 1965 until 21 December 1966 (Ex A, p10). Before digressing to deal with the onset of nightmares, I had described the reaction of Mr Covington-Thomas when he saw the USS Enterprise. He was then aged about 23 years. He said he drank whenever he could and sometimes drank heavily (T54). He added that he drank at night, never on duty (T55). 202 On 13 January 1966, Mr Covington-Thomas was again medically examined. He was found to be fit for the posting and his emotional stability was described as "normal" (Ex A, p102). On 3 September 1966, he was promoted to Leading Seaman Quartermaster Gunner (Ex A, p10). 203 HMAS Hobart returned to Australia in December 1966 and, as mentioned, Mr Covington-Thomas completed his service on that vessel on 21 December 1966. The following day (22.12.66), he joined HMAS Tarangau, a shore base in Papua New Guinea, where he remained until 30 August 1967. He provided Dr Parkin with the following description of his time at that base: (Ex F, p161) "… he was posted to HMAS Tarangau in PNG in the Admiralty Islands. There he had a recruiting and training role. It was a massive relief to him to get off the Hobart. He did not want to be at sea again. In PNG he 'went native' and would spend most of his weekends in the village where he socialised, learnt Pidgin and Motu, and drank alcohol and chewed betel nut." 204 On 24 September 1967, the plaintiff was posted to HMAS Cerberus, another shore base. He said that he thought that he would see out his time as an instructor in the gunnery system that he had been taught in the United Stated (T57). On 18 December 1967, he was provisionally promoted to Acting Petty Officer Quartermaster Gunner (Ex A, p10). He described his habits at the weekend in these terms: (T58) "Q. Whilst you were still at Cerberus, what were your drinking habits like? A. Before I met my wife I was binge drinking. After I finished my course and I was in the petty officers' mess I stayed on board on the weekends and drank. There was a group of us who had a penchant for red wine and rum so." 205 On 15 March 1968, Mr Covington-Thomas' rank was changed from Provisional Acting Petty Officer to Acting Petty Office Quartermaster Gunner (Ex A, p10). On 4 April 1968, he was again medically examined. He was characterised as "fit for duty anywhere". He remained at HMAS Cerberus. On 19 April 1968, he undertook a course on "Instructional Technique" , which he described to Dr Parkin as a course in management and teaching (Ex F, p161). 206 Meanwhile, Mr Covington-Thomas met the woman he was to marry later that year. He knew her family and had been asked to partner her to the wedding of a mutual friend. On 3 December 1968, he underwent and passed what was termed a "pre-marriage medical" (Ex A, p107). He married Annemarie on 20 December 1968 (Ex A, p12). Mr Covington-Thomas noticed three things soon after the marriage, each consistent with PTSD, although consistent with other causes as well. First, shortly after the marriage, he said that there were difficulties with intimacy. Criteria C of DSM IV includes "the numbing of general responsiveness, not present before the trauma", which may manifest itself in feelings of detachment or estrangement from others (Ex C, Criterion C(5)) or "restricted range of affect, eg, unable to have loving feelings" (Criterion C(6)) 207 Secondly, he became argumentative which, with time, became worse. Criterion D(2) includes irritability and outbursts of anger (Ex C). 208 Thirdly, Mr Covington-Thomas gave evidence that he continued to drink alcohol to excess, although he endeavoured to moderate his consumption at the urging of his wife. He said this: (T58/59) "Q. Did your drinking habits change after you met your wife? A. Yes, they did to a certain extent because she nagged me about my drinking. But I still used to be able to get away drinking without her catching me. Q. How much would you be drinking? A. Certainly a bottle of port would disappear pretty quickly and maybe occasionally a bottle of wine."

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The plaintiff's wife. 209 The plaintiff's wife was not called to give evidence. Mr Covington-Thomas acknowledged that she would be in a position to describe many of his symptoms (T152/53). In circumstances of delay, and the desirability of corroboration of the plaintiff's account in respect of the presentation of symptoms, the defendant asks the Court to infer that the plaintiff's former wife would not have provided evidence which would assist his case (Jones v Dunkel (1959) 101 CLR 298). 210 The plaintiff did give an explanation for her absence. He said that he approached her with a view to her giving evidence. According to his testimony, her response was as follows: (T486) "Q. Now I just go back over some issues. Have you discussed with your wife your desire for her to come to give evidence in this case? A. Yes, I have. Q. And what was her reaction -- BARRY: I object to that. MELICK: Q. What did she say to you? A. She told me she would not go under any circumstances and if it meant she would go to gaol she would go to gaol, if she had to pay a fine she'd pay a fine. She's not prepared to come. Q. After that did you give some instructions to your solicitor? A. I did. Q. What is that? A. I just repeated what she said. Q. And did you also say anything about whether or not she should be subpoenaed? A. I think I said that it would be a waste of time." 211 Should the suggested inference be drawn? Unquestionably Mr Covington-Thomas' wife could have given relevant evidence. They met and married in 1968, some four years after the Melbourne/Voyager collision. She obviously could not give first hand evidence concerning the crucial years immediately following the collision, but she could describe his reaction to Vietnam, his emotional state on discharge, the death of Kirsten and their marriage. 212 If they were still married, you would certainly expect the plaintiff to call his wife. The marriage, however, was tempestuous. Each was apparently remote from the other. Their separation in 1995 was said to be the consequence of yet another affair on her part. Mr Covington-Thomas' wife resisted his attempts to get the marriage "back up and running" (T104). He left for Queensland soon thereafter "because my marriage had failed, and I wanted to get away as far as I possibly could and be on my own somewhere" (T107). 213 In the years that have followed, there has obviously been some sort of rapprochement. The plaintiff and his wife have children. Mr Covington-Thomas said that they were "friends" (T155). However, so far as his former wife is concerned, there are obviously limits to that friendship. 214 The defendant has called a number of lay witnesses. It has investigated in some depth the plaintiff's history. It has uncovered neighbours and friends from decades ago and called them as witnesses. I infer that the address of the plaintiff's former wife was also known to the defendant. She still uses the name Covington-Thomas. The defendant had access to her medical records. The defendant could, had it wished, subpoenaed her. It did not do so. There is no evidence that she refused to speak to them. I obviously do not draw the inference adverse to the defendant that it could have been expected to call the plaintiff's former wife. Nonetheless, in all the circumstances, I do not believe it is appropriate to draw the inference suggested, adverse to the plaintiff. 3. VIETNAM AND DISCHARGE

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HMAS Vendetta and Vietnam 215 It will be remembered that Mr Covington-Thomas was discharged from HMAS Hobart upon its return to Australia on 21 December 1966. He then spent the next two and a half years as an instructor, either at Tarangau in New Guinea, or at Cerberus. His time ashore, however, ended on 9 June 1969 when he was posted to HMAS Vendetta. The Vendetta was the sister ship of the Voyager. He described his reaction in these terms: (T57) "Q. How did you feel about that? A. I wasn't happy at all. Q. Why not? A. Because I didn't want to go there. Q. Did you tell anybody in the Navy that you didn't want to go there? A. No, I did not. I never questioned my orders. If I was given an order I carried it out and I expected those under me to do the same." 216 Much later Dr Parkin asked Mr Covington-Thomas to rank various sources of stress, including Melbourne/Voyager and service in Vietnam, on a scale of 1 to 10. The table providing Mr Covington-Thomas' response is set out above (para [44]). Mr Covington-Thomas characterised his posting to HMAS Vendetta as causing stress of 8 or 9 (time of posting) and 9 (current stress). 217 HMAS Vendetta proceeded to Vietnam and was on active service between September 1969 and April 1970. Mr Covington-Thomas, as Petty Officer Quartermaster Gunner, was one of two Directors on that vessel. The Director operates on a high platform, around mast level, which aims the guns (T748), either "blind", using a set of co-ordinates, or visually with the aid of very powerful binoculars. The vessel was continuously engaged on active service for between 30 to 35 days before the crew was given leave. Mr Covington-Thomas and the other Director worked 6 hours on and then 6 hours off during a 24 hour shift. 218 Mr Covington-Thomas described his duties as hard work, stressful and tiring, although that assisted his sleep (T59). He did not drink on duty. Too much was at stake. Amongst other things, he was responsible for two men. He said that he lived in fear of encountering an aircraft carrier as he had on HMAS Hobart. Fortunately none came into sight (Ex 3, p4). 219 However, an incident did occur. The plaintiff was not able to provide the date. The description he gave in evidence corresponded with that he first provided to Dr Parkin in June 1994. He saw Dr Parkin in connection with an application for a pension to the Department of Veterans' Affairs in 1994. Dr Parkin reported to the Department on 8 June 1994. The report included the following description, provided by Mr Covington-Thomas, of the trauma which he experienced: (Ex 15, p65) "I enclose the diagnostic criteria for a Post-traumatic Stress Disorder. As can be seen Mr Covington-Thomas has numerous elements of a Post-traumatic Stress Disorder and is particularly affected in terms of his social and emotional life by the stressful events of Vietnam. The essence of the major stressful experience that he had was as a Director/Officer on HMAS Vendetta directing the firing of 4.5 inch guns onto shore targets. The event in question occurred when they would use white phosphorus as their indicator rounds so that a plume of smoke would be raised from the ground allowing the spotter to determine whether the target had been bracketed. After this they would then move on to high explosive or timed rounds. He remembers this particular village being targeted and white phosphorus being fired onto it, hitting the village and causing people in the village to be burnt. He did not go into the full details of what he saw through these binoculars that he described as being so powerful that they required two men to lift them into the cradle. He was particularly upset that the American pilot in the spotter aeroplane said that he could not see the fire and requested another round of phosphorus despite the fact that Mr Covington-Thomas could see the carnage before his very eyes. He questioned the need for this with the Captain of the vessel who came and checked it out himself. Later on the pilot wished to come and speak with him and he refused to allow him into the area where he worked. All in all this was an extremely distressing episode for him. White phosphorus is commonly used in military rounds and is the reason why tracer bullets glow in the night. It is used to allow gunners to determine where their rounds are falling but in itself it has some disastrous effects on individuals. When wet it will not bur but when dry it will burn and eat into skin. …" 220 The description continued: "… As I said I have not discussed the details of exactly what Mr Covington-Thomas saw through his binoculars since he was very reluctant to go into that detail. However, I am sure it would have been horrific and I am also sure that he would have understood the consequences on human beings of white phosphorus burns. I believe that these feelings have been directly responsible for a lot of the difficulties that he has had subsequently in life." 221 Mr Covington-Thomas was challenged concerning his account. It was put to him that at no stage was the vessel within range of the shoreline, such that with the aid of binoculars, he would have been able to have seen what was occurring on shore. Mr Covington-Thomas insisted that they were 5 or 6 kilometres offshore and that he could clearly see by means of the binoculars the damage inflicted. 222 The relevant portion of the ship's logs were not tendered by the defendant. However, the plaintiff's superior officer, Mr Philip Chapman, was called by the defendant. He was Gunner Lieutenant on board HMAS Vendetta. According to his recollection, the closest the Vendetta got to shore was "about 8,000 yards at a guess, but no closer than 5 (ie, 5,000 yards)" (T435). However that may be, the binoculars used for a visual target were immensely powerful. Mr Chapman said this: (T435) "Q. There has been some suggestion that he was able to see people burn with phosphorous by looking through binoculars through the process of shelling? A. That is possible. Q. How would that happen; it is 8000 yards? A. That is only four miles. You can see freckles on a bloke's bum with a good pair of binoculars." 223 I accept the plaintiff's account. This incident was later to become the subject of nightmares. According to his evidence, the images he saw during those nightmares, or which repeated on his mind during the day, came either from the Melbourne/Voyager rescue or the bombing of the village. The distress concerning the Vietnam incident was in part the consequence of the victims being women and children. Mr Covington-Thomas claimed, and I accept, that during his time in Vietnam, and once ashore on leave, he drank heavily to obliterate his distress. 224 Again the defendant challenged Mr Covington-Thomas' description of his distress, both in cross examination and through evidence provided by other members of the same crew, including Mr Chapman. Unquestionably, Mr Covington-Thomas, on his own account and the accounts of others, performed his duties to a very high standard. On the recommendation of the Commander of HMAS Vendetta, Mr Brian Wilson, the plaintiff was ultimately commended for his service in Vietnam. The Commendation, which is dated 22 September 1970, was in these terms: (Ex 4) "The Naval Board commands Petty Officer Quartermaster Gunner Peter Norman Thomas for the efficient execution of his duties in HMAS VENDETTA from October 1969 to March 1970 during operations in Vietnamese waters. Whilst performing his duties as Defence Watch Director Officer and as the Petty Officer in charge of the Gunner's party, he displayed fine leadership and consistent thoroughness and this contributed substantially to the efficiency of the ship in its role as a Naval Gunfire Support Unit." 225 Commander Wilson explained that, to receive a commendation, a person had to perform his duties in an outstanding manner (T1105). Only eight or ten men out a ship's complement of about 320 would receive a commendation. Mr Covington-Thomas readily acknowledged that he did, indeed, perform at a very high level of efficiency (T157). 226 Mr Chapman, his supervising officer, likewise described Mr Covington-Thomas as "excellent" (T430), "a very good operator" (T431). He recognised Mr Covington-Thomas' potential. He said this: (T431/2) "Q. As at 1969, had Mr Covington-Thomas, or Petty Officer as he then was, had made an application for commissioning what would your attitude have been?" 227 After objection, Mr Chapman responded as follows: (T432) "A. I would have recommended that papers be started, as the term was, that he be considered for a commission. That would have been subsequently followed by additional training for any qualifications he didn't have. The Navy may well have posted him to enable him to get the qualifications, but that just starts the procedure. It by no means guarantees him a commission." 228 Mr Chapman said that he was surprised that Mr Covington-Thomas had left the Navy (T432). 229 Mr Hammond, who was younger than the plaintiff, and who had served under him, described him as "extremely professional" (T749). He did not know of the commendation, but once told in cross examination, said he was not surprised (T751). 230 It was put to Mr Covington-Thomas that performing at that level was inconsistent with the disabling symptoms from which he claimed to have been suffering. The terms of the commendation were drawn to his attention. There was an objection by counsel for the plaintiff. I ultimately asked the following question which seemed to me to encapsulate the issue which counsel for the defendant was seeking to put: (T278/9) "Q. What's being put to you, that you were able to perform them to that level where you were commended in that way, because there was nothing really wrong with you? A. Well yes there was, but I coped with it." 231 Mr Chapman, the plaintiff's superior officer, said that Mr Covington-Thomas appeared to him to be normal. He saw nothing which suggested that he suffered from any disability (T436). He saw Mr Covington-Thomas most days, although not much "in operation" (T430). Because of the hierarchy within a ship, and the class distinction between officers and men, there was not much social contact (T432). Occasionally they would go out "for a night on the turps" with others in the gunner's party, perhaps twice a year (T433). There would be 20 or 30 in the group. Nothing about the drinking habits of Mr Covington-Thomas stood out in Mr Chapman's recollection (T433). Mr Hammond, the sailor reporting to Mr Covington-Thomas, likewise and for the same reasons, did not mix socially with him (T750). However, when he did see him, he appeared to drink no more than anyone else. Drinking, Mr Hammond said, was something of a relief valve for the crew from the stress. The stress was significant. He acknowledged that, at the end of a drinking session, he would not have been in a state to make accurate observations of anyone (T752). 232 I accept that Mr Covington-Thomas performed his duties to a very high standard of efficiency whilst on HMAS Vendetta. I will later, in the context of the medical evidence, deal with the significance of that finding. It can be said at this point, however, that continuing to perform well and to appear "normal" is not determinative, in the context of PTSD. Dr Phillips, whose evidence I accept on this issue, characterised such testimony as a "slight pointer". He said this: (T1065/66) "Q. What about if the person's social work and interpersonal functioning appears on all accounts to be entirely normal after some period of time, what does that tell you about whether or not they still have a mood disorder? A. It is slightly a pointer to not having a mood disorder. I hesitate a little in saying that because I have seen people who have profound mood disorders who manage to keep working in my profession or your profession and other demanding jobs. I would like to say it is very good; it is a fair marker but not conclusive. Q. Does it depend on the degree of disorder? A. To some extent it does depend on the degree of disorder. Prima facie the more severe the disorder the more unlikely any person is going to continue meaningfully in the various domains of his or her life. But some people are really much better than others. A good example is in terms of work life. I will see people clinically who are continuing to work, and ostensibly reasonably, but when you look at other aspects of their life they are a mess. It is an attempt to maintain equilibrium, sometimes successfully and sometimes not. Q. You are aware that in Mr Covington-Thomas' case he served in Vietnam and received commendation for his efficiency? A. Yes. Q. Does that tell us anything one way or the other if he had an adjustment disorder of anxiety of the kind you identified? A. I don't think I can be categorical. But at face it would suggest, as you described it, it would suggest he was able some years after the Melbourne/Voyager collision to remain a acting serving member of the Navy and to partake in the activities that were demanded of him." 233 I also accept that, whilst on duty, Mr Covington-Thomas did not drink. I think it probable that whilst on shore he drank to excess. Again, I will deal with the significance of these findings later. 234 Ultimately, HMAS Vendetta returned to Sydney on 11 April 1970. Mr Covington-Thomas was entitled to 45 days leave, which he then took. Whilst on leave he secured a job with Mayne Nickless. His nine years contracted service to the Navy was due to expire on 19 July 1970. He made application for leave without pay (once the 45 day leave expired) to enable him to take up the position with Mayne Nickless. The Navy acceded to that application as from 3 July 1970 in view of his "excellent service record" (Ex A, p134). He was therefore never required to rejoin his ship or return to sea.

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Discharge from the Navy. 235 The Navy required a sailor seeking a discharge to undergo a medical examination. Mr Covington-Thomas was examined by Dr Carter on 22 June 1970. He had no recollection of the examination (T64). Each box in the form was ticked by Dr Carter as being normal, including "emotional stability" and "mental capacity" (Ex A, p133). One infers that nothing was said by Mr Covington-Thomas concerning difficulties arising from either Melbourne/Voyager or Vietnam. 236 Dr Carter gave evidence. He is still in practice in Perth. Unsurprisingly, he had no recollection of Mr Covington-Thomas. He had conducted many such examinations. An exit examination was more thorough than a routine examination, and akin to an entry examination (T912). Dr Carter said that he had no recollection of being aware that Mr Covington-Thomas had been involved in the Melbourne/Voyager collision. No note to that effect was made (T914). He added that he would not have asked questions about that subject (T914). Dr Carter explained the consequences of someone being found medically unfit as follows: (T913) "Q. What happened if somebody was found to be medically unfit when they were examined prior to discharge from the navy? A. If they were medically unfit their discharge would be postponed until that medical condition could be rectified, brought under control or referred to an appropriate follow-up authority. Q. If it was not able to be brought under control, were they ultimately discharged as medically unfit? A. Yes, they could be." 237 The cross examination continued: (T913) "Q. And if discharged medically unfit would that be negative in terms of an employer? A. He probably would have to declare that in his application, probably would have been available to his employer and influence an employer." 238 Mr Morton gave evidence relevant in this context. It will be remembered that he served with Mr Covington-Thomas on HMAS Hobart in the USA and thereafter lost track of him. He also served in Vietnam, although on a different vessel. He was ultimately diagnosed as suffering from PTSD as a result of that service. He too elected to be discharged from the Navy at the end of his nine year contract. In a passage previously quoted, he said this: (T919/20) "Q. Prior to your discharge, did you suffer from post-traumatic stress disorder? A. I didn't know. I used to get angry at people, people not working properly and I used to swear and carry on. We used to do duty parade and I would march them off in the morning and lunchtime. If someone was late I would go off my face. I didn't recognise that was post-traumatic stress disorder." 239 Mr Morton was asked about his exit medical. He said this: (T920) "Q. When you were having the medical for discharge, did you advise the doctor on discharge of any of your symptoms? A. No, not at all." 240 I accept that the plaintiff was intent upon leaving the Navy to begin a new life. He would be unlikely to mention medical issues which may impede his discharge or disadvantage his future prospects of employment. The improbability of such disclosures is increased if, as seems likely, he had no real insight into the symptoms he was then experiencing. The discharge medical must be seen in this light. 241 Mr Covington-Thomas gave the following evidence concerning his reasons for leaving the Navy: (T62) "Q. Why did you decide to leave the Navy? A. Because I didn't want to go back to sea again. Q. Had you discussed this at all with your wife? A. Yes. She, she said that she wanted me there for her and the children and I left her to believe that. Q. Sorry? A. I left her to believe that. I just let her believe that, sorry, that would be a better way of phrasing. Q. What was wrong with her believing that? A. Then I didn't have to go through the details of why I didn't want to go back to sea again. Q. Were any of your children born before you left the Navy? A. I had, before I left the Navy? Mary, my eldest one, yes." 242 The defendant attacked that evidence (DS, paras 13(g), 142, 411 to 413) contrasting the generality of Mr Covington-Thomas' reasons (not wanting to go back to sea again) with the different and specific account he gave Dr Parkin in 1994 when seeking a war pension for his Vietnam service. Dr Parkin's report recorded the history Mr Covington-Thomas provided in these terms: (Ex 15, p65) "After returning from the war he then almost immediately resigned from the Navy because he could not stand the idea of going back to Vietnam. Partly this was due to the fact that his first daughter had been born and he did not again wish to be away when the next was born but also it was due to his desire never to be in that situation again." 243 I accept as a matter of probability that all three reasons, that is to say, not wanting to go back to sea again, not wanting to return to Vietnam and wanting to see more of his family, operated upon Mr Covington-Thomas' mind when seeking his discharge. However, it is important, I believe, that some years before, and soon after the Melbourne/Voyager collision, Mr Covington-Thomas' attitude to the Navy had changed, as I have already stated (paras [144]-[146]; [170]ff). He determined that he would leave the Navy. I have no doubt (and I therefore find on the balance of probabilities) that his change in attitude was caused by the Melbourne/Voyager collision. I accept that he feared being at sea, especially on a smaller vessel working in association with a larger vessel such as an aircraft carrier. Mr Covington-Thomas, having completed his tour of duty with HMAS Hobart, remained on shore for two and a half years. He hoped to see out his time as an instructor, attached to a shore base. However, he was ordered to join HMAS Vendetta in 1969. He did so, as was his duty. I do not doubt that going to sea, and especially on the sister ship of Voyager, caused him great stress, as did active service. I see no great difference between the generality of his evidence and his description to Dr Parkin as to why he left the Navy. Absent his involvement in Melbourne/Voyager, and assuming service in Vietnam, it is highly likely he would have remained in the Navy, notwithstanding that such service would have periodically involved separation from his family. I will return to these issues in the context of his claim for economic loss. 244 Let me move to an aspect of Mr Covington-Thomas' evidence which had some prominence in the submissions made by the defendant. In re-examination, the plaintiff gave the following evidence: (T485) "Q. Prior to you leaving the Navy were you told anything about when you would achieve the rank of Chief Petty Officer? A. Yes." 245 His evidence continued: (T486) "A. I was told if I signed on my D10 was out and I would be promoted to Chief Petty Officer.

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Q. And what was D10? A. It's a - it's a promotion signal I think it is. Q. What they used to call happygram or happy signal? A. I've heard of happy signal, yeah." 246 Captain Toohey is an officer in the Navy assigned to assist in Melbourne/Voyager cases. He has legal qualifications. He gave the following evidence: (T1132) "Q. There has been some reference, in the course of evidence, to something described as a "happy gram". Do you have any idea what that is? A. I have never heard that expression. No, I'm sorry, I don't know what a "happy gram" is. Q. Or a happy signal? A. No, I don't know. Q. I mean, is there any practice, or was there, to your knowledge, any practice that people could be told in advance that they were going to be promoted? A. It rarely happened. They weren't supposed to be told in advance. Their promotion notice was supposed to be promulgated on an official document through their Commanding Officer. He would call them up at a table - a table is a quasi official ceremony - and they would be called up, stood to attention, and the Commanding Officer would say 'Congratulations, I have your form here. You are promoted to Chief Petty Officer'. Q. That would be the first they knew of it? A. In an ideal world, yes. If they had mates in career management they may have received unofficial notice, but that should not have happened. Q. Could Mr Covington-Thomas had been promoted, by July of 1970, to the rank of Chief Petty Officer? A. No. Q. Why not? A. First of all he didn't have a prerequisite - he didn't have three years in the rank of petty officer for a start off. HIS HONOUR: Q. Does acting count? A. Acting counts, and that still didn't get him over the line." 247 The issue was taken up in cross examination. Captain Toohey said this: (T1132/3) "MELICK: Q. Firstly, Captain, you talked about exigencies in the services such as vacancies being necessary for promotion? A. That's correct. Q. You would not dispute that as at March 1968 there was a shortage of chief petty officers and Quarter Master Gunners in the Navy? A. I have no way of knowing that. Q. You see the plaintiff has given evidence that not only was there a shortage, but he was selected to act in the position of Chief Petty Officer, Quarter Master Gunner, as a senior gunner instructor and parades instructor for HMAS Cerberus? A. The evidence I have before me is that he retained the rank of petty officer. Q. That's right, but he was selected to act in the position of Chief Petty Officer and paid at the rate of Chief Petty Officer because of a shortage? A. I wouldn't dispute that he would be paid a Higher Duties Allowance." 248 Counsel then dealt with the remaining qualifications Mr Covington-Thomas would have required for promotion to Chief Petty Officer. Captain Toohey gave this evidence: (T1133) "Q. In fact, the course he had to do, such as Power of Commands and Drill and other such matters were that was the bread and butter of his role as a parade instructor, was it not? A. That's correct. Q. So you would expect he would have no trouble passing that, would you? A. I wouldn't expect so, no. Q. And the NBCD course, once again you do it at various levels for each promotion? A. Yes, that's correct. Q. When you do an NBCD course, the next level up you do, is it at a slightly higher level because you have difference responsibilities? A. Yes." 249 The defendant, in written submissions, asserted that the plaintiff had lied on this issue. He had, according to the defendant, intentionally given false evidence to bolster his case. What he suggested had happened was, according to the evidence of Captain Toohey, said to be impossible (DS, p10 para 13(z)). The substance of what was now submitted had not been put to him because the issue first arose in re-examination. 250 However, the defendant, later in the same submissions, described the plaintiff's account as "highly unlikely" rather than "impossible" (DS, para 21(d)). It should be noted that Captain Toohey's evidence concerning the observation of formalities was less than dogmatic. 251 I do not believe the plaintiff was lying. Mr Covington-Thomas had acted in the position of Chief Petty Officer for some time whilst at HMAS Cerberus. He had been commended on HMAS Vendetta. On any view he was a highly efficient officer. I do not doubt that he was valued by the Navy and that efforts were made to have him change his mind. I think it likely that he was given an indication that if he re-enlisted he would, subject to completing the outstanding requirements, be promoted to Chief Petty Officer. 252 Finally, I should in this context, deal with the plaintiff's evidence concerning the relative importance, in terms of stress and symptoms, of the Melbourne/Voyager collision as opposed to his Vietnamese service. Both plainly were stressful. Dr Parkin explored with Mr Covington-Thomas how he believed each had affected him. Again, Dr Parkin conveniently reduced his findings to a table, which was as follows: (Ex F, p164)

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253 That table, incidentally, coincided with the view Professor McFarlane had formed, which I will deal with when I come to consider the medical evidence. Professor McFarlane, when cross examined, said this: (T716) "Q. The question then arises, does it not, of whether or not he suffered any post traumatic stress disorder as a result of either Vietnam or the Melbourne/Voyager collision? A. That's correct. Q. Those other matters could be related to the post traumatic stress disorder or they could be independent psychiatric conditions? A. There could be different causal factors contributing to them or they could be co-morbid conditions, that's correct." 254 The cross examination continued: (T716) "Q. They could be co-morbid to the Vietnam war service? A. Well, again I think once one starts going down that road it becomes a little spurious because, as I explained before, I think the bedrock of this man's disorder was what happened to him after the Melbourne/Voyager disaster and after all you have only one brain, you can't, you haven't got different organs to develop different conditions, so they all in a sense layered upon themselves, and his preceding symptoms are major moderating factors and factors then influence his reactivity to these later events, so they, I think they are all related." (emphasis added) 255 Mr Covington-Thomas' friend of the last decade, Ms Michelle McGowan, gave evidence relevant to this issue (supra para [174]). In the course of their friendship, he has come to trust her. From time to time he has discussed issues that have caused, and continue to cause, him stress. Ms McGowan described his reaction in face to face discussions where the subject of the Melbourne/Voyager collision came up. She said this: (T482) "A. He becomes agitated. He most often will put his head in his hands and sobs uncontrollably. He always sobs uncontrollably." 256 Ms McGowan also described Mr Covington-Thomas' reaction where the discussion concerned his experiences in Vietnam: (T483) "Q. All right. Now has he ever discussed anything that happened in South Vietnam? A. Yes.

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The years between 1970 and 1982. 259 Having been discharged from the Navy, Mr Covington-Thomas was, with the exception of a couple of months, continuously employed until 8 May 1996, when he left the St Luke's Family Care Centre in Bendigo. He has not worked since (supra para [3]). 260 Mr Covington-Thomas' working life after the Navy began, as mentioned, with Mayne Nickless. He was employed between 1 July 1970 and 30 June 1972 as a security officer. His job was to shadow armoured vehicles as they delivered payrolls. He carried a weapon. No doubt part of his attraction as an employee was his familiarity with firearms. However, he told Dr Seabridge in 1996 (Ex F, p191), and repeated in evidence, that he ultimately reached the point where he wanted nothing to do with firearms (T377). 261 His decision to resign from Mayne Nickless was not prompted by that change in attitude. His wife's parents moved to the Mornington Peninsular, prompting their move as a family to premises which were close by. It was no longer feasible to remain at Mayne Nickless. Mr Covington-Thomas then secured a job with John Lysaght, Long Island, again as a security guard. He apparently operated a gate, checking those seeking access to the factory. He remained with John Lysaght from 1 July 1972 until 1 December 1972. However his employer wanted to transfer him to the night shift, which was unsuitable. He therefore resigned. He immediately secured a labouring job with the Flinders Shire Council (2.12.72 to February 1973). It was unskilled work. However, he explained that by that time he had a wife and children to support. 262 There followed a job with HMAS Cerberus, the naval shore base in Melbourne. Mr Covington-Thomas began work as the person in charge of the "junior sails club", which operated the bar. However, he had an argument with the manager when he refused to serve drinks to sailors after the bar had closed. 263 He nonetheless remained in Cerberus, transferring to what was known as the "Millionaires' Club", which was a takeaway canteen. He ultimately left after another argument with another manager. The till was short and he suspected a particular employee. He watched the employee and his suspicions were confirmed. He then sacked her. She complained to the manager and was reinstated. After a discussion with the manager, he resigned. 264 Counsel for the plaintiff drew attention to a recurring theme in Mr Covington-Thomas' life, consistent, it was suggested, with PTSD. His anger led to arguments. He was a person who saw this world in black and white. He became a stickler for the rules, a quality which he had already manifested before he left the Navy. It was the same quality, incidentally, that Mr Morton, another naval veteran who was diagnosed with PTSD, also exhibited (supra para [156]). Mr Covington-Thomas said this: (T94) "Q. When did you first notice you got argumentative, was it either before or after you got married? A. No, it would have been more after I got married. Q. A temper, a short fuse. You told us yesterday that you got very concerned after the accident when people didn't follow regulations? A. Yeah. Q. How would you react when they didn't follow regulations? A. Well, I would get very angry and they would know it." 265 Here, within a relatively short space of time, Mr Covington-Thomas argued with two managers. Each time, from his black and white perspective, he was justified in his insistence upon the rules. 266 On or about 24 November 1974, Mr Covington-Thomas secured work with Australia Post, where he remained until January 1982. He was a postman delivering mail on a small motorcycle. On 3 January 1975 he had an accident in which he suffered a head injury. He was unconscious for a time and admitted to the Peninsular Hospital at Rosebud. He was off work until 29 January 1975. He later suffered a back injury, which remained troublesome until surgery was successfully undertaken in 2005. 267 The plaintiff said that, following his marriage, and as a result of "nagging from his wife", he moderated his drinking (T58). Early in the marriage they both enjoyed dancing. His wife wanted to dance seven days a week, which he found simply too much. He said that he disliked crowds (T93), a complaint which he was to repeat in the years that followed and a symptom that remains with him. 268 It will be remembered that the plaintiff's first daughter was born in November 1969 (Ex 15, p28). He and his wife then had a second daughter and, on 2 June 1976, a third daughter, Kirsten, was born. Kirsten, however, only survived ten days. At the moment of her death, Mr Covington-Thomas' wife was apparently still in the Frankston Hospital. She felt enormous guilt over the death. Referring to that guilt, Mr Covington-Thomas said this: (T398/9) "Q. And was that one of the things that you believed caused a deterioration in your marriage? A. Yes. Q. Did you also believe that she had turned away from you after Kirsten's death? A. Yes. Q. Did you also believe that she had felt that you were not giving her enough time and attention? A. Yes. Q. And did you feel that she wasn't giving you the support that she should have been giving you? A. Yes. Q. During this period of time, in the 1970s, was your wife seeing a psychiatrist by the name of Dr L Lewis at Bendigo? A. Yes." 269 What effect did Kirsten's death have upon Mr Covington-Thomas? He said this: (T67) "A. I think I was affected as any parent would be. It was pretty devastating at the time. As time goes on you get on with life. Q. Ever have any nightmares in relation to that? A. No. I have had times when I have been upset about it. Sometimes around her birthday you cast your eye over and say she would have been 31 this year. That is one of those things. You got on with your life." 270 In the search for a cause of Mr Covington-Thomas' psychiatric illness or illnesses, the death of a baby must obviously be examined as one possibility (either alone or in conjunction with other causes). Dr John Phillips, the psychiatrist whose evidence on many issues I found most persuasive, said this: (T1081) "Q. There was nothing which you have read in relation to this case which indicates a trauma suffered by Mr Covington-Thomas that would fit a criteria apart from Melbourne-Voyager or South Vietnam? A. Some people would argue that the loss of a child sits within that group of very high level traumas, and I think some note has to be taken of that, although on my history Mr Covington-Thomas didn't highlight this as having a prolonged effect on him. " 271 It will be remembered that Mr Covington-Thomas was invited by Dr Parkin to rank various stressors that had occurred in the course of his life. His answers are set out in the table reproduced at para [44]. He responded that the stress occasioned to him at the time of Kirsten's death was 6 (out of 10). However, her death did not cause him stress at the present time (zero stress). 272 That evidence, which I accept, is corroborated by his friend from Queensland, Ms McGowan, who said this, referring to discussions with the plaintiff in the last ten years: (T482) "Q. Are you able to say anything bout the extent of the tears when he discussed his daughter's death to when he's talking about the Melbourne Voyager? A. There's a huge difference. When he's talking about his daughter, he will shed a few tears, like a little bit of a cry. When he's talking about the accident of the Melbourne Voyager he sobs and sobs." 273 The reaction of the plaintiff's wife, accusing her husband of not giving her enough time or attention, may be explicable upon many bases. However, it is consistent with PTSD Criteria C, to which reference has been made, which is concerned with "numbing of general responsiveness". It will be remembered that such symptoms may be manifested in a number of ways, including: (Ex C) "C(5) Feelings of detachment or estrangement from others. C(6) Restricted range of affect (eg unable to have loving feelings)." 274 The plaintiff's daughter, Mrs Melissa Epworth, gave similar evidence. She was, as mentioned, born in 1974, and would have been two at the time of Kirsten's death. She said this: (T475) "Q. Are you able to say anything about how much time your father was with you growing up? A. I don't remember him much growing up. He was fairly distant. I have more recollection of my mother as a younger child. Q. And the particular context that you do remember your father in? A. Usually the homework issue. Usually being pulled up or told off. He was very strict on behaviour and knowing where you can go and what you can touch and what you can't touch and I get told off a lot for that. Q. What sort of things would lead to you being told off? A. Touching something, my sister and I used to look at each other and fight. That would lead to a lot of arguments in the car on trips. Basically just not being good enough was my thought." 275 She added: (T475) "Q. How affectionate was your father with you? A. As I said, I don't remember much of him. I don't remember getting hugs. I don't remember him being there at birthday parties. I only had a couple of parties. He was absent or seemed absent for a lot of it." 276 Mrs Epworth then said this: (T475) "Q. How would you describe your relationship now compared to before? A. I would say he has actually got more difficult to deal with as the years have gone on. As a child he was fairly distant. These days he tends to be fairly emotional. Q. Over what period have you noticed that change? A. I would say 16 or so years since I was a late teen." 277 Mrs Epworth would have been 16 years in April 1990, when Mr Covington-Thomas was working at the St Luke's refuge. Commenting upon this evidence, the defendant said, in submissions, that you would expect someone with a naval background to be strict and a disciplinarian (DS 90). The plaintiff, on the other hand, made the following submission: (PS, para 47) "47. Ms Epworth is the plaintiff's daughter. Her description of the sort of man that Mr Covington-Thomas was during her growing up can be contrasted to family members who knew him beforehand such as his aunt, cousin and younger sister. He was obviously difficult, distant and very demanding. Affection seems to have been completely foreign to him. Indeed he was so distant that she said she did not remember him much growing up (474). He was nothing like the loving, caring, kind and affectionate person described by those who knew him before the collision. It seems that the changes they noticed in him persisted." 278 The plaintiff was affectionate to members of his family, and especially his younger sister, before the collision (supra paras [52ff]). He was described by a psychologist as somewhat obsessive (supra para [59]). I accept that, even before the collision, he would have regarded the rules and regulations governing conduct as important. I accept that this is an aspect of his personality. However, I believe that this quality became markedly more pronounced after the collision. He was very much given to anger, especially where the rules were not followed, including by his children. I further accept that he was distant, both to his wife and his children. Such behaviour was in marked contrast to the way in which he related to his sister, aunt and others before the collision. 279 After Kirsten's death there was strains in the marriage (T108). In Mr Covington-Thomas' words, his wife "turned away from him". She took a boyfriend. It was the first of many affairs. Mr Covington-Thomas said that, between 1976 and their divorce in 1996, his wife had six affairs (T109). 280 In 1982, Mr Covington-Thomas took steps to end one of those affairs by leaving the small country town in which his wife and her lover lived. He moved to the central Victorian town of Maryborough. He asked Australia Post for a transfer to that town, but there were no vacancies (T308). He therefore resigned. He left in 1982. 281 Mr Covington-Thomas' choice of Maryborough was prompted in part by advice he had been given by the Royal Children's Hospital. The hospital had treated Melissa for asthma, which was described as "pretty bad". The doctors had suggested that it would be better for her to move north of the Great Dividing Range, where the climate was drier (T491). Mr Covington-Thomas acknowledged that, but for his domestic turmoil, he probably would have remained with Australia Post. He was a member of the superannuation fund. He believed, and I accept, that he had leadership and organisational skills. He thought, with time, he may have moved through the ranks and may "possibly" have become a branch post master (T308). I will return to that evidence in the context of the plaintiff's claim for economic loss.

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Psychiatric examination 1980. 282 Although Mr Covington-Thomas, during his time in Vietnam, had no direct exposure to the chemical Agent Orange, he suspected, for a number of reasons, that his period in the war zone may be implicated in various health issues. Kirsten's death had been caused by a defective heart valve. Mr Covington-Thomas himself had suffered from a number of skin complaints. Skin cancers had been removed in 1978 (T313/4). He said he also noticed "mood swings" (T93). He was angry. He recognised that he had a short fuse (T94). He and his wife frequently argued (T94). On 29 August 1980 he made application to the Department of Veterans' Affairs for a partial pension. 283 The Department arranged for Mr Covington-Thomas to be examined by doctors in various relevant disciplines. It ultimately rejected each claim, except hearing loss (Ex A, p192ff). One of the doctors he saw was a psychiatrist, Dr Stoller. The examination took place on 15 December 1980. Dr A V Burton wrote a referral, which was in these terms: (Ex 15, p97) "Claims nervous disorder/depression, insomnia, lack of concentration, bad temper and sudden hazes, fatigue, lethargy, irritability, very emotional, achalasial spasms in throat, tremor in hands. ? due to exposure to toxic chemicals in SVN. For D (diagnosis) and R (review) please. Signature: A V Burton: 25/11/80" (parenthesis added) 284 Before writing that referral, Dr Burton spoke to Mr Covington-Thomas and completed a form. He asked him about his alcohol consumption, which was recorded in these terms: (Ex A, p158) "Occasional glass of wine with meal. No beer or spirits. Non smoker since 1970, before this up to 80 cigs/day." 285 In the psychiatric examination with Dr Stoller, the history provided by the plaintiff, as recorded by Dr Stoller, was as follows: (Ex 15, p97) "Throat problem - felt something lodged - breathing apparatus - showed up spasm - two months with relaxants - did no good - went to Herbalist (no good!) - no acupuncture with W. Bugiera (in Rye - a town) and helps a bit. Violent temper at times - year or so! 'Won't let things worry me' - worse with 'pressures' - Job is clock-watching type of job (works for Australia Post and subject to getting things out in time). Family - worry regarding health - that's about all - eldest daughter asthmatic - younger daughter is bedwetting or has a number of infections. Wife OK - sex OK. Gets psoriasis (a skin condition) also - started few years ago. Wife was asthmatic. Sleep - if having acupuncture, OK. If not, not good. Headaches - 'one at moment'. At least once a week. Rarely takes anything. OK if gets good night's sleep. In the Frontal (head section) when gets tired, hands get shaky. Seems to get tired easily - tired out later with effects. Gets on reasonably well with people. Memory OK - concentration not so good (finds misses deliveries thus 'absences'). No phobias - worries, but no panics. Gets depressed at times for day or so - 12-18 months - it reaches the stage where 'Dear God! Let me go out quietly!' - not 'drive my car over a cliff'. No regularity of depressions - 'out of blue' for a day or so - especially money problems - or after argument with outside people - later, seems silly. Gets outbursts of temper - has to watch self with children - this depresses him - feels guilty - never 'latched on to them!'" 286 After some notes on family history, which included references to his troubled childhood, and the death of Kirsten, Dr Stoller made a physical examination in which he noted the following: (Ex 15, p99) "Patient is large man - moves freely. No obvious anxiety or depression. Co-operative & communicates readily. No tension: reflexes normal: pulse rate 72." 287 Dr Stoller's conclusion was as follows: (Ex 15, p99) "Conclusion: * history suggests Mild Personality Disorder of no disabling consequence. No psychiatric disorder regarding service and no evidence of psychiatric symptomatology till recently. Diagnosis: Mild Personality Disorder * Incapacity - Negligible." 288 The Department, as part of its investigation, sought a report from Dr Bugiera, the plaintiff's general practitioner. Dr Bugiera first saw Mr Covington-Thomas in February 1980. He saw him repeatedly thereafter. He provided the Department with a report which included a short history in relation to Mr Covington-Thomas' skin problem. His "scalp trouble" coincided with the death of Kirsten. A dermatologist had diagnosed psoriasis. The scalp problems were especially bad in times of stress. Dr Bugiera then described the symptoms presented in February 1980 when the plaintiff first came to his surgery. He said this: (Ex A, p138) "Mr Thomas presented with associated problems of anxiety, depression and nasty 'throat spasms' which had been investigated with barium swallow and subsequently treated for 2/12 with muscle relaxants which made no difference." 289 Dr Bugiera diagnosed anxiety and depression, the anxiety causing the throat spasms and aggravating the scalp condition. The Department, as mentioned, rejected Mr Covington-Thomas' application for a partial pension apart from the hearing loss (16.7.81). 290 Mr Covington-Thomas, when cross examined, was taken to his pension application. He completed the application on 7 November 1980. It included the following: (Ex A, p150) "What is the disability now claimed as related to service? 1. Nervous disorders. 2. Ear problems. 3. Skin disorder. Medical History: 1. What are the symptoms of the condition claimed? 1. Depression, insomnia, lack of concentration, bad temper and sudden rages, fatigue, lethargy, irritability, very emotional, muscular spasms in throat, tremors in hands. … 2. When did you first notice these symptoms? Since my war service." 291 Mr Covington-Thomas said that the symptoms catalogued "happened when we moved to Rosebud" in 1973, being the Victorian town in which he worked for Australia Post (T318). The cross examination proceeded as follows: (T320) "Q. My question is: when did you first notice symptoms of depression, insomnia, lack of concentration, bad temper and rages, fatigue, lethargy, irritability? Was that in 1970 or 1973? A. The easiest way I can say, these things don't happen like that (witness indicted). Just bang. There. These things tend to be insidious and creep in on you. So over 3 years it's came in and -- " 292 The plaintiff clicked his fingers when giving that answer. The cross examination continued, seeking a reaffirmation from Mr Covington-Thomas that his symptoms had indeed begun after Vietnam, not the Melbourne/Voyager collision, as the terms of the application suggested: (T320/1) "Q. But the answer you provided in this document that the first time you notices any of those matters that I have taken you to, the answer you provided was correct, that was, that it was since your war service? A. Yes. Q. And it remains correct? A. Part of this does not apply -- Q. Mr Covington-Thomas -- HIS HONOUR: Q. Sorry, I think you're answering. Have you finished your answer? A. No. I was about to say, your Honour, that I came out of the Service with a hearing loss and with ringing and - tinnitus. I came out with that. I had been diagnosed with that in the Service. I had an audiogram prior to leaving the Service and I believe is part of the medical." 293 Mr Barry QC, appearing for the defendant, continued: (T321) "BARRY: Q. I hadn't asked you about ringing in the ears, or the hearing loss or skin rash on hair, face and fingers. I only asked you about the matter of depression, insomnia, those matters identified next to the first category of symptoms, do you understand? HIS HONOUR: Except you fell short of 'very emotional'. I think the list you read out stopped at the irritability. You may have meant very emotional as well. BARRY: Q. When did you first notice that you were very emotional? A. That's about the same time frame. Q. Since your war service? A. Yes. Q. Since 1970, is that right? A. No. Q. That's what you have said in this form? A. That's, that's -- Q. Isn't it? A. I was avoidance over a lot of, of so many things going on in here (witness indicted). HIS HONOUR: Q. Pointing to your head? A. Yeah, and not getting them out. And I think this is about the first time I sort of opened a little window and let some of these things out and, yeah, just. Q. It's a fairly detailed list, isn't it Mr Covington-Thomas? A. Well, I'm trying to be honest." (emphasis added) 294 The words in bold are important. While certain symptoms of Mr Covington-Thomas are the subject of contention and doubt, by reason of the contradictory accounts he has given concerning the timing of their presentation, there was, to my mind, no such doubt concerning the symptom of avoidance (DSM IV Criteria C). Mr Covington-Thomas refused to discuss the Melbourne/Voyager collision with his aunt and other relatives after it occurred (supra paras [118], [129]). Mr Morton, who had served on HMAS Hobart with him, did not know of his involvement (T921). As will emerge from the evidence below, he would not discuss the collision with those who knew him, beyond perhaps acknowledging that he had been involved. He would only discuss it if it were absolutely necessary (as it was in 1994 when he sought a pension and later in the context of medicals in respect of this action). Even then, for the reasons given, which I accept, he compartmentalised his naval experience, referring only to that which he regarded as relevant to the war pension which he was seeking, namely, Vietnam (supra para [18]-[21]). 295 The defendant, in submissions, placed some emphasis upon Dr Stoller's report, both the timetable of symptoms and the diagnosis (DS, 76/77, esp para 255). The issue arises whether Mr Covington-Thomas does suffer from a personality disorder. Is that the source, or part of the explanation, for the difficulties which have beset him throughout his life? Dr Stoller did not give evidence. No inference adverse to the Commonwealth arises from his absence. He retired in the early 1980s. Dr Parkin, who assessed Mr Covington-Thomas on behalf of the Department of Veterans' Affairs in 1994, and who diagnosed PTSD related to his service in Vietnam (as I will shortly describe), was later asked to undertake a further examination of Mr Covington-Thomas for the purposes of this case. He conducted a lengthy interview (exceeding four hours) and prepared a report of 2 October 2006 (Ex F, p135ff). In that report he reviewed various aspects of the evidence, including Dr Stoller's report. In respect of that report he said this: (Ex F, p138/9) "Comment: The diagnosis given was the typical diagnosis that was often given to someone presenting with similar symptoms. Dr Stoller, a psychiatrist experienced in dealing with veterans, has produced a report consistent with the era. It is significant that he notes: 1. OK if gets good night's sleep. (Implying that he at times did not get a good night's sleep. DSM-III Criterion D, 1). 2. Violent tempers at times … Gets 'outbursts of temper' (DSM-III Criterion D, 2: Irritability or outbursts of anger). 3. Concentration not so good (finds worries [illegible] thus 'absences'). (DSM-III Criterion D, 3). Thus he has elicited three of the D Criteria and this section only requires two to be satisfied. There is thus evidence in 1980 of 'persistent symptoms of increased arousal'. His description of something lodged in his throat is typical of globus hystericus, an anxiety related condition." 296 Dr Parkin knew Dr Stoller. They both worked at the repatriation hospital at Heidelberg (T565). Dr Parkin said this: (T565) "… I vaguely remember meeting Dr Stoller, but I think he left the other hospital about the time that I came into it. But for the first couple of years that I was working there as registrar, we were in general seeing people as having personality - this is Vietnam veterans and people of approximately that era - we were seeing them and perceiving them as having personality disorders dealing with in pretty much the way that Dr Stoller has diagnosed. This is why I have commented in my report 'it's a report of the era'. And then in the early 80s, around about '82 something like that, I can't be specific, we all started to think in terms of DSM III and started to look at another way of dealing with these things. And we then found that we had a whole lot of people who satisfied a diagnosis of post-traumatic stress disorder and the combative nature that existed prior to that with the veterans tended to dissolve a bit and we worked with them cooperatively and I think we had a much better outcome by doing that." 297 It will be remembered that Dr Gelb has been Mr Covington-Thomas' treating psychiatrist since 1997. He has seen him approximately once a month. He disagreed with Dr Stoller's diagnosis (T528). A personality disorder is a pervasive maladaptive set of traits that cause social and occupational dysfunction (T527). Dr Stoller saw Mr Covington-Thomas once. Dr Gelb did not accept that a diagnosis of personality disorder could be made upon the basis of a single consultation. He said this: (T528) "A. One cannot diagnose a personality disorder in a cross-sectional interview. It is a very dangerous thing to do and one that modern training actively discourages. HIS HONOUR: Q. Sorry, can I just ask: What's a cross-sectional, sorry? A. A one off, one off consultation. To diagnose a personality disorder is something that we are constantly warned against doing because the whole premise of personality disorders is that they are longstanding and pervasive and it takes, it takes getting to know someone over a period of time and getting a collaborating history from family and friends to make that diagnosis with any degree of certainty. Professor McFarlane alluded to that in one of his reports too." 298 Dr Gelb added: (T528/9) "BARRY: Q. You don't suggest that in terms of your ability to assess this man's mental state in 1980 that you in 1997, or thereafter, were in a better position than the psychiatrist who actually saw him in 1980, do you? A. Yes, I think I'm in a much better position than that psychiatrist because I saw Mr Covington-Thomas for 10 years. Q. But I'm asking you about what he was like in 1980? A. A personality disorder does not disappear between 1980 and 1997. By definition, it's life long. So that getting to know Mr Covington-Thomas , as I have, over a decade puts me in a much better position to ascertain whether he has a personality disorder and it wouldn't matter whether I saw him at 75 years of age or I saw him at 45 years of age. It's the fact I saw him longitudinally over a period of time, that's what's required to make a diagnosis of personality disorder." 299 Professor McFarlane, who diagnosed PTSD as I will later describe, said this: (T635/6) "A. … Personality disorders are defined as enduring disturbances of interpersonal relationships or behaviour that are present throughout adult life. They were in an area that is the subject of considerable controversy in psychiatry because one of the issues is that there's poor agreement between clinicians about the accuracy of diagnosis. The second issue is that when an individual becomes psychiatrically ill, their behaviour and their relationship style is significantly modified and sometimes it's very difficult to sort out whether this is in fact symptoms or enduring personality traits. We all have a personality, but when we become unwell those traits that we have become more manifest or exaggerated. And one of the difficulties with a man such as Mr Covington-Thomas who became symptomatic in his early adulthood, it may be the case that his behavioural disturbance was more indicative of a disorder that has then modified his personality rather than being a primary personality disorder . And back in 1980 people were much more prone to make a personality disorder diagnosis. " (emphasis added) 300 Dr Champion, qualified by the defendant , commented with approval upon Dr Stoller's report, stating that his psychiatric assessment did not support a diagnosis of PTSD (Ex 15, p1/2). Professor Tennant, also qualified by the defendant, said this: (T959/60) Q. Doctor, the next matter that I want to take you to is something that was dealt with by Professor McFarlane in the course of his evidence where he said, in effect, when taken to what Dr Stoller had said in 1980, that in 1980 the state of medical knowledge in relation to things such as PTSD was not as advanced as it was since he had written his 224 papers and that, as a result of that, it was often the case that PTSD was missed by psychiatrists and therefore there was little significance to be attached to the fact that Dr Stoller diagnosed a personality disorder and not PTSD in 1980. What is your view in relation to that? A. Well, that's wrong. If I can just go back to the 80s when I was working for the Veterans' Affairs Department fulltime as an academic? It is true that the diagnosis of PTSD came in at around that time. The whole reason for setting up the Veterans' Affairs Department, and particularly the psychiatric department, was a recognition that war service caused psychiatric disorders, caused depression, caused a range of anxiety disorders, might contribute under some circumstances to alcoholism. That is why, when the department was set up and those psychiatrists were trained to assess mental state and psychiatric symptoms, and whether or not they made a diagnosis of PTSD they would have made otherwise, in the absence of PTSD, a diagnosis of a significant anxiety disorder - not otherwise layman's PTSD, but perhaps called war neurosis or war-related anxieties, or whatever it was. So the fact tht the criteria of PTSD was not existent is irrelevant, and those very competent psychiatrists who were exposed - were sympathetic to veterans who fought and defended their country and were deserving of medical support and other things, and dare I say, with a very low level of proof of threshold of symptoms. I mean, if I can recall, it is a long time ago, the psychiatrist actually had to prove the disorder was not there and not due to war service, rather than the protagonist, to prove the opposite. So it was a very, very low level of proof of existence of disorder and attribution of cause to the war, and it has always been a very sympathetic service, and continues to be so, so I disagree entirely with that proposition by Professor McFarlane." 301 However, in cross examination, Professor Tennant agreed that the diagnosis of personality disorder required an evaluation of the individual's long time patterns of functioning (T1188). He gave the following further evidence: (T1189) "Q. In terms of exercising some caution in diagnosing personality disorder, there is also a specific caution that it not be diagnosed, or at least that there be extreme caution in diagnosing it, during an episode of a mood disorder or anxiety disorder? A. True. Q. And that's because these conditions may have cross-sectional symptom features that mimic personality traits? A. Yes. Q. And also the worst aspect of one's personality may be accentuated during bad times? A. During disturbance, yes." 302 What conclusion should be drawn? Mr Covington-Thomas' adverse childhood was, as Dr Gelb acknowledged, classically the history one would expect of someone who has a personality disorder (T527). However, many with such a history do not have that disorder (T527). There is strong evidence that Mr Covington-Thomas functioned well, and related well, before the Melbourne/Voyager collision, notwithstanding his adverse childhood. Dr Stoller made his diagnosis upon the basis of single examination. There is no evidence as to how long that examination took. The notes of Dr Stoller, most of which have been extracted above, run to slightly more than one handwritten page. I do not accept, as a probability, that Mr Covington-Thomas had and has a personality disorder. I prefer the evidence of Professor McFarlane and Dr Parkin that Dr Stoller's diagnosis was the product of that time, that is, the early 1980s, shortly before the publication of DSM III with the criteria for PTSD. Dr Gelb, as the treating psychiatrist who has seen Mr Covington-Thomas for more than a decade was, I believe, in a much better position to determine whether the cause, or one of the causes, of Mr Covington-Thomas' psychiatric distress was his personality, rather than his exposure to trauma. He made no such diagnosis. Dr Phillips, qualified by the defendant, emphasised that appropriate weight should be given to the treating psychiatrist's comments (T1081). Dr Parkin likewise rejected that Mr Covington-Thomas had a personality disorder (Ex F, p177). Professor McFarlane also implicitly rejected such a diagnosis (T635/6).

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Move to Maryborough. 303 Having moved to Maryborough after leaving Australia Post, Mr Covington-Thomas was unemployed and in receipt of benefits between 23 February 1982 and 4 April 1982. He was then able to secure a job with Hedges and Benz, book printers, as a book trimmer. He remained with that company until 30 June 1982. 304 On 1 July 1983, Mr Covington-Thomas began work as a cleaner with the Maryborough Technical College. He remained with the college until 2 December 1988 (Ex B) (and eventually became head cleaner). He also, at this time, had an interest in herbs and old world plants and established a small nursery at his home, which he later sold (T362). 305 During his time at the college, Mr Covington-Thomas continued to experience back pain, the result of a work incident with Australia Post some years earlier. The back pain was aggravated from time to time by his work as a cleaner. When giving evidence, he was asked how he got on with the people at the college with whom he worked and he said "reasonably well" (T340). However, he had a number of arguments with the principal of the college, some concerning his back injury (T341). He also argued with the head cleaner. In cross examination, the following was put to him: (T341/2) "Q. Apart from these two people you otherwise got on well with your workers wherever you worked until 1996, didn't you? A. No, I had disagreements with most work places that I worked." 306 One of the gardeners at the school, Mr Noel Pollard, got on well with Mr Covington-Thomas (T420). They shared an interest in native plants. When working at the school, Mr Covington-Thomas used a room which was also a storage cupboard. Mr Pollard gave the following evidence: (T421) "Q. … Now, did you at any stage see Mr Covington-Thomas in his room behaving in an unusual manner? A. Yes. I saw him on several occasions. He was sobbing and, you know, tears welled up in the eyes. Q. Can you recall when the first time was when you saw him doing this? A. It would be early February. Just after he started there. It would be the early 80s. Q. And how many times did you see this occur? A. I reckon it'd be five or six times over the period that I knew him. Q. And can you say anything about the timing of these events? A. Well, they were nearly always early February." 307 Mr Pollard's evidence continued: (T421) "Q. Did you ever ask him anything bout this? A. The first time I asked him what was up. He was sobbing and I sort of stuck me head into his locker and said, 'What's up, Pete?', and he said, you know, he was recalling the incident that he was on the Melbourne when the Voyager got struck and I sort of changed the subject then and tried to console him, quieten him down." 308 After an objection, his evidence continued: (T421) "MELICK: Q. Did he ever say anything on the subject? A. No. He never discussed it at all really." 309 Mr Pollard was asked about the plaintiff's relationship with other people at the school. He said this: (T421) "A. He was very much an individual. I was about the only one that he was friendly with at the school." 310 However, they did not socialise outside the school. Mr Pollard described Mr Covington-Thomas as "conscientious" and "a perfectionist". He was never drunk and Mr Pollard never smelt alcohol on his breath (T422). With respect to his observation of Mr Covington-Thomas when he was distressed, Mr Pollard said this: (T423) "Q. You regarded it as being a perfectly normal thing for someone to be grieving about having lost mates? A. Yeah. Well, if they were workmates or friends, you know, I think it would be normal to grieve over it. You got to be pretty callous if you don't." 311 He added that they were the only occasions when he saw Mr Covington-Thomas distressed (T424). I am not persuaded that Mr Covington-Thomas' reaction was what may be termed "normal grief" (Professor McFarlane T723/4; Dr Phillips T1101). Those who perished were not his friends and were unknown to him. I accept, rather, that the anniversary had provoked memories of the terror and trauma of that night. 312 As to Mr Covington-Thomas' relations with others at the college, Mr Pollard said that "we all had disputes with the headmaster" (T424). He added: (T424) "Q. But apart from the difficulties that he had with Mr Murphy, from your observation he seemed to get on pretty well with everyone else that worked there? A. Yes. He had a pretty good rapport with the teachers and the other cleaning staff, he didn't mix in with them at all really. Q. But he got on well with the teaching staff? A. Yeah, basically." 313 Mr Howard Payne, a person living next door to Mr Covington-Thomas in Maryborough, was called by the defendant. He had a high regard for Mr Covington-Thomas (supra para [31]). They shared a number of interests (T763). They occasionally had a cup of tea (T763). He regarded him as a close friend and made him the godfather of his daughter. Mr Payne said this: (T764) "Q. Did you ever notice anything unusual about his personality? A. Not any more than mine or anyone else's." 314 The defendant submitted that it is inconceivable that such a close friend would not have observed the many symptoms from which Mr Covington-Thomas claimed to have been suffering (DS 91). Mr Payne's observations are part of the picture. However, there are other matters relevant to an evaluation of his evidence. First, although he was a close friend of Mr Covington-Thomas, he was not aware of the marital difficulties which, by the time they lived in Maryborough, were entrenched. When they separated in 1996, he was shocked. He said, "you could have knocked me down with a feather" (T778). Secondly, it is in the nature of PTSD that the person who has the symptoms may seek to mask them from others (supra para [188]) (cf Morton: T921). 315 It is perhaps more instructive to examine Mr Covington-Thomas' complaints to doctors he saw during this period. His local doctor between 1982 and May 1990 was Dr Tynan (T891). Dr Tynan gave evidence. His cards were missing for the years 1984 to 1987 and he had no independent recollection of consultations during that period. Many of the consultations recorded in the surviving notes related to Mr Covington-Thomas' back. However, in 1984 he complained of episodes of "flushing" which gave Dr Tynan concern. He also complained of abdominal pain on the right lower side (T894). Arrangements were made for him to be investigated by the St Vincent's Hospital in Melbourne. Dr Tynan suspected carcinoid syndrome, which is an insidious form of cancer affecting the large colon, pancreas or testicles. Exhaustive tests were undertaken but no abnormality detected. 316 In respect of symptoms which may be thought relevant to PTSD, Dr Tynan said this: (T897) "Q. During that period of something in the order of about eight years did you ever become aware of him suffering from any symptoms of anxiety, depression, sleep disturbance, any of those matters? A. I have made no notes regarding that. However, in the letters back from a number of specialists they refer to those things." 317 Dr Tynan described Mr Covington-Thomas as "a very intense man; certainly a worrier" (T899). He was then asked this: (T899/900) "Q. But in terms of any symptoms which were indicative of a need for psychiatric intervention did you ever become aware of anything of that nature, apart from things such as personality traits? A. There were a number of conditions that he complained of at times which may well have a psychosomatic basis but not one I pursued at the time or specifically treated." 318 Dr Tynan was asked about the reports he received periodically from specialists where there was a reference to symptoms which may be psychiatric. The St Vincent's Hospital, when reporting on 3 August 1984 in respect of the suspected carcinoid syndrome, said anxiety was a major component of Mr Covington-Thomas' problem (T900). Dr Tynan referred the plaintiff to Dr McCarthy to investigate dysphagia, which is difficultly with swallowing. Mr Covington-Thomas complained of a lump in his throat after he finished swallowing (T905). The report of Dr McCarthy in 1985 found no abnormality, but included these words: (T902) " … He works as a cleaner at Maryborough Technical College. He has been depressed in the past and is not sleeping too well at present. I thought it may be reasonable to look at his oesophagus to reassure everyone it is normal." 319 A third report from a surgeon, Dr Geoffrey Hawden, in May 1997 including the following: (T900) " … psychological factors is a strong contribution in this fellow." 320 When cross examined, Dr Tynan agreed that Mr Covington-Thomas had attended his practice much more frequently than he would have expected, having regard to his age and what was ultimately found to be wrong with him (T903). Against that background, the following was put, referring to Mr Covington-Thomas' complaint of difficulty in swallowing: (T905/6) "Q. And it's a very well known cause of that choking or sensation in the throat, a very well known cause is psychological in origin? A. That's correct. A condition called globus hystericus, described as a lump in your throat difficulty in swallowing. Investigations are normal and it is usually due to psychological factors. Q. Is that globus and hystericus? A. That's correct, yes. Q. Having the opportunity to look back through his notes now and have another think about Mr Covington-Thomas, you think he may have had globus hystericus? A. I think it's quite likely. Q. And you think some of these other presentations might have been consistent with underlying psychological problem? A. Having had the chance to review his notes fairly intensively over the last couple of weeks, yes I would agree with that. Q. That would be consistent with the opinions of the specialists who thought that some so his problems were at least caused by psychological issues, is that right? A. That's correct." 321 A number of psychiatrists gave evidence that it was not uncommon for general practitioners to miss a psychiatric diagnosis. Dr Phillips, for instance, said this: (T1083) "Q. Is it not a well recognised fact that unfortunately psychiatric diagnoses are often missed by general practitioners? A. Yes, that is so. Unfortunately, they are also missed by psychiatrists. Q. But the sort of thing you may went to have a look for, it one has a chance to look at longitudinal history, a patient who presents more often with somatic complains with no organic basis? A. Obviously, if a person has somatic complaints and particularly if it affects multiple body systems and there is no organicity, that is a matter of considerable psychological importance." 322 Dr Champion gave evidence to the same effect. He said: (T826) "Q. And often it is a general practitioner, who is not specifically alerted to the psychiatric diagnosis, that may well miss the symptoms? A. Yes. Q. Or in fact remote symptoms - lethargy, chest pains or sensations of choking, or not being able to swallow - do you agree that they could all individually be interpreted as symptoms? A. They can be interpreted in one way or another, and it would depend on the general practitioner, whether he had psychological interpretation or if he was able to find some physical causes, he would probably attribute it to physical causes. Q. And you would agree, would you not, that a high proportion of causes which remain unrecognised in most populations lead to a prolonged morbidity and distress, much of which is now treatable? A. Studies show that, yes." 323 It seems to me probable, on this material, that Mr Covington-Thomas had a number of symptoms throughout the 1970s and 1980s consistent with PTSD. Whether he had what is termed "the full hand" (that is, symptoms in respect of each of the criteria in DSM IV (Ex C)), and whether they were caused Melbourne/Voyager or something else, are issues which will be addressed in the context of the medical evidence.

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The move to Bendigo. 324 A dispute arose between the principal of the Maryborough Technical College and the Workcare Insurance Office concerning a claim by Mr Covington-Thomas relating to back strain. One gathers that it led to some unpleasantness. Mr Covington-Thomas ceased working for the college in 1988. He then moved to Bendigo. He separated from his wife at about the same time and began living in a caravan. 325 Mr Covington-Thomas obtained work with Eaglehawk Hire Service of Bendigo, a company that hired chain saws, lawnmowers and other equipment. He did not particularly like the job (T74). He then found another job with the Bendigo Copy Centre, where he remained for a little less than a year. 326 At about this time, Mr Covington-Thomas received an invitation to a Senior Gunnery reunion at HMAS Cerberus from a person he used to know well (T70). He decided to attend. He gave the following evidence concerning the circumstances in which he took up a position in the Naval Cadets. He said this: (T70) "Q. Had you been to a reunion since you left the navy? A. No. I went to it and I heard the Admiral's name, but I didn't really know him. The following day we were having a barbeque and the admiral came up to me and said he had a training ship in Bendigo Victoria. And: 'I believe you live up that way'. I said: 'Yes, but it is 140k round trip to go there'. He said: 'I don't really want to shut it down. It is up to the' --- Q. You were asked to assist? A. I was asked to have a look at it and see whether it could be brought back up. Q. Did you do that? A. Yes. Q. And did you agree to do anything? A. Agreed to take it on." 327 On 25 August 1988, the plaintiff was appointed Acting Lieutenant Naval Reserve Cadets, Bendigo, backdated to 4 January 1988 (Ex A, p136). He remained in that position for seven years. He found it very rewarding. The Bendigo cadet corps started with seven children and ended with about fifty. 328 The defendant submitted that Mr Covington-Thomas' involvement with the cadets was hardly consistent with avoidance behaviour (DS 8). In cross examination, he was shown a newspaper clipping from 1993, with a photograph of himself and the cadet corps in uniform (Ex 8). The article included these words: (Ex 8) "Training Ship Bendigo cadets won the Lonsdale Trophy for being the State's most improved unit. It is among the highest awards available to any naval cadet unit and it is the third time Bendigo has snared it in the past five years." 329 Mr Covington-Thomas agreed that he was dedicated (T343). He was required to attend a Friday night parade and an occasional weekend camp, when he chose. He was asked the following: (T345) "Q. You weren't avoiding the navy, were you? A. Yes. MELICK: I object. What does 'avoiding the navy' mean? HIS HONOUR: I think it is a reasonable question. I will allow it. WITNESS: As far as the naval reserve cadets were concerned, no." 330 Mr Covington-Thomas acknowledged that he had regular contact with the Navy, through paperwork. He went on ships with the cadet unit, but not to sea (T346). 331 A number of parents with children in the cadet unit, who themselves became officers under Mr Covington-Thomas, gave evidence. Mrs Barbara Duble worked with Mr Covington-Thomas three years. She described him as an acquaintance rather than a friend (T754). He was a stern commander, a stickler for the regulations (T757). She said this: (T755) "A. Well, he was, he was in charge. So he was a bit aloof from the children. On a Friday night after the cadets was finished we would have a drink before we went home and he just appeared to be like the rest of us."

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332 Another parent, Mr William Simmons, had a son in the cadets who joined some time after 1990. He saw a rather more emotional Mr Covington-Thomas than Mrs Duble. It is better, however, that I deal with that evidence in the context of other evidence concerning the plaintiff's emotional state at that time. 333 Was the plaintiff's involvement in the cadet unit inconsistent with avoidance, that being an important aspect of PTSD? I do not believe that it was. The evidence supports the inference that the plaintiff loved the Navy, but feared the sea. He sought to avoid being on a vessel at sea. He gave the following evidence which was not challenged, and which I accept: (T69) "Q. Have you in fact been out to sea in any sort of vessel since you left the navy? A. Yes, I have. I have been on a patrol boat for a cocktail party tied up alongside a station pier in Melbourne. I took some of my naval reserve cadets and went with VIPs from the city of Bendigo and we did a trip from Port Melbourne town to Mount Martha and back with HMAS Warrnambool, which is the Reserve Force's vessel. Q. Did you actually go to sea? A. No. We only went as far as Mount Martha, the whole thing would have been about three hours. Q. You remained in Port Phillip Bay? A. Yes, we stayed in the bay. Not to sea as such. then about a year later I had taken my cadets on the training ship Adelaide in Adelaide. Out of the blue Bendigo actually came into store and fuel. We got a signal she was coming in and they shot myself and cadets on a working boat down to the mouth of the river. We went up the river to the Port of Adelaide and tied up alongside and then left her. Q. On none of those occasions you actually went out to sea, but have you been out to sea since you left the navy? A. Once, on a fishing boat. Q. When was that? A. Around about '96, '97, something like that. Q. Where was it? A. Off the Sunshine Coast, off Caloundra. Q. How long were you out in the fishing boat? A. Maybe three to four hours. Q. How did you feel about that? A. Never went again. I didn't want to go again. That put paid to my fishing. I have not fished since." 334 Mr Covington-Thomas, nonetheless, remained proud of his time in the Navy. His daughter, Mrs Melissa Epworth, said this: (T476) "Q. Has your father ever discussed a time when he was in the regular Navy with you? A. He discussed it quite sometime ago. It was always about how proud he was. How fast he had gone through the ranks and what he achieved, that he was going for chief petty officer." 335 The aspect of his past that Mr Covington-Thomas sought to avoid emerged most clearly in the evidence of Ms Margaret Griffiths. Mrs Griffiths was Mr Covington-Thomas' supervisor at the St Luke's Family Care Centre. She said this: (T442) "Q. Now, did you ever notice anything - did he ever talk about his time in the navy, in the regular navy? A. Yes. Yes. Q. How often and under what circumstances? A. I was inquisitive and I asked him what he did in the navy and he told me about his career in the navy. Q. And what did he tell you? What can you remember? A. I remember he told me about being in New Guinea, in America, in Vietnam, and he also said that he was on the Melbourne. Q. Did you notice anything about his demeanour when he said, he told you anything about his naval career? A. His demeanour was one of pride, I think. He loved the navy; it was obvious. Q. What about when he discussed being on the Melbourne? BARRY: I object to any leading. HIS HONOUR: I will allow it, that question. MELICK: Q. Are you able to say anything about his demeanour when he discussed his time on the Melbourne? A. The Melbourne could not be discussed." 336 Dr Gelb, the plaintiff's treating psychiatrist, gave the following evidence relevant to this issue: (T526) "A. … Mr Covington-Thomas chose to initially try to get into the police force, he failed to do that and was disappointed, but fairly quickly after that joined the Navy and in the Navy he was successful. He was well regarded and the Navy gave him not only a sense of family that he had lacked, it gave him a sense of identity and belonging. It also gave him a sense of pride and he speaks with pride about wearing the Australian uniform and performing his duties effectively and gaining admiration because of it. I think his choice of career was linked to his childhood experiences." 337 In the context of the Naval Cadets, Dr Gelb said this, concerning the importance of the Navy to Mr Covington-Thomas: (T530/31) "Q. May I suggest to you that things such as involvement with the cadets are exactly the opposite of the kind of behaviour which is supposed to be characteristic of PTSD and in this man's case a very good illustration of what you would expect to find for someone who themselves was subjected to the kind of abuse that he received as a child, it's almost a classical picture isn't it? A. Year, on face value that might be surmised. But in fact Mr Covington-Thomas was deeply regretful of having to leave the Navy. He drew most of his self esteem from his advance in the Navy and when he left the Navy he - remember, he got his sense of belonging and family from, largely from the Navy. When he left the Navy he felt quite dejected and bereaved. And in the Navy Cadets, Navy Reserve, he was asked to contribute and that made him again feel again a sense of purpose. Every one of these things, you know it has so many factors involved for Mr Covington-Thomas. To me it seems like natural that he in fact when offered to be in the Navy Reserve would do so. And look at his progress in the Navy Reserve; he became an officer, he became a lieutenant. He progressed in the Navy Reserve with the same sort of (aplomb) that he progressed in the Navy proper It indicated to me that his way of dealing with things was to throw himself into that very activity and to excel."

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St Luke's Family Care Centre. 338 It will remembered that, after Mr Covington-Thomas left the Maryborough Technical College in 1988, he secured work in Bendigo. In 1989, the Copy Centre told him that it was closing its business. He began looking for another job. In August that year he sat for an examination in order to secure a position in the Victorian Prison Service as a Prison Officer. He thought that his time in the Navy had given him the skills necessary to control men and women. Ultimately that position was offered to him (T368). At the same time, the possibility of working at the St Luke's Family Care Centre presented. He met, through the Naval Cadets, Mrs Margaret Griffiths, a social worker and supervisor at the Centre. She was obviously impressed by him. Two or three of the young people from the refuge were members of the cadet unit. She discussed with Mr Covington-Thomas the possibility of working at the refuge. He displayed interest. She contacted him once there was a position available (T440). 339 On 8 December 1989, Mr Covington-Thomas submitted a formal application to the St Luke's Centre for the position of Residential Child Care Worker (Ex A, p140/142). The refuge housed and schooled adolescent children who were either disabled or neglected. Many had been physically or sexually abused. 340 Mr Covington-Thomas was invited to appear before the Board for an interview. Ms Betty Reilly, another social worker from the refuge, was part of the interviewing panel. She described her impression of Mr Covington-Thomas in that interview in these words: (T453) "Q. And can you remember the impression you formed of Mr Covington-Thomas at the interview? A. Well, Peter was very up-front. He was very keen for us to consider him for the position of a child care worker at St Luke's. He was very serious at the interview. And it came across that he would be very strict in what, in the job that he was - we were considering for him. Generally he interviewed quite well." 341 During the interview, Mr Covington-Thomas' application for employment was annotated by a Board member. The annotation included the following comments: (Ex A, p141) "Very definite in his views. ? Adaptability. Have an ability to change: flexible." 342 Mrs Griffiths explained to the Board the way in which she had met the plaintiff and her views of his qualities. The comment made by the same Board member on the application was in these terms: (Ex A, p141) "Warm, loving, but strong. Children must know where they stand." 343 Mr Covington-Thomas provided a number of referees. Each gave him a good reference. He attended the local Anglican Church and the Archdeacon spoke favourably of him, saying this: (Ex A, p141) "Peter is Authoritarian. Also does have low tolerance level of others (who) don't accept his authority." 344 Mr Covington-Thomas was offered the position. He was also offered the position of a prison officer, but accepted the position at St Luke's. It was his understanding that, although he had no formal qualifications, the refuge wanted "his life's experience" (T115). He had a number of duties. He undertook a basic course in counselling and attended a number of seminars at the university (T90). He was required to act as a teacher's aide, assisting children with their school work, which he enjoyed (T74). He counselled the children, the aim being to get them back to their families. From time to time he was required to attend court, where issues of custody or control of the child were dealt with. On several nights a week he stayed at the refuge overnight as its supervisor. 345 As mentioned, Mr Covington-Thomas found the work very rewarding (T74). There were "many losses", but also "wins" (T74). At first he did not find the work stressful (T117). In time, however, it became very stressful and ultimately too much. Mr Covington-Thomas described a particular case, not long before he gave notice, which involved a 13 year old girl. Reference has been made to it already. The girl maintained that she had been raped by her father. The father attended court whilst she gave evidence. After the hearing, Mr Covington-Thomas broke down (T74). Her description of her father's assault provoked in him a long forgotten memory of his own abuse, when he was eight years old. Reference has been made to this aspect already (supra para [41]). Mr Covington-Thomas said that he reached a point where he felt that he could no longer cope. He had to retire. He gave notice on 3 April 1996 and left on 8 May 1996 (Ex 1) (supra para [3]). 346 Mrs Griffiths, his supervisor, gave evidence. As a social worker she was a trained observer. She recommended him for the job because "she knew the qualities of the man" (T441). In fact, he proved to be an excellent worker (T446). She said this: (T446) "Q. Now, how did you regard him, as far as his ability and competence to do the job which he was doing? A. Excellent. He was an excellent worker, highly ethical man, highly ethical man, and very dedicated to what we were trying to do." 347 Mr Covington-Thomas became the School Liaison Worker (T441). He undertook a union course. He was elected by the staff as the Health and Safety Officer, but resigned from that position after a year because he could not cope with the stress. In respect of his dealings with children, Mrs Griffiths said this: (T445) "MELICK: Q. Are you able to say anything about Peter's reaction or demeanour, from time to time, when dealing with a stressful issue involving children? A. His demeanour? At times he would become quite emotional and teary when dealing with their traumatic experiences in life. He was an extremely good communicator with the children, but at times he was almost overcome by what they had been through, I felt; my observations." 348 However, she was also aware of his anger. She said this: (T441) "Q. Did you notice anything about how Peter would react to potentially stressful situations? A. There were times when I noticed that he was - would have outbursts of some anger. There were times when I noticed that he would be emotionally upset with certain events that occurred with some of the young people. There may have been some angry outbursts at meetings, which I would have been surprised about. Q. When you say 'may have been' do you recall such incidents? A. I do recall Peter walking out of meetings, staff meetings, when he could not - apparently could not anyway - put up with the stressful situation. Q. And what would he do? A. He would just get up and walk out and retreat perhaps to our, the staff room, and would, after a while, go back and rejoin the meeting." 349 Mrs Griffiths was aware of the difficulties in his marriage. Twice he had been separated from his wife. He lived in a caravan in Bendigo from 1989 or 1990. After he resumed cohabitation with his wife, the marriage was, in Mr Covington-Thomas's words, "on the downhill run" (T370). Mrs Griffiths remembered the plaintiff's wife coming to the refuge on one occasion. She was upset. Mr Covington-Thomas went outside. They appeared to be having an argument. It was obvious that there were many problems (T447/48). She did not probe. 350 Mrs Griffiths said that he was happy to speak about the Navy, but not prepared to provide details of his involvement in the Melbourne/Voyager collision (T443). When he mentioned that he had been on the Melbourne, she was interested. She asked further questions. She described the conversation which followed in these terms: (T444/5) "A. I asked him was he on the Melbourne when it collided with the Voyager. Q. And what did he say? A. He said 'yes'. Q. When he said that did you notice anything? A. I noticed that he, he did not speak after that." 351 Mrs Griffiths added: (T445) "Q. Yes? A. He was emotional and the contrast was, for me at the time, that he spoke freely about his life in the navy but he could not speak freely about what happened when he was on the Melbourne." 352 Mrs Griffiths maintained contact with Mr Covington-Thomas after he left the refuge. She spoke to him on the phone. He ultimately gave her an account of his involvement in Melbourne/Voyager (T449/50). She said the account was given over many years. It took a long time, "a spattering of information over the years" (T452). Mrs Griffiths said "it was like extracting teeth" (T449). She added: (T450) "Q. And when was it that he told you that, during the period between 1990 and 1996 that he worked there, was it earlier on or later on during that period, or was it in bits and pieces over the whole of the time? A. I think it was - bits and pieces, definitely - and I think the last time that he spoke about it was actually when he lived in Queensland and we were talking on the phone. there is no way --- Q. When was the earliest --- HIS HONOUR: Q. Sorry, you were about to add something, 'there was no way'? A. I had this feeling that face-to-face we could not discuss this; I had that feeling, that it was just not to be discussed. I hardly ever went there. I felt I was intruding and it was too dangerous for me to go any further; it was too emotional." 353 Ms Reilly, another social worker with the refuge, described Mr Covington-Thomas in these words: (T453) "Q. How did you find him as an employee? A. We were very happy with Peter. He worked at St Luke's for about seven years, I think, and he proved to be a well respected worker. He was willing to work with some really difficult adolescents. He was willing to do staff training and he got along well with other workers. So, he was quite satisfactory." 354 Ms Reilly, gave the following evidence concerning discussions concerning Melbourne/Voyager: (T454) "A. Well, Peter was a private person. He didn't talk a lot about his past experiences but he certainly talked about his experience in the navy. He spoke about the horrific accident that happened in 1964 between the voyager and the Melbourne and clearly that was a huge impact on his life." 355 Mr Barry QC objected to that evidence. Ms Reilly was then asked to give the conversation, or the substance of it. She said this: (T455) "MELLICK: Q. Yes, go ahead please. A. Peter did mention to me about the accident when he was in the navy, the Voyager and Melbourne. HIS HONOUR: Q. And what did he say? A. He said it was an horrific time, because he was involved in collecting bodies from the sea, and it was a very traumatic time for him. MELLICK: Q. Can you say anything about his demeanour when he told you these things? A. I think he was near tears. I think he was emotional about it." 356 There was also some discussion on Vietnam. Ms Reilly said this: (T455) "Q. Did he ever discuss with you anything about Vietnam? A. Peter didn't really discuss anything very much at all with me but he did mention Vietnam on one occasion, that I can remember, and he said that when he was at Vietnam he was in a shift, it was two or three 'Ks' out in the sea and, you know, there were bombs being landed on the shore and he said that was something that was difficult but he said it wasn't personal. It wasn't - it wasn't like his experiences with the Voyager and the Melbourne." 357 The defendant submitted such evidence was inconsistent with avoidance which is asserted by the plaintiff (DS 34, para 106). Certainly that appears to be so. 358 However, the evidence of Ms Reilly was not entirely satisfactory. Neither counsel chose to explore when, and in what circumstances, the conversations took place. Was it before Mr Covington-Thomas left St Luke's in 1996, or after? Ms Reilly said that she spoke to Mr Covington-Thomas once after he left the refuge and saw him once (T456/7). If it was during Mr Covington-Thomas' time at the refuge, was it at the beginning or the end? As a social worker, Ms Reilly spent a good deal of time with Mr Covington-Thomas in the almost seven years that he worked at the refuge. If the conversation were after a number of years, then one would infer it was a conversation with a person he trusted. A conversation in such circumstances may or may not be inconsistent with avoidance. The difficulty is that none of these issues was explored. As a generality, I have no doubt that with everyone except those he really trusted, Mr Covington-Thomas found great difficulty speaking about Melbourne/Voyager and Vietnam. 359 Mr William Simmons gave evidence that he had a son in the Naval Cadets at Bendigo in the early 1990s. He knew Mr Covington-Thomas. His son left the cadets in about 1994. Mr Simmons described Mr Covington-Thomas as "strict but fair" (T404). He could be forceful when the cadets made a mistake. Most of the cadets liked him (T404). There was one episode which Mr Simmons described in these words: (T405) "A. … It could be after lectures, or straight after tea, or anything, but I went down - you know, I went for a walk, to check the boats out, because we had boats on the water, and Peter was down there. He was emotionally - he was emotional. Q. In what way? What did you observe? A. Well, to me he looked like - I don't know really how to put it, unless it has happened to you. Have you ever felt, maybe one word, like crying but not making a sound. He was upset. He was upset, and he was on his own. I never asked him any questions or anything, because, hey, listen, he's on his own. There was something troubling him, but I don't know what, fully." 360 The defendant called a neighbour who lived in Bendigo, Mrs Diane Bergmeier. She lived next door to Mr and Mrs Covington-Thomas between 1990 and 1995. She described Mr Covington-Thomas as "quite reserved although friendly". Twice they had a cup of tea together. Usually they spoke over the back fence (T908). He was a keen gardener and "a good church-going man" (T908). The exterior of the house was painted during the time that he lived there. She had not actually seen him paint it. She saw nothing unusual in his behaviour. 361 During his time at St Luke's, Mr Covington-Thomas sought medical assistance either from Dr Patel or Dr Emile Pereira. Dr Patel furnished a report of 27 October 1999, which included the following description of ailments and treatment: (Ex 9) "This report is to state that Peter has been a patient of mine since 1991. His main diagnosis of anxiety/depression, insomnia and chronic soft tissue L.S. back injury. These appear to have been of a chronic nature prior to consulting me, especially his insomnia and anxiety symptoms." 362 Dr Patel described certain treatment in respect of Mr Covington-Thomas' back. The report continued: (Ex 9) "With respect to his anxiety/depression and insomnia these conditions appear to have been of a chronic nature causing a total inability to deal with stressful or anxiety provoking situations and insomnia to the extent of only sleeping 4-5 hours per night. He was commenced on anti depressant medication with some relief and needs to take these regularly, as well as a strong hypnotic sedative at night in order to treat insomnia. The above symptoms were aggravated by his job at St Luke's Family Care while he was a patient of mine. The most likely underlying cause is of chronic anxiety/depression caused by previous life stresses and events." 363 Dr Patel issued a medical certificate on 28.1.95 (Ex A, p254) stating that Mr Covington-Thomas was unfit for work for one week because of anxiety and depression. There were other relevant entries in Dr Patel's notes which formed part of Exhibit F (p277/80), including the following: 22.06.95 Stress - chest pains - wife leaving - counselled re depression 15.07.95 Anxiety and depression - insomnia - PTSD - treated for anxiety and depression - panic disorder - antidepressants - sleeping tablets and counselling 07.09.95 2/52 off 28.11.95 Dr G O'Menzies - acute anxiety

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Application for a pension. 366 By 1994 Mr Covington-Thomas recognised that his emotional state had deteriorated (T79). With the assistance of Peter Furness, a solicitor with temporary rooms in Bendigo, he completed an application to the Department of Veterans' Affairs for a partial pension. He said this: (T82) "Q. What was your understanding when you made that application as to what sort of service application was to be made? A. Oh, war service. War service. Q. What do you understand war service to be? A. Well, Vietnam. Q. And the Melbourne Voyager collision? A. That's not war service. That's a peace time accident." 367 A form was lodged on 24 January 1994 (Ex A, p200). The claim identified a number of complaints, including the skin condition previously rejected by the Department. However, on this occasion, under the heading "Disabilities", his claim included "personality disorder". The symptoms were described as "loss of memory; fits of temper". He noticed such symptoms in 1976. Arrangements were made by the Department for Mr Covington-Thomas to see a psychiatrist, Dr Parkin, who specialised in the assessment and treatment of veterans. Dr Parkin had been employed at the Repatriation Hospital, Heidelberg, in 1977 after his graduation. He later served with the regular Army in Indonesia and elsewhere. He then resigned from the Army in 1981, but continued in the Army Reserve. He remains a Lieutenant Colonel consultant for the Australian Army (Ex F, p136). 368 Dr Parkin gave evidence. He said that he remembered few veterans, but did remember Mr Covington-Thomas. His story was unusual. He described him in these terms: (T563) "Q. When you saw him in 1994, how did he present; how did Mr Covington-Thomas present clinically? A. He presented as a very upset man and he, he had to be assisted very much in giving a history at the time. I think it was one of the first times that he really talked about that and I was very concerned about him and I organised a referral for him to go and see Chris Mackie, I was hoping that he would follow that up. As I subsequently found out he completed blanked the entire experience out of his head; which is what he has done in the past." (emphasis added) 369 The account provided by Mr Covington-Thomas of the incident involving the shelling of the village in South Vietnam has already been set out above in an extract from Dr Parkin's report (supra paras [219]-[220]). It will be remembered that there was a spotter aircraft, and a phosphorus shell which inflicted burns and death upon those in a village. The victims included women and children. Dr Parkin's notes of his interview with Mr Covington-Thomas included these words: (Ex A, p222) " Has told me more this morning than he has told his wife. Holds back emotions, can get emotional on his own. Not with others. 'My wife and I have a far different relationship." (emphasis added) 370 Dr Parkin, in his report to the Department, recorded Mr Covington-Thomas' work history after his discharge from the Navy, and then added the following: (Ex A, p228) "… He has worked in a number of positions over the years with reasonably stable employment but never achieving the levels that he could have achieved given his obvious intelligence. His work at present has suggested that he do a university course but he believes that he is incapable of concentrating adequately on the task at hand." 371 In the course of that examination, Mr Covington-Thomas said nothing to Dr Parkin about Melbourne/Voyager or his involvement in the rescue. It was submitted by the defendant that, had Mr Covington-Thomas been suffering severe symptoms as a consequence of Melbourne/Voyager, he would have mentioned them during the course of this consultation. He did, after all, mention the death of baby Kirsten in 1976, which was an extraneous stressful event (DS 41). 372 The death of Kirsten is referred to by Dr Parkin in his report in a section dealing with Mr Covington-Thomas' personal life. It appears that Dr Parkin solicited the information concerning Kirsten. However, Dr Parkin said that it was not his practice at the time to ask whether there were other significant stressful events in the patient's life. There were specific questions which he was obliged to address, relevant to whether the patient qualified for a pension of partial pension. Those were the questions he asked (T576). Mr Covington-Thomas, for his part, did not mention Melbourne/Voyager for the reasons previously set out (supra paras [18] to [21]). 373 Dr Parkin, in his report to the Department in 1994, diagnosed PTSD, assessing the level of disability in these terms: (Ex A, p228/9) "… All in all then this man really has suffered quite significantly and has had severe limitations of his career because of this episode. I believe that he quite clearly suffers from a Post-traumatic Stress Disorder and that it relates to this episode in Vietnam. I believe that he is impaired to a level somewhere between 25 and 45 impairment points. Given the level of disturbance in his family life and his career it is in fact very tempting to describe this at a level of 45 impairment points. However I am also drawn to see him at a level of 25 in some other elements and therefore am constrained by the Guide to assess him at the lower level." (emphasis added) 374 Dr Parkin explained the disability scale to which he was referring in the following evidence: (T598) "Q. … When you saw him in 1994 how severe or chronic did you consider his post traumatic stress disorder to be? A. I believe it to be chronic and I believe it to be relatively severe. I assessed him on the DVA. That assessment allows between 25 and I think 45 points which is probably the equivalent to about 50 to 70 percent disability, but under the DVA guidelines I had to take the lower of the ratings. So, roughly, that sort of ball park figure in terms of the level of disability . He is still capable of working but only just. " (emphasis added) 375 Dr Parkin reaffirmed that Mr Covington-Thomas was in urgent need of counselling. Unfortunately, Mr Covington-Thomas did not seek help at that point. On 10 December 1994, the Department determined that Mr Covington-Thomas should be awarded a partial pension for PTSD arising from his Vietnam service, dating from 24 October 1993.

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The advertisement. 376 In late 1995, Mr James Taylor, a solicitor representing many veterans, placed an advertisement in a Victorian newspaper. One gathers that the advertisement invited those involved in the Melbourne/Voyager collision to contact Mr Taylor to receive advice as to whether they may have a claim for damages. A copy of the advertisement was not tendered. 377 The advertisement came to the notice of Mr Covington-Thomas. He telephoned Mr Taylor. At that point he did not see him. Mr Taylor arranged for him to see Dr Wu, a psychiatrist. Mr Taylor was, no doubt, conscious of the limitation problems arising from the fact that the collision had occurred so long ago. Mr Covington-Thomas must have provided enough information to him to enable a Statement of Claim to be issued on 29 November 1995. 378 The examination by Dr Wu took place on 23 December 1995. Mr Covington-Thomas said that he knew that he was seeing Dr Wu in respect of the Melbourne/Voyager collision (T83). He, for the reasons stated (supra paras [18] to [21]), said nothing to Dr Wu about his Vietnam experience. Mr Covington-Thomas described his state of mind at the conclusion of the consultation with Dr Wu in these terms: (T84) "Q. After seeing Dr Wu did you then believe that you might have had some condition? A. I then - yes, I did. I believe, by what he had said to me, that I was suffering post-traumatic stress disorder from the accident between Voyager and Melbourne. It was the first time I knew that I had a medical problem. Q. Well, relating to Melbourne Voyager? A. Yes." 379 The defendant, as mentioned, contended that the diagnosis of PTSD provided by Dr Wu to Mr Covington-Thomas made him vulnerable to "motivation and suggestion" (supra para [8]). They rely upon Dr Champion, a psychiatrist qualified by them, and Professor Tennant. I will deal with that submission when I consider the medical evidence below. 380 Dr Wu has since died. The notes of his consultation with Mr Covington-Thomas, or that part of them that records the history, were tendered (Ex F, p185ff). There is a suggestion that the symptoms elicited by Dr Wu, upon the basis of which he purported to make his diagnosis of PTSD, do not include all the symptoms in respect of the six criteria required by DSM IV. Dr Wu attached the diagnostic criteria to his report and was certainly conscious of them (Ex F, p184ff). The notes included a description of the collision and Mr Covington-Thomas' role (Criteria A). Criteria B, is concerned with the re-experiencing of the traumatic event in one or more of five different ways, including "recurrent and intrusive distressing recollections and images" (B(1)), or "recurrent distressing dreams of the event" (B(2)), or "intense psychological distress and exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event" (B(4)). Dr Wu's notes recorded the following symptoms in the history which was taken: (Ex F, p186/189) "Symptoms weekly 2-3 nights straight does not leave him alone re-experiencing it 2-3 nights per week." (B(1) and (2)) "Posted to HMAS Hobart 1965-66 in USA … on horizon an aircraft carrier did not realise when finished the exercise - he could not go down he realised the impact from the collision between the HMAS Melbourne and HMAS Voyager only when it disappeared, he could go down." (B(4)) "Had to get me off visualised so many times a man screaming in pain." (B(1)) 381 Criteria C deals with avoidance and the numbing of general responsiveness (not present before the trauma) as indicated by three or more of seven particular matters. They include "efforts to avoid thoughts, conversations associated with the trauma" (C(1)), "efforts to avoid activities that arouse recollections of the trauma" (C(2)), "markedly diminished interest in participation in significant activities" (C(4)), "feelings of detachment or estrangement from others" (C(5), "restricted range of affect, eg, unable to have loving feelings" (C(6)). The notes of Dr Wu included the following: (Ex F, p186/189) "All he wanted to do was not leave the navy but not to be at sea again." (C(2)) "Posted to HMAS Hobart 1965-66 in USA dreaded this." (C(2)) "Did not want to go to sea with Vendetta - posting." (C(2)) "Cannot go back to sea 1970." (C(2)) "Dying to get to sea but then following the collision between the HMAS Melbourne and HMAS Voyager dying to get back to shore." (C(2))

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The move to Queensland. 386 Mr Covington-Thomas said that he left Bendigo because he wished to get away "from the situation with my ex wife" (T104). That, unquestionably, was one aspect, and may have been the major factor. However, contemporaneous medical records suggested that the final separation from his wife had occurred in the year before (1995). I think it likely that his decision to leave was rather more complex. Dr Parkin, it will be remembered, saw Mr Covington-Thomas in June 1994, some two years before, in the examination concerned with his application for a pension. At that time he regarded him as "significantly disabled". The evidence suggested that, in the years that followed, Mr Covington-Thomas limped along, his symptoms made worse by his job and the final recognition that his marriage was over. He got to the point where he needed "to get about as far away from Bendigo as he could" (Mrs Griffiths: T449). Mr Covington-Thomas also said he wanted to be on his own (T107). 387 Mr Covington-Thomas chose Queensland because he liked the climate and had known others who had made the move. He was, by this time, drinking heavily. He drank more than a bottle of spirits each day. He denied that his drinking began in 1996 (T120). It seems clear, nonetheless, that alone in Queensland and not working, his drinking became worse. His daughter, incidentally, gave the following evidence concerning the effect of such drinking upon him: (T476) "Q. What sort of state is your father in at the end of those drinking sessions? A. He is not that much different. I know that a bottle of bourbon I would be under the table, but it does not seem to effect him that much." 388 Clearly Mr Covington-Thomas had developed significant tolerance to alcohol. On 16 June 1996, that is shortly after arriving in Queensland, Mr Covington-Thomas made application to the Department of Veterans' Affairs for a full pension, upon the basis of "chronic PTSD". The Department rejected that application on 26 August 1996. 389 Meanwhile, Mr Covington-Thomas saw a general practitioner who was concerned about his mental state. An appointment was made for him to see a psychiatrist, Dr Seabridge. He saw Dr Seabridge on 17 July 1996. This was the first consultation Mr Covington-Thomas had had with a psychiatrist with a view to treatment. He had previously seen psychiatrists (Dr Stoller in 1980 and Dr Parkin in 1994), but only in connection with applications he had made to the Department of Veterans' Affairs. Dr Seabridge saw him a second time on 16 August 1996. Mr Covington-Thomas meanwhile sought a review from the Department of its rejection of his application for a full pension. Dr Seabridge wrote to the Department in connection with that review on 6 November 1946, in these terms: (Ex A, p253) "… He has an accepted diagnosis of Post Traumatic Stress Disorder and is significantly disabled. Mr Covington-Thomas has failed to improve on prescribed Zoloft, and when last seen was taking Aurorix, 750 mg daily, with some benefit. His condition caused me concern, and I have arranged to see him in an ongoing counselling and supportive capacity, and his condition was such that I advised him to contact his advocate and make an application for an entitlement review. Mr Covington-Thomas is emotionally labile, breaks down into tears with little provocation, is intolerant of frustration and is prone to lose his temper and act-out with violent behaviour. He experiences dissociative episodes and prior to his last visit to me, he had become completely 'lost' in the car, ended up in a strange area and had to ask directions to find his way back to the highway. It was my considered opinion in my report to his local doctor on 23 July 1996, that Mr Covington-Thomas was unable to work in a structured environment, particularly where that involved dealing with the public or working under somebody else, and that his only avenue of remunerative activity would be in some form of self-employment, which in the circumstances appeared extremely unlikely." 390 Dr Seabridge wrote a further letter following a consultation with Mr Covington-Thomas on 18 November 1996. He said this: (Ex A, p256) "… I reviewed Mr Covington-Thomas on 18 November 1996; he was visibly shaking, with hesitant speech, and broke down at different stages of the interview. He sleeps only two hours with 3 x 5mgs Mogadon, and he has not improved on 450mgs Aurorix. Drug treatment has been changed to Prothiaden 150mgs nocte. He sometimes drinks a bottle of spirits, or a bottle of fortified wine in a day; he has two (sic) broken marriages; he is avoidant and reclusive, irritable and intolerant, and has threatened violence both to others and to himself. He fulfils the criteria for a GARP score of 45." 391 Part of Mr Covington-Thomas' difficulties arose from the death of his mother on 8 September 1996. His mother was admitted to hospital in Victoria for an operation. Mr Covington-Thomas went to see her before that operation. He then returned to Queensland. However, she did not survive the operation. The loss of his mother would obviously have significantly added to Mr Covington-Thomas' distress at that time (T103). It will be remembered that his parents had separated when the plaintiff was four years old and that he had been brought up by his mother. 392 On 17 December 1996, a delegate of the Department set aside the earlier decision. The plaintiff was granted a full disability pension, and classified as permanently incapacitated for work from the date of his application. 393 Dr Seabridge then passed the file to Dr Gelb, who became the plaintiff's treating psychiatrist and who continued to treat him for almost a decade, until the end of 2006. He saw him approximately once each month. 394 After the Department rejected Mr Covington-Thomas' application for a full pension (26 August 1996) and before the reversal of that decision on appeal, Mr Covington-Thomas made application on 10 October 1996 to the Department of Social Security for a disability pension. The application was made upon the basis that he was unfit for work. The form included a declaration, which Mr Covington-Thomas signed, that the information was correct (Ex 13, p234). There was a warning that penalties applied where deliberately false or misleading information was supplied. The form also included the following questions: (Ex 13, p239) " Have you had an injury, illness or condition for which you could claim compensation or damages? (e.g. accident at work, work related illness, motor vehicle accident or public liability claim) " 395 Mr Covington-Thomas put a tick in a box marked "no". He was cross examined about that answer and said this: (T384) "Q. Now, at that stage in 1996 you had commenced these proceedings before the Court today? A. Yes. Q. So that answer was plainly incorrect? A. Yes. Q. Did you put an incorrect answer down because you did not wish to prejudice your being able to obtain the benefits that you were seeking to obtain? A. No, I don't know why I have ticked that box." 396 Mr Covington-Thomas added that he had made an error (T384). 397 The same form asked whether payments were received from another Government Department (Ex 13, p240). Mr Covington-Thomas answered "yes", a reference to the partial pension he was receiving from the Department of Veterans' Affairs. 398 A separate form asked for medical information. The question was framed as follows: (Ex 13, p275) "3. Do you have a medical condition (illness or injury) which stops you from working?" 399 Mr Covington-Thomas ticked the box "yes" and then was required to provide details. He listed a number of complaints, including: "1. Chronic traumatic stress disorder." 400 He was required to indicate when the condition started and he stated "1969/70", a reference no doubt to Vietnam. That response was obviously inconsistent with the claim that he now makes that his symptoms in respect of PTSD began with Melbourne/Voyager in 1964. When asked for an explanation, Mr Covington-Thomas said this: (T388) "WITNESS: I am sorry, I can't - I've written it so I can't withdraw it. BARRY: Q. Did you think at that time that any information that you provided to the Department of Social Security would not be made available to anyone else? A. I don't know - I would not know who would have access to it." 401 What should be made of this episode? The defendant, in submissions, attached much importance to it. The plaintiff had made a false declaration. More than that, he had identified 1969/70 as the commencement of his PTSD, not 1964 (DS 10). The plaintiff's counsel, in their submissions, complained that the defendant's access to this material and use of it was unfair. The plaintiff had sought access to the Department's records on an FOI application. The records, however, were not released because a doctor said they should not be made available (Ex 13, p265). The defendant, nonetheless, had obtained the file by simply making an inter-departmental request. Further, the plaintiff had been seen by a doctor on behalf of the Department of Social Security (Dr Draget), following his application. The history taken by Dr Draget included these words: (Ex 13, p252) (cf PS 11) "He was involved in the collision with the Voyager (on Melbourne) and he served 6 months in Vietnam with the destroyer 'Vendetta'. Did not serve there on land." 402 The history continued: "He is under the care of the Vietnam Vets service in … (Mr Canyon). He is involved in the group of claimants related to the Voyager disaster. For his hiatus hernia he takes Mylanta. He smokes 20/day. Drinks a bottle of rum/night." (emphasis added) 403 It is unsurprising after a decade that Mr Covington-Thomas could not remember his thoughts at the time he completed these forms. The forms were, collectively, voluminous. They were mainly in the nature of "tick a box" forms, calling for an instantaneous judgment. The application was made on 10 October 1996. It may be inferred from the reports of Dr Seabridge, his treating psychiatrist, that Mr Covington-Thomas was at that point at a low ebb (supra para [389]). He had ceased work on 8 May 1996. He had moved to Queensland, separating himself from those who might otherwise provide support. He was unemployed. He received a partial pension from the Department of Veterans' Affairs. His application for a full pension had been rejected (26 August 1996). His mother had died on 8 September 1996. 404 In respect of the incident in Vietnam, Mr Covington-Thomas had been diagnosed as suffering from PTSD. That diagnosis had been accepted by the Department of Veterans' Affairs and he was in receipt of a partial pension. He had, in the meantime, about a year before he completed these forms, instructed a solicitor (in November 1995) to commence an action claiming damages in respect of his experience in Melbourne/Voyager. The claim had not been accepted. It would be surprising if his solicitor had not told Mr Covington-Thomas that the battle for acceptance of that claim was likely to be long and bitterly fought, as indeed it has proved to be. 405 Inevitably, after so much time, there is speculation in respect of Mr Covington-Thomas' thoughts as he completed these forms. Having regard to his likely state of mind, and the fact that he mentioned his claim to Dr Draget, I do not feel able to draw an adverse inference from the inconsistent answers which he provided on 10 October 1996. 406 When giving evidence, Mr Covington-Thomas acknowledged that 1996 was "not a very pleasant year" (T109). His marriage had finally ended, despite his efforts to breathe life into it. His job had become too much, such that he had resigned. He had left Bendigo and moved to Queensland. His mother then died in September. He described 1996 as a "crisis year" (T370) and "the worst year of my life" (T370). In re-examination, counsel for the plaintiff asked the following: (T494) "MELICK: Q. You told Mr Barry that (in) 1996 was the worst year of your life? A. Yes. Q. Are you able to compare that with any other years in your life?" 407 There was an objection to that question. The question was allowed. Mr Covington-Thomas then provided the following, somewhat unresponsive, answer: (T494) "MELICK: Q. Do you understand the question? A. Yes. In 1964. Q. How would you compare the two years?" 408 Mr Melick reframed the question as follows: (T494) "MELICK: Q. How would you compare 1964 with 1996? A. Well '96 was a combination of 1964 plus the other matters in '96. Q. And how, in comparative terms, when you are referring to 1996 as the worst year of your life, would you rate 1964? A. I would rate it the worst." 409 I then sought to clarify that answer by asking the following: (T494) "HIS HONOUR: Sorry, you mean by that the next worst?" 410 Counsel for the defendant objected to that question. There was a discussion and the issue was not pursued. I will return to this evidence in the context of the medical evidence, when I consider the question of causation. Was the cause of Mr Covington-Thomas' disablement the Melbourne/Voyager collision, the Vietnam experience, the adverse circumstances of 1996, or an accumulation of some or all of these causes?

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Treatment by Dr Gelb. 411 Reference has been made to Dr Gelb, who was Mr Covington-Thomas' treating psychiatrist after February 1997. Dr Gelb's notes were made an exhibit (Ex F, 190/275). He periodically provided reports for the plaintiff's solicitor, which also formed part of Exhibit F. This material was the subject of cross examination. It is instructive to refer to the notes in order to appreciate the way in which the plaintiff's symptoms waxed and waned and aspects of his life. 412 The first consultation with Dr Gelb was on 5 February 1997 (Ex F, 192). He spoke of nightmares arising from both the Melbourne/Voyager collision and Vietnam. He told Dr Gelb that he had no current suicidal ideation. However, he cried easily. He was unable to watch war movies on television. 413 The defendant, in submissions, did not dispute that Mr Covington-Thomas was emotionally labile, and had been for a number of years (DS 35, para 114). It simply asserted that his emotional state was the consequence of adverse circumstances in 1996 and his work before then at St Luke's (DS 35). 414 Returning to Dr Gelb's consultation with Mr Covington-Thomas, the plaintiff told him that he was drinking a bottle of spirits each night, or twelve stubbies. Dr Gelb saw him again on 5 March 1997. The conversation turned to Vietnam. Dr Gelb recorded the following comments from Mr Covington-Thomas, to which the defendant has drawn attention. It was suggested, reasonably, that the Vietnam incident had some prominence in Mr Covington-Thomas' thinking. Dr Gelb's notes were in these terms: (Ex F, 194) "I murdered women and children. I am a lousy bastard and I should have put the master firing switch to safe. This will be on my conscience all my life. I will have to answer for this." 415 From time to time. Dr Gelb's notes contained references to the present action for damages against the Commonwealth (such as Ex F, 195). Dr Gelb, in cross examination, was asked about such entries. The transcript was in these terms: (T505) "Q. In your notes there seem to be several references to the litigation which he is now undergoing. Can you tell us, if you are able, as to who initiated the conversation in relation to those such matters? A. Yes. I certainly can. It was always me, at least until the last 12 months. I think that I always asked because he would avoid it. He would not talk about it. And the reason that he wouldn't talk about it much at all is because he didn't have ---" 416 There was an objection from the defendant. The examination continued: (T505) "Q. HIS HONOUR: Q. Is this something that the plaintiff said? A. Yes. I asked him why he didn't raise it with me and he basically said that he was leaving it in the hands of his solicitor, that he couldn't really follow what was happening or why, and he felt that concentrating on it stressed him and he'd prefer just to leave it to Mr Taylor." 417 In cross examination, Dr Gelb was asked the following questions, his answers forming the basis for a submission that some improvement in Mr Covington-Thomas' condition can be expected following the completion of this long drawn out case: (T544/5) "Q. Without going to each of the notes, do you agree with the proposition that when you actually started looking through the notes after about 2003 and 2004 that the litigation seems to loom large as being a matter of some focus in these consultations? A. The consultation is focussed on what was going on in his life. As the litigation became more relevant it became an issue in his life and therefore it became the subject of more discussion. It was absolutely in proportion to the degree of salience of the particular events. Q. And maintained by the fact that he had proceedings in relation to the Melbourne/Voyager collision, do you agree with that? A. Undoubtedly, as we have seen very much in the WorkCover area, this sort of litigation process, in my view there is plenty of evidence that it exacerbates people's conditions. I do not think anyone would argue about that." (emphasis added) 418 I will return to this issue in my evaluation of the plaintiff's future. Dr Gelb, in the consultation with the plaintiff on 21 April 1997, recorded that he was still drinking, despite warnings. He had thoughts of death and suicide by, for instance, running his car into a tree. Dr Gelb was obviously concerned. He saw him a week or so later (30.4.97). Mr Covington-Thomas reported having slept better and feeling better generally (Ex A, 196). 419 However, in the consultation on 28 May 1997, Mr Covington-Thomas is recorded as having been "a little fragile" (Ex F, 199). The 24 May was the anniversary of Kirsten's death. She would have been 21 years old. Mr Covington-Thomas told Dr Gelb that she had been on his mind (Ex F, 199). 420 The notes for 25 June 1997 reported that Mr Covington-Thomas had been intensely depressed. A friend had died and another was ill. Dr Gelb also noted: (Ex F, 200) "Hasn't been drinking much. No dope since last November." 421 The consultations were usually a month apart. Dr Gelb said this: (T513) "A. Well, my experience tells me that seeing veterans around monthly seems to work well for the veteran and for the psychiatrist. It seems to be just about right. … " 422 He later elaborated: (T514) "Q. And what do you see as being the appropriate future treatment for Mr Covington-Thomas? A. Well, I think that he has got an excellent relationship with his GP and I don't believe that he needs necessarily to see a psychiatrist on a monthly basis currently. However, he does need to see a psychiatrist, probably quarterly would be the minimum. If he saw a psychiatrist quarterly and his GP every four weeks or so, that would provide him, I think, with the necessary contact that will keep him on the straight and narrow, if I could put it that way. What I have found in the last decade is that if I let veterans drift away they will take that opportunity and run away, and what happens then is they deteriorate." 423 At the consultation on 23 July 1997, Dr Gelb noted that Mr Covington-Thomas had decided against a ceramics course because he felt he would not be able to do it (Ex F, 201). On 7 January 1998, the notes record that Mr Covington-Thomas travelled to Victoria by bus for his daughter's wedding. The wedding, incidentally, was called off. Mr Covington-Thomas, when giving evidence, said that he had difficulty with crowds and public places (T97), including public transport. He gave the following testimony concerning travel: (T97) "Q. How do you feel about travelling normally, buses or public transport? A. I don't particularly like that; travelling on them. I have travelled on buses. And naturally I've travelled on trains. This is how I get in from the airport. But no, buses are - you're very restricted and packed in like sardines in a can and it's just, no, I don't like it. Q. How do you cope with them when you do that sort of travel? A. Try and sleep." 424 He added that, for a long ride, he would take a sleeping pill, although less than the full dose (T98). 425 In the consultation of 1 April 1998, Dr Gelb reported that Mr Covington-Thomas was "depressed, low" and had made the comment: "why bother?" (Ex F, 206(a)). The plaintiff told Dr Gelb that his flashbacks had increased (Ex F, 206(a)). However, he reported that he was "less depressed" in the following consultation (29.4.98) (Ex F, 206(b)). On 19 August 1998, Dr Gelb noted that Mr Covington-Thomas had bought water colours and was enjoying it "+++" (Ex F, 208). His notes for that consultation also recorded these words: (Ex F, 208) "Went to Vietnam Vets Day - Maroochydore. Found the day very hard. Hasn't slept well last 2/7 - fellow in front of him broke down." 426 When giving evidence, Mr Covington-Thomas referred to the RSL and other such bodies and their place in his life. He said this: (T91/92) "Q. What sort of social activities do you have? A. As least as possible. As least as possible. I don't like being - I don't particularly like crowds of people, and although, yeah, only places like where a lot of people who have been like me and have gone through war service gather, I have problems staying in that area with them. I just - just the conversation always seems to lead around to what you've done while you were in the service, and I don't particularly want to go there. Q. Have you ever been involved in any service related organisations? A. Yes, I have. I was for some time there a member of the RSL; I'm not any more. I was in the Naval Association of Australia, but I didn't remain long in there because I didn't go to any social events. I'd go to the meeting, that would be about it. I was a member of the Vietnam Veterans Association. But there again I didn't do any of their functions. And I was, for a short period of time, a member of the Veterans of the Vietnam War Incorporated, and that just meant that I actually received a, like a newsletter every so often. And I reached a point where I really didn't want to be reading that magazine, so I pulled out of that association as well. So that only leaves one that I'm currently involved in, as far as getting newsletters, is the TPI Association." 427 Dr Gelb's consultation notes for 11 November 1998, included the following: (Ex F, 210a) "Still has daily flashbacks. Intense emotions - labile." 428 Dr Gelb furnished a report to Mr Covington-Thomas' solicitor on 3 March 1999 in which he listed the complaints of his patient to Dr Seabridge, shortly before he became his patient. The list was as follows: (Ex F, 4/5) "(i) Irritability (ii) Flashbacks (iii) Nightmares (iv) Poor concentration (v) Insomnia (vi) Alcohol abuse (vii) Avoidance of anything that reminded him of his military service (viii) Hyper vigilance (ix) Exaggerated startle response (x) Outbursts of anger (xi) Sense of a foreshortened future (xii) Numbing of general responsiveness and inability to feel loving and tender emotions particularly." 429 It is convenient to interpolate evidence relating to one or two of these symptoms. Dealing with outbursts of anger (DSM IV, Criterion D(2)), Ms McGowan, a friend Mr Covington-Thomas from Queensland, gave the following description of her dealings with the plaintiff and an illustration of his behaviour: (T484) "A. Very sensitive, very touchy. My daughters and I do have to be aware pretty much all the time of how we speak to him. Sometimes It's like walking on egg shells around him. Q. All right. Can you recall any incidents in which you have noticed some unusual or inappropriate behaviour? A. Yes. Q. Can you give us an example? A. There was an occasion a few months after we met and this was before I knew anything would upset him. I returned a battery to K-Mart and Peter came along with me to go shopping and the K-Mart staff weren't too forthcoming in replacing the battery but we were having a discussion, we were sorting it out, and Peter jumped in and went really - really went off at the staff member, raised his voice and quite yelled at this young gentleman." 430 Mr Covington-Thomas, when giving evidence, provided a further illustration. He said this: (T96) "A. No, I'm very intolerant of a lot of things, and -- Q. I just asking you to be quantitative about it. You've told us when you saw these things starting to happen? A. Yes. Q. Over the years has it been constant, has it been getting better or getting worse? A. No, it's become worse. It's reached a point now of it covers a lot more of an area. Once upon a time I was quite tolerant of people driving, I'm not any more now and I get extremely annoyed and I reach the point where I want to chase the driver of the car and have a go at them. And when my temper's up I'm not even worrying about them saying that I've pulled them up and gave them a whack. And yeah. Q. All right -- A. I think the term 'road rage'." 431 The last of the symptoms extracted by Dr Gelb from Dr Seabridge's notes included "exaggerated startled response" (DSM IV, Criterion D(5)). On that issue, Mr Covington-Thomas said this: (T96) "Q. Have you noticed anything about yourself if something unexpected happens? A. Yes, if a car backfires or a phone rings, there is some sudden noise, I've got close to somebody with a shotgun, fires it off, and yeah, loud noises, very sharp noises are, I sort of get - what's the word - startled. Q. How do you react? A. How do I? I generally jump. I jump up from where I am; it it's an idiot with a shotgun I'm almost cowering in my own unit, it's ridiculous." 432 Another symptom about which he complained was poor concentration (DSM IV, Criterion D(3)). Mr Covington-Thomas said that he first noticed that he lacked concentration when studying courses in the Navy after the collision. He had to "put a lot more time" into studying than "before" (T138). He complained to Dr Stoller that his "concentration not so good" (Ex F, p138/139; supra para [289]). The problem was evident when he was at Australia Post where he would lose track of deliveries. Part of the difficulty may have been his memory. He first noticed difficulties with his memory after he came back from Vietnam (T145). The problem has got worse, perhaps exacerbated by the effects of alcohol abuse. Mr Covington-Thomas said that he now finds it difficult to read a book. It is no longer the pleasure it once was. He finds he loses the thread of the plot (T95). 433 Returning to Dr Gelb's report of 3 March 1999, having set out the symptoms reported by Dr Seabridge in his notes, he then made his own comments. He described Mr Covington-Thomas' treatment in the two years he had been under his care in these terms: (Ex F, 5) "Once I began seeing Mr Covington-Thomas, it became clear that he was doing poorly, with significant alcohol abuse, reclusiveness and disabling PTSD . He was drinking up to a bottle of spirits per night, often supplemented by up to a dozen stubbies. On one particularly bad occasion, he drank one bottle of brandy, a bottle of rum, a bottle of southern Comfort and a slab of beer in three days. In addition, Mr Covington-Thomas often thought of death and suicide and on one occasion seriously considered running his car into a truck or tree. I continued to see him regularly throughout 1997 and 1998 and will continue to see him indefinitely. He remains on anti-depressant medication and is receiving counselling for his Post-Traumatic Stress Disorder . He remains reclusive and emotionally crippled and his alcohol intake is often at a dangerously high level ." (emphasis added) 434 Mr Covington-Thomas told Dr Gelb on 5 April 2000 that he was walking ten kilometres a day and doing yoga. He had significantly reduced his weight and was much fitter (Ex F, 220). His consumption of alcohol was "up and down", but he had managed to "peg" it back a little (Ex F, 220). He still complained of insomnia. 435 Mr Covington-Thomas, in his evidence, and in his comments to Dr Gelb, as recorded in Dr Gelb's notes, spoke of a fairly solitary lifestyle. He said this: (T76) "Q. Have you worked since 1996? A. No, I have not. Q. Why not? A. I just don't want to be around people. I am more a solitary-type person. I don't have many friends and that suits me fine because I am happy to be home on my own in my own company and just dealing with myself." 436 However, he does go out, when required, to purchase food, alcohol and occasionally to see friends such as Ms McGowan. He said that he has had no relationships with women since separating from his wife, apart from three visits to a brothel where, on each occasion, he had sexual intercourse with a prostitute. He has, however, had two relationships with men, which have been mainly sexual, and both relatively short lived. He has discovered that he is bi-sexual and feels quite comfortable with that fact ( Dr Gelb: T506). However, he was concerned that his daughter may react adversely. However, she did not do so, and their relationship has continued as before. 437 It is convenient, in this context, to refer to the history provided by Mr Covington-Thomas to Dr Holwill, a psychiatrist qualified by his solicitor to give evidence. Dr Holwill was not called because he was unwell and unable to come to court (T1313). His reports were tendered by the plaintiff and objected to by the defendant. Counsel for the defendant, in cross examining Mr Covington-Thomas, used part of the history which the plaintiff had provided. In my view, whatever the position in respect to Dr Holwill's opinion (which I will deal with in the context of the medical evidence), the history should certainly be admitted. It included these words which provide a useful description of an aspect of the plaintiff's life in 2004. Dr Holwill noted the following: (Ex F, 29) "On this occasion, Mr Covington-Thomas told me that he was still living in Queensland. He lives alone and prefers to isolate himself. In fact he told me that he would prefer to live alone on a mountain. He has 4 to 5 casual friends in Queensland, but little social contact. He no longer attends the RSL or Navy Association." 438 In the same consultation, he recorded the history he received from the plaintiff in these words: (Ex F, 30) "On mental status review, Mr Covington-Thomas told me that he generally sleeps soundly at night with the combination of Deptran, Hypnodorm and a large amount of alcohol. However if he sleeps during the day, he has nightmares on each occasion. These are usually of the collision between HMAS Melbourne and HMAS Voyager, particularly the sound of the collision. He has occasional nightmares of his service in South Vietnam." 439 Again returning to Dr Gelb's notes, they periodically refer to anxiety, giving up cigarettes and then taking them up again (Ex F, 227), binge drinking (Ex F, 229) and bouts of depression ("depressed +++") (Ex F, 233). 440 On 18 June 2002, the Commonwealth arranged for Mr Covington-Thomas to see Dr Cipriani Roldan, a consultant psychologist. Dr Roldan was asked to examine the plaintiff to determine his intellectual functioning and to make a neuropsychological assessment. The consultation was terminated by Dr Roldan before completion in circumstances which were the subject of much evidence. Mr Covington-Thomas took a tape recorder to the interview, although he said he was not sure why (T87). He gave evidence that he had it sitting in his lap during the early stages of the interview, but did not turn it on. The tape recorder came to the notice of Dr Roldan. He objected to it. According to Mr Covington-Thomas, the interview continued until lunchtime. 441 During the lunch hour, Mr Covington-Thomas telephoned his solicitor concerning his rights. He was told that, provided he drew it to the attention of Dr Roldan, he was entitled to record what took place. That was, I might say, foolish advice, even if it were correct in law. It was like a red rag to an angry Mr Covington-Thomas, who then insisted upon his "rights". Indeed, he purchased a number of additional tapes during the lunch hour. 442 The consultation resumed after lunch. Mr Covington-Thomas said that Dr Roldan became "quite agitated". According to the plaintiff, he ultimately endeavoured to wrest the tape recorder from him, such that it fell to the floor. Dr Roldan then became abusive and refused to continue the consultation. Mr Covington-Thomas was ordered from the room. 443 Dr Roldan's account of the consultation before lunch did not differ markedly from that provided by the plaintiff. Mr Covington-Thomas did not disclose that he had a tape recorder. However, he was using one hand to perform tasks, which required two (T928). Once Dr Roldan became aware of the recorder, he made it plain to Mr Covington-Thomas that it should not be used. The consultation then continued upon these terms. 444 After lunch it was, according to Dr Roldan, immediately apparent that there had been a change of mood in Mr Covington-Thomas and a change in attitude. He produced the tape recorder from his pocket and told Dr Roldan of his discussion with his solicitor. He made it clear that he intended to record the balance of the consultation. 445 I do not doubt that Mr Covington-Thomas aggressively made it plain that he intended to record the balance of the consultation. Dr Roldan denied having attempted to grab hold of the recorder. Indeed, he said that Mr Covington-Thomas thrust the recorder into his face (T931). He shouted at him. Dr Roldan said that he asked him repeatedly to leave his rooms. Eventually he did so. 446 It is unnecessary to make precise findings as to where the truth lies in these two very different accounts. I find implausible Mr Covington-Thomas' statement that he just happened to pick up the tape recorder. However, I am surprised that Dr Roldan reacted as strongly as he did. He is a psychologist. He must surely understand that people referred to him may have psychological problems, including paranoia and suspicion. I do not doubt, as I have said, that Mr Covington-Thomas was aggressively standing on what he believed to be his rights. My impression is that they both became rather too excitable. I think, from both points of view, the matter could have been better handled. I make no criticism of Dr Roldan, or for that matter, of Mr Covington-Thomas. But whatever the rights and wrongs of this consultation, it is clear that it caused significant stress to Mr Covington-Thomas, about which he repeatedly complained to Dr Gelb and others. I do not doubt that it also caused some anguish to Dr Roldan. 447 The consultations with Dr Gelb throughout 2002 and 2003 continued. Mr Covington-Thomas' daughter, at one point suffered post natal depression, which caused the plaintiff some anxiety, such that he tended to drink more. His symptoms continued to wax and wane in the manner I have described, and he continued to live a somewhat reclusive life. I believe I have described the broad picture since Mr Covington-Thomas left the St Luke's Family Care Centre in May 1996. 448 At the end of 2006, Dr Gelb returned to Melbourne, although he occasionally spoke to Mr Covington-Thomas and communicated with him by email. Mr Covington-Thomas was referred to another psychiatrist, Dr Kann.

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Dr Parsons. 449 Dr Parsons was Mr Covington-Thomas' general practitioner between 1996 and 2002. He then went to Canada for a year. Dr Board, from the same practice, began treating him. He remains his local doctor. 450 Dr Parsons, nonetheless, furnished a report relevant to the issue of life expectancy, which I will deal with in the context of damages (Ex Z). Having given the report, he was called to give evidence. In the course of his evidence he referred to a medical report received from the psychiatrist now treating the plaintiff, Dr Kann. The report was dated 2 May 2007. Counsel for the defendant asked Dr Parsons to read the report out loud, so that it became part of the transcript. I should interpolate that Dr Kann began treating Mr Covington-Thomas in early 2007 (Ex X, para 2). The report included the following history: (T1550) "Peter has consulted a number of psychiatrists over the years, most recently Dr Jerome Gelb the last consultation in March 2006. He was involved in the Voyager/Melbourne incident in February 1964 and he commenced legal proceedings against the Australian Government in 1995 and currently he is awaiting the outcome of Justice Kirby's judgment. His post traumatic stress disorder relates to both this incident and his service in Vietnam. … " (emphasis added) 451 The report continued as follows: (T1551) "Peter presented as quite settled and talkative without evidence of distress or pervasive depression. I recommended he try decreasing the Deptran to 300 milligrams at night and monitor his alcohol ingestion closely, with the aim to drinking within safe limits . He did say he was having flashbacks every day in relation to the service on HMAS Vendetta. " (emphasis added) 452 Dr Parsons was the last witness. He was called at the end of the day. At the conclusion of his evidence, Mr Barry QC for the defendant said this: (T1559) "… On the only occasion where the plaintiff thought that his case was over, and was giving a history to a treating psychiatrist, he did not mention the Melbourne/Voyager collision as the cause of his flashbacks. Your Honour will recall the evidence that the flashbacks almost entirely related to the Vendetta, which is Vietnam." 453 Mr Melick SC, for the plaintiff, protested. Dr Parsons had been called on the issue of life expectancy. Mr Melick had not seen Dr Kann's report. He had no way of knowing what was coming. He acknowledged he did not object, nonetheless it would be unfair, in his submission, to use the report in the way suggested by the defendant. It should be excluded under s135, or its use limited under s136 of the Evidence Act. 454 The issue was briefly debated. It was left on the basis that the plaintiff would consider his position over night. The following day had been set aside for final submissions. Dr Kann practices in Noosaville, Queensland. 455 The next day, there was further debate. The case was in its twenty-fourth day. Inevitably, calling Dr Kann would require the case to be adjourned to another day. Neither party suggested that that was appropriate. All were anxious that the case finish. The plaintiff repeated its submission that the report was unfairly prejudicial and should be excluded under s135, or that part of it relating to flashbacks arising from South Vietnam. There had been no opportunity to explore what had prompted that comment. To attach any weight to it would require not only the cross examination of Dr Kann, in the plaintiff's submission, but the recall of Mr Covington-Thomas himself. Attention was drawn to the date of the report, 2 May 2007, a matter of days after Anzac Day. It was submitted that, in chronological context, it would be relevant to explore the plaintiff's activities on Anzac Day which may explain his preoccupation with South Vietnam. The defendant, on the other hand, said that the report should be admitted. The only question was the weight to be given to it. 456 Against that background, and so that each party could consider his or its position, I announced my tentative view as to the relevance of the material. The transcript recorded the following: (T1573) "Having listened to the debate, I think I can say that my tentative view is, and I say tentative because I can't really put it beyond that, that the evidence can only be given weight in relation to what is said about South Vietnam, that it would be, in the circumstances, unjustified and unfair to really draw any inference in relation to the Melbourne Voyager, but I do think it does have relevance in relation to South Vietnam and it may also have relevance in relation to adjustment disorders and what arises from South Vietnam and so on. When one goes beyond that, then I think it is really getting into speculation as to what was said in the examination, what was said in other examinations, what were the circumstances, what was the question that provoked it, a whole host of matters, including Anzac Day, which you have mentioned. That seems to me, tentatively, the approach that I would take to it." 457 Neither party demurred. That view still seems to me appropriate. The report was relevant. However, its relevance was limited. It demonstrated that the incident in Vietnam, although not as important as the Melbourne/Voyager collision, was nonetheless still important and responsible for specific symptoms. 458 Let me now turn to the medical evidence. 5. THE MEDICAL EVIDENCE

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The medical witnesses. 459 The medical evidence occupied a good deal of the hearing. It was common ground that, when Mr Covington-Thomas ceased work in 1996, he was psychiatrically disturbed. On any view, he was suffering from the effects of a major depression and alcohol abuse (cf DS 36, para 119). He is still so afflicted. It is suggested by the plaintiff that he had other psychiatric disabilities besides. What caused his psychiatric disabilities? What part, if any, did the Melbourne/Voyager collision play? 460 Apart from Dr Gelb, the treating psychiatrist, the plaintiff relied upon the following psychiatric evidence from witnesses who examined him for the purposes of providing an expert opinion. They were: · Professor Alexander McFarlane · Dr Brendan Holwill · Dr Ian Parkin 461 Dr Holwill was too sick to come to court, as the defendant acknowledged. The plaintiff tendered his reports (Ex F, 18ff). It was acknowledged by the plaintiff that, by reason of the defendant's inability to cross examine, less weight should be given to these reports. The defendant objected to the tender. I will deal with the issue of admissibility below. 462 The defendant qualified two psychiatrists who examined the plaintiff and provided reports. They were: · Dr John Champion · Dr Jonathon Phillips 463 The defendant also obtained the opinion of Professor Christopher Tennant, the Professor of Psychiatric Medicine at the University of Sydney. Professor Tennant did not examine Mr Covington-Thomas. He was supplied with background material and the reports of others. He provided a commentary. He also gave evidence. 464 The defendant relied upon other medical witnesses in respect of other aspects of the case. It will be remembered that Dr Spira, a consultant neurologist, provided an opinion concerning the possibility of brain damage (supra paras [22] to [24]). His report included a commentary upon psychiatric material which had apparently been provided to him by the solicitors for the Commonwealth. When cross examined on views he expressed in that report, and whether particular symptoms came within DSM IV Criteria C(1), Dr Spira said this: (T1003) "A. Look, I am not a psychiatrist and I don't deal in that area." 465 The cross examination continued referring to Criteria C(1): (T1003) "SANT: Q. But it wasn't in your mind at the time you formed this opinion, was it? A. Well, it is not in my mind now. I don't even know what we are talking about." 466 The opinion of Dr Spira on psychiatric issues was not objected to. However, I believe it should be given little weight.

[41]

The Diagnostic Criteria for PTSD. 470 DSM IV includes a commentary upon PTSD and the following six diagnostic criteria: (Ex C) "A. The person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced; witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. (2) the person's response involved intense fear, helplessness, or horror. Note: In children, this may be expressed instead by disorganized or agitated behaviour. B. The traumatic event is persistently re-experienced in one (or more) of the following ways: (1) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. Note: In young children, repetitive play may occur in which themes or aspects of the trauma are expressed. (2) recurrent distressing dreams of the event. Note: In children, there may be frightening dreams without recognizable content. (3) acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). Note: In young children, trauma-specific re-enactment may occur. (4) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. (5) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following: (1) efforts to avoid thoughts, feelings, or conversations associated with the trauma. (2) efforts to avoid activities, places, or people that arouse recollections of the trauma. (3) inability to recall an important aspect of the trauma. (4) markedly diminished interest or participation in significant activities. (5) feeling of detachment or estrangement from others. (6) restricted range of affect (eg, unable to have loving feelings). (7) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, ora normal life span). D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following: (1) difficulty falling or staying asleep. (2) irritability or outbursts of anger, (3) difficulty concentrating. (4) hyper vigilance. (5) exaggerated startle response. E. Duration of the disturbance (symptoms in Criteria B, C and D) is more than 1 month. F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning." (emphasis in original)

[44]

alcohol abuse (Ex F, 42). · Fourth, the chronic PTSD was caused, initially, by the plaintiff's role in the rescue of survivors from the Melbourne/Voyager collision. That is the bedrock of his condition (T716). It is the critical initiating event (Ex F, 47). The sheer magnitude of the event (T721), comparable in modern day terms to the Bali bombing (T717), the intimacy of his involvement (T721) and the threat which the events of that evening posed to his own life (Ex F, 42) were all important features. · Fifth, the PTSD generated its own symptoms and its own memory structure, which played an important role in maintaining the disorder (Ex F, 47). The plaintiff had been sensitised by the experience and was thereafter less resilient and vulnerable to significant increase in his symptoms if exposed to further trauma (Ex F, 64). · Sixth, in late 1969 or early 1970, Mr Covington-Thomas was exposed to further trauma in Vietnam, creating its own memory structure and symptoms, and exacerbating the symptoms that had been suffered as a result of Melbourne/Voyager (Ex F, 64). · Seventh, the trauma suffered in Vietnam itself caused PTSD, as diagnosed by Dr Parkin in 1994. However, one only has one brain, so that the PTSD was not a separate condition (T716). The Vietnam experience involved low combat exposure (Ex F, 83). The primary initiating event, which played a central role in the emerging of traumatic memories and vulnerability to later exposure, remained the Melbourne/Voyager collision (Ex F, 64, 76). · Eighth, statistically, approximately 15% of veterans exposed to wartime trauma develop PTSD. If one were to assume no involvement by the plaintiff in Melbourne/Voyager, but exposure to the incident in Vietnam, and taking account of the plaintiff's adverse childhood, he would face an additional risk of approximately 10% in developing PTSD (Ex F, 131; Ex J). The contribution to his psychiatric disabilities by Melbourne/Voyager, as opposed to Vietnam, was in the ratio of approximately 75:25 (Melbourne/Voyager: Vietnam) (Ex F, 131). · Ninth, absent involvement in the Melbourne/Voyager collision, but assuming the plaintiff's childhood and Vietnam exposure, it is likely that the plaintiff would have worked to the age of 65 years (Ex F, 85). · Tenth, the risk of suffering a co-morbid depression is very much increased where a person suffers the dysregulation of PTSD. PTSD and depression share very important neuro-biological sub traits. There is significant commonality in the underlying mechanisms that lead to symptoms (T641). · Eleventh, the resort to alcohol, as a form of self medication to alleviate symptoms, is common in the case of persons suffering from psychiatric disorders including PTSD and often, as here, can lead to alcohol abuse (Ex F, 46). The scientific literature does not support the different view suggested by Dr Champion (Ex F, 55). · Twelfth, there was evidence, before the solicitor's advertisement in 1995, in the notes of consultations by Mr Covington-Thomas with Dr Stoller (1980), Dr Bugiera, and Dr Parkin (1994), that he suffered psychiatric symptoms (T706). · Thirteenth, Professor McFarlane accepted the plaintiff's account of his psychological symptoms was genuine. He is not a malingerer (Ex F, 56, 58; Ex J; T721). In common with many patients, especially those recounting symptoms from the distant past, he has been inaccurate in respect of dates. He has also tended, excessively, to attribute his difficulties to the Melbourne/Voyager collision (Ex F, 58). · Fourteenth, there is little doubt that the multiple stressors in 1996 are of considerable significance. They led to a considerable exacerbation of his symptoms (T645) and may be regarded as the proximal exacerbating or triggering factor in his decompensation. However, his resilience or capacity to deal with stress has been significantly eroded by the PTSD and his pre-existing symptoms (T646). · Fifteenth, the contribution of the PTSD arising from the Melbourne/Voyager collision was significant. Approximately 40% of his psychiatric morbidity (in 1996 and at the present time) can be attributed to Melbourne/Voyager (Ex F, 47; T631; Ex J). · Sixteenth, Professor McFarlane did not diagnose a personality disorder. · Seventeenth, many with PTSD, including some with severe PTSD and other psychiatric disorders, including depression, are able to work and perform demanding jobs, notwithstanding their symptoms (T656). · Eighteenth, even before his exposure to further trauma in Vietnam, there was a pattern of symptoms relating to PTSD and alcohol abuse (T641). He now suffers from chronic PTSD and alcohol abuse. He has had treatment but his symptoms have been unresponsive (Ex F, 91). 473 There is no doubt, on Professor McFarlane's evidence, were it accepted, that the Melbourne/Voyager collision may be regarded as a cause of his present disabilities in that it materially contributed to those disabilities in a way that cannot be described as de minimus (cf Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310, per McHugh JA at 352). It would likewise, on that evidence, satisfy the Deane J formulation in March v Stramare Pty Limited (supra). 474 Professor McFarlane was criticised by the defendant for being part of what was termed "the Melbourne/Voyager industry". He had seen approximately 50 veterans in connection with their claims against the Commonwealth. In each case his retainer had been from the plaintiff. He had not, however, supported each person referred to him (T717). 475 The criticism of him by the defendant can equally be made of Dr Champion, qualified by the defendant. He, likewise, had seen many veterans in respect of claims arising out of the collision. He had not been persuaded that any had suffered PTSD (T823). He, too, may be regarded as part of "the industry". 476 Each witness acknowledged the code of conduct. I accept that each was, according to his lights, attempting to provide an expert opinion in accordance with that code. There was a difference in approach between Professor McFarlane and Dr Champion and, indeed, Dr Phillips, also retained by the defendant. Dr Champion and Dr Phillips each believed in an open-ended form of examination. The patient was invited to recount his story and identify his symptoms without prompting by means of leading questions. The symptoms could then be checked against the diagnostic criteria of DSM IV (Ex C) to determine whether the requirements of a particular diagnosis had been met. To do otherwise, in the view of Dr Champion and Dr Phillips, would risk suggestion and would potentially compromise any diagnosis. 477 If that measure were applied to the first interview of Professor McFarlane with Mr Covington-Thomas, PTSD could not have been diagnosed. Professor McFarlane began by asking open ended questions. The plaintiff, in that part of the interview, recounted certain symptoms, but by no means the full spectrum of the diagnostic criteria (Ex F, 254A-254P). There was a second interview where Professor McFarlane said he directed a number of questions, in a non leading way, designed to deal with the remaining diagnostic criteria. 478 Professor McFarlane was unapologetic about his approach. Indeed, he said that it is the approach required by DSM IV (Ex F, 52). Further, the matter of aetiology should only be addressed once the specific disorder has, by means of the symptoms, been defined. Professor McFarlane was critical of Dr Champion's approach. He said this: (Ex F, 52/53) "Dr Champion's report is deficient because his opinion is not presented or derived, using the approach as required by DSM-IV. His assessment of Mr Covington-Thomas from a diagnostic perspective is argued as much from the basis of the possible aetiological factors operating, as it is from the symptoms that have been described by the patient and elicited in the course of the examination. This approach fails to define the disorders solely on the basis of the presence or absence of the necessary symptoms, but rather defines the disorder according to the causal factors that are thought to be of primary importance. This is the specific practice which DSM-IV was aiming to exclude." 479 Professor McFarlane made the same criticism of Dr Phillips, whose views I will come to shortly. He said this: (Ex F, 79) "In discussing his opinion, he indicates that these two psychiatrists were of the view that Mr Covington-Thomas suffered from a posttraumatic stress disorder. Dr Phillips indicated that his consultation was 'open ended'. In clinical trials and research papers, such a style of questioning is not accepted as being adequate to determine that an individual does or does not have a diagnosis. One certainly commenced the interview in this manner but it is then important to progress to a series of direct questions. These are only accepted in the affirmative once the patient's response has been carefully dissected to ensure that the phenomena which they are describing is not manufactured or produced in a text book manner. A simple yes/no format is inadequate for such exploration. On this basis, I do not believe that Dr Phillips has taken a complete history to exclude a diagnosis. Given the he has identified symptoms that are in keeping with this condition, namely that he had intrusive memories, nightmares, and social withdrawal, it was beholden upon him to further explore the symptoms of posttraumatic stress disorder in a systematic manner." 480 I will return to this issue later in these reasons.

[45]

Dr Ian Parkin. 481 Reference has been made to Dr Ian Parkin (supra para [367ff]) He is a psychiatrist now in semi-retirement in Samoa. Before moving to Samoa, he practiced in Melbourne, having begun work in the General Repatriation Hospital at Heidelberg in 1977. He had previously served fulltime with the Australian Regular Army as a psychiatrist and was a member of the Army Reserve. His practice in Melbourne was principally concerned with veterans. It will be remembered that he saw Mr Covington-Thomas on 2 June 1994 at the request of the Department of Veterans' Affairs (Ex 15, 64). Mr Covington-Thomas presented as a very upset man (T504). Dr Parkin diagnosed PTSD arising from his Vietnam service (supra para [373]). The plaintiff was given a partial pension as a result. Dr Parkin formed the view at that time that Mr Covington-Thomas' PTSD was chronic and relatively severe (T598). He thought him in urgent need of treatment (T580). Nothing was said during that interview concerning the plaintiff's involvement in the Melbourne/Voyager collision. 482 Professor Tennant, a witness retained by the defendant, made the following comment upon Dr Parkin's examination in his report: (Ex 15, 101) "In 1994, again prior to seeing the advertisement, a Dr Parkin assesses the plaintiff for a Veterans' Disability Pension. He diagnosed the plaintiff as having post-traumatic stress disorder but, most importantly it relates to his experience witnessing gunfire while in naval service in Vietnam. There is no discussion whatsoever of any post trauma symptoms relating to the Melbourne collision. This again is crucial information as it precedes the advertisement and furthermore Dr Parkin himself has seen military service and would be well aware of eliciting an adequate history concerning any symptoms relating to the full range of potentially traumatic military experience. The Melbourne does not get a mention." 483 Dr Parkin, responding to this comment, identified the limited issues he was required to address in a report of this nature (Ex F, 142). He had to enquire whether the veteran had a diagnosable condition which was precipitated, aggravated, or caused by war service, the onus being upon the Department to prove that it was not (T566). Dr Parkin added: (T566) "… It would not have been my practice to ask whether there were other significant stressful events. Now that may be unfortunate that I didn't ask that, but that was my practice at the time." 484 In October 2006, in response to a request from the plaintiff's solicitors, Dr Parkin saw Mr Covington-Thomas again. He had been provided with background material, including reports from other experts. He conducted an interview with the plaintiff exceeding four hours. He then prepared a lengthy report. He formed the following view: (Ex F, 176/7) "Now, having seen Peter again after all these years, I see no discrepancy in the differing histories of the traumatic events he has given to psychiatrists who have been looking at either his DVA issues or the Melbourne/Voyager issue. This man is severely traumatized by discussing these events and he will not go into them unless he thinks he has to. After seeing me the first time he has no recollection of the interview. It is my opinion that this is genuine traumatic amnesia and indicates the degree of distress that was caused by my first assessment. It remains my opinion that this man has PTSD . I now believe that this was caused by his experiences of the Melbourne/Voyager incident and that this was subsequently aggravated by his navy service and particularly his entire service on the Vendetta but more specifically by the white phosphorus incident in South Vietnam. I accept his description that his degree of symptomatology from each (Melbourne/Voyager incident and his service in SNV) as being approximately 80/20 and thus that his level of contribution to his current clinical status is of this order." (emphasis added) 485 Dr Parkin acknowledged the inconsistencies in Mr Covington-Thomas' account. He said this: (Ex F, 176) "This man has shown inconsistencies in his history to different clinicians over time. I believe this is caused by two related phenomena. It was clear to me that this man actively avoided talking about distressing events and this explains why he has only detailed the stressful issues that have been the focus of a particular interview. If the interview is about one of either the Melbourne/Voyager or of Vietnam then he will describe only the one being focused upon, ignoring the other one. This is how he defends himself against facing stressful situations, by denying, repressing, forgetting, and otherwise avoiding thinking and talking about them. Thus the second phenomenon is where he has truly forgotten an incident due to repression of its content." 486 Dr Parkin also diagnosed depression. He expressed the following view: (Ex F, 177) "I further believe he suffers with ongoing depression which meets the criteria for Chronic Major Depressive Episode (Chronic Depression). I believe he has Alcohol Dependence with Physiological Dependence. I do not believe he has, or has ever had, a Personality Disorder as currently defined. I do believe that he has a degree of vulnerability and that there was evidence of this in terms of his bedwetting when he was first enlisted into the navy. I believe his personality structure renders him vulnerable to stresses in that he uses primitive defences to deal with these when they occur." 487 Dr Parkin identified a number of stressful episodes in Mr Covington-Thomas' life, culminating in his decompensation in 1996. He then provided the following comment upon the role of Melbourne/Voyager in the plaintiff's disablement at the time of his decompensation (referring to the table which has been reproduced previously in para [44] (supra)): (Ex F, 177/8) "From the table given above in the text, it should be seen that his impression is that the various recollections of both the Melbourne/Voyager and SVN incidents played the major part in his stressed state during 1996. The other events were, in his words, the straw on the camel's back. I accept this view of the events as making more sense in his longitudinal course than to attribute the other stresses as the main reason for his decompensation in 1996." 488 Dr Parkin said that Melbourne/Voyager was the main stressor in Mr Covington-Thomas' life, the precipitant of his PTSD (T568). But for Melbourne/Voyager he thought it likely that Mr Covington-Thomas would have kept working to the age of 65 years. 489 Dr Parkin was also asked to comment upon the part played by the incident in Vietnam. He said this in his report: (Ex F, 177) "I do not believe that I can form an opinion as to whether he would have developed PTSD from his service in SVN if he had not already developed it from the Melbourne/Voyager incident. I do believe that having experienced the trauma of the Melbourne/Voyager incident would have made it more likely that he would have developed PTSD in SVN if he had not already developed a PTSD after the Melbourne/Voyager incident." 490 When Dr Parkin gave evidence, however, he altered his view. He said this, expressing a view not great different from that of Professor McFarlane: (T595) "Q. And if he hadn't have been on the Melbourne that collided with the Voyager, yet he had been subjected to the experience in Vietnam, that is the kind of thing which would in your opinion generate a post traumatic stress disorder in any event? A. Not in any event, but it's the kind of thing that may have. But I would have to say that given the nature of that stressor, without the Melbourne Voyager, that it was probably unlikely that it would have triggered off a post traumatic stress disorder." 491 Counsel for the defendant then reminded Dr Parkin of his report and the passage set out above. He responded in these terms: (T595/6) "Q. What is your opinion? A. Well, I guess I have been asked to think about this in more depth and I have considered this in more depth and I think it's a very hard issue. It's a hard one to decide on but I think that it is helpful to this court for me to make and form an opinion on that rather than standing back and say I can't form an opinion on it. So I think that I - thinking about it again and thinking about the distance from the events, that I would have to say that it's probably unlikely that he would have developed PTSD just from the Vietnam experience. So I have changed my opinion. Q. But one thing you are clear about is that the Vietnam experience aggravated whatever PTSD condition may have existed before that? A. Absolutely." 492 Dr Parkin described in his evidence his interviewing style. He said that he began each interview with general questions such as: "What are the problems you are suffering?" A patient, however, did not have to cover every issue in a diagnosis. Dr Parkin believed that the psychiatrist, in forming a diagnosis, was obliged to frame more specific questions in respect of symptoms which may not have been covered (T561). He, like Professor McFarlane, was critical of Dr Phillips (and Dr Champion) for not having done so. He said this in respect of the "open ended" method of interview: (Ex F, 151/2) "The term 'open ended' usually means that direct questions are not asked during the interview. It would appear from this that Dr Phillips did not inquire about symptoms that the client did not bring up of his own accord. Quite simply, he is then usually unable to say that the person does not have a psychiatric diagnosis. If the client mentioned enough symptoms to diagnose a condition, then he will make that diagnosis and this is likely to have considerable validity since it is not arrived at by a series of leading questions which then may influence the answers given. However, if the client does not spontaneously mention enough symptoms to warrant the making of a diagnosis the reverse position of denying the existence of that diagnosis does not necessarily apply. If the psychiatrist is unaware of the presence or absence of other criteria which would have allowed him to make a diagnosis then he is logically incapable of ruling out the presence of that condition since he has not asked about each of these criteria. If a patient comes into my rooms and I never ask him about whether he has been a victim of sexual abuse and he has not spontaneously broached the subject then I cannot later say that he has not been abused." (emphasis in original) 493 In cross examination Dr Parkin, like other medical practitioners called by the plaintiff, was asked about a practice which was termed "echo attribution". It was a practice described as receiving the patient's attribution as to the cause of his symptoms and thereafter adopting that attribution as the doctor's opinion on causation. Dr Parkin denied that he had approached his task in that way.

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Dr Brendan Holwill. 494 Mr Covington-Thomas was referred to Dr Brendan Holwill, a consultant psychiatrist, by his solicitor on 27 November 2002. Dr Holwill provided an eight page report the same day (Ex F, 18/25). He furnished a supplementary report on 19.8.03, commenting briefly upon the views of Dr Champion, with which he disagreed. He saw Mr Covington-Thomas for a second time on 24 August 2004 and provided a further report, reaffirming his views. 495 Dr Holwill, as mentioned, cannot give evidence because he is ill. The plaintiff gave notice to the defendant under s67 of the Evidence Act 1995 ("the Act") that his reports would be tendered. The defendant acknowledges that he is unwell and that notice has been given, but objects to the reports. Both parties have provided helpful written submissions. 496 Section 63 of the Act provides an exception to the hearsay rule in civil proceedings where the maker of a representation (as defined) is not available "to give evidence about an asserted fact". The Section provides an undemanding test of admissibility, unlike the companion section in criminal proceedings. It is submitted, however, that the representation in Dr Holwill's reports are not of fact, but of opinion. That argument has been considered in the context of the term "representation" in the business records section (s69) as to which there is no material difference. Hely J in Ringrow Pty Limited v BP Australia Ltd [2003] FCA 933 held that an expert opinion is within the term "representation" in the Act. That judgment has been followed in Connex Group v Butt [2004] NSWSC 673 (White J); Young v Coupe [2004] NSWSC 999 (White J); cf ASIC v Rich (2005) 216 ALR 320 (Austen J). Likewise I am persuaded that the exception in s63 permits the admission of Dr Holwill's opinion, subject to the discretions in s135 and s136. 497 Turning to these sections, Dr Holwill of course cannot be cross examined. The reports are not comprehensive. They do not address issues that have arisen during the trial. Nonetheless, they contain matters which are plainly relevant. A striking difference between the views expressed by doctors called on behalf of the plaintiff, and those called by the defendant, is that the former but not the latter accept that DSM IV requires, at some point, direct questions to confirm or exclude a diagnosis. In that context, adding one further report, adds little. 498 The defendant was particularly concerned about that part of the history taken by Dr Holwill which related to nightmares. Nightmares are, of course, an important in the trial. The first report of Dr Holwill included the following: (Ex F, 21) "Following the collision, Mr Covington-Thomas began experiencing frequent nightmares of the collision. These did not occur straight away but there was a slow onset over months to a year or two. They steadily worsened in frequency and he woke from them in a distressed state, sweating with tremor." 499 The defendant made the following submission, relating to the admissibility of Dr Holwill's report: (DS 4) "(b) the history given by the Plaintiff to Dr Holwill is different to the history given to other doctors and may be seen as providing vague support to the Plaintiff's oral evidence. It would be unfair to admit the opinions as these cannot be tested by giving the alternative histories to the doctor." 500 The inability to cross examine on a crucial issue may constitute a significant or unfair prejudice (cf White J, Young v Coupe para 20(3)). However, here the statement is that of the plaintiff, not Dr Holwill. Counsel for the defendant, although conscious of the objection to Dr Holwill's reports, cross examined the plaintiff on the representation which Dr Holwill recorded in his report. It seems to me, as a matter of fairness, once that course was deliberately taken, the document (or at least that part of it which was the history) should be admitted (cf ss 44 and 45 of the Act). 501 In any event, the importance of that statement by Mr Covington-Thomas has receded by reason of the view I have already formed concerning the onset of nightmares (supra para [200]). In reaching that view, I took account of the fact that the plaintiff had given widely divergent accounts as to the onset of nightmares, where the history given to Dr Holwill was but one of the accounts he had provided. 502 I am not persuaded that there is unfair prejudice arising from the reports of Dr Holwill including his opinion (s135(a)). Nor do I believe s136 should be applied. The reports should be admitted, although their weight is limited. 503 Let me summarise briefly Dr Holwill's views. The history he took from Mr Covington-Thomas was reasonably extensive, although not as extensive as some. It did include the following additional detail, clearly supplied by Mr Covington-Thomas: (Ex F, 23) "Prior to joining the Navy he did not smoke regularly although he had tried smoking on two occasions. When he joined the Navy he began smoking regularly consuming about six cigarettes per day. Following the collision with HMAS Voyager, his intake of tobacco rapidly increased to about a packet per day. In South Vietnam, his intake increased markedly to about 100 cigarettes per day. Following his discharge from the Navy, he ceased smoking between 1970 and 1996 due to his ex wife suffering from asthma. After 1996 he began smoking again and consumes in excess of 40 cigarettes per day now." 504 Dr Holwill's opinion was as follows: (Ex F, 24) "Mr Covington-Thomas presents with a history of developing chronic moderate to severe post traumatic stress disorder with associated moderate to severe depression and moderately severe generalized anxiety. His psychiatric conditions are associated with chronic moderate to severe alcohol abuse and moderate to severe tobacco abuse. His psychiatric conditions commenced after his experiences aboard HMAS Melbourne. Those experiences satisfy the requirements of DSM4R for exposure to trauma sufficient to cause the development of post traumatic stress disorder. The diagnosis of post traumatic stress disorder also satisfies the requirements of DSM4R." 505 It was Dr Holwill's view that his psychiatric condition had been later aggravated by his experience in Vietnam, his work at St Luke's and the failure of his marriage. The prognosis was as follows: (Ex F, 25) "Prognostically, no further improvement can be expected. Mr Covington-Thomas is leading an isolated life. He suffers from serious medical complications of his substance abuse and is having active psychiatric treatment and has done so for over six years. The treatment is appropriate. His injuries do totally incapacitate him permanently for any form of employment." 506 Dr Holwill's commentary upon Dr Champion's views in his second report record, first, his agreement with Dr Champion's conclusion that Mr Covington-Thomas now suffers from significant alcohol abuse and a depressive illness, but disagreement as to the cause. The matters identified by Dr Champion as possible causes (an emotionally deprived childhood, sexual assault as a child, the Vietnam incident, the death of his daughter and mother) are relevant to the development of his current psychiatric state (Ex F, 26). However, Mr Covington-Thomas functioned well before the collision and his difficulties, in Dr Holwill's view, can be traced to Melbourne/Voyager (Ex F, 27). 507 The last report from Dr Holwill simply reaffirmed his earlier opinion. He said that there was a "clear cut history of the onset of significant Post Traumatic Stress Disorder symptomatology following his involvement in the collision" (Ex F, 31).

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Dr Gelb. 508 It will be remembered that Dr Gelb was Mr Covington-Thomas' treating psychiatrist from February 1997 until the end of 2006. I have already referred to his notes and reports (supra paras [411ff]). Dr Gelb gave evidence on two occasions by video link. He said that it took some time to build up a rapport with Mr Covington-Thomas. He was, like many veterans, suspicious until such time as he had developed trust (T503). He presented as someone who was both depressed and upset (T504). In the years that followed, his symptoms fluctuated. Dr Gelb said this: (T545) "Q. Is he worse now than he was in 1997? A. No. He was pretty bad then. He has been through ups and downs. I think that overall he has a far better understanding of post-traumatic stress disorder and its effect on his life. He has a better understanding of the protective measures he can undertake to reduce triggers in them. It is no longer a mystery to him why he avoids certain symptoms and avoids certain things. I am encouraging him to avoid triggers; that has been successful. In particular to identifying particular days of the year which are anniversary-type days. He has now aware a month in advance. I would remind him it was coming up - because it was so obvious it was having an effect on his symptomatology. Q. This man continues to be consistently and severely depressed since 1996? A. he has not been consistently, severely depressed. It is more anxiety that has been present throughout and -- Q. Are you one of those psychiatrists that takes the view that anxiety and depression are two sides of the same coin? A. I call them kissing cousins. They are so closely related. The latest research shows that 90 per cent of people who have depression have anxiety and vice versa. They are very close and involve related neuro-transmitters." 509 Dr Gelb described the severity of the plaintiff's symptoms at the present time in these terms: (T551) "Q. What I was going to get at was how severe a post-traumatic stress disorder, in your opinion, developed as a result of the Melbourne/Voyager collision? A. I think his post-traumatic stress disorder is severe. It's at the severe end of the spectrum, undoubtedly. He's quite crippled, really. 510 Counsel for the plaintiff sought from Dr Gelb an opinion concerning Mr Covington-Thomas' fitness for work. Dr Gelb gave the following evidence: (T516) "A. From 1997 when I first saw him he was, in my view, totally and permanently incapacitated for employment. There was no way that anybody would employ him in the condition that he was in from the time I first saw him, and at no time since has he become employable." 511 The issue was immediately taken up by counsel for the defendant in the cross examination that followed. The following was put: (T516) "Q. No, what was it that made him unemployable. You said 'from that condition'? A. Yes. Q. What was it? A. Well, I am talking about his psychiatric condition. It was the symptoms of the disorder as a whole that cumulatively rendered him unreliable, unpredictable, unproductive and, in my view, incapable of sustaining regular employment, certainly not of the type that he had been doing." 512 The cross examination continued: (T516/7) "WITNESS: His poor concentration. His volatility. His outbursts of anger. His - even things like his hyper vigilance - always on the lookout for threat, for danger, for being slighted. Working with Mr Covington-Thomas would be today a risky thing to do. Q. Anything else, or is that the list? A. There is probably more but I would have to -- Q. Tell us them all. What else is there? A. The memory. He has difficulty with his short-term memory and that would prove difficult. He has difficulty relating to strangers and, in my opinion, he would have difficulty dealing with the public; difficulty dealing with work mates and difficulty dealing with bosses. He would be a person likely to give his opinion firmly and to stick with it and to defend it strongly. Other aspects would be the fact that he would likely come to work in the morning tired, perhaps with a slurred speech; being unable to clear the fog until mid-morning or towards lunchtime. He would need, want, to go to the pub as soon within the work afternoon as possible. He may not return to work after lunch or he may not have, or he may have a car accident or be arrested for driving under the influence on the way home, thus possibly bringing an employer into disrepute. Like I said, every symptom that he complains of would not make him my first choice as an employee." 513 Dr Gelb was then asked about causation. He gave the following evidence: (T517) "Q. And all of those matters that you have just described are the result of post-traumatic stress disorder caused by the Melbourne Voyager collision; is that what you say? A. They are all caused by post-traumatic stress disorder caused by the Melbourne Voyager collision, exacerbated by his service in Vietnam, exacerbated by stresses and stressors in his life, all consistent with what we know about post-traumatic stress disorder." 514 Elsewhere, Dr Gelb was asked for his view as to the likely consequences of the Vietnam incident, absent the plaintiff's involvement in Melbourne/Voyager. The following was put: (T551) "Q. Are you able to say, absent the Melbourne/Voyager collision but with the Vietnam experience, whether or not he would have had a crippling post-traumatic stress disorder? WITNESS: I have to be honest and say that I really couldn't say. I doubt that it would be but I am really speculating. I doubt that it would because I think he's shown a fair bit of resilience in other respects but, honest, that would be a guess." 515 Counsel for the defendant asked Dr Gelb, as he asked other medical witnesses, whether he had taken account of what he termed "echo attributions", that is, simply adopting and then repeating the plaintiff's view as to the cause of his troubles. Dr Gelb denied that he had approached the issue of causation in that way (T517/8). The defendant then asked this: (T518) "Q. Were you alive to the possibility that he, after commencing litigation in 1995, was then focusing his symptoms in relation to his problems to the only matter for which he was entitled to compensation, namely the Melbourne Voyager collision. Were you aware of that in your mind? A. I was definitely aware of it but in fact he did the opposite." 516 The issue was taken up in re-examination. The following was put: (T548/9) "MELICK: Q. You were asked some questions about being alert to the possibility of the (attribution) of all these problems to the Melbourne/Voyager and you said he did the opposite? A. Yes. Q. What do you mean by that? A. He minimised, he minimised it for a long time. He avoided it, which is what one would expect from someone who has really got post-traumatic stress disorder. That talk about it - many of my Vietnam veterans never even told their wives they were in Vietnam, as in I've heard people, after they returned, many of them never joined the RSL, never told anybody, never told employers, future employers that they had been, and that's more typical of post-traumatic stress disorder than someone coming along and saying, 'Gee, you know what's happened to me? I was here and I was there and this and this happened", so I'm saying that he in fact was quite characteristic in these first, you know, half dozen years that I saw, quite characteristic of someone with the real McCoy." 517 Finally, it was put to Dr Gelb that he had been an advocate for the plaintiff. The cross examination was I in these terms: (T546) "Q. I want to put something to you as a matter of fairness. I want to suggest you have seen your role as being an advocate as Mr Covington-Thomas' case, do you agree with that or not? A. No, I have seen my role as just telling the truth as I see it. I have got to know him over such a long period of time. I have come to conclusions about the man, the veracity of his claims, his nature. I have gotten to know him over a long period of time. Conclusions based on knowing a human being over a decade of regular visits. I have made my judgment that he is a person who is genuine. I do not resile from that at all." 518 The matter was adjourned part heard shortly before Christmas 2006. When the hearing resumed on 28 May 2007, Dr Gelb again gave evidence by video link. He furnished a supplementary report, recommending Mr Covington-Thomas' admission to various clinics which provide treatment for PTSD and alcoholism (Ex V). An affidavit from Mr Covington-Thomas was tendered by consent, in which he said he intended to give up alcohol (Ex X). Indeed he had recently abstained from drinking alcohol for a period. He had, nonetheless, relapsed. He added that he recognised the benefits of abstaining from alcohol and the potential harm in not doing so. It is convenient to deal with Dr Gelb's recommendations in the context of the plaintiff's likely future medical expenses below. 519 However, there is one aspect of Dr Gelb's evidence in May 2007 which I should deal with. Counsel for the defendant asked the following question: (T1419) "BARRY: Q. My question, Dr Gelb, was: What is the current position, so far as your legal right to practice as a psychiatrist, is concerned? A. I am currently suspended by the Medical Practitioners Board in Victoria pending the outcome of the case with which I am involved. Q. And when you gave evidence in these proceedings commencing 10 November 2006 were you then under psychiatric treatment yourself? A. I was not." 520 There the matter was left. However, the issue was taken up in re-examination. Dr Gelb said that over the last 12 months, he had been concerned for his safety and that of his wife. One gathered that the alleged threat came from his ex wife. He had sought an apprehended violence order. On 1 February 2007 he attended the Local Court, carrying a backpack. He said he well understood that his possessions would be subject to x-ray surveillance at the court house, which duly occurred. He placed his backpack upon the conveyer. It contained a loaded firearm. He was then arrested and charged. His home was later searched. Other weapons were found and other charges preferred. His solicitor later reached an agreement with the Medical Board whereby he would be suspended from practice pending the outcome of these charges (T1424). He agreed to submit to a psychiatric examination. He claimed to have been told by the psychiatrist that he was suffering from no psychiatric disorder (T1429). 521 Counsel for the defendant, in these circumstances, sought to tender the charge sheets, which were then received subject to relevance (Ex 27). The charge sheets had obviously not been written with the rules of evidence in mind. They contained anonymous hearsay assertions, very general in nature, that Dr Gelb provided contradictory explanations to the police as to why he had the weapon. Other weapons, including a shotgun under his bed and a spear gun, were allegedly found at his house. 522 It certainly is unusual for an expert witness to be suspended from practice before the completion of a trial. Obviously I am not concerned with the rights of wrongs of Dr Gelb's domestic situation. I am not determining whether he is, or probably is, guilty of the offences with which he has been charged. 523 What relevance is it suggested the material has? The defendant said that there were issues of credit which should make the Court very cautious when approaching Dr Gelb's evidence. They concerned, first, a contradiction in the evidence he had given concerning future medical treatment. However, properly analysed, I do not believe that there is a significant contradiction in his evidence, although it is convenient to postpone that analysis until the examination of the plaintiff's likely future medical expenses below. 524 Secondly, it was suggested that Dr Gelb had failed to disclose that he had not seen the plaintiff since "March 2006". In fact, Dr Gelb said in his evidence that he had last seen the plaintiff before Christmas 2006 (T1417). He disclosed that he had returned to Melbourne and that Mr Covington-Thomas was now being treated by Dr Parsons (his general practitioner) and another psychiatrist. When giving evidence, he had produced his notes of the consultations undertaken (Ex F, pp 190-254). 525 The Defendant, in cross examination (supra para [508]), suggested that Dr Gelb had acted as an advocate for Mr Covington-Thomas, which he denied (T546). The charges and his suspension from practice are, in my view, very tenuously relevant (if relevant at all) to that suggestion. Whether Dr Gelb was an advocate is to be judged according to the views he expressed, and the language he employed. 526 When giving evidence in November 2006 and again in May 2007, Dr Gelb presented as a reasonable and well informed expert. He made appropriate concessions. He did not appear to me to be an advocate.

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Dr Champion. 527 Dr Champion examined Mr Covington-Thomas on 15 May 2003 and again on 13 October 2005. On each occasion he provided a report. He furnished a further report on 19 October 2006, commenting upon the plaintiff's medical evidence and other reports. The combined reports are voluminous (Ex 15, pp1-63). Dr Champion also gave evidence. He did not accept that Mr Covington-Thomas had suffered PTSD or other psychiatric injury arising from the Melbourne/Voyager collision. He did, however, accept that he suffered from a depressive illness beginning in the mid-1990s and from alcohol dependence (Ex J, para 5). 528 Further, Dr Champion did not quite accept that Mr Covington-Thomas had PTSD arising from his war service in Vietnam, although he recognised that the Department of Veterans' Affairs had accepted that claim and continued to pay a pension. His view on Vietnam was expressed in these words: (Ex J, para 28) "28. Dr Champion is of the view that the Vietnam experience had not worsened any of Mr Covington-Thomas' pre-existing psychiatric conditions because at that time, in his view, there were none. In Dr Champion's opinion if one were to hypothetically assume that currently Mr Covington-Thomas suffered with posttraumatic stress disorder, then this would most likely be the result of the Vietnam service experiences of which he complains. Consistent with that is the absence of any objective indication or disorder at that time as well as information in Dr Gelb's treatment notes in which Mr Covington-Thomas on one occasion at least, expresses severe upset and guilt in relation to the experiences in the Vietnam service. It is Dr Champion's contention that Mr Covington-Thomas did not develop posttraumatic stress disorder as a consequence of his Vietnam service." 529 When cross examined, Dr Champion described his views as "conservative but not extreme" (T824). His views, emerging from his reports and evidence, may be summarised as follows: · First, Mr Covington-Thomas, in the first consultation when describing his Naval career, made no reference to the Melbourne/Voyager collision (Ex 15, p33). When asked by Dr Champion to deal with that issue, he did so in a matter of fact way, displaying neither physical nor emotional distress (Ex 15, p36). · Second, having returned from leave in 1964, whilst HMAS Melbourne was repaired, Mr Covington-Thomas was not concerned about rejoining the ship. Dr Champion would have expected real concern as a symptom of avoidance, had Mr Covington-Thomas been significantly traumatised (Ex 15, p37). · Third, Dr Champion saw no objective evidence that Mr Covington-Thomas had suffered psychiatric problems, or physical problems, that had disrupted his Naval career (Ex 15, p57). On the contrary, he had performed at a very high level. · Fourth, having been discharged from the Navy in 1970, the pattern of his employment thereafter did not suggest that he was coping poorly (Ex 15, p39). He married, had children, and was continuously employed. · Fifth, whilst Mr Covington-Thomas did exhibit some symptoms consistent with psychiatric illness, which were documented in histories taken from medical practitioners, including Dr Stoller (1980), such symptoms were non-specific. The diagnosis of Dr Stoller (mild personality disorder) would appear to have been appropriate (Ex 15, p51). The symptoms so documented did not satisfy the criteria in DSM III or IV in respect of PTSD. · Sixth, objectively, Mr Covington-Thomas continued to function well until the mid-1990s (T810). His decompensation thereafter is explicable upon the basis of the significant adverse events at that time, he being a person vulnerable to psychiatric disorder genetically and by reason of his emotionally deprived childhood (cf Ex J, para 34). · Seventh, Mr Covington-Thomas now complains of nightmares and intrusive thoughts concerning the Melbourne/Voyager collision. He has identified other symptoms which he also relates to the collision. Dr Champion believes that he did not complain of, or suffer from, PTSD symptoms until after he had commenced his claim for damages (Ex J, para 19). · Eighth, Dr Champion stated that it is possible to develop false memories as a result of motivation or suggestion (Ex J, para 12). The symptoms from which Mr Covington-Thomas now suffers (including nightmares concerning the Melbourne/Voyager rescue and intrusive thoughts and images relating to that rescue) are, in Dr Champion's view, "a consequence of the current focus of litigation and the impact of motivation and suggestion, rather than being caused by the presence of a longstanding traumatic memory relating to the Melbourne/Voyager disaster" (Ex J, para 10). The genesis of these symptoms, according to Dr Champion, was the advertisement inserted by a solicitor in 1995, to which the plaintiff responded, as well as the psychiatric examination which was arranged thereafter with Dr Wu, when he was told that he had PTSD arising from the Melbourne/Voyager collision (Ex 15, p40; Ex J, para 19). · Ninth, Dr Champion accepts, however, that Mr Covington-Thomas, in recounting his symptoms, is not malingering. · Tenth, the heavy drinking and alcohol abuse by Mr Covington-Thomas is accepted by Professor McFarlane and others as a form of self-medication, which can therefore be related to the psychiatric disabilities from which Mr Covington-Thomas is said to suffer. Dr Champion is of a different view. The studies have demonstrated, in his opinion, that the same genes that predispose towards depression, also predispose towards alcohol abuse (T816) (cf Ex J, paras 18-20). 530 The approach taken by Dr Champion was explained in the following passage during his cross examination: (T825) "Q. Now, part of the problem one always has, when trying to diagnose causation, is that you have to rely upon what you were told by a person who comes to see you? A. To some extent, but you are often provided with records which either confirm or are different from. Often those records are contemporaneous and you don't rely on that fallible memory that I was talking about earlier. Q. So it is often better also to go and see what other people observed about the person whom you are assessing or treating because their memory may well be more reliable? A. Particularly if it is written down and not based on recollection, because any sort of recollection is going to involve those factors that I talked about earlier." 531 One can understand Dr Champion's caution. First, more than three decades had elapsed before Mr Covington-Thomas claimed that his psychiatric problems were attributable to the Melbourne/Voyager collision. Secondly, he had, during those three decades, twice seen psychiatrists, Dr Stoller in 1980 and Dr Parkin in 1994 (Ex J, para 25). Nothing had been said about Melbourne/Voyager. Thirdly, having made his claim in November 1995, Mr Covington-Thomas had thereafter provided many inconsistent accounts in respect of the presentation of symptoms such as nightmares. Fourthly, neither the history he provided (in rejoining the Melbourne), nor his work record, whether in the Navy or after discharge, suggested any obvious disablement. 532 Dr Champion did not, however, have the advantage of seeing and hearing witnesses who could speak of their observations, although admittedly 40 years on. The following was put to Dr Champion in cross examination, putting evidence which was not seriously challenged by the defendants, and which I have accepted: (T834) "MELICK: Q. Are you saying then if somebody has nightmares, significant nightmares in the immediate aftermath of a traumatic event, that is normal and -- A. Yes. It's a way of working through the trauma. Q. But is it also not a very strong diagnostic criteria of an acute stress disorder? A. Not in the first month. Q. In any event, bearing in mind the collision occurred in February, if at Christmas time of that year he is still having nightmares and then if when he returns from his service aboard HMAS Hobart, which I think was in 1965 or '66, he is still having nightmares related to the Melbourne Voyager collision, that would then be very strong corroborative evidence of the existence of a post traumatic stress disorder, would it not? A. If they were actually happening, yes." 533 Again, Dr Champion assumed, on the evidence he had, that there had been no psychological problems disrupting Mr Covington-Thomas' Naval career (Ex 15, p57). His reaction, for instance, to seeing the USS Enterprise on the horizon whilst a member of the crew of HMAS Hobart, was a normal response (T819). He was simply reflecting what he had learned from his previous experience (Ex 15, p37). Counsel for the plaintiff, in cross examination, put to Dr Champion the evidence of Mr Fennel, a crew member on the same ship. The evidence, again, was not seriously challenged, and it is evidence that I have accepted (supra para [174]). Counsel for the plaintiff put a question which was objected to. The following question was then put: (T841/2) "HIS HONOUR: I think you (have) got to put it in terms of an assumption. If you assume it to be the fact that Mr Covington-Thomas, having seen the Enterprise, felt sufficiently concerned to not want to go below deck and described himself as apprehensive and within a short time said to a naval colleague that he wanted to get out of the Navy because he was now frightened of seeing - being in the presence of aircraft carriers, if you make that assumption that that actually -- A. If one makes the assumptions he, yes. Q. -- what did happen -- A. Yes. Q. --- what is the significance (if any) of that -- A. Yes. Q. -- is that evidence? A. That would be, that would be evidence pointing towards some sort of anxiety state related to previous experiences. Q. Consistent with post traumatic stress disorder? A. Consistent with post traumatic stress disorder." 534 The plaintiff, in his case, relied upon the evidence of Mr Pollard (supra para [306]), who worked with him at the Maryborough school in the 1980s. He had witnessed Mr Covington-Thomas alone, crying, in February which would be the anniversary of the Melbourne/Voyager collision. Indeed, it had happened more than once. Dr Champion, in that context, said that anniversaries can cause a flood of feelings. Such feelings do not necessarily, in his view, suggest a psychiatric disorder (T821). In cross examination, Dr Champion said this: (T842) "MELICK: Q. And being observed to be emotional and crying on the anniversary of the collision on five or six occasions in the early 1980s would once again be consistent with suffering from post traumatic stress disorder resulting from the collision? A. Well, it could be. It would be, it would be an indication that there was ongoing difficulties dealing with those memories, yes." 535 Dr Phillips gave evidence relevant to this issue. He said this: (T1101) "Q. Any you may assume this is the position of Mr Covington-Thomas, when asked in effect what he was crying about, he said that he lost mates in the Melbourne Voyager collision, that would be a classic illustration of a person of crying on anniversaries as a result of bereavement or a bereavement-like loss? A. Yes. I think usually the tears are about someone very close; first degree relative, husband, wife, child. To cry about the loss of 'mates' (witness indicated) at a great distance is perhaps not as relevant from my point of view." 536 The men lost in the Voyager were in no way related to Mr Covington-Thomas. They do not come within the categories identified by Dr Phillips where such a reaction may be expected. I prefer the evidence of Dr Phillips and infer that the observations of Mr Pollard (which were not disputed) were consistent with one aspect of the criteria required for PTSD. 537 Turning, then, to particular issues which were important to Dr Champion's view, reference has already been made to the fact that people may suffer from PTSD, and yet mask their symptoms and perform well in the workplace (supra para [232]). Whilst performance in the workplace is plainly relevant, it is not determinative. I accept the evidence of Dr Phillips (supra para [232]) that it is a slight indicator. I also accept the evidence of Professor McFarlane that people who unquestionably have PTSD, even severe PTSD, are able to work and perform in demanding jobs, notwithstanding their symptoms (T656) (supra para [472]). 538 Dr Champion placed some emphasis upon the absence of emotional stress on the part of Mr Covington-Thomas, when describing his part in the Melbourne/Voyager collision (Ex 15, pp36-37). I have remarked that Mr Covington-Thomas was also "mechanical" to some degree in the way in which he described the same dramatic events when giving evidence (supra para [174]). I accept, nonetheless, that Mr Covington-Thomas feels deeply about the Melbourne/Voyager collision. The depth of his feelings, I believe, is demonstrated, first, by the emotion he expresses with those he trusts, where he sobs openly as he describes what happened that evening (supra para [174). Secondly, the evidence is overwhelming that he has consistently avoided speaking about the collision unless he is absolutely obliged to do so. When he has to give an account of what happened, where the audience is someone he does not know and trust, I accept that his way of coping is to provide a flat, mechanical account. 539 A related aspect was explored with Dr Champion in his evidence. Mr Covington-Thomas, when first seen by Dr Champion, surprisingly said nothing about the Melbourne/Voyager collision, until the issue was raised by the doctor. Dr Champion's evidence on this aspect was as follows: (T851/2) "HIS HONOUR: Q. … Dr Champion, one thing that puzzled me reading your first report, that is the report of 29 May 2003? A. Yes. Q. Was that you had a consultation with Mr Covington-Thomas and he clearly would have understood that you were representing the Commonwealth? A. Yes. Q. And this was a medico-legal consultation, and that it was connected with his claim in respect of the Melbourne/Voyager? A. Yes. Q. He then, in the course of the consultation, you invite him, and I get the impression from your report in a non-leading way, to describe various things? A. Yes. Q. And he describes his naval career? A. Yes. Q. Totally missing out the Melbourne/Voyager collision? A. Yes. Q. And you make a comment upon that? A. Yes. Q. And then you direct his attention to the Melbourne/Voyager? A. Yes. Q. And he then describes that? A. Yes. Q. And you describe the way in which he does so, which was in quite dramatic terms, although without any obvious display of emotion? A. Without any emotional distress. Q. Yes, distress. Now the question I really have is I suppose this: what significance, if any, do you attach to the fact that in reporting his, the original history of his naval career he completely missed out the Melbourne/Voyager? A. Well, I don't attribute a great deal to it, one could see this as he was avoiding that area. But he showed no evidence of avoiding it when he was asked about it at all. I think that he was responding to my questions about his naval career and he was going through his naval career and he focused on that; that's the way I interpreted here." (emphasis added) 540 Dr Champion's evidence continued: (T852) "Q. He did give some evidence here, you might assume, throughout his time, indeed before he saw the advertisement he did avoid talking about Melbourne/Voyager. And I think you've answered the question, but the issue occurred to me, whether or not the way in which he recounted his naval career might by chance have provided an insight into that avoidance behaviour? A. Yes, I certainly have considered that. But I've also considered the fact that he seemed quite prepared to respond to the advertisement about the Melbourne/Voyager; which is the opposite of avoidance. One would have thought if he was really avoiding he would have thrown the newspaper away and he wouldn't of had to go through all of the examinations and recalling. I mean, maybe unknowingly he had opened up an area in which he was going to be focused on the Melbourne/Voyager collision, which is the thing he's supposedly been avoiding, one would have thought that he might have avoided it more easily by avoiding answering the newspaper advertisement." 541 Professor Tennant, likewise, did not attach significance to Mr Covington-Thomas not referring to Melbourne/Voyager until prompted (T1246). However, it seems to me extraordinary and consistent with his avoiding talking about Melbourne/Voyager which so many witnesses described. 542 Let me move from that to a matter which was fundamental to the view formed by Dr Champion, namely, the effect of "motivation and suggestion", said to arise form the advertisement inserted by a solicitor in 1995 (Ex 15, 59; Ex J, paras 10-12). Dr Champion gave the following evidence: (T822/3) "Q. And if, as appears to be common ground, Mr Covington-Thomas was in fact suffering from depression and anxiety through the 1990s and in 1996 what is the significance of that when he starts seeing solicitors and they send him to doctors like Dr Wu, in relation to the Melbourne Voyager collision? A. Well, I think that it is possible and probable in this case, given the other background factors, that there is a temptation to explain the current distress, in terms of previous memories, and particularly being asked to recall those memories and particularly when you are given a statement, that the cause of your current problem relates to the past, it is easier to come to believe that and develop a strong focus upon what you come to regard as the cause of your current problems. As we have talked about earlier, the cause of depression and anxiety are often rooted in formative years experience, and the factors which are associated with the emergence of that sort of disorder are proximal factors; those are factors operating at the time from which they emerge. Q. And in Mr Covington-Thomas' case, is that necessarily a conscious process by which he, as it were, does attribute that? A. No. People believe quite fully in what they piece together. They believe them to be accurate memories and it is impossible to distinguish an accurate, for the individual, to distinguish accurate and inaccurate memories. Q. And if, as it would appear to be the case, that Dr Wu told this man in 1995 that he had post-traumatic stress disorder as a result of the Melbourne Voyager collision, that revelation, for want of a better word by Dr Wu, came on top of other things which were causing decompensation psychiatrically? A. Well, I think it afforded Mr Covington-Thomas an explanation for why he was so depressed and anxious at the time. Q. Were you aware that the proceedings had actually been started before he even saw Dr Wu? A. Yes." 543 Professor McFarlane did not agree. The difference between their views is encapsulated in the following paragraph from a joint report which each signed: (Ex J, paras 9 to 13) "9. Dr Champion and Professor McFarlane agree that Mr Covington-Thomas currently complains of intrusive and distressing recollections of the Melbourne/Voyager disaster and that he was having dreams about the disaster. 10. Dr Champion believes that these symptoms are as a consequence of the current focus of litigation and the impact of his motivation and suggestion, rather than being caused by the presence of a long-standing traumatic memory related to the Melbourne/Voyager disaster. 11. On the other hand, Professor McFarlane is of the view that if Dr Champion's opinion is accepted, Mr Covington-Thomas is a malingerer and is factually misrepresenting his complaints to the Court. If this is the case, his diagnosis should be accepted as being a factitious disorder or malingering. 12. Dr Champion is of the opinion that it is possible to develop a false memory of the effects of an event such as the Melbourne/Voyager disaster leading to claims of intrusive and distressing recollections of the events. Dr Champion does not believe Mr Covington-Thomas to be a malingerer. 13. On the other hand, Professor McFarlane is of the opinion that the events of the Melbourne/Voyager disaster are one of objective reality and there are sufficient external witnesses of that event to establish whether Mr Covington-Thomas's reported experiences are relatively indicative of the truth. Given the severity of that stress, the most parsimonious explanation for his memories is that they are a traumatic memory of the actual incident." 544 Professor McFarlane elaborated when giving evidence. He said this: (T721) "HIS HONOUR: Q. But as I understood the difference between you and Dr Champion you, but not Dr Champion, thought it was fundamental, or at least important, to confront the issue of whether or not this was manufactured? A. That's correct, and I think I don't believe that he, this is simply suggestion. I think his experience and his very severe experience isn't that of something simply responded to the suggestion. This man clearly has been symptomatic. We have evidence from the 1980's, a Dr Parkin's report of 1994, that he is symptomatic prior to the Melbourne/Voyager disaster. The question I think remains what was, what were the factors that contributed to that condition and what was that condition, or those conditions." 545 Counsel for the plaintiff then asked Professor McFarlane the following question, reading from the testimony of Mr Pollard (the gardener from Maryborough college who had seen Mr Covington-Thomas weeping), which the Professor was asked to assume. He said this: (T722) "HIS HONOUR: It is put by way of assumption if you assume that is an accurate description of what that person saw what relevance, if any, does that have? BARRY: I object to it because I didn't ask him any questions about that particular subject. HIS HONOUR: I will allow you Mr Barry, within limits, to cross examine on it if you wish. Put the question. MELICK: Q. You were asked a question by -- HIS HONOUR: I will allow the question. MELICK: Q. -- about whether the 1995 advertisement would have revised memories which hadn't been present in the intervening years. Are you able to comment upon that suggestion in view of that evidence, if you assume that evidence to be correct? A. If I assume that evidence to be correct, your Honour, that is strongly suggestive we had a man who has distressing and intrusive recollections of that disaster that was certainly present at that point, so it would suggest it is not simply the occurrence of this advertisement that has made him focus on something that otherwise would have been a trivial recollection in his mind. " (emphasis added) 546 Dr Parkin gave evidence relating to the same issue. He said this: (T596) "Q. And memory, of course, is a difficult thing to assess from a psychiatric perspective, isn't it? A. Correct. Q. The problem is reconstruction often occurs depending upon what the stimuli may be? A. I'm not sure about the word 'often' but reconstruction can occur, yes. Q. So if you trigger memories in different ways, the memories then become real to those people and were it not for the triggers they may well have not ordinarily had any recollection of those particular matters? A. That can occur, yes. Q. Did it occur to you that that may well be what has been occurring with this man since 1995? A. Certainly that's a possibility. Q. And if that were the case, that would be a complete explanation, would it not, for the fact that in 1994 he gave you no history in relation to the Melbourne Voyager collision? A. Well that, that requires a very large reconstruction of his memory which I find incredible ." (emphasis added) 547 Dr Gelb, likewise, rejected Dr Champion's hypothesis that Mr Covington-Thomas' symptoms could be explained by the advertisement to which he responded in 1995. Counsel for the defendant put the following: (T540/41) "Q. Having focussed on it in the context of litigation, do you think that that produced the result that there was then an attribution by him to psychiatric conditions from which he was then suffering which he then thought were related to the Melbourne/Voyager collision? A. No, I think that he had post-traumatic stress disorder all the way along. He kept a lid on it with alcohol and other forms of denial and that this (sighting) of the advertisement when he was under pressure and stress when his defence mechanisms were overstretched, that that (sighting) of the advertisement reminded him more of the disaster and overwhelmed him. In other words, I think there was evidence that this was not something that was never on his mind. But he was quite successful in suppressing the impact of that disaster using the means that veterans so often do. Q. But this had not affected him or his functioning until he saw the advertisement in 1995; what we did not get until then was the re-experiencing phenomena? A. The defence mechanisms themselves are effective in suppressing symptoms, but the person still has post-traumatic stress disorder. Where you saw it is in those other symptoms that cause problems. For example, once (sensitised) by the Melbourne/Voyager disaster the chances of him recalling the sexual abuse and being more traumatised by that event than he would otherwise have been are very high. The inter-relationship between all these traumas really needs to be appreciated." 548 The view of Professor Tennant on this issue was similar to that of Dr Champion. He said this: (T969) "Q. What effect, if any, did it have on this man to be told in 1995 that a psychiatrist then thought he had PTSD? A. I think that allows your assessment to change and be influenced by the expert. I did notice something about recovered memory symptoms which Professor McFarlane denied. It was not recovered memory and he said it does not exist, which is true. People can be encouraged. It is not through malingering or over fabrication. They can be used to change their stories. A lot of it is about suggestion to change the way you think about that. So suggestion is there for all of us. If an eminent expert like Dr Wu makes that suggestion it is not unreasonable that the client would himself start to adopt that model for his symptomatology and not through deceit or lying, or not necessarily." 549 What findings should be made concerning this aspect? It is relevant to note that 15 months or more before the advertisement was inserted, Mr Covington-Thomas saw Dr Parkin (June 1994) in connection with his application for a pension arising out of his Vietnamese war service. Dr Parkin, it will be remembered, diagnosed PTSD as a consequence of that service. He expressed the view that Mr Covington-Thomas was, at that time, significantly disabled psychiatrically (supra para [374]). He thought him in need of urgent treatment. 550 The advertisement having been inserted in November 1995, Mr Covington-Thomas responded. He gave an account to his solicitor, apparently over the telephone, sufficient to enable that solicitor to draft a Statement of Claim, which was then filed (to stop time running). Mr Covington-Thomas, a month or so later (23.12.95), saw Dr Wu. He provided Dr Wu with a history. Reference has been made to that history which, although not comprehensive, did include many symptoms consistent with a diagnosis of PTSD, which Dr Wu then made (supra paras [380ff]). 551 The plaintiff thereafter saw many doctors at the request, either of his solicitors, or the defendant. He also saw a number of doctors who provided treatment. To each he gave a history and described his symptoms. The histories he provided were, in some cases, inconsistent, as has been noted. Mr Covington-Thomas then gave evidence in this Court, again describing at length the same symptoms. Again, on some issues, there were inconsistencies. That being the context, I find Dr Champion's view improbable. Mr Covington-Thomas' recollections incorporate simply too much detail. Like Dr Parkin, I believe that to attribute such detail to "motivation or suggestion" would be incredible. I accept the view of Professor McFarlane that one must confront the issue whether Mr Covington-Thomas, in recounting his symptoms, is being truthful, or whether he is malingering. Professor McFarlane did not believe that he was a malingerer (T721) and nor did Dr Champion (Ex J, para 12). Doctors Parkin and Gelb likewise accept that Mr Covington-Thomas is genuine. I, too, accept that he is not malingering. I believe that his recollection of symptoms, as given in evidence, are genuine, even though at times he was inaccurate in terms of chronology. 552 Finally, I should deal with Dr Champion's view concerning alcohol abuse and its supposed connection with other psychiatric disorders from which Mr Covington-Thomas suffers. It will be remembered that Professor McFarlane believed it was not unreasonable to regard the consumption of alcohol by those who suffer from PTSD and depression as a form of self-medication. Dr Champion gave the following evidence relevant to this issue: (T847) "HIS HONOUR: Q. But at a commonsense level, if you're feeling awful resorting to alcohol is not uncommon? A. Well, yes. But I take your point, you said at the 'commonsense level'. What all of scientific research tries to do is discover what we believe to be true from commonsense is actually in fact true and very often it isn't; scientifically." 553 Dr Champion then made reference to an academic study known as the McLeod Study which (at p272) made the following statement, as set out in the transcript: (T847) "Although this study clearly demonstrates that relationship between PTSD symptoms and alcohol use is mediated by genetic influences, this does not negate the importance of environmental factors of PTSD or PTSD syndrome or alcohol use. These results suggest that environmental modification, particularly for those individuals at risk may have a profound impact on whether or not those individuals develop PTSD symptoms and a high level of alcohol use." 554 Dr Champion pointed out that the study was careful to avoid saying that PTSD comes first and that it causes the alcoholism (T847/8). 555 Dr Phillips, however, appeared to accept the self-medication view of Professor McFarlane. In the context of nightmares, Dr Phillips said this: (T1068) "A. People use alcohol to diminish the experience and sometimes that works. … " 556 I prefer the views of Professor McFarlane and Dr Phillips on this issue.

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Dr Jonathon Phillips. 557 Dr Jonathon Phillips is a well known psychiatrist practising in Sydney. He is former president of the Royal Australian and New Zealand College of Psychiatrists. He provided, as it happened, reports to both the plaintiff and the defendant. He first saw Mr Covington-Thomas at the request of the defendant on 3 December 1999. He saw him again on 7 February 2003, this time at the request of the plaintiff's solicitor. He had overlooked the previous consultation. Nonetheless, as he explained, he did not feel embarrassed. He regarded himself as "an expert who's duty was to the Court" (Ex 15, p67). He provided a further report to the defendant on 26 September 2006, reviewing information which had been supplied to him by the defendant's solicitors. 558 It is a tribute to the standing and impartiality of Dr Phillips that both parties, in their submissions, sought comfort from his reports and evidence. The defendant described him as a "very experienced psychiatrist" (DS 111, para 370). The plaintiff said that he was in a "unique position, having seen Mr Covington-Thomas at the request of both parties". He was, they said, "an extremely careful and impartial witness". I, likewise, was impressed by Dr Phillips, as I have said. 559 Dr Phillips' first report (3.12.99) (Ex 15, p75), recorded the history provided by Mr Covington-Thomas . The history was obtained in an open ended style interview, which Dr Phillips favoured (T1082). Mr Covington-Thomas was encouraged to recount his symptoms in as much detail as possible. He was not prompted in any way where there were gaps in his symptomatology compared to a possible psychiatric diagnoses that may be available. 560 Dr Phillips recognised the limitations of such a method. Patients may be poor historians, especially when recalling events from the distant past (T1082). Speaking of the fragility of memory, Dr Phillips said this: (T1086) "A. I think retrospective memory, if you like, looking back over such a large number of years, is prone to - it is a situation which is prone to great error. Memory decays/ People are asked to put something in a time sequence long ago. They would do their best to do so, but there is no guarantee they will get it right." 561 Dr Phillips also recognised that a patient may be unwilling to admit that they have been bad husbands or fathers. They tend, notoriously, to understate the alcohol they consume (T1082). Nonetheless, recognising these limitations, Dr Phillips preferred not to ask leading questions or "cue" a patient, since there was the risk that such a technique would simply cause the patient to provide self-serving material. 562 It was recognised by Dr Phillips that his approach may cause him to miss an appropriate diagnosis. Indeed, he provided a dramatic illustration concerning a veteran whose history had not persuaded him to diagnose PTSD before the chance arrival overhead of a helicopter. Dr Phillips said this: (T1066) "Q. What about if somebody in fact has post-traumatic stress disorder, is it something which a lay observer would detect symptoms of and if so how would it present? A. Again it is very hard. If I can give an example, and I hope this is relevant. I saw a man in my office in Macquarie Street about the time of the 2000 Games. He was giving a history of what was near post-traumatic stress disorder, but nowhere not convincing from my point of view. The black hawk helicopters came up the Domain just about tree level. The transformation from this man in equilibrium to being under my desk covered in sweat was spectacular. In some cases things are not always obvious and something happens and things become very obvious." 563 I have already referred to the issue of open ended reporting, and the alternative, which is supplementing such an approach with indirect questions designed to cover matters specific to the diagnosis of PTSD in DSM IV (supra para [470]). It will be remembered that Professor McFarlane (supra para [478]) and Dr Parkin (supra para [492]) stated that DSM IV required a psychiatrist to go beyond open ended questions in order to affirm or exclude a diagnosis. Here, by the time of the third report, having reviewed the papers provided by the defendant, Dr Phillips recognised that Mr Covington-Thomas had provided him with an incomplete history. He said this: (Ex 15, p70) "I assessed Mr Covington-Thomas on two occasions (1999, 2003). I detailed the history which the plaintiff provided to me on those occasions. I am now aware, following access to material contained within your letter of instruction, that the plaintiff may not have provided me with a fully comprehensive history on either occasion. There could be several reasons for this: he chose not to provide a full history in the context of litigation, he had forgotten details of probably historical importance, or that he did not take full advantage of my open-ended style of interview. I believe, at this juncture, that the first possibility is probably of greatest importance." 564 Returning to the first report (3.12.99), Dr Phillips said this: (Ex 15, p79) "Whilst I acknowledge Mr Covington's early psychological symptoms, they did not equate with any diagnosable psychiatric disorder. They merely represent a heightened emotional state (domains of anxiety and anger particularly). Mr Covington undoubtedly experienced a number of psychological symptoms when he as posted to HMAS Hobart and when that ship was involved in exercises off the coast of Virginia. He experienced considerable anxiety when the aircraft carrier USS Enterprise was within visual sighting, (he had difficulties going below decks at the time) and he began to have flashbacks and nightmares (linked with the naval collision). However, he did not have a full hand of symptoms for post-traumatic stress disorder at that time. The alternative and lesser diagnosis of adjustment disorder with anxiety DSM IV 309.24 would have applied." 565 He added, answering a question posed by the defendant's solicitors: (Ex 15, p80) "2. Mr Covington almost certainly suffered an adjustment disorder with anxiety at the time when he went to sea on HMAS Hobart. He has some but not all symptoms of post-traumatic stress disorder, with his symptoms being chronic in nature." 566 The examination undertaken on 7 February 2003, at the request of the plaintiff's solicitors, included additional history supporting the suggestion of continuing anxiety and a change in habits following the collision. The report said this: (Ex N, p2) "He increased his use of cigarettes significantly following the incident. He had until that time smoked approximately six cigarettes/24 hours. He said that his use of cigarettes increased throughout his naval career and at the time of leaving the navy (1970) he was smoking approximately 100 cigaretts/24 hours. He would sometimes smoke a cigar and a pipe of tobacco as well. He said that he would wake in the morning and reach immediately for a cigarette. He even attempted to smoke in the shower. Currently he is able to last as long as 3-4 days without using cigarettes, but will smoke up to 40 cigarettes/24 hours if he feels himself to be 'stressed'." 567 There was also a significant increase in the plaintiff's consumption of alcohol. Following the incident he began to "binge drink" (Ex N, p2). Dr Phillips stated that Mr Covington-Thomas presented as someone mildly despondent. His affect was somewhat withdrawn and distant (Ex N, p4). On the account he provided, Dr Phillips thought he had experienced no more than medium level psychological trauma at the time of the collision. That view was expressed in the context of a history provided by Mr Covington-Thomas of few symptoms before joining HMAS Hobart in the latter part of 1965. It should also be noted that Dr Phillips had previously recorded the following history given by the plaintiff, consistent with fear and avoidance: (Ex 15, p75) "Mr Covington was posted away from HMAS Melbourne in the latter part of 1965. He was then assigned to fleet headquarters at Garden Island where he worked principally as a filing clerk and postman. He was pleased to have left his ship and he had no wish to return to sea." 568 Mr Covington-Thomas, at the second consultation, was not prepared to speak about his wartime experience in Vietnam (Ex N, p4). When providing his opinion, Dr Phillips said this: (Ex N, p7) "One matter stands out. Mr Covington is said to have been awarded a naval pension for medical reasons, including post traumatic stress disorder, which in turn is said to have been linked with his service experiences at the time of the Vietnam war. He would not talk about these matters which was unfortunate. In relation to my conclusion below, it will be important to address issues linked with his experiences in Vietnam waters." 569 Dr Phillips also made the following observations: (Ex N, p7) "I am unable to confirm that Mr Covington has a diagnosis of post traumatic stress disorder after this second consultation, but advise that the client does have some symptoms which are associated with post traumatic stress disorder. More likely than not, some of the client's symptoms relate to his chronic hazardous use of alcohol, particularly poor temper control, memory difficulties and possibly his problems relating with others." 570 Dr Phillips noted that Doctors Wu, Seabridge and Gelb had diagnosed PTSD. He stated that the greatest diagnostic weight should be given to Dr Gelb's findings, he being the treating doctor who had had substantial contact with Mr Covington-Thomas (Ex N, p7). He added: (Ex N, p7) "… Dr Gelb identified .. several .. symptoms diagnostic of post traumatic stress disorder. However it is possible that these symptoms, accepting them to be correct, may link with a number of adverse life experiences, not only psychological trauma at the time of the naval collision." 571 Dr Phillips then posed the following question which he answered: (Ex N, p8) "Could have I missed the diagnosis of post traumatic stress disorder? This is possible. As is my usual custom, I have twice used an open ended interview with Mr Covington. This type of interview does not provide the client with cue which can be used for self serving purposes. It is unlikely, in the circumstances, that there will be false positive symptoms. However it is possible that the client failed, in the non-interrogative interview, to volunteer all his symptoms. On balance, I fail to agree with my colleagues in relation to Mr Covington having post traumatic stress disorder. I accept that he has symptoms secondary to the hazardous use of alcohol. On the other hand I am not in a situation, giving proper weight to Dr Gell's (sic) findings, to categorically rule out that the client had at some time suffered from post traumatic stress disorder." 572 Dr Phillips reaffirmed his previous diagnosis. 573 The third report (26.9.06) was, as mentioned, a review of material (including medical reports) furnished by the defendant's solicitors. He noted aspects of the plaintiff's childhood, which were adverse (Ex 15, p68). There was no service record of psychiatric symptoms (Ex 15, p68). He noted the comment made at a promotion interview in September 1964, that Mr Covington-Thomas was "probably rather authoritarian, could prove rigid and over zealous", but was "functioning well" (Ex 15, p68). These, of course, were observations made approximately six months after the collision. Dr Phillips catalogued the adverse circumstances in Mr Covington-Thomas' life, including his marriage, the death of Kirsten, the stress associated with the St Luke's refuge, and the events of 1996. 574 When providing an opinion on this material, Dr Phillips included the comment, already extracted, that Mr Covington-Thomas had provided, perhaps deliberately, an incomplete history. He said this: (Ex 15, p71) "The additional documents contained within your recent letter of instruction lead me to believe that it will prove impossible to make a simple link between stress experienced by Mr Covington-Thomas at the time of the collision between HMAS Melbourne and HMAS Voyager and his ongoing symptoms, and that his ongoing symptoms will almost certainly reflect trauma at various times of his life, with erosion of psychological resilience from a relatively early age." 575 The view he formed was expressed in these words: (Ex 15, p71) "The additional information now available to me will suggest moderately strongly that Mr Covington-Thomas developed over the years (but mainly at a time significantly distant from the collision of HMAS Melbourne and HMAS Voyager), a group of symptoms to be noted in association with post traumatic stress disorder but inadequate to reach a diagnosis of that particular disorder. The stressors of greater significance included the neonatal death of his child and his concerns regarding the deaths (particularly of women and children) in a Vietnamese village which was shelled by his ship, problems within the marriage (including his wife having a number of affairs) and ultimately the breakdown of his marriage, and issues when he worked as a welfare officer (particularly court matters relating to sexually abused children which would have resonated with his personal experience earlier in life). I accept that the plaintiff developed stress-related psychological symptoms as a consequence of these matters, and probably may continue to have symptoms of this type on an enduring basis." 576 He added: (Ex 15, p71/72) "Taking all materials now available to me into consideration, I feel comfortable in stating that any stress which Mr Covington-Thomas experienced at the time of the collision between HMAS Melbourne and HMAS Voyager has not caused him to experience enduring symptoms (particularly symptoms associated with post traumatic stress disorder). However, stress experienced by the plaintiff at the time may have sensitised him, at least to some degree, to later stressful events in his life, particularly in the course of war service in Vietnamese waters and within his family. I continue to doubt that Mr Covington-Thomas ever was a psychologically robust person. His psychological resilience was probably eroded slowly, beginning during childhood years and continuing over the following decades. I accept that the plaintiff may finally have developed some ongoing stress-related symptoms and note that stressors beginning some years after the collision between HMAS Melbourne and HMAS Voyager would have been the triggering agents. The naval collision, in my view, did little more in the plaintiff's case than add in small measure to the slow erosion of his psychological resilience." 577 When giving evidence, Dr Phillips enlarged upon a number of these matters. He emphasised that the nature of the traumatic event was important and made a difference (T1064). He explained that there were two aspects. Some events are so unusual, so sudden and so significant that there really is no escape (T1064). That brings into play the second aspect, a person's psychological resilience. Some people have high resilience, others low. Adverse life experiences, including during childhood, can further erode resilience. Dr Phillips said this: ( T1064) "… if a person has lower psychological (resilience), a person - for one person it will not be seen as excessive and it will become quite overpowering for another person. … " 578 Here, Melbourne/Voyager was plainly a traumatic event of great magnitude. Whatever the level of Mr Covington-Thomas' resilience at birth, it had been eroded by a harsh childhood. 579 Dr Phillips, during the course of his examination, was asked the following: (T1063) "Q. How do you distinguish between what is the normal reaction to being subjected to such a distressing event and a psychiatric condition such as a mood disorder, that you have referred to, how do you draw the line? A. There is really two ways. One is a time line that many people after a traumatic incident in one form or another will lose their psychological equilibrium for a short period of time and have a variety of symptoms, most probably in the mood domain but not exclusively. Then within days, or certainly weeks, will return to their base line, if you like. That is the time sequencing. The other is the depth and breadth of the actual symptoms and whether the group of symptoms will fit or meet the criteria for an identifiable and diagnosable psychiatric disorder. You might say that is an arbitrary line in the sand, but it is a line drawn by the DSM and which most of us, with perhaps a touch of reluctance, accept." 580 I will return to these issues in a moment. Dr Phillips agreed that, in reaching a diagnosis, the observations of those who knew the patient should be given considerable weight (T1082). Specifically, he said this: (T1087) "A. I think if a relative said, 'Look, I have an absolute recollection', at a point following the collision, 'of him talking in an upset manner abut nightmares. It stuck in my brain', then I would take that as a piece of information of importance." 581 Dr Phillips, in cross examination, was asked to make certain assumptions which were based upon evidence given by Mr Covington-Thomas' relatives. He was asked to assume that the plaintiff's demeanour had changed, and remained changed, following the collision. Whereas he had been cheerful and cheeky before the collision, he became morose and sad. Dr Phillips responded in these words: (T1087/8) "A. Particularly if the change in demeanour was enduring. I think if it was transient I wouldn't give particular weight to it, but if it continued to be an issue then it is of substance. Q. And transient, three to six months? A. Transient, I was thinking of a much shorter period than that. Q. So if at Christmas that year, in other words December after the March he was still like that, that would be a cause of some concern? A. Yes it would, because it moves outside the timeframe for acute stress syndromes." 582 Counsel for the plaintiff then asked Dr Phillips the following: (T1092/3) "Q. … if you assume that Mr Covington-Thomas was having nightmares shortly after the collision and continuously thereafter and that shortly after the collision his personality changed and became more withdrawn and morose and that he started consuming alcohol excessively and that he made a decision to leave the Navy because of fear of aircraft carriers, that would tend to elevate that diagnosis from an anxiety disorder to the more severe anxiety disorder of post traumatic stress disorder? A. You have put to me a number of symptoms which are seen in post traumatic stress disorder. On what you have said, I'm not sure we have a full hand but there are additional symptoms pointing in that direction. Q. Which of course weren't available to you in any of your consultations? A. They were not given to me in history, no." 583 Counsel then took Dr Phillips to each of the six criteria in respect of PTSD in DSM IV (Ex C). There was no question that the Melbourne/Voyager collision satisfied Criteria A, exposure to a traumatic event (T1093). Criteria B, dealing with the persistent re-experiencing of the traumatic event in at least one of five specified ways, was, Dr Phillips acknowledged, also satisfied in at least two ways, if one assumed the accuracy of observations made by lay witnesses. Mr Covington-Thomas had, soon after the collision, experienced nightmares (Criterion B(2)) and intrusive, distressing recollections, which he termed "flashbacks" (Criterion B(1)) (T1093). Criterion B(4) dealt with intense psychological distress at exposure to cues that symbolised the traumatic event. Dr Phillips was asked to assume the evidence of Mr Pollard, the gardener at the Maryborough school, that Mr Covington-Thomas was seen to be alone, crying to himself, in February, that being the anniversary of the collision. Indeed, that he had been seen to do that on a number of occasions. Dr Phillips said this: (T1093/4) "… Anniversary reactions are reasonable, are very common in post traumatic stress disorder but the caveat, anniversary reactions are common in anxiety states and depressive states as well. It's not a symptom which I think stands out as all that useful. Q. Except it is a good indicator of the causes, is it not? A. Yes, it is in that if it is on the anniversary of the sinking of Voyager, then that certainly gives a weight to that as an incident of importance --" 584 Dr Phillips was then taken to Criteria C which required persistent avoidance of stimuli associated with the trauma in three or more particular respects, which were identified in seven paragraphs. Dr Phillips said this: (T1093) "… (Criteria C) is an avoidance and in discussion so far there seems little doubt that this man began to withdraw from various activities and became much quieter in turning." 585 Dr Phillips, in that passage, was alluding to Criterion C(1), avoidance of conversation associated with the trauma, and Criterion C(4), which involves markedly diminished participation in significant activities. In the course of his examination, reference was also made to Criterion C(3), which dealt with an inability to recall an important aspect of the trauma. Dr Phillips was asked to assume that Mr Covington-Thomas could not recall the recovery of two bodies from the water during the course of the rescue. Dr Phillips made the following comment: (T1094) "A. That would be of importance because recovery, that's not an everyday experience. For most people, recovering bodies in the water, covered in oil and God knows what else, and it should be remembered, if it occurred. If in fact it occurred and if not remembered, then that would point to criterion C number 3." 586 Counsel put a further aspect of avoidance, what was suggested as the extreme distress on the part of Mr Covington-Thomas in being required to serve on HMAS Vendetta, the sister ship of Voyager. Dr Phillips, it should be noted, had recorded the following history in his second report relevant to that aspect: (Ex N, p5) "Amongst other matters, Mr Covington recorded that he had been on duty aboard HMAS Vendetta (sister ship to HMAS Vampire) in Vietnam waters. He described himself as being 'back into fear mode' at the time. Further he found the tour of duty to be 'distressing'. His nightmares and flashbacks became more regular." 587 In that context, Dr Phillips said this: (T1094) "A. Well, I don't think per se one could say it's avoidance. I mean, he told me that particularly in Vietnam waters he was on a ship of that class and he lived on a ship of that class for quite some time, it's a discomfort for him but if he'd been avoiding the ship he might have potentially asked for a transfer or gone AWAL or something. So I don't think, say, avoidance per se, I could go that far. Q. Except the difficulty is if you're in a profession and a NCO in the Navy, he a petty officer, as he was at the time, it would be difficult to say: 'I'm sorry, you're sending me to Vietnam and I don't want to go to a war zone'? A. I think I understand that. I've been somewhat pedantic. Avoidance behaviour by its very name suggests a person does something to avoid the situation." 588 Dr Phillips, however, accepted that there was evidence of detachment or estrangement from others, including his children to whom he was distant (Criterion C(5)). Criteria C, therefore, was satisfied. 589 Criteria D required persistent systems of increased arousal not present before the trauma in at least two of five nominated ways. Dr Phillips, adverting to Criterion D(1) (difficulty falling or staying asleep) and D(2) (irritability or outbursts of anger) as well as D(3) (difficulty concentrating), said this: (T1095) "Q. … if we go to D we need two or more of the following, and if we have the incidents of having difficulty falling asleep or waking up, nightmares, that obviously fits into (1)? A. He certainly has a number of problems associated with sleeping. Q. And you obtained a history of difficulty in concentrating? A. Well, I go to (2). I obtained a history of increased irritability and some frank anger and difficulty in concentrating, I believe so. Q. We have the two anyway, don't we doctor, at the moment? A. Yes." 590 Criteria E required that the duration of the disturbance occasioned by the symptoms associated with Criteria B, C and D had to be for more than one month (Ex C). 591 Criteria F was expressed in the following terms: "F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning." 592 In respect of the remaining criteria, Dr Phillips said this: (T1095) "HIS HONOUR: We haven't got E or F. E, you are assuming that. And F is disturbance caused clinically significant distress or impairment in social or occupational or other important areas of functioning? A. Your Honour, I think criterion E and F are met." 593 Accordingly, on these assumptions, the appropriate diagnosis would have been PTSD. The findings I have already made supported each of the assumptions Dr Phillips was invited to make. 594 Returning to the two issues identified by Dr Phillips, by which a psychiatric reaction to trauma may be differentiated from a normal reaction (supra para [577]), it is clear from the findings I have made that the first requirement has been satisfied. The loss of equilibrium following the collision was not short lived. It has endured to this day. Quite apart from the symptoms which he experienced, there was a change in attitude. Within a relatively short time he wanted to remain ashore and leave the Navy at the expiration of his contracted term of nine years. 595 Moving to the second requirement, which concerned the depth and breadth of symptoms which he experienced, those symptoms, as documented in these reasons, and their continuity from a time soon after the collision until the present time, satisfies the second requirement. I do not doubt that the discomfort which he experienced varied, depending upon the events of his daily life. 596 As set out above, Dr Phillips did not feel able to diagnose PTSD on the history he had, adopting the method of interview which he favoured, suggesting rather that the plaintiff had suffered an adjustment disorder. An adjustment disorder is a psychiatric disorder of lesser severity than PTSD. The defendant has urged an acceptance of that diagnosis, if their primary submission, which involves a rejection of the plaintiff's claim, is rejected (DS 114, para 381). 597 However, I believe it emerges from this analysis, that were Dr Phillips to adopt the method of interview which Professor McFarlane said was appropriate in the context of DSM IV, and had he had the material available to this Court, which has been accepted by me, he would have diagnosed PTSD. 598 Let me move to two other aspects of the evidence given by Dr Phillips. The first is short. He gave the following evidence concerning the intractable nature of PTSD compared to other disorders: (T1065) "A. If it is a totally shared experience some people will have a transient psychological disturbance, acute if you like, and it will disappear. There will be middle ground where people reach, such as an adjustment disorder or a major stress disorder, and there will be some where the experience is so pernicious that it will cause longer term damage and lead then or some later time to post-traumatic stress disorder. I single (out) post-traumatic stress disorder from the rest because certainly in my hands it is a very tough syndrome to treat." 599 The final matter concerned Vietnam and its impact upon Mr Covington-Thomas. As mentioned, the plaintiff did not relate to Dr Phillips during either consultation the circumstances in which he witnessed the shelling of a village in which women and children were killed. Counsel for the defendant provided a description of that incident, based upon the plaintiff's evidence, which he asked Dr Phillips to assume. Dr Phillips responded by saying this: (T1074) "A. Even absent everything else I think one would have to say many a person using high-powered binoculars and viewing an incident in a village would have found where children and women were burnt, would find that very destructive and very worrying. I think more so if there has been personal sexual molestation, which is another trauma to a child. Sitting entirely on its own I cannot rule out the Vietnam experience as unimportant." 600 He added: (T1074) "WITNESS: Standing alone, the probability is that the reaction would have been briefer and less comprehensive than post-traumatic stress disorder. But that is a very isolated snapshot of life. Life never works like that. He obviously came to that experience carrying psychological baggage, if I can put it that way. From the past." 601 Elsewhere Dr Phillips made the following comment in the context of Mr Covington-Thomas' work at the St Luke's refuge, and his reaction to the sexual molestation of the 13 year old girl: (T1071/2) "A. I think you are saying absent Melbourne/Voyager and absent Vietnam, I think it would be fair to say that this man would have reacted perhaps more significantly to the stressors of life or vicissitudes of life than the average person. But his reaction more probably than not would have been reasonably transient almost certainly based within the domains of anxiety or depression, with perhaps a need for some degree of treatment perhaps of a general practice level and perhaps some medication. Probably not more than that." 602 The real issue, about which Mr Phillips was not directly questioned, but which must be addressed in the context of the appropriate discount for vicissitudes, requires an assumption of the incident in Vietnam, as well as the plaintiff's vulnerability arising from his adverse childhood. I will return to that issue in the context of damages. 603 Dr Phillips did, however, give the following evidence, commenting upon the observations of the treating psychiatrist, Dr Gelb, as to the relative importance of the Melbourne/Voyager collision as opposed to Vietnam. He said this: (T1081/2) "Q. Would you agree if over a ten year period the treater noticed that the most distress was exhibited when discussing Melbourne-Voyager and a lesser extent Vietnam and little overt distress when talking about such matters of marriage break up and death of a child, they would be useful indicators? A. Given that they occur in therapy over a period of time, it is not just a cross-sectional analysis, one has to give that considerable weight. Q. The longitudinal aspect rather than cross-sectionally? A. I am always concerned about cross-sectional analysis, one day, one point in time. That is not a very accurate way of looking at trauma. It is much better to do it over a period of time." 604 Let me move, finally, to the evidence of Professor Tennant.

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Professor Christopher Tennant. 605 The final witness called by the defendant was Professor Christopher Tennant. Professor Tennant has been the Professor of Psychiatry of the University of Sydney at the Royal North Shore Hospital since 1987. He is a former Director of Mental Health at Northern Sydney Area Health Service. He was, for a number of years, Associate Professor of Psychology of the University of Sydney attached to the Repatriation General Hospital at Concord, where he saw many veterans. He has published widely, especially in the area of anxiety related disorders. He has not, unlike Professor McFarlane, specifically focussed upon PTSD. He has practised as a psychiatrist since 1971. 606 Professor Tennant did not examine Mr Covington-Thomas. He was provided with a great deal of material by the defendant's solicitors, and asked to answer a number of questions. He gave evidence over a number of days. 607 Professor Tennant, in his report, confirmed that Mr Covington-Thomas had a number of psychiatric disorders. He is significantly psychiatrically impaired and will require psychiatric treatment, probably for the rest of his life (Ex 15, p102(F); p103(L)). Professor Tennant described the psychiatric disorders from which Mr Covington-Thomas suffers in these terms: (Ex 15, p100) "The plaintiff clearly suffers from a range of psychiatric disorders which in all probability include depression, alcohol abuse and dependence (possibly in remission) and, significant memory disturbance possibly the consequence of alcohol abuse. There is also the possibility of an underlying personality disorder with dependent traits." 608 Professor Tennant addressed the issue of whether Mr Covington-Thomas had PTSD. He recognised that a number of psychiatrists had made that diagnosis. However, before that diagnosis could be made, there must be a link between the trauma and the symptoms about which the patient complains. The documents provided to him, however, did not support that link. They suggested the following: · First, that although the Melbourne/Voyager was certainly a traumatic event, out of the ordinary, which would satisfy Criteria A of DSM IV, the trauma was but one aspect, and perhaps a relatively minor aspect, rather more like the straw that broke the camel's back. Whether a particular person develops PTSD depended, amongst other things, upon his or her vulnerability (Ex 15, pp100-102). · Secondly, here the plaintiff suffered significant trauma in childhood, which had made him vulnerable. · Thirdly, he was seen by two psychiatrists, Dr Stoller in 1980 and Dr Parkin in 1994, both experienced in repatriation claims. He had provided a history of symptoms, but said nothing about Melbourne/Voyager (Ex 15, p101). · Fourthly, the plaintiff was, nonetheless, found by Dr Parkin in 1994 to be suffering from PTSD arising from his war experience in Vietnam. 609 Against that background, Professor Tennant identified the following possibilities. He said this: (Ex 15, p101) "There seem two possibilities. Firstly, the reporting of PTSD symptoms (specifically relating to the Melbourne), have in fact been produced by the solicitor's advertisement, or secondly, one would have to contemplate a delayed PTSD. This is possible but is generally considered a relatively uncommon event and would usually be considered to occur following a second traumatic experience which would either remind the person of the earlier trauma, or indeed be a similar trauma in itself. … " 610 Professor Tennant thought delayed PTSD unlikely. He said this: (Ex 15, p102) "C. If, as seems plausible, the plaintiff has post-traumatic stress disorder, the most objective evidence suggests it would be attributed to the Vietnam experience and not to the Melbourne collision. 'Melbourne related' imagery is only presented after the plaintiff has seen the solicitor's advertisement. Just prior to this advertisement, he had been seen by an experienced psychiatrist and no Melbourne related imagery is reported. Imagery related to Vietnam most certainly was. (Dr Seebridge) (sic) Other disorders present, including alcohol abuse and depression which first occurred years after the Melbourne collision would seem to be related to other factors including early vulnerability factors mentioned above, as well as more contemporary stressors such as the death of his daughter and marital problems. All these factors have the capacity to potentiate post trauma symptoms and disorder." 611 In Professor Tennant's view, the temporal relationship which would link Mr Covington-Thomas' symptoms with Melbourne/Voyager was, on the material he had, absent (Ex 15, p102(E)). As to alcohol, Professor Tennant said this: (Ex 15, p103) "K. The plaintiff does report increased alcohol consumption following the collision however these reports are only made following the Melbourne related advertisements. There is no objective evidence of this occurring at an earlier time. The objective reports of two earliest psychiatric reports do not allude to alcohol related problems prior to the plaintiff seeing these advertisements. Whether or not there may have been some transient increased alcohol use to deal with normal stress symptoms following the collision is uncertain, but plausible." 612 Professor Tennant, in his analysis, had assumed that Dr Parkin, with his background in the military and his experience in veterans' affairs, had elicited an "adequate history", canvassing the full range of potentially traumatic military experiences. He attached some importance to the failure of Mr Covington-Thomas to mention Melbourne/Voyager in such circumstances. 613 Reference has been made to this aspect already (supra para [483]). Dr Parkin stated, and I accept, that he only explored Mr Covington-Thomas' military experience in Vietnam, because that was the only matter relevant to the questions he was obliged to address. For the reasons explained, which I accept, Mr Covington-Thomas, as an aspect of his avoidance, compartmentalised his traumatic history and disclosed only that which he judged to be relevant (supra para [294]). 614 Obviously Professor Tennant, when expressing his view on the documents, did not have the benefit of the lay evidence called in this trial. That evidence, as I have remarked, was substantially unchallenged (supra para [131]). 615 Three matters are therefore relevant to the weight that should be given to Professor Tennant's report and the conclusion which he reached. First, he did not examine the plaintiff and therefore had no opportunity to make up his own mind as to whether he was genuine or malingering. Secondly, the report, as I mentioned a moment ago, is based upon the documents the defendant's solicitors provided. It does not reflect the lay evidence given in this trial (in common with the reports of other experts). Thirdly, in drawing his conclusion as to the importance of the advertisement, Professor Tennant was no doubt fortified by what he inferred was a failure on the part of Mr Covington-Thomas to mention to Dr Parkin Melbourne/Voyager during the consultation in 1994. He reasonably assumed, but as it happens, wrongly assumed, that Dr Parkin would have asked questions that would have flushed out that information, had it been the real cause of his suffering. 616 Let me move from Professor Tennant's report to his evidence. He, like Dr Champion and Dr Phillips, favoured an open ended style of questioning (T970). He stated that questionnaires had been used in surveys conducted in the 1980s and had been helpful in the context of those who did not wish to see themselves as patients (T970). Nonetheless, there were dangers with such an approach in a medico-legal setting. There was, in his view, a significant risk that someone may simply agree to a symptom they did not have, or had minimally (T970; T1243). Professor Tennant recognised that Professor McFarlane believed that the diagnostic manual, DSM IV, required the confirmation or exclusion of a diagnosis once the patient's symptoms suggested its availability. He was also aware that academic colleagues at the University of Sydney approached the issue differently from Professor McFarlane where the context involved litigation (T1244). There was, he suggested, controversy as to the correct approach. He differed, however, from Dr Phillips in that he did not believe that there was a real risk of a patient failing to mention important symptoms. A good, unstructured assessment by an experienced practitioner should, in his view, solicit relevant symptoms which would enable diagnosis (T1243). Professor Tennant expressed surprise that Mr Covington-Thomas, in the unstructured part of his interview with Professor McFarlane, had not mentioned nightmares, which are a fundamental touchstone of PTSD where it exists (T1244). Commenting upon Professor McFarlane's notes at his examination, Professor Tennant said this: (T1245) "A. … what I'm alluding to is the fact no symptoms specifically of PTSD could be identified in the front, wide ranging and Professor McFarlane is one of a number of experts in this area your Honour, if he couldn't elicit that in the open ended interview, I am surprised. Q. Except that I think, as I remember the notes, there is a sort of question like: What are your major problems? He said drinking and various other things. It's a sort of present? A. Either that's the case and Professor McFarlane terminated his open ended interview far too early to actually clearly identify some of those post trauma symptoms, in other words, he just asked a single general question: What are your major problems? Thank you very much. Now complete this questionnaire, which I find extremely extraordinary for him to do. Quite extraordinary at the end of that question, your Honour, tell me basically your problems. I am drinking too much and my marriage problems. Thank you very much. I want to hand you this, a questionnaire. Do you have PTSD? That's extraordinary. Q. Do you remember a questionnaire? A. I'm using a hypothetical to make a point. If an unstructured interview did not identify a clear cut PTSD, I find that very unusual." 617 However, Professor Tennant's response perhaps does less than justice to Professor McFarlane's method. Professor McFarlane interviews his patients, and interviewed Mr Covington-Thomas, by a series of open-ended questions. That part of his interview, in the case of Mr Covington-Thomas, did not yield any reference to nightmares. Because the symptoms otherwise disclosed suggested the possibility of PTSD, Professor McFarlane was concerned to discover whether, in fact, Mr Covington-Thomas was, or had been, troubled by nightmares. It should be mentioned that nightmares were not a particular problem of Mr Covington-Thomas at the time of the interview by Professor McFarlane in 2003. Once he came under treatment in 1996, medication had been prescribed which assisted his sleep and the eradication of nightmares (except if he had a nap during the day). Mr Covington-Thomas therefore said nothing about them to Professor McFarlane. Professor McFarlane in a second interview, as I understand his evidence, then asked questions which were designed to be non-leading but which were more specific than the open ended part of the interview. It was in that context that Mr Covington-Thomas disclosed that he had indeed suffered from nightmares, although he said that they first troubled him when on HMAS Hobart some time after December 1995. Professor McFarlane did not administer a questionnaire in the nature of a "tick-a-box" series of questions. 618 Professor Tennant was cross examined at some length on the nature of PTSD. Much of the questioning was based up academic literature, including what was termed the "McLeod Study" (Ex 16). Let me refer briefly to one or two aspects of the examination. 619 Counsel for the defendant asked Professor Tennant to assume the truth of observations made by the plaintiff's relatives in the months following the collision. The following question was put: (T965) "BARRY: Q. Now, the next matter I want to take you to is the part of your report where you say the plaintiff coped adequately with the stressful event. Now, you can assume that evidence was given, has been given, by the relatives that when he came home following the collision, that he was extremely tearful and very distressed and he was withdrawn and he wasn't as he had been and as they had known him to be before the collision. There has also been evidence that he came home at Christmas time, which was February to December - 10 months after the collision - and that he was observed to be gulping his alcohol down, tearful, and apparently distressed. My question is: Are those matters, if they be accurate recollections at the time, indicative of post-traumatic stress disorder, a normal reaction or something else? A. Well, the normal stress -- SANT: I object to that. HIS HONOUR: I think - yes, no, I will allow it. WITNESS: The normal stress response would perhaps be allowed to - you would be permitted to have significant symptoms following a trauma like that, perhaps up to a period of two weeks. After that if your symptoms were persisting, significant symptoms were persisting, such that interfered with your functioning in some way, you may be considered - because this is again the PTSD issue - if they were significantly interfering with your function in the area of work or family relationships et cetera, you might be seen as having an incipient syndrome such as PTSD ; this though would be well after, two years after the event." (emphasis added) 620 Professor Tennant was taken to the DSM IV criteria. He gave the following evidence relevant to Criteria C (avoidance): (T1252) "A. I think for it to be generalised beyond being on a naval vessel, which might go down, is a long bow to draw. Because claustrophobia perhaps is the commonest of phobias, and if the person, you know, can't go into a small shop, that is not in any way as linked to in fact being drowned at sea in a small vessel like the Voyager or the Vampire. The link is very tenuous your Honour. As I said to counsel, and maybe I didn't answer her question directly, but if this man displayed anxiety symptoms and avoidance symptoms in relation to going to sea on a vessel like the Voyager or the Vampire, that would be a clear sign of avoidance. That sort of phobia is actually linked to the trauma. This is the whole thing about PTSD, the avoidance phenomenon and the re-living phenomenon all are supposed to have some link to the trauma because after all it is the trauma that is speculated to cause these symptoms. That's the inherent underpinnings of PTSD. Q. Does it have to be immediate, this avoidance? A. No, it doesn't have to be immediate. No, not at all. If this man, for example, went back on the Melbourne, which is a big ship, and many years later ordered to serve on the Vampire and refused to do so, that would, that would sit with avoidance, absolutely. … " (emphasis added) 621 Professor Tennant, in his evidence in chief, had emphasised the importance of Criteria F (T950). He was cross examined on the terms of that criteria as follows: (T1186) "Q. Are you saying, doctor - I am not quite sure I follow you - that at least in a clinical setting someone with mild PTSD may have significant impairment? A. Well, that would be unusual. That would be unusual. Q. Could they have mild impairment? A. Yes, they could have. If you have got mild symptoms you could have mild impairment, of course. If we are talking -- Q. And mild impairment is not insignificant, is it? A. Well, I mean this is, I guess, into semantics now and I'm not easily able to comment on that. I mean mild impairment suggests that their impairment does not interfere in any significant way with those life activities, such as work and family and recreation. Q. Doesn't it suggest that it interferes mildly? A. Yes, all right. Yes, it does. But I think you've got the definition again. If we go back to the definition in Criteria E, I think it is, they do talk about clinically significant impairment, and if you don't have that you don't have PTSD. That is the problem you face. And that tends quite often, I think, to get overlooked in instances, particularly again in the legal framework, where people may not have clinically significant impairment , have a lot of post trauma symptoms, no doubt about that, but would not normally meet the criterion of impairment being significant enough. So you can't have PTSD really with insignificant impairment." (emphasis added) 622 The cross examination continued: (T1186) "Q. Professor, I think you just suggested, in the middle of that answer, that you cannot have PTSD unless there is significant impairment in social, occupational or other important areas of functioning. Did I understand that correctly? A. Yes." 623 Professor Tennant, having been provided with the diagnostic manual, was asked the following: (T1187) "SANT: Q. What you have just said is not correct, is it, you are mistaken about that, that Criteria F is met if the disturbance causes clinically significant distress. That is clearly stated? A. Clearly significant distress or impairment, that's correct, yes. Q. Impairment is not necessary, is it? Clinically significant distress would clearly satisfy Criteria F? A. Yes, that's true. But when you raised the issue of impairment I was addressing that issue, you're right. Clinically significant distress on its own would be sufficient. Q. Of course where the distress is clinically significant it could be judged on the basis of one's clinical assessment of the patient in a clinical setting. Is that correct? A. Well, once you get to the level of judging clinically significant distress you are usually looking at issues such as how those symptoms impact on other aspects of a person's life. It may not necessarily require that, but clinicians will use a number of parameters about judging clinically significant distress, for example, that the person experiences severe symptoms for great lengths of time. That would be called significant clinical distress. Or they have episodes of such severe symptoms for that period of time they are disabled. I mean, for example, that would be panic disorder. Or alternatively, the symptoms that they have actually impair them in their abilities to carry out a healthy normal lifestyle. So they are some of the ways that we would judge that issue of significance of distress." (emphasis added) 624 Professor Tennant agreed that clinical observations of distress over a period (such as made by the treating psychiatrist) would be evidence relevant to Criteria F. Professor Tennant was also asked about Mr Covington-Thomas' vulnerability to depression, as a co-morbid condition, if it were assumed that he had PTSD. The cross examination began with the following general questions: (T1254) "Q. Professor, in the area of life stressors or ordinary adverse life events, do you agree that acute stressors tend to increase the risk of depressive symptoms? A. Absolutely. Q. But in general, their effects dissipate over time? A. For most people, yes. Q. And do you agree that the longer term prognosis can be effected by the presence or absence of another and pre-existing psychiatric illness, do you agree with that? A. Yes. Yes." 625 Professor Tennant was then asked the following: (T1254) "Q. I want you to assume Mr Covington-Thomas had PTSD -- A. Yes. Q. -- from the 1960s and if that were so and he had an adverse-like life event he would have an increased risk of developing depression compared to if he had no pre-existing psychiatric illness at all, wouldn't he? A. Yes. Q. And there would be a decreased chance he would have an early favourable resolution of a depressive illness, wouldn't he? A. The general evidence suggests that illnesses more specifically related to stressful events probably have a better prosecution than those unrelated to stressful events. But I think you might be asking a slightly different question, if he had a second event, that increases his probability of having an episode of illness because he had an earlier event. The earlier PTSD increases his vulnerability to a greater morbidity should a second event come along. Q. Yes, that was my question. A. Yes. Q. You agree with that? A. Yes, I do." 626 However, on the material provided to him, Professor Tennant believed that the objective evidence supported the view that Melbourne/Voyager was well in the past. The cause of Mr Covington-Thomas' illnesses were the adverse events of 1996 (T958; 1261). 627 Professor Tennant also dealt with the question of alcohol abuse and the self medication hypothesis which had been the subject of comment by Dr Champion (supra para […]). He gave the following evidence: (T1260/61) "Q. You were asked about co-morbidity and also asked about the relationship between PTSD, if assumed to exist, and other conditions. Is there a simple answer? A. Not really, no. I mean, there are various propositions and the couple that have had an evidence basis for them include, I think, as we have alluded to in those genetic studies, there is a very, very strong genetic overlap between PTSD and alcohol. In other words, if you have a family history with those particular genes in place and usually a history of depressive disorders and/or alcoholism, which themselves are strongly genetically linked, you have a much higher propensity to develop both PTSD and the co-morbid alcohol dependence. The other bodies of evidence that come out suggest - and it works both ways - the particularly strong protagonists of PTSD argue almost invariably if you have alcohol problems it is always caused by your PTSD symptoms. And to some extent there will be people self-medicate with alcohol to deal with this, no doubt about that. Equally, there is data showing people with pre-existing psychiatric disorders, including dependency and alcoholism, long before exposed to trauma, are more likely to develop PTSD and have the co-morbid alcohol with them. What we can say is, a strong genetic underpinning causes your risk for both these to occur independently of each other, the common cause being your genetic make up. The second thing is, some people - and it is very, very important when people have alcoholism or alcohol dependence and PTSD, to actually get the clear link between the self-medication - people don't often ask those detailed questions. In other words, were you drinking to put yourself to sleep to alleviate anxiety during the day? It always seems to me in many cases simply presumed if they do coexist, it is because of self-medication. That is not true. It may be true but has to be established. Pre-existing alcohol morbidity increases your likelihood to have PTSD. There are three links. The strongest link is the underlying genetic link between the two." 628 Here, the undisputed evidence is that, before the collision, Mr Covington-Thomas was a moderate drinker (supra para [128]). On his evidence, he began binge drinking after the collision (supra para [204]). He moderated his drinking to some extent once married, at the urging of his wife (supra para [208]). Once he began working at the St Luke's refuge he began drinking very heavily indeed. His drinking had reached dangerous proportions by the time he left St Luke's in 1996.

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Conclusion. 629 Professor McFarlane was a most impressive witness. He has unique qualifications (supra para [471]). As a psychiatrist, he has specialised in PTSD and has published widely. He is an acknowledged world expert, a member of the committee revising the diagnostic manual, DSM IV, in respect of PTSD. His work as a clinician has been mainly concerned with veterans. He is in charge of the Centre for Military and Veterans' Health at the University of Adelaide. He is also familiar with the armed services. He is a Group Captain in the Air Force and a reservist. But, more than that, he is a Senior Advisor in Psychiatry to the Department of Veterans' Affairs. A sustained attack was made by the defendant upon his impartiality. The attack was unwarranted. I have no doubt as to his integrity. I accept Professor McFarlane's evidence. 630 I also accept the views of Doctors Parkin and Gelb. I collectively prefer their evidence to that of Dr Champion and Professor Tennant. 631 So far as Dr Phillips is concerned, it will be remembered that he favoured an open ended method of interview (supra para [559]). However, I prefer the view of Professor McFarlane (shared by Doctors Parkin and Gelb) that, in the context of the diagnostic manual, DSM IV, it is appropriate to interview in the manner described by Professor McFarlane, that is, the open ended method supplemented by more direct questions to confirm or exclude a possible diagnosis. It is noteworthy that Dr Phillips, when asked to assume a number of matters (reflecting facts which I have found), supported a diagnosis of PTSD. Indeed, Dr Champion and Professor Tennant, when asked to make the same assumptions, accepted that there were a number of indications of PTSD. 632 I specifically make the following findings: · First, that Mr Covington-Thomas suffered a psychiatric injury as a result of the Melbourne/Voyager collision, namely, PTSD. The collision can be said to be the effective cause of that condition, whether on the definition of Mason CJ in March v Stramare Pty Ltd (supra), or that of Deane J. I accept that the collision also gave rise to a co-morbid depression and anxiety. I prefer the view of Professor McFarlane (supported by other experts, as set out above) that resort to alcohol by persons discomforted by symptoms after exposure to trauma is a common form of self medication, liable to give rise to alcohol abuse, as happened in the case of Mr Covington-Thomas. · Secondly, that the PTSD and other psychiatric problems were aggravated in Vietnam by the incident described by the plaintiff involving the shelling of a village. I accept Professor McFarlane's view that the Vietnam incident did not create a separate condition, but exacerbated symptoms already present (PTSD, depression and alcohol abuse) as a consequence of the Melbourne/Voyager collision. I further accept that the contribution that the Melbourne/Voyager collision made was far more significant than the Vietnam incident, and that the ratio suggested by Professor McFarlane (75:25) is a reasonable approximation of the respective contributions of each traumatic event. · Thirdly, that the symptoms from these psychiatric disorders thereafter endured, as described by Mr Covington-Thomas and recorded by various doctors, including Dr Stoller in 1980 and Dr Parkin in 1994, progressively getting worse, although waxing and waning according to the course of his life and the stress occasioned by it. The PTSD and other disorders suffered as a result of the Melbourne/Voyager collision significantly eroded Mr Covington-Thomas' resilience. He was therefore less able to withstand stress. Ultimately, in 1996, when subjected to a combination of stressful events, Mr Covington-Thomas "decompensated". I accept Professor McFarlane's view that the Melbourne/Voyager collision nonetheless remained the bedrock of his psychiatric disorders and his collapse, being a major contributing factor. But for Melbourne/Voyager, it is improbable that the adverse events of his life would have caused a psychiatric disorder, although unquestionably they would have caused significant stress. Such events, including those in 1996, aggravated the psychiatric symptoms which Melbourne/Voyager had caused (cf Malcolm CJ, State Government Insurance Commission v Oakley (1990) ATR 81-003; Mason P, GIO of New South Wales v Aboushadi (1999) ATR 81-531). 633 I should, in this context, deal with one further aspect. I have accepted that Mr Covington-Thomas was vulnerable to psychiatric injury (especially as a young man) by reason of adverse experiences in childhood. Assuming that vulnerability, and further assuming the incident in Vietnam, but absent the Melbourne/Voyager collision, would Mr Covington-Thomas have developed PTSD as a consequence of the Vietnamese incident in any event? Statistically, about 15 percent of members of the armed forces engaged in combat develop PTSD. That bare statistic includes, no doubt, those who, by reason of their genetic makeup or adverse childhood experiences, are vulnerable to psychiatric injury. It also includes those directly exposed to severe and repeated trauma, where their lives are at risk. Here, Mr Covington-Thomas was vulnerable, having had an adverse childhood. On the other hand, the incident in Vietnam which aggravated his PTSD was unusual, as Dr Parkin explained. It was remote, although seen by the plaintiff through powerful binoculars. It no doubt resonated with him because it involved women and children. Nonetheless, it was an isolated event and did not involve direct combat where his life was in jeopardy (cf McFarlane, T634). 634 Two issues arise. First, what were the chances of Mr Covington-Thomas developing PTSD or other psychiatric disorders following the Vietnam incident (absent Melbourne/Voyager)? Secondly, assuming a psychiatric reaction, what was the likely nature of that reaction? Professor McFarlane addressed the first issue in the joint report in the following passage: (Ex J, para 35) "35. In contrast, Professor McFarlane takes the view that if Mr Covington-Thomas had not been involved in the Melbourne/Voyager collision, his service in Vietnam contributed a 10% risk above and beyond an approximate risk of 20% of developing a psychiatric disorder at some point in his life." 635 It will be noticed that Professor McFarlane used the term "psychiatric disorder", not "PTSD". However, when giving evidence, he repeated the same statistic (10 percent) in response to a question framed in terms of "the chance of developing PTSD" (T634). 636 The plaintiff made a number of submissions relevant in this context. First, attention was drawn to the youth of the plaintiff at the time of the Melbourne/Voyager collision, compared with his relative maturity six years later in Vietnam. The following was said: (PS, p75) "169. The first thing to note is that his early adult life would have taken quite a different course. He would not have been involved in a major disaster at the age of 21. The incident with the USS Enterprise would not have been a stressor, as it was, but just an interesting big ship on a horizon. Being on board on the HMAS Vendetta would not have caused him distress because of its resemblance to the Voyager. By the time he went to Vietnam in 1969, he would have fully matured as an adult, making him less vulnerable to traumatic experiences in terms of personality development. Whilst he probably would have had the same experiences in Vietnam, he would have experienced them in an entirely different manner." 637 There is some force in that argument. In a later submission, the following implications were said by the plaintiff to arise in the context of the Vietnam incident: (PS (30.5.07), p17) "45. A finding that the plaintiff may have suffered PTSD from Vietnam does not mean that there should be a discount in the plaintiff's damages. A 10% chance of suffering PTSD from Vietnam does not lead to a corresponding 10% discount in the plaintiff's damages. Any discount must acknowledge that the PTSD that may have arisen because of Vietnam may have been so mild that it would have had no impact on the plaintiff's earning capacity and that the plaintiff would have remained in the Navy for life and be promoted to Lt Commander. We say that there should be no discount. If the Court is against us on this, any discount must take into account not only the magnitude or risk of mild PTSD but the magnitude of risk of it impacting on his chances of staying in the Navy and earning capacity. That is a 10% risk of PTSD and a 10% of leaving the Navy because of the mild PTSD equals a 1% chance of him leaving the Navy because of, we say that the maximum a Court could discount the plaintiff's damages for the unlikely chance of him developing PTSD from Vietnam is a range from 1% to 5%." 638 Dr Phillips, in a passage already quoted (supra para [600]) suggested that, subject to "baggage from his past" (which I take to mean his vulnerability arising from an adverse childhood), his reaction to Vietnam (absent Melbourne/Voyager) would probably have been "briefer and less comprehensive than PTSD", presumably an adjustment disorder. I will return to this issue when dealing with the appropriate discount for vicissitudes. 639 Similarly, there was a risk (although not a probability) that adverse events during Mr Covington-Thomas' lifetime may, according to Professor McFarlane, cause psychiatric disorder (supra para [635]). That risk is also one of the matters to be taken into account when determining the appropriate discount for vicissitudes. 640 However, the plaintiff has established causation. The defendant is liable to pay him damages. I now turn to the assessment of those damages.

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General damages. 641 I have described, in the body of this judgment, the involvement of Mr Covington-Thomas in the Melbourne/Voyager collision, and the consequences for him in the decades that followed. I accept that the rescue was a terrifying experience in which he feared for his life. The disabling consequences of the psychiatric disorders that have ensued have been profound. 642 The defendant submitted, however, that the plaintiff cannot have it both ways. He cannot call in aid, in his case on economic loss, the consistent superior ratings he achieved after the collision, whilst in the Navy, and yet ignore the implication of his being able to perform at that high level. The implication, it was suggested, was that Mr Covington-Thomas was not suffering from a significant psychiatric disability, and in particular, a severe form of PTSD (DS (7.6.07), para 3ff). 643 Dr Phillips said, and I accept, that the work performed after the collision whilst in the Navy is a very "slight pointer" to the severity of the mood disorder (supra para [232]). Three comments should be made. First, it is in the nature of PTSD that a person suffering from that disorder may attempt to mask their symptoms (supra para [188]). Professor McFarlane gave evidence, which I accept, that people suffering from that disorder can and do perform very demanding work (T644). Secondly, the psychiatric conditions from which Mr Covington-Thomas suffered (principally PTSD and depression) became progressively worse with time, eroding his resilience and ability to withstand additional stress. Ultimately, many years after he had left the Navy, he collapsed. Thirdly, Mr Covington-Thomas' performance in part reflected his attitude and determination. He stated, and I accept, that both before and after the collision he attempted to perform each job given to him to the best of his ability (supra para [158]). He did not, I believe, give himself to his symptoms, but fought against them. Ultimately he was worn down. 644 The end result has been that the plaintiff's naval career, which held great promise, and which he cherished, was derailed. It ended prematurely when he chose not to re-enlist. He is an intelligent man. The jobs he secured thereafter were generally undemanding and relatively menial. He worked as a security guard, a labourer, a postman and a cleaner. His job at the St Luke's refuge was more satisfying, but ultimately proved emotionally too much for him in his debilitated state. 645 The plaintiff's symptoms include a pervasive anger, and an occasional loss of control. He is generally irritable. His depression fluctuates. It is occasionally severe. That is not to say that his life has been robbed of all joy. As recorded in the notes of Dr Gelb, he has pursued and enjoyed painting with water colours, yoga and walking. Although he was emotionally remote from his children for many years, he now has a relationship with his daughters and grandchildren. Some improvement in his mood can be expected, as Dr Gelb acknowledged, following the completion of this protracted litigation (supra para [417]). There are signs of that already, after the completion of his lengthy cross examination. Although Mr Covington-Thomas has spoken of suicide in the past, he has survived four decades. I believe the risk of suicide has all but disappeared (cf PS (30.5.07), para 11). 646 Mr Covington-Thomas has been criticised for moving to Queensland after his collapse in Bendigo. Whilst it is true that in Queensland he then lacked support, his escape was, I believe, reasonable in the circumstances. He now leads a fairly reclusive life (cf DS (30.5.07), para 18). He has some, but few, friends. He has had a number of brief sexual relationships with both men and women, the women being prostitutes. All relationships have been short lived. That is likely to remain the pattern of his life, and a consequence of his psychiatric disorders. He is anxious, finds it difficult to sleep, is emotionally labile, has trouble with crowds and public transport, difficulties with his memory and with concentration. 647 It is proposed that Mr Covington-Thomas undertake a course designed to assist him in coping with PTSD. For the reasons I will shortly give, I believe that to be a reasonable suggestion and expense. It may help him better understand and cope with his disabilities. Professor McFarlane spoke of the difficulties in treating PTSD if it persisted beyond 72 months (T641). Mr Covington-Thomas has obviously lived with the disorder for more than 40 years. Dr Phillips spoke of the "intractable nature of PTSD" (supra para [598]). 648 Alcohol has been a problem for Mr Covington-Thomas since the collision and especially since 1996, when his intake reached alarming levels. It is proposed that he undertake rehabilitation in a clinic. Again, for the reasons set out below, I believe that to be reasonable suggestion and an appropriate expense. Although abstention is unlikely to be easy, and will require reinforcement, there is, I believe, reason for optimism. 649 Let me conclude this short summary by referring to the opinions of various doctors as to the relative severity of Mr Covington-Thomas' disabilities. Professor McFarlane described him as having "chronic post traumatic stress disorder, major depressive disorder, panic disorder with agoraphobic features and alcohol abuse" (Ex F, p42). Dr Parkin said Mr Covington-Thomas, as he presented in 1994, had PTSD which was "chronic and relatively severe" (T598). At that point he was capable of working, but only just (supra para [374]). In the years that followed, before May 1996, he deteriorated further and was then unable to work again. Dr Holwill described Mr Covington-Thomas as suffering from "chronic moderate to severe PTSD, associated with moderate to severe depression and some generalised anxiety" (supra para [504]). He believed that no real improvement could be expected. Mr Covington-Thomas would remain unfit for work. Dr Gelb, his treating psychiatrist until 2006, said this: (T551) "I think his post-traumatic stress disorder is severe. It's at the severe end of the spectrum, undoubtedly. He's quite crippled, really." 650 Professor Tennant, whilst not diagnosing PTSD, described Mr Covington-Thomas as "significantly psychiatrically impaired by a number of psychiatric disorders" (supra para [607]) which will require treatment for the rest of his life. The disabilities included depression, alcohol abuse and dependency, with significant memory disturbance consequent upon alcohol (supra para [607]). 651 I believe, subject to the aspect which I will deal with below, that general damages of $180,000 are appropriate.

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The "Battle Defence". 652 The defendant, in its Amended Defence to the plaintiff's Amended Statement of Claim, raised what was termed the "Battle Defence", expressed in these terms: "10(d) further, as a matter of public policy, the Plaintiff is not entitled to recover any damages for aggravation of injuries as a result of his overseas service in the Royal Australian Navy in Vietnam during war time." 653 Attention was drawn to a number of authorities dealing with actions in negligence against the Crown for acts done in the course of active military operations against the enemy, including Shaw Savill and Albion Company Limited v The Commonwealth (1940) 66 CLR 344. Such actions must fail. The rationale was explained by Dixon J as follows: (at 362) "The uniform tendency of the law has been to concede to the armed forces complete legal freedom of action in the field, that is to say in the course of active operations against the enemy, …" 654 The plaintiff responded by pointing out that the statement of claim does not plead a separate cause of action based upon the Vietnam incident. The issue, rather, concerned whether an aggravation of a pre-existing psychiatric disorder, during the course of combat duties was compensable. The plaintiff asserted, applying ordinary principles, that it was, since it was regarded as part of the original compensable tort, in this case the Melbourne/Voyager collision. Attention was drawn to the statement of principle by Malcolm CJ in State Government Insurance Commission v Oakley (supra), to which reference has already been made. Malcolm CJ, in that case, said this: (at 67,577) "In my opinion, where the negligence of a defendant causes an injury and the plaintiff subsequently suffers a further injury the position is as follows: (1) where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant's negligence, the added damage should be treated as caused by that negligence; (2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and (3) where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first." 655 The principle was approved and applied by the Court of Appeal in Jeffries v Roads and Traffic Authority of NSW (C of A, unreported, 28.11.97). 656 The defendant, however, argued that to permit the recovery of damages as a consequence of combat duties in Vietnam would subvert the principle established by Shaw Savill and Albion Company Limited v The Commonwealth (supra). What was precluded, according to their argument, was any liability "where the nexus between the prosecution of the war and the civil loss is inextricable" (DS, para 229). 657 The defendant acknowledged that there was no binding authority upon this Court. It drew attention to the fact that participation in the Vietnam war may not have been participation in a "declared war". However, it asserted, and I accept, that HMAS Vendetta's participation in combat was within the scope of the Shaw Savill principle. So the issue is whether, in circumstances where there is not a fresh injury and not a separate cause of action, but an aggravation of a pre-existing compensable injury, the ordinary principles should apply. I believe that they should. I do not accept that their application would subvert the fundamental immunity given by Shaw Savill. If the tort feasor responsible for the original injury was someone other than the Commonwealth, how would the application of the ordinary rule subvert the policy which underpins Shaw Savill? And why should it be any different where the tort feasor is the Commonwealth and the default by the Commonwealth actionable? I believe the plaintiff's damages should therefore extend to the aggravation occasioned by the Vietnamese incident. 658 If I am wrong in my conclusion, it is perhaps convenient that I identify the additional amount awarded in respect of the aggravation. Mr Covington-Thomas has been left with severe psychiatric disorders as a consequence of the Melbourne/Voyager collision and the aggravation occasioned by Vietnam. Life's adverse events have also, no doubt, taken their toll. That toll being magnified by his lack of resilience. Even without the Vietnamese aggravation, I think it highly likely that he would have been severely disabled. 659 In assessing damages, I believe one should give weight to the "bedrock" of his psychiatric disorders as opposed to the "aggravation". Hence, I do not believe that, if one excluded Vietnam, and accepted Professor McFarlane's assessment (as I do) as to the relative contribution of Vietnam as opposed to Melbourne/Voyager to his psychiatric disorders, that it would be fair to simply reduce his damages by 25%. Rather, I would reduce such damages by, say, $20,000.

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Medical expenses. 663 The only aspect of this claim which has been the subject of an agreement between the parties concerns past medical expenses, and even then the agreement was heavily qualified. The amount outlaid by the Department of Veterans' Affairs or the Health Commission in respect of the pharmaceutical and medical expenses of the plaintiff have been agreed at $15,475.25. That agreement is subject to the following qualification by the defendant: "The defendant disputes that the plaintiff's psychiatric injuries were caused by the collision, or, alternatively alleges that they were caused partly by the collision and partly by Vietnam and other life experiences. As such any agreement on out of pocket expenses is on the basis that the plaintiff only recovers that portion of the out of pocket expenses that the court finds referable to the collision." 664 I have resolved these issues in favour of the plaintiff. The defendant, in respect of non compensable causes ("other life experiences") has not suggested a way to unscramble the causation egg. The amount of $15,475.25 should therefore be included in the plaintiff's verdict, which he acknowledges he must repay. 665 In respect of future medical expenses, it is agreed that the cost of pharmaceuticals required by the plaintiff is $126.90 per year for life (Ex 26, tab 12). There is no agreement, however, concerning other forms of treatment that he will require. Clearly he will require medical supervision. Dr Gelb has furnished the following report in respect of such supervision: (Ex 25) "I am writing to confirm my evidence that Mr Peter Covington-Thomas will need to be seen by a psychiatrist at least 4 times per year at a cost of approximately $250 per session and will also require supportive consultations from a GP at lest 8 times per year at an approximate cost of $72 per consultation. The GP consults will obviate the need for Mr Peter Covington-Thomas to see a psychiatrist monthly. This arrangement will be required indefinitely." 666 When Dr Gelb was recalled in May 2007 he said that, ideally, Mr Covington-Thomas should see a psychiatrist each month and a GP on an "as needs basis". Mr Covington-Thomas has seen Dr Gelb monthly in the past. He sees Dr Kann, his treating psychiatrist at present, each month (Ex X, para 2). Professor McFarlane also stated that he would require a psychiatric consultation each month (Ex F, p48). However, that was a recommendation made in 2003 when the plaintiff was at a very low ebb. Since Mr Covington-Thomas completed his evidence and was excused, there has, I believe, been some improvement. Dealing with his medical needs, in the long term, once this case has been concluded, the verdict should include the regime identified by Dr Gelb in Exhibit 25, namely: · four consultations with a psychiatrist annually at $250 each; · eight consultations with a GP annually at $72 each. 667 These expenses and the pharmaceutical expenses give rise to an issue of life expectancy. What is the plaintiff's life expectancy (which then becomes the multiplier in respect of each of these expenses)? Before dealing with that issue, I should refer to a further aspect of the plaintiff's claim.

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Claim in respect of clinics. 668 Reference has been made to the plaintiff's history of excessive drinking. The affidavit from the plaintiff, tendered by consent at the resumed hearing, described his attempts to address this problem (Ex X). He said that after he had been excused from the case he felt a sense of relief (Ex X, para 3). He believed that he should then do something about his alcohol addiction. He provided the following explanation for not having dealt with the issue earlier: (Ex X, para 17) "17. I didn't stop drinking before because I couldn't. In the early 90s, for example, I had far too much going on in my head and I needed the alcohol. Up until last Thursday, I felt I had less going on in my head. The main thing for me was getting the case out of the way, getting through the cross examination and being told I was not required any more." 669 Mr Covington-Thomas underwent a test to determine the state of his liver. He was told that the test was clear (Ex X, para 5), a matter confirmed by Dr Parsons, his local practitioner. Dr Parsons said this: (T1539/40) "Q. Would you tell the court the date of that test? A. The latest liver function tests were done on 7 April 2007. Q. And what was the result of those tests, doctor? A. All those liver function tests were normal, absolutely normal. Q. Does that exclude the possibility of liver cirrhosis and the like? A. That does, yes." 670 Mr Covington-Thomas said that the result gave him an additional incentive to cease drinking. He well understood the damage that alcohol could cause. He stopped drinking between 8 April and 17 May 2007. He said this: (Ex X, para 7) "7. I found it difficult to abstain from drinking during that time. Whenever I walk past a pub I am tempted to go in. It is very hard to do on your own. I felt pretty proud of myself for not drinking." 671 However, on 17 May 2007, he was contacted by counsel, seeking instructions on an aspect of this case. He felt very stressed. For the first time, he resorted to alcohol. He said, "it was only a couple and much less than I used to drink up until late last year" (Ex X, para 9). Nonetheless, he felt very annoyed with himself. He again abstained from alcohol. 672 On Monday 21 May 2007, Mr Covington-Thomas was again approached by his solicitor. He was asked to swear an affidavit. He "ran around" during the day, doing things connected with this case. He began worrying and ultimately had a "panic attack". He took a sedative and eventually had a bottle of port. Again, the next day he felt annoyed with himself for "undoing his hard work". He added the following: (Ex X, para 13) "13. I'm still determined to stop drinking but I do not know if I can do it alone. I found it very hard to walk past the pub on Tuesday, 22 May 2007 but I did and didn't go in. I would like some support." 673 On 23 May 2007, the plaintiff saw Dr Kann. He said this: (Ex X, para 14) "14. Yesterday I had an appointment with Dr Kann. I told him about trying to give up saying words to (the effect), 'I have been trying to stop drinking for the past few weeks but have found it very difficult to deal with the cravings. I can't even walk past the pub without drooling. Yesterday I nearly went in. Then after I got home, I walked back to the pub and stood outside again and nearly went in. Both times I had to talk myself out of it. Eventually I went home without having a drink. I really want to get off the grog but it's so hard.' … " 674 Dr Kann prescribed a drug, Campral Ec, that helps with the craving for alcohol and also induces sickness if alcohol is consumed. Mr Covington-Thomas said that he is taking that drug. He added that he wishes to undergo treatment for alcohol and PTSD, including in-patient treatment. 675 Dr Gelb has recommended two in-patient psychiatric programmes available at the Sunshine Coast Hospital, near where he lives. He said this: (Ex V, pp1/2) "First, the Alcohol Treatment Program and secondly, the Post Traumatic Stress Disorder Program - both offered by the Sunshine Coast Private Hospital at Buderim. The duration of each program is approximately 4 weeks but can be longer, depending on the patient's response to treatment. The cost of each program is approximately $700 per day, with $600 per day being hospital cost and $100 per day being psychiatrist's consultation fees. Thus a 4 week program would cost approximately $19,600 and the two programs would total $39,200." 676 Dr Gelb added: (Ex V, p2) " If Mr Covington-Thomas can achieve and maintain alcohol abstinence, and if he has no current alcohol related damage severe enough to impact on life-expectancy, he can expect to have a normal lifespan. Similarly, successful treatment of his Post Traumatic Stress Disorder will contribute to the achievement of a normal life-expectancy by decreasing the morbidity and mortality associated with the two most common co-morbidities of PTSD, depression and substance abuse." (emphasis added) 677 He would require follow-up consultations with a psychiatrist and his general practitioner. He may require a refresher course. 678 The defendant pointed out in response that the plaintiff, on his case, had had PTSD since 1964. He had certainly known of the diagnosis since Dr Parkin saw him in June 1994. Yet he had not previously sought in-patient treatment. The same can be said in respect of alcohol where, on his case, he has known that he has had a problem for much longer. Specifically, he had not sought to obtain treatment offered to veterans by the Department of Veterans' Affairs. 679 The defendant questioned whether Mr Covington-Thomas, were he awarded the cost of treatment, would attend the clinic or, if he did, would persist with the programmes. Moreover, Dr Gelb's recommendation should be treated with caution. He is, after all, a suspended psychiatrist. He is no longer the plaintiff's treating psychiatrist. It was said that he has no expertise in alcohol dependence and treatment. 680 If, contrary to these submissions, a sum were awarded in respect of PTSD and alcohol treatment, there were cheaper alternatives available. Mr Covington-Thomas could participate as a day patient staying in hotels overnight. Certain hospitals offered shorter combined PTSD and alcohol abuse courses at less cost. Further, because of the doubt concerning Mr Covington-Thomas' commitment to attend such courses, any amount awarded should be discounted by 50%. 681 A report was tendered by the defendant from Professor John Saunders, Professor of Alcohol and Drug Studies, to which I will refer shortly in the context of life expectancy. However, Professor Saunders did comment upon Dr Gelb's opinion in these terms: (Ex 26, tab 11, p4) "In my experience, the opinion expressed by Dr Jerome Gelb that, if Mr Covington-Thomas could achieve and maintain abstinence from alcohol and if treatment of his post-traumatic stress disorder were successful, he would have a normal life expectancy is, at a theoretical level, correct. However, the inference that success and long-term maintenance of abstinence from alcohol could be achieved by a four-week admission to a PTSD and alcohol treatment program is naïve. Both conditions are characterised by relapses and, in particular, successful treatment from alcohol dependence is crucially dependent on the commitment of the individual to abstain from alcohol and to engage in the necessary treatments and supports in the long term. I see no evidence that Mr Covington-Thomas has engaged in any treatment or that he has demonstrated any commitment to abstain from alcohol even for short periods. Thus I anticipate that his life expectancy would be within the range I have described for a person with continuing excessive alcohol consumption." 682 Professor Saunders stated that a normal life expectancy for someone with Mr Covington-Thomas' history, assuming a normal heart and a normal liver, presupposed that he give up alcohol and undertake the following treatment: (Ex 26, tab 11, p3) "(v) the involvement of the Plaintiff in treatment for alcohol dependence, which would include the development of a commitment to abstain from alcohol, detoxification (and any necessary hospitalisation for this), a program of psychological therapy, pharmacotherapies to suppress the driving force of alcohol dependence, and involvement in self-help fellowship of Alcoholics Anonymous (AA), and engagement in after-care and adherence to the therapies and supports provided; and (vi) treatment for post-traumatic stress disorder and the Plaintiff's adherence to the program of treatment." 683 In response to Professor Saunders, counsel for the plaintiff stated that Dr Gelb was not recommending that Mr Covington-Thomas simply undertake the PTSD and alcohol clinic and then be left to his own devices. That would certainly be naïve. Follow up treatment and therapy was also contemplated, including the possibility of refresher courses (Dr Gelb, T1416/7). 684 Dr Gelb's recommendation should, according to the plaintiff, be accepted. First, he had been the treating psychiatrist of Mr Covington-Thomas from 1997 until 2006 and therefore knows him well. Secondly, no evidence has been tendered by the defendant that the courses which Dr Gelb recommended were either unsuitable or unwarranted. Professor Saunders, in the passage quoted, clearly believed that treatment was fundamental to Mr Covington-Thomas' future well being and a normal life expectancy. Professor McFarlane, when speaking of treatment, also contemplated "management of alcohol abuse" (Ex F, p48). Dr Champion emphasised in his evidence the need for treatment. In one of his reports he said this: (Ex 15, p61) "(j) … I would agree with Professor McFarlane's assessment however that he is likely to require ongoing treatment aimed at his depressive disorder . It seems likely that he would also benefit from specific input aimed at modification of his alcohol dependency. " (emphasis added) 685 The plaintiff said he is willing to undertake this treatment. Indeed, he is anxious to do so. According to his counsel, he has demonstrated his commitment, attempting abstinence without assistance and taking Campral Ec. He has also submitted to psychiatric treatment for more than a decade. 686 I accept the plaintiff's submissions. I believe the recommendations of Dr Gelb are reasonable. I accept the plaintiff's commitment to attend the clinic and abstain from alcohol. He has a large problem and success will obviously require determination. However, Mr Covington-Thomas has demonstrated determination in the past. It will be remembered that he abstained from alcohol for long periods in Vietnam, although operating in conditions of extreme stress, because he believed it would be irresponsible to do otherwise (supra para [218]). He showed the same determination in achieving superior ratings after the collision, notwithstanding symptoms associated with PTSD. 687 I also accept the plaintiff's explanation for not having previously undertaken such a course. The conclusion of this case offers an opportunity not hitherto available. There is no evidence that he knew that the Department of Veterans' Affairs may fund his attendance at such a course. It is plain that he could not fund it from his own resources. It is apparent from the applications he made for unemployment benefits in 1997 that he lives in rented accommodation, has few assets and receives a modest pension from the Department (Ex 13: pp212, 220, 223, 227 and 234). 688 Dr Gelb said that Mr Covington-Thomas was unsuited to a day patient course, staying in a hotel overnight. I accept that evidence. The supervision provided by an in-patient clinic and the reinforcement provided by others undertaking the course, suggests that the cheaper alternatives are unsuitable. Dr Gelb, incidentally, has found that the courses he recommended have a success rate of about 80% (T1416). A refresher course was sometimes necessary, and sometimes more than one (T1427). 689 In summary, the following medical and pharmaceutical expenses should be included in the verdict:

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Life expectancy. 691 Reference has already been made to the views of Doctors Parsons and Gelb. Both knew Mr Covington-Thomas well, having treated him for a number of years. Each expressed the opinion that he had a normal life expectancy, provided he did not drink to excess. In the context of Mr Covington-Thomas, that proviso requires that he abstain from alcohol and commit to "the necessary treatment and supports in the long term" including Alcoholics Anonymous (Prof Saunders: Ex 26, tab 11, p4). 692 Professor Tennant provided a short report on the issue of life expectancy. He had not examined Mr Covington-Thomas. He reviewed his drinking history in the light of documents provided to him. He made a number of assumptions, some of which were inaccurate, including that the plaintiff had had "open heart surgery in 1995" and that there was "some evidence of heart damage". His conclusion was expressed in these terms: (Ex 26, tab 10, p2) "… It is impossible to give an accurate estimation of the effect on his longevity, however I would estimate it more likely than not, shorten his life from somewhere between five to 10 years. More accurate estimates may be obtained from a drug and alcohol physician. I would not expect him to live into his early 80s." 693 Professor Saunders, as mentioned, is an expert in respect of drugs and alcohol. He was provided with an extract of the plaintiff's evidence and a number of documents, including medical reports. He did not examine the plaintiff. He assumed that the plaintiff had both liver disease and cardiomyopathy (Ex 26, tab 11, p2). He noted that he had smoked since the age of 13 years. He assumed, wrongly, that the plaintiff had previously been offered and undertaken treatment for both PTSD and alcoholism (Ex 26, tab 11, p3), which I take to mean treatment of the sort now proposed by Dr Gelb in a clinic. He expressed the need for additional information concerning the severity of the reported liver disease and cardiomyopathy, before being able to offer an accurate opinion as to life expectancy. 694 Remarkably, as stated, Mr Covington-Thomas has a normal liver, based on tests recently carried out. There is no evidence of cirrhosis (supra para [669]). His cardiomyopathy, however, has a more complex history. On Christmas Day in 1992, Mr Covington-Thomas was admitted to the Bendigo Base Hospital complaining of sharp chest pains. He later underwent a stress test on 13 January 1993, which was apparently normal. His symptoms were attributed to his work at the St Luke's refuge, which was stressful. In September 1999, he again reported a severe bout of chest pain, this time lasting two or three hours with pain in the arm. He was referred to a cardiologist, Dr Hetterich. A diagnosis was made of mild reduction in the left ventricular systolic function. 695 Mr Covington-Thomas saw Dr Hetterich again in 2004 and 2005, because surgery was contemplated upon his back, and the surgeon required a cardiac assessment. Dr Hetterich reported to the surgeon, Dr Ho, on 16 November 2004, in these terms: (Ex F, 12ff) "… He is a pleasant 62 year old man who suffers from what appears to be a non ischaemic cardiomyopathy, which has been reasonably stable. His last echo showed ventricular function was almost back to normal. He had a Thallium scan about five years ago which showed no ischaemia." 696 His blood pressure was normal (130/80) and lungs clear. Dr Hetterich thought that he would get through the operation well, but repeated the Thallium scan for more abundant caution. The scan showed no evidence of reversible ischaemia. Ventricular function was described as "low normal". Dr Hetterich repeated his view that the operation should be able to proceed without incident (6.1.05). In March 2005, Mr Covington-Thomas had successful back surgery. 697 Dr Hetterich arranged for a further echocardiogram on 8 January 2007. The report on the test was in these terms: (Ex Z, p3) "Ventricular size and function were within normal limits, there were no regional wall motion abnormalities, ejection fraction was in the order of 60%. The aortic valve was trileaflet and competent. There was trivial mitral regurgitation. There was no significant tricuspid regurgitation. Both atria were mildly dilated. The right heart was of normal size and function. There was no pericardial effusion. There was no obvious flow across the intra-atrial septum. Conclusion: 1. Normal left ventricular size and function, no regional wall motion abnormalities, ejection fraction 60%. 2. Trivial mitral regurgitation. 3. Mild bi-atrial dilatation." 698 Dr Hetterich reviewed Mr Covington-Thomas the next day. He noted that his blood pressure had crept up somewhat (145/90), but that his "cardiomyopathy is almost non-existent at the moment". Dr Parson, commenting upon this report, added that the ejection fraction (60%) (which is a measure of how much blood the heart actually pumps each beat) is "well and truly within normal range" (T1540). 699 Professor Saunders identified three possible matters, apart from abstention from alcohol, which may affect longevity, namely, liver damage (now said to be normal), cardiomyopathy (now said to be almost non-existent) and the risk of suicide. I have previously stated that the risk of suicide has all but disappeared (supra para [645]). 700 I am satisfied that, subject to Mr Covington-Thomas' ability to remain alcohol free, he has a normal life expectancy. 701 The Australian Bureau of Statistics publishes both historical and projected tables. The latter, one gathers, reflect trends. The High Court in Golden Eagle International Trading Pty Ltd & Ors v Zhang (2007) 234 ALR 131 at 132 and 147, has said that it is appropriate to use the prospective table (Ex AD). Mr Covington-Thomas has recently turned 65 years. His life expectancy, according to those tables, is 20.53 years.

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Discount on future medical and pharmaceutical expenses. 702 It is apparent from this analysis that much will depend upon the plaintiff's success in abstaining from alcohol. If he manages to abstain, he can expect to live a normal lifespan. If he does not, his life is likely to be cut short. Whether he will succeed is essentially unknowable. It is not, I believe, a matter of making a finding on the balance of probabilities. The issue should be approached in accordance with the principles in Malec v J C Hutton Pty Limited ((1990) 169 CLR 638) and a discount is appropriate. 703 I believe that there is some real basis for optimism that he will be able to remain alcohol free. He has exhibited extraordinary determination in the past in circumstances of great adversity. I certainly regard it as much more than probable that he will be successful. That said, it must also be acknowledged that there is the risk of relapse and, indeed, serious relapse. Were that to occur he would place his health in jeopardy and shorten his life. A discount is appropriate to reflect that risk. 704 Further, should there be a loading to that discount to take account of the fact that the plaintiff may, in any event, have suffered psychiatric problems even without the Melbourne/Voyager collision, and therefore may have needed psychiatric care? It will be remembered that Professor McFarlane said that, by reason of the plaintiff's childhood, he was vulnerable to psychiatric disorder in the course of his life. He assessed that vulnerability as a 20% possibility (looking at the issue from the perspective of a 21 year old). He did not specify what sort of disorder was likely, nor how long it would last, and I assume that both matters are essentially unknowable. He did say that, once past late middle age, the chances of psychiatric disorder were significantly reduced (supra para [56]). Mr Covington-Thomas is now 65 years old. I do not believe any additional loading is required. 705 Should there be a loading for vicissitudes? In the context of life expectancy tables, counsel for the plaintiff made the following submission: (PS (30.5.07), para 10) "Moreover, the mere fact of any psychiatric or medical diagnosis does not equate with reduced life expectancy compared to the average for his age. It follows that the group from which the mean is obtained is made up of the normal population of men in good, poor and indifferent health. We ask that the Court make that finding. Perhaps not every single man of that age has a significant medical diagnosis that could impact upon life expectancy but it must be close. If it be necessary to make a further finding, the Court would be entitled to take judicial notice of the fact that many people with one or more significant health issues must be included in the group." 706 I accept that life expectancy tables, being a statistical average, necessarily take account of vicissitudes. The appropriate discount, reflecting the risk of relapse and the serious consequences of relapse, is 30%. 707 Future medical and pharmaceutical expenses should be calculated using the life expectancy as the multiplier (excluding the cost of the clinics which is one off) and the verdict should include that sum discounted by 30%.

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Naval career before discharge. 712 The plaintiff was born on 9 June 1942 (supra para [36]). He left school at the age of 14 years (supra para [50]). He enlisted in the Navy on 31 July 1961 at the age of 19 years (supra para [59]). Each sailor, in the course of his Naval career, was subjected to assessment on at least an annual basis. In the early 1960s there were six gradings which ranged from "superior" to "unsatisfactory" (supra para [63]). Only a small number were ranked "superior". To achieve that ranking you had to be "truly great" (supra para [63]). In 1961 and 1962, Mr Covington-Thomas was rated "satisfactory". Later the same year, 1962, he was ranked "superior". His Naval record (Ex A, p11) contains two dashes below the word "superior" in respect of dates later that year and 1 July 1963. The plaintiff contended that the dashes were a symbol for "as above", that is, that he was again judged to be "superior". 713 Whether that be right or wrong, Mr Covington-Thomas was chosen by the Admiral as one of his personal staff. The Admiral, one gathers, had a personal staff of three or four men. Commander Halley said that being a member of the Admiral's staff was significant. The Admiral chose his personal staff carefully (T777). He added that, "in their glory, they don't exactly allow fools to be their Bowman". It will be remembered that Mr Covington-Thomas was the Bowman on the Admiral's barge at the time of the Melbourne/Voyager collision on 10 February 1964, when he was involved in the rescue (supra para [80]). 714 It was uncontested that, before the collision Mr Covington-Thomas had thrived in the Navy. He said, and I accept, that he loved the Navy. He saw himself as staying in the Navy for life. They would have to "kick him out" (supra para [68]). His ambition was to become an officer (supra para [69]). To have done so, he would have needed additional education. However, the requirements were relatively undemanding. He would have needed to have passed at least one subject at the level of the leaving certificate or higher school certificate. 715 Members of Mr Covington-Thomas' family witnessed his enthusiasm for the Navy. He spoke to them of his ambitions (supra paras [72-73]. Dr Gelb, who later became his psychiatrist, and whose evidence I accept, said that soon after joining the Navy, Mr Covington-Thomas had been successful. He was well regarded. The Navy gave him a sense of family that he had lacked, and a sense of identify and belonging as well as pride. The following finding was made concerning Mr Covington-Thomas' intentions before the collision which, for convenience, I repeat: (supra para [74]) "… 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. …" 716 After the collision, and notwithstanding symptoms of PTSD and depression, Mr Covington-Thomas still performed his duties to a very high standard. He did so until his discharge in July 1970. His service record in the period after the collision (until 1969 when the system changed) was as follows: (Ex A, p11) Kuttabul 29.01.65 22.02.65 … superior Melbourne 23.02.65 25.06.65 … superior Kuttabul 26.06.65 02.11.65 … superior in all respects Hobart 18.12.65 30.10.66 … superior LS Tarangau 31.10.66 21.09.67 … superior Cerberus 9.05.68 13.06.69 … superior in all respects 717 His achievement was the more remarkable because, during this period, he had been promoted to Petty Officer or was acting in the position of Chief Petty Officer (whilst at HMAS Cerberus). Ordinarily, where a person is promoted it is expected that his rating will fall until he has acquired experience in the new position. Indeed, the naval regulations recognised that phenomenon in the following provision: (Ex 22, p1091) "6. 'SUPR' and 'SAT'. The awards 'Superior' and 'Satisfactory' are intended to be given to none but efficient ratings . Ratings so assessed must not, as a rule, expect to receive the same assessment shortly after advancement to higher rate since their assessment will depend on the degree of efficiency with which they perform the duties of the higher rate as compared with ratings of average efficiency and experience in that rate throughout the Service. These considerations naturally apply with less force where advancement involves a minor increase in responsibility, e.g., advancement in grade in the Artificer and Artisan Branches." (emphasis added) 718 Captain Toohey, the expert called on behalf of the defendant, acknowledged that, to be promoted and maintain superior ratings, as Mr Covington-Thomas had, "would be exceptional" (T1519). 719 The Navy, in 1968 or thereabouts, introduced a new rating system. It identified criteria by which crew members were to be judged. The criteria included performance, behaviour, leadership and personal qualities (Ex W, p105). Their supervising officer would give each crew member a ranking out of ten on each aspect. The marks were aggregated and an average determined. The average was then recorded on their service records which, by this time, were computerised. The record of Mr Covington-Thomas was in these terms, where the first number under "Employment Detail" refers to the number of months in the position and the second number the ranking: (Ex A, p16)

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Reasons for leaving the Navy. 723 It will be remembered that after the Melbourne/Voyager collision, and whilst a crew member of HMAS Hobart in the United States, Mr Covington-Thomas told his friend, Mr Fennell, that he was determined to leave the Navy once his term had expired (supra para [170]). He had signed on for a nine year term ending in July 1970. After the collision, notwithstanding the symptoms which he suffered, and which he attempted to mask, he moved through the ranks rapidly. That was perhaps unsurprising given the ratings he had achieved. After a little more than six years, he was provisionally made Acting Petty Officer, Quartermaster Gunner on 18 December 1967 (supra para [204]). He was then made Acting Provisional Quartermaster Gunner on 15 March 1968 (supra para [205]). He was made a Petty Officer on 8 December 1968. Whilst at HMAS Cerberus, he acted in the position of Chief Petty Officer, because of a shortage of staff (T57) (Ex 17, tab 10). His rank remained Petty Officer, but he received a higher duty allowance. On 9 June 1969 he was posted to HMAS Vendetta as a Petty Officer. 724 Mr Covington-Thomas gave evidence, and I have accepted, that before his discharge he received what was termed a "Happy Gram" (supra para [246]). That is, he was told unofficially that, were he to re-enlist, he would be promoted to Chief Petty Officer, subject to the completion of the remaining requirements (supra para [246]). Captain Toohey, the defendant's expert, accepted that the remaining requirements for promotion to Chief Petty Officer would present him with no difficulty (supra para [248]). The evidence of the "Happy Gram" was strongly challenged by the defendant (supra para [249]). In the context of that challenge, I made the following finding: (supra para [251]) "Mr Covington-Thomas had acted in the position of Chief Petty Officer for some time whilst at HMAS Cerberus. He had been commended on HMAS Vendetta. On any view he was a highly efficient officer. I do not doubt that he was valued by the Navy and that efforts were made to have him change his mind. I think it likely that he was given an indication that if he re-enlisted he would, subject to completing the outstanding requirements, be promoted to Chief Petty Officer." 725 On the evidence, it was clear that leaving the Navy on 30 July 1970 was the culmination of a resolve formed by Mr Covington-Thomas many years earlier, by reason of the psychiatric symptoms from which he had suffered as a result of the collision (supra paras [235ff]). Having examined his reasons for leaving, including his account to Dr Parkin in June 1994, I made the following finding which, for convenience, I repeat: (supra para [243]) "… Absent his involvement in Melbourne/Voyager, and assuming service in Vietnam, it is highly likely he would have remained in the Navy, notwithstanding that such service would have periodically involved separation from his family…" 726 That finding was expressed as a probability, since it related to a past event, and that was the onus upon the plaintiff. However, I regard it as a very high probability, that being relevant to other issues that arise in respect of his likely future. The plaintiff had found his home in the Navy. He had demonstrated real potential. His potential had been recognised and rewarded. The collision had then intervened on 10 February 1964. He was profoundly affected and became progressively more fearful. His attitude to the Navy changed. Although he continued to do his best (that being part of his character), and to demonstrate significant capacity, his career in the Navy had been derailed. It came to an end with his discharge in June 1970. 727 Statistics were provided through Captain Toohey, the defendant's expert, in respect to the careers of those forming part of the same intake as Mr Covington-Thomas. I will have more to say about the statistics in a moment. The statistics demonstrated that most sailors (approximately 60%) who had signed up for nine years, did not re-enlist (Ex 17, report 3.11.06). In reaching my conclusion that Mr Covington-Thomas would have re-enlisted, I am conscious of that evidence. Mr Covington-Thomas was not a run of the mill sailor (cf Ex W and Ex 26, tab 2 (Aff: Catherine Collogan 1.3.07)).

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What rank was it likely the plaintiff would have achieved? 728 I accept that the plaintiff was an exceptional sailor. I also accept that it was his intention, but for the collision, to make the Navy his life. I believe it likely that he would have re-enlisted and gone from success to success, as demonstrated by his achievements (despite his symptoms) before his discharge. 729 However, determining his likely career path, absent the collision, is not easy. There were several paths by which he could have achieved his ambition of a commissioned rank. Some sailors were selected as potential officers and sent to Dartmouth in England. Such sailors had to meet a minimum educational standard, the equivalent of one or two subjects in the leaving certificate (cf Halley: T783). They emerged from Dartmouth as sub-lieutenants. Alternatively, a sailor 34 years or less, with appropriate educational qualifications, who was a warrant officer, was eligible for promotion to a lieutenant and could thereby become a commissioned officer. 730 Here, on the plaintiff's case, his resolve to make the Navy his career and to become an officer, disappeared after the collision, that is within three years or so of his enlistment. Although, to the end, he continued to do his best and seek advancement, once he had determined that he would leave the Navy at the end of nine years, the possibility of becoming an officer vanished. 731 But for the collision, it is possible that the plaintiff could have achieved a commissioned rank by what may be termed "the Dartmouth path". Had he done so, he may well have advanced to a rank beyond lieutenant. The fulfilment of that dream required, as I have stated, further education. Although I accept that he had made enquiries before the collision about undertaking such education, he took no steps to enrol in any course. The possibility of a commissioned rank by that path was, I believe, remote. 732 The second path was more likely, that is Mr Covington-Thomas remaining in the ranks, relying upon rapid progression to warrant officer before the age of 34. He would then have been in a position to seek promotion to the rank of lieutenant. There were, as I will explain, requirements as to the time spent at each intermediate rank, quite apart from the educational qualification. The educational qualification, as I have said, was undemanding and unlikely to present a difficulty, as Captain Toohey acknowledged (T1127). Nonetheless, he would have needed a "dream run" to achieve the necessary qualifications before he was 34 years old. The plaintiff's primary case was that, by this means, he would have achieved the rank of lieutenant commander. Whilst that was possible, I also believe it unlikely. 733 There was a third path by which Mr Covington-Thomas could have reached the rank of lieutenant. It emerged from the evidence of former Lieutenant Errol Hunt (now retired). It was a possibility not mentioned by Captain Toohey in his statement (Ex 17, tab 7), which I infer was an oversight. In 1982, or thereabouts, the Navy introduced the "SDLD System" (T1484). A warrant officer who had five years service at that rank, and who was otherwise well regarded, could seek promotion to the rank of lieutenant. There were no educational requirements (T1519). The opportunity for such promotion was opened because there were shortages of officers in the lower to middle ranks (T1519) and vacancies for lieutenants and lieutenant commanders (T1520). 734 Lieutenant Hunt was identified on the plaintiff's case, in effect, as a comparable employee. He, like Mr Covington-Thomas, had enlisted in 1961. He had also made his career in gunnery. His service record was tendered (Ex AA). He was promoted to the rank of petty officer in July 1971, whereas Mr Covington-Thomas had been made a petty officer in December 1968, having acted in the position since December 1967. Mr Hunt was made a chief petty officer in July 1975 and a warrant officer in July 1982. He became a lieutenant under the SDLD system on 8 December 1988. He retired from the Navy at the age of 55 years in 1998. 735 It was possible to compare the annual assessments achieved by Mr Hunt and those of Mr Covington-Thomas during part of the first nine years when they were both in the service. There was no evidence that Mr Hunt had been selected as a member of the Admiral's staff. His assessments were generally lower than those achieved by Mr Covington-Thomas (cf Ex A, pp11 and 16 and Ex W; T1481). Mr Hunt said he received some good reports and others which were bad. He was, as Captain Toohey suggested, perhaps unduly modest (T1514). He clearly was a highly regarded officer, especially once he achieved the rank of warrant officer (Ex W). Nonetheless, comparing his ratings and progress during the first nine years with that of the plaintiff, suggested that Mr Covington-Thomas had a greater capacity and potential and had been rated accordingly. 736 Let me return to the plaintiff's likely progression. Once he had re-enlisted, there can be no doubt that he would have been promoted to chief petty officer. It was a requirement that he serve three years as a petty officer. Time spent acting in that position counted. He would therefore have been eligible for appointment as a chief petty officer on 8 December 1970 (Ex 17, tab 7, para 28: Capt Toohey). There were also certain additional requirements. However, as Captain Toohey acknowledged, they would have presented no difficulty (T1133). 737 So the only issue is the question of timing. When is it likely that the plaintiff would have been made a chief petty officer? Counsel for the plaintiff, in submissions, asserted that but for Melbourne/Voyager, their client could have achieved even more than he had before his discharge. It was argued that, but for injury, he would have been promoted to the rank of petty officer earlier than his provisional promotion in December 1967. Whilst I accept the plaintiff was affected by symptoms arising from psychiatric disorders suffered in the collision, he clearly performed well at this early stage, despite his symptoms. I believe I should use 8 December 1970 as the earliest possible date that he could have been made a chief petty officer. How long after that date is it likely he would actually have been promoted? Captain Toohey, in his statement, said this: (Ex 17, tab 7, para 34) "34. In order to gain eligibility for promotion to the rank of Chief Petty Officer, the plaintiff would have had to commit himself to stay in the Navy and complete a further period of engagement, as well as gaining the necessary qualifications. If he had done so, it is my opinion that he would probably have gained eligibility for promotion to Chief Petty Officer by 1973. At that time he would have completed 12 years service." 738 It will be noticed that Captain Toohey uses the phrase "gained eligibility" for promotion. It is not entirely clear what he meant by that phrase. As explained already, he would have been eligible on 8 December 1970, subject to certain formal requirements which were not likely to cause him difficulty. There, of course, had to be a vacancy. 739 When giving evidence, Captain Toohey provided the following somewhat different and rather more pessimistic assessment, equating the progression of Mr Covington-Thomas with that of Mr Hunt. He said this: (T1123) "Q. In practical terms, assuming good behaviour and assuming vacancies, what year are we looking at in his case as best you can estimate it to chief petty officer had he stayed on? A. Had he stayed on he would have had to have had a dream run. He was made chief petty officer in 1973, but that in my opinion would be highly unlikely. I would put it as 1975 more realistically. Q. Why? A. It dependence (sic) on the variables of the promotional list. He may have passed all his examinations with flying colours. Again these promotions are made in competition with his peers, so he is competing against many other petty officers who want to go to chief, and I will come back to quartermaster gunners. They may have been more competitive. I would like to say with any degree of certainly 1973. I would say more likely 1975 would be a more realistic term." 740 However, in 1972, the Navy reintroduced the rank of warrant officer as a rank immediately above chief petty officer (T1123). Captain Toohey described what happened as a consequence: (T1123) "A. … the rank of warrant officer was reintroduced into the navy in 1972 and immediately the cream of all chief petty officers were promoted to vacancies created by the new rank. We didn't have any warrant officers in the Second World War. We introduced them in 1972. Immediately the vacancies created devoured the cream of the chief petty officer ranks." 741 Mr Covington-Thomas was amongst the cream of petty officers. It is likely that the plaintiff would have been promoted to chief petty officer in 1972, say, 1 July 1972. 742 The next milestone was 12 years service, when a decision had to be made whether to re-enlist. Again, I believe there can be little doubt that Mr Covington-Thomas would have re-enlisted. In achieving the rank of chief petty officer in less than 12 years, he was already part of an elite. In respect of the 1961 intake, Captain Toohey provided the following statistics, based upon a Naval database, although it should be noted that the date of appointment for many who became chief petty officers may have been much later than the 11 years that I have postulated for Mr Covington-Thomas: (Ex 17, tab 5, report 30.11.06, p2) Rank Achieved at Discharge by all 1961 enlistees (the plaintiff's year of entry) (a) (b) i Captain 2 0.14% ii Commander 2 0.14% iii Lieutenant Commander 14 0.99% iv Lieutenant 15 1.06% v Warrant Officer 66 4.68% vi Chief Petty Officer 115 8.15% vii Petty Officer 48 3.40% viii Leading Seaman and below 1149 81.43% TOTALS 1411 99.99%

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(Columns (c) and (d) omitted) 743 The plaintiff's counsel did not accept these statistics. They conferred with Captain Toohey. During the course of the trial Captain Toohey produced a succession of reports, some correcting errors made in previous analyses. Each new analysis was attacked by counsel for the plaintiff and said to be deficient. Access was sought to the documentation used by the defendant. Whilst certain documents were produced, others were said to be unavailable or unprocurable. In the result, the evidence was unsatisfactory. It gave rise to significant problems which are described at length in an affidavit of Mr Taylor, the solicitor for the plaintiff, of 4 July 2007 and the affidavit in response of Ms Robinson of 20 July 2007. Ultimately, after judgment had been reserved on 30 May 2007, the defendant made application to reopen its case to tender yet another affidavit of Captain Toohey, correcting earlier evidence. The application was opposed and Mr Taylor's affidavit relied upon in support of that opposition. 744 Unquestionably the plaintiff was disadvantaged by the repeated adjustments to evidence relied upon by the defendant, based upon its records. This is not said by way of criticism of Captain Toohey. Captain Toohey had compiled his various reports by access to a computer database. Counsel for the plaintiff sought access to the same database. However, access was denied by the defendant. Instead, the plaintiff was forced to seek access to original records held, in some cases by the Archive Office in other cases by the defendant. Obtaining such documents was difficult and in many cases impossible. Access to the defendant's documents was the subject of countless applications during the trial. 745 It is inherently unfair that one party should have a monopoly upon relevant information. The adversarial system, as a means of getting at the truth, depends upon both parties closely examining the same material from their different perspectives. The answer is not simply to reject the tender of material, in this case the report of Captain Toohey, where the underlying assumptions are not examinable by an opposing counsel (Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705). The documentation was relevant to the plaintiff's case and should have been available to the plaintiff's solicitors. It was said that there were security considerations in permitting access to the computer database. It is difficult to appreciate what those security considerations may have been. Most relevant records relate to a period before 1990. One would have thought it was surely possible to work out a protocol that would permit counsel or the plaintiff's experts access to the database, subject to the provision of an undertaking and perhaps supervision by a naval officer not involved in the case. 746 Returning to the statistics, as set out in para [742], I accept that they provide the broad picture, if not the precise figures. Statistically, once a sailor reached the rank of chief petty officer, there was, according to one of the reports of Captain Toohey (7 November 2006), a 78% chance that he would serve at least 20 years. Captain Toohey later sought to correct that figure. He said a more accurate figure statistically was 68% (T1144). However, the statistics, whichever figure is accepted, understate in my view the likelihood of Mr Covington-Thomas completing 20 years because of his personal qualities and potential. 747 Few sailors who re-enlisted after 12 years left before 20 years. They were what were termed "economic conscripts" (T1140). The statistics demonstrated, according to Captain Toohey, "the power of the pension" (T1141). The probability of Mr Covington-Thomas remaining in the Navy was the greater because his skills in gunnery were not readily transportable to civilian employment, unlike than those involved in communications or logistics and supply, or those with a trade such as an electrician (T1142). For such people, there were attractive opportunities outside the Navy in civilian employment (T1142). 748 The next rank was warrant officer. To become a warrant officer there were three requirements, as described by Captain Toohey, namely: (Ex 17, tab 7, para 29) "a. four years service as a Chief Petty Officer; b. continuous VG conduct for three years immediately preceding promotion; and c. pass the Warrant Officer's Management Course. This was a six-week course, designed to equip selected Chief Petty Officers with the necessary skills in administration, management and leadership to enable them to become effective Warrant Officers." 749 Captain Toohey expressed the following view as to when Mr Covington-Thomas may have attained that rank assuming completion of those requirements: (Ex 17, tab 7, para 35) "35. … it is my opinion that he would probably have gained eligibility for promotion to Warrant Officer by 1980. At that time he would have completed 19 years service." 750 In evidence, Captain Toohey elaborated in these terms: (T1123) "A. … However, his timing was terrible in that context, because really notwithstanding the four years seniority as a chief petty officer he was competing against the cream of a fleet who had been promoted in 1972 to warrant officer. Most of them weren't going anywhere." 751 It was suggested in cross examination that a number of the warrant officers appointed in 1972 were over 45 years old and nearing the end of their service. They had been appointed, it was said, upon the basis that they would remain in the job for three or four years and then retire. Captain Toohey had no recollection that that was the case and did not feel able to comment. 752 However, Captain Toohey, upon the basis of documents in Exhibit W (which related to a number of servicemen), acknowledged that at the relevant time there were staff shortages in the plaintiff's discipline. Finance was available to fund promotions if the Navy chose (T1520). 753 Assuming Mr Covington-Thomas had reached the rank of chief petty officer by 1 July 1972 and ignoring time spent acting in that position at HMAS Cerberus, he would have become eligible for promotion to warrant officer (subject to meeting the other requirements) on 1 July 1976. I believe Captain Toohey's assessment unduly conservative. I think it likely that he would have been made a warrant officer by 1 July 1978.

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When is it likely the plaintiff would have retired? 754 The next milestone in the plaintiff's Naval career was 20 years service in 1981. What may have happened thereafter is less certain. After 20 years service he would have qualified for the Naval pension. The economic imperative to remain in the Navy therefore ceased. There were, broadly, two futures open to him, for which persuasive arguments could be advanced. They were: · First, Mr Covington-Thomas may have chosen to remain in the Navy, seeking promotion, and retiring at the age of, say, 55 years. Those who chose that course (such as Lieutenant Hunt) usually worked part time in the Naval Reserves upon retirement and were paid an allowance which was not taxed. · Secondly, Mr Covington-Thomas might have left the Navy (at the age of 39 years) and worked in civilian employment. Had he done so, it is probable that he would have continued working to the age of at least 60 and perhaps 65 years. He may or may not have been entitled to additional superannuation. 755 Each future was subject to vicissitudes, which I will deal with separately. What I have termed "the second future" may have been more lucrative than the first, depending upon the age of retirement, and whether Mr Covington-Thomas accrued additional superannuation. 756 However, it seems to me much more likely, absent Melbourne/Voyager, that Mr Covington-Thomas would have remained in the Navy, as he had always planned. He continues to think of his time in the Navy with some pride. In reaching my view as to his likely future, I am conscious of the fact that he was married, had children and that in 1976 he and his wife lost a child. 757 Assuming Mr Covington-Thomas remained in the Navy after 20 years service, what rank was he likely to have achieved? When was it likely he would have retired? What would he have done after retirement? 758 I believe that, had Mr Covington-Thomas remained in the Navy, he would like Lieutenant Hunt, have been promoted to a lieutenant under the SDLD scheme. That required at least five years service as a warrant officer with performance at a superior or above average level. On the assumption that Mr Covington-Thomas would have achieved the rank of warrant officer on 1 July 1978, he would have been eligible on 1 July 1983. Captain Toohey acknowledged that, because Navy destroyers had been used to deploy troops in the Gulf in the early 1980s and because gunnery was labour intensive, there were certainly opportunities for promotion. 759 Lieutenant Hunt became a lieutenant at the end of 1987 (Ex AA). He had been reluctant to seek promotion and only did so at the urging of his superior officer. I do not think Mr Covington-Thomas would have been the least reluctant. It is likely that he would have been promoted to lieutenant not later than 1 January 1985. In forming that view, I am conscious of the report of Captain Toohey of 28 May 2007 (Ex 26, tab 9). Only 86 men from the 1961 intake reached the rank of lieutenant or above. They included Mr Hunt. No doubt the list included others who achieved their commission by a different path. Some had been appointed well before 1985. I should add that work as a lieutenant would almost certainly have been administrative in nature and shore based (T1493/4). 760 Mr Covington-Thomas may, depending upon his performance, have been promoted to lieutenant commander before his retirement. That was by no means probable, and should be regarded as no more than a possibility. I believe it likely that he would have remained in the service (as did Lieutenant Hunt and others) until the age of 55 years, partly because his skills, as mentioned, were not easily transferred to civilian life and because increasing age would have added to the difficulty of obtaining work in civilian life. 761 Having left the Navy, it is highly likely that Mr Covington-Thomas would have served in the Naval Reserve. The Navy encourages those who retired to join up (Hunt: T1486). Indeed, Mr Hunt said that it was a foregone conclusion that they would do so (T1486). Mr Hunt said that he had worked two days a week, forty weeks a year, for a number of years (T1485). It was said to be common for retired Naval officers to work at least 50 days a year until the age of 60. I believe that Mr Covington-Thomas would have worked 50 days a year until age 60 years and that should be included in his verdict. 762 What is the appropriate discount to reflect the degree of probability involved in my assessment of Mr Covington-Thomas' likely future (supra para [702]) (Malec v J C Hutton Pty Limited)? I believe the degree of probability was about 75%, so that there should be a discount of 25%. That represents the top line of the calculation of loss of earning capacity, being the loss of remuneration ultimately at the rank of lieutenant.

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Past earnings. 763 Having left the Navy in 1970, the plaintiff immediately found work with Mayne Nickless (supra para [259ff]). He worked almost without interruption until his "collapse" at the St Luke's Refuge, which he left on 8 May 1996. The experts have calculated the amount earned between 1970 and May 1996. 764 However, the defendant submitted that the amount earned by the plaintiff did not accurately reflect his residual capacity to earn, for the purposes of calculating his loss of earning capacity (DS: 8.12.06, p132, para 438ff). They rely upon the fact that in 1974, Mr Covington-Thomas secured a job with Australia Post (supra para ]266]). He was a driver delivering parcels. He remained with Australia Post until 1982 (supra para [280]). He lived in a Victorian town, Rosebud. However in 1976, after the baby Kirsten died, there were marital difficulties. The plaintiff's wife turned away from him (supra para [268]), She began to have affairs. In 1982, Mr Covington-Thomas decided that he would leave Rosebud and move to Maryborough. He wanted to remove the temptation of his wife seeing her lover who also lived in Rosebud (supra para [280]). He said, and I accept, that he was also acting on advice that his daughter's asthma would be assisted by moving to a drier climate, north of the Great Dividing Range (supra para [281]). He made enquiries with Australia Post as to possible job vacancies at Maryborough, but was told there were none. He had been a member of the superannuation fund before his resignation (supra para [281]). When cross examined, Mr Covington-Thomas said that "possibly" he may have become a Branch Postmaster had he remained in Australia Post (supra para [281]). 765 Counsel for the plaintiff tendered, by consent, two statements from a retired postmaster in Victoria, Mr Ian Thomas (Ex S). Mr Thomas worked for the postal service all his life. He began in 1964 and retired in 2004. At the time of his retirement he was a postmaster. 766 Mr Covington-Thomas was a driver. To become a postmaster he would have had to have become a postal clerk. Mr Thomas said that he had not known of a driver transferring to the clerical branch with a view to becoming a postmaster (Ex S: statement 30.11.06, para 5). 767 A postal clerk, at least before 1980, was required to complete a nine month course. That remained a requirement until "the early 1980s". Mr Thomas had undertaken such a course at Sydney. The system, however, changed. Postal clerks were then trained on the job. They worked in large centres "selling stamps, processing parcels and letters over the counter" (Ex S). To qualify for promotion, the leaving certificate was required. In 1983, however, promotion became dependent upon work performance and interview. 768 The statements by Mr Thomas described the duties in the various grades between a postal clerk and post master. It was an indoors job dealing with the public and staff, involving a progression from one grade to the next. Mr Thomas, having joined in 1964, became a postmaster in 1992. Australia Post had a superannuation scheme. 769 That being the context, and referring also to the plaintiff's decision in 1989 to choose a position at the St Luke's Refuge rather than the Prison Service (supra para [344]), the defendant made the following submissions: (DS, p132) "438. It is submitted that if the Plaintiff had remained with Australia Post he had the capacity to have obtained steady career progression and substantial superannuation benefits which would have been attractive and comparable with those in the RAN with any likely promotions. The Plaintiff's failure to stay in Australia Post, obtain promotions and obtain the benefits of his superannuation was linked to his wife's infidelities and marital problems and his daughter's health and had nothing to do whatsoever with alleged symptoms arising from the Voyager/Melbourne collision. The post office earnings are, of course, a guide to the Plaintiff's residual earning capacity in the same way as comparable earnings are a guide, according to the legal principles discussed earlier. The Plaintiff could have pursued a career in the Prison Service which he had sought and was offered but chose to go to St Luke's instead. Perhaps if he had gone to the Prison Service he would not have been reminded of the sexual and other assaults inflicted upon him during his childhood years and may not have decompensated in 1996. It must be remembered that, putting the Plaintiff's evidence at its highest, he had a phobia about going back to sea because he did not wish to serve on destroyers such as the Vendetta or any other ship similar to the Voyager." 770 I do not accept this submission. First, the plaintiff, having joined Australia Post in 1974, remained a driver until he left in 1982. He had done nothing in terms of advancement or qualifying for promotion. Secondly, although I do not doubt that the plaintiff had organisational skills and skills in controlling people, he was also disabled and becoming progressively more disabled by a number of psychiatric illnesses. He described lapses of memory when delivering parcels (supra para [432]). He had a simmering anger, that led to arguments with many with whom he worked. Dealing with the public in circumstances where he would be required to exhibit patience would, I infer, probably have given him difficulty. 771 Thirdly, in examining the plaintiff's decision to leave Australia Post in 1982, the touchstone, as the plaintiff pointed out in written submissions, is reasonableness. In Medlin v State Government Insurance Commission (1994-95) 182 CLR 1, McHugh J said this: (at 22) "… In Adams ((1968) 72 SR (NSW) at 139), Walsh JA said, correctly in my opinion, that, if a person has the post-accident capacity to do a particular job but a question as to the reasonableness of a refusal to do it arises, the onus is on the defendant to show that the refusal was unreasonable. Walsh JA gave as an example the case where the plaintiff is offered work at a remote place. Similarly, where a plaintiff with impaired earning capacity resigns from a position that he or she is capable of retaining and sustains a financial loss, the onus is on the defendant to prove that the resignation was unreasonable. …" 772 Here, counsel for the plaintiff argued that Mr Covington-Thomas' decision to leave Australia Post was not unreasonable. He moved from one job to another with a comparable salary. Whilst his motivation may have been unrelated to the job itself or matters specific to Melbourne/Voyager, that did not, on the plaintiff's argument, make his decision unreasonable. His motivation included concern for his daughter's asthma. 773 I accept that the plaintiff's action in leaving Australia Post was not unreasonable. Unquestionably, part of his motivation, and a substantial part, was removing his wife from temptation. However, it cannot be assumed that his marital difficulties were unrelated to the Melbourne/Voyager collision. Indeed, I believe that they probably were related, at least in part. He was angry and given to outbursts of temper. He was remote and finding it difficult to display affection (supra para [212]) These were all symptoms which were likely to have had an impact upon his relations with his wife. Professor McFarlane, in the context of PTSD, made the following comment, which I accept: (T657) "A. … If you are irritable and difficult, withdrawn and preoccupied, your wife or husband is likely to be dissatisfied so, you know, there is a greater probability that your marriage might break down. So it is a mistake to presume that that stress is entirely independent of the individual's mental state. …" 774 The wages earned by the plaintiff in his various jobs before leaving St Luke's Refuge on 8 May 1996 were, to my mind, an accurate reflection of his reduced earning capacity. He was, from 8 May 1996, and remains, totally unfit for work.

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Vicissitudes. 775 The plaintiff is now 65 years old. This assessment is therefore made at the end of his working life. Certain aspects ordinarily covered by vicissitudes can be discarded. He has not fallen under a bus or contracted a terminal illness. His earnings in the Navy after 1970 would have reflected sickness benefits for those in the service to cover such things as colds and flu and minor illnesses. 776 However, some discount for the ordinary vicissitudes is still appropriate, to cover his exposure to risk in the life that I believe probable in the Navy, including possible involvement in Naval operations in the Gulf in the 1980s and again in 1991. 777 There are two other aspects specific to Mr Covington-Thomas which should be reflected in a discount. It will be remembered that Professor McFarlane expressed the view, which I have accepted, that he was vulnerable to psychiatric illness, by reason of his adverse childhood (supra para [36]). That vulnerability was likely to decrease with time and maturity. It was likely to eventually vanish in late middle age. Professor McFarlane, nonetheless, assessed the chances of psychiatric disorder at some point in his life at 20% (supra para [634]) Absent Melbourne/Voyager there was, as well, according to Professor McFarlane, a 10% risk of PTSD from the episode in Vietnam (supra para [635ff]). Counsel for the plaintiff submitted, and with some force, that the 10% estimate should itself be discounted because, by 1969/70 when the Vietnamese incident occurred, Mr Covington-Thomas was no longer the youth of 21 years he had been at the time of the collision. By 1970 he would, it was submitted, have been a "fully mature adult", making him less vulnerable to traumatic experience. It will be remembered that he was not directly involved in a conflict in which his life was in jeopardy. Rather, he was exposed to an awful episode involving women and children, he being some distance away and watching through powerful binoculars. 778 Professor McFarlane, when speaking of vulnerability to a psychiatric disorder "at some point in his life", did not specify the nature of that disorder or its likely duration. Taking all these matters into account, I believe the appropriate discount for vicissitudes (in addition to the Malec v J C Hutton Pty Limited discount) is a further 20%.

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Naval pension. 779 What is the appropriate discount in respect of the naval pension? I have described two possible "futures" for Mr Covington-Thomas, had he not been disabled in the Melbourne/Voyager collision (supra para [755]). Both involved service in the Navy for at least 20 years, so that in either case he would have qualified for the naval pension. In my view, therefore, receipt of the pension one way or another was highly likely. Had Mr Covington-Thomas retired after 20 years, the pension would have been calculated at the rate of pay for a warrant officer. The future that I believe most likely involves promotion to the rank of lieutenant and retirement at the age of 55 years. Since, on either future, he would have received a naval pension, it is inappropriate, in my view, to apply to that issue the same Malec v J C Hutton discount as to loss of earning capacity. Some discount is appropriate, nonetheless, because neither "future" can be considered certain. A number of things had to happen before Mr Covington-Thomas' entitlement would accrue. The appropriate Malec v J C Hutton discount, I believe, is 15% (rather than 25%). 780 In respect to the period age 55 years to the date of this judgement, is it appropriate to make a further discount for vicissitudes? Mr Covington-Thomas is still alive. The risk of psychiatric illness, referred to by Professor McFarlane as a possibility in his lifetime, receded with late middle age and, in any event, is irrelevant to his entitlement to a pension. In my view no further discount for vicissitudes is called for in respect of the pension up to the present time. 781 Nor is a discount for vicissitudes appropriate in respect of the plaintiff's future pension entitlement. The same logic, as set out above in respect of future medicals, has application. The only relevant issue is future life expectancy. The life tables statistically incorporate vicissitudes. The issue should therefore be approached in the manner set out above at paras [691ff]. Mr Covington-Thomas has a normal life expectancy for a person of his age, provided he can give up alcohol. A discount of 30% is appropriate to reflect the possibility of relapse and a foreshortened life span.

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[I] General Damages $180,000.00 [ii] Interest on General Damages [para 662] (to be calculated) Past Medicals: $15,475.25 [iii] (a) agreed $39,200.00 (b) clinics [iv] Future Medicals (as per para [689]) for life; (to be calculated) life expectancy to be calculated as per para [701] with a discount of 30% as per para [706]. [v] Loss of Earning Capacity, reflecting the career progression to Lieutenant and retirement at age 55 years, with service in Naval Reserve 50 days p.a. to age 60 years; such sum to be discounted by 25% (Malec v J C Hutton) and a further 20% (vicissitudes). (to be calculated) Loss of naval pension to be discounted by 15% (Malec v J C Hutton). [vi] No further discount is appropriate age 55 years to date. (to be calculated) So far as the future is concerned, normal life expectancy discounted by 30% (supra paras [701] and [706]).

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