An Inquest taken on behalf of our Sovereign Lady the Queen at Ceduna in the State of South Australia, on the 18th, 19th, 20th and 21st days of February 2002 and the 1st day of July 2002 , before Wayne Cromwell Chivell, a Coroner for the said State, concerning the death of Danny Thorpe .
I, the said Coroner, find that, Danny Thorpe aged 48 years, late of 11 Baillie Drive, Port Lincoln, South Australia died near Ceduna , South Australia on or about the 20th day of November 2000. The cause of death has not been determined.
1.1. During the afternoon of Wednesday, 22 November 2000, Beryl and Lynton Gurney were driving towards their home at Coorabie, west of Ceduna. They were driving in a westerly direction along a dirt road towards Penong when, at a point about 30 kilometres west of Ceduna, they saw a man walking north along a road towards the Eyre Highway. Mr Gurney said:
'I saw as we approached him that he was wearing blue jeans, a red top and wetsuit boots. As we got closer again I saw that he had a wetsuit over his right shoulder. As we pulled up I saw him shuffling towards the driver’s side of the vehicle with his hands outstretched, it appeared as though he could hear the vehicle which was still running but could not see it.'
(Exhibit C17a, p2)
1.2. Mrs Gurney said that when they asked the man if he was from the boat (ie. the boat which had disappeared) the man replied:
'Yes, Help me, Help me, Help me, Help me find my mate. '
(Exhibit C15a, p2)
1.3. The man was Howard Rodd. Mr Rodd, an abalone fisherman had set out in his boat with his sheller, Danny Thorpe, on Monday 20 November 2000 to fish for abalone in the waters near Ceduna. Mr Rodd’s wife, Sandy, had contacted the Ceduna police at about 11:45am on Tuesday 21 November 2000 because she had not heard from her husband, as she usually did in the evening after a day’s fishing. Since that time, a major air, sea and land search had been mounted for the missing men without success.
1.4. Mr and Mrs Gurney assisted Mr Rodd into their car and drove him back to Ceduna.
1.5. On the way back into Ceduna, Mr Rodd told Mr and Mrs Gurney what had happened. Their statements (Exhibit C15a and C17a) set out what he told them. It corresponded in most respects with what he later told the police.
1.6. At some stages during the journey, Mr Rodd was crying. Mr and Mrs Gurney arrived at the Ceduna Police Station at about 3:15pm and assisted him inside.
1.7. At the time Mr Rodd arrived at Ceduna Police Station, Senior Constable Darryl Wright of the Water Operations Unit of the Special Tasks and Rescue (‘STAR’) group was in Ceduna acting as the Search and Rescue Mission Coordinator (‘SARMC’). He had flown to Ceduna from Adelaide the previous evening.
1.8. Senior Constable Wright realised, of course, that Mr Rodd could give the searchers valuable information to assist them to locate Mr Thorpe. He went to speak to Mr Rodd and described his condition as follows:
'Immediately I walked into the room, I could see that he was extremely distressed. He was crying, his face was extremely badly sunburnt, his eyes were almost closed, he was shaking uncontrollably, he was obviously dehydrated and suffering from shock.' (T46)
1.9. Notwithstanding his condition, Mr Rodd assisted the police as much as he could. When asked if Mr Rodd had difficulty communicating with him, Mr Wright said:
'There was quite a lot of difficulty. He was breaking in and out of very emotional crying to quite rational talking at times. He was constantly asking about Danny Thorpe … saying that he should never have left him, and that he was very concerned for his welfare.' (T47)
1.10. Mr Wright made dot point notes of his conversation with Mr Rodd and, several weeks later, composed his statement from the notes as follows:
'He stated that he and Thorpe had gone out abalone diving as planned on Monday at Evans Island. Having completed the dive and as the weather was rough they decided to return to Ceduna to celebrate his birthday. At some stage of the voyage they had been running with the sea when a large swell caused the boat to broach and capsize. Both managed to climb onto the upturned hull and drift, Rodd “duck diving” under the hull several times to retrieve life jackets, supplies and an E.P.I.R.B. which was activated. Rodd couldn’t recall exactly how long they had been on the hull but at some point a fishing vessel he believes was the “Lincoln Lady” passed within close proximity of their position. He and Thorpe laughed at the thought of being located until the vessel continued past, apparently not sighting them. They remained on the hull which was getting lower and lower in the water until they drifted within sight of Goat Island where Rodd decided it best to make a swim for land. He tried to persuade Thorpe to go with him, having secured two life jackets on him, but he was petrified of sharks and refused to go. Rodd left him with the flares, EPIRB and lunch box before setting out to swim to Goat Island. After swimming for some distance the current was too strong and Rodd realised that he would not make Goat Island. He had lost sight of Thorpe and the boat and saw his only chance of survival to swim with the current to the mainland. He was dressed in his wetsuit and had his fins and a container which he used as flotation. He couldn’t recall how long he swam but eventually he came ashore and indicated Point James on Chart Aus120. He later indicated with more certainty that the place he came ashore was actually at Point Peter. Rodd thinks it was dark, he was exhausted, the sun and salt had caused his eyes to swell to nearly closed and he was near blind. He recalls placing his fins in the shape of an arrow on the headland indicating the direction he was heading. The mosquitos were thick and at some stages he covered himself with sand and seaweed and slept. Eventually he came to Davenport Creek which he swam across and continued walking and resting at irregular intervals, covering himself with whatever he could find to avoid sunburn and mosquitos. He recalls sighting some sheep which he thought would be near water and eventually came to a water trough where he drank and bathed his swollen eyes before falling asleep. At one point near darkness he recalls seeing aircraft overhead but he remained unsighted. The next day he came to a farmhouse but found no-one home. He found some clothes which he put on and lit a fire outside to create signal smoke. Aircraft were periodically seen and heard. After sleeping he left the farmhouse and wandered along a fence line and road until he was located by the Gurney’s. The last he had seen Thorpe was near Goat Island on the upturned hull.'
1.11. On the basis of this conversation, Senior Constable Wright deduced that Mr Rodd had come ashore at Point Peter during the night of the 20th or the early morning of the 21st of November 2000, having covered a surface distance of approximately 13 kilometres. After sleeping, he had swum across Davenport Creek and then continued walking through swamp and mangrove country until he found the road on which he was walking when he was found by the Gurneys.
1.12. Senior Constable Wright concluded that unless Mr Thorpe had reached land, there was little probability that he was still alive. He had been in the water in excess of 48 hours. He said that at that time of year, the water temperature is approximately 15 degrees Celsius, and that, as a general rule, a person in the water at that temperature without a wetsuit will become unconscious due to hypothermia. He said:
'After two hours there is a 50% expectancy of survival and any time after 6 hours there is a 99% chance of death. Even if the person was wearing a wetsuit, a person may become unconscious from hypothermia after approximately 6 hours and they are unlikely to survive after 12 hours.'
Mr Wright said that although these figures are of general application, there have been cases where individuals have survived for times in excess of the times indicated.
1.13. Having taken these factors into account, the searching continued along the coastline west of Ceduna by land, sea and air and this searching continued until Thursday, 23 November when it was scaled down and eventually discontinued.
1.14. Mr Thorpe’s body has never been recovered. Certain items were found during the search which were identified by Mr Rodd as having been worn by Mr Thorpe. I will discuss these items in detail later in these findings.
2.1. Danny Thorpe was born on 18 March 1952. He was married and had three young children.
2.2. Mr Thorpe had been involved in the abalone industry either as a diver or sheller for 25 years. He had worked with Mr Rodd for approximately 15 years. Mr Rodd owned the fishing licence, and the boat and equipment. Mr Thorpe’s job was to maintain and operate the boat while Mr Rodd did the diving. Mrs Thorpe said that her husband would receive about 10% of the catch for his work (Exhibit C18a, p2).
2.3. I heard evidence from Mr Norman Craig who has been involved in the abalone industry for 34 years. He had known Danny Thorpe for 25 years and Howard Rodd for 15 years (Exhibit C31, p1). He described Mr Thorpe as ‘experienced and confident’ (T138).
2.4. Mr Craig described the division of duties between diver and sheller as follows:
'Yes, in general the sheller would steer the boat and would do the majority of the mechanical things, look after the majority of the mechanical things on board so it would be his job to make sure it’s all running to know all about it and in general just – because the diver’s generally all suited up and he goes over the side, he gets back on the boat, he’s still all suited up and can’t be climbing around motors or things so generally the sheller is the one that does all those types of things.' (T139)
2.5. Mrs Thorpe said in her statement that her husband used to complain about Mr Rodd saying that he had a ‘gung ho attitude’. She said:
'Howard would quite often put to sea in rough conditions or actually brag about the fact that theirs was the only boat that had gone out. Danny would try and talk Howard out of going a lot of the time because he felt it was unsafe. Danny would still go if Howard pushed the point because he needed his job to pay the mortgage and support me and kids.'
(Exhibit C18a, p2)
Mrs Thorpe said that her husband also complained about the boat, saying that Mr Rodd was ‘always looking for the cheap way out and would have him repair rather than replace things’ (Exhibit C18a, p2).
2.6. Mr Craig described Mr Thorpe as:
'A worker, a good worker, energetic, bombastic, straightforward. So I’d say he’s a good fellow … capable and resourceful for sure, yes.' (T160)
2.7. Mr Rodd confirmed that it was Mr Thorpe’s task to look after all the equipment on the boat (T260). He said he relied upon Mr Thorpe’s 20 year’s experience in doing that (T261). When asked if he put pressure on Mr Thorpe to go to sea in conditions that were hazardous, Mr Rodd said:
'Nobody could tell Danny to do what he didn’t want to do. If Danny didn’t want to go to sea, he’d say it, “we’re not going there”'. (T341)
This comment is consistent with Mr Craig’s opinion of Mr Thorpe. I accept Mr Rodd’s evidence on this topic.
2.8. I outline this evidence because it was raised on behalf of Mr Thorpe’s family that, in some way, Mr Thorpe was pressured into going to sea on 20 November 2000. There is no evidence of this whatsoever. These were men who had worked together in a demanding and hazardous industry for a long time. They had no doubt developed understandings and methods of communication with each other that might have seemed rough to outside observers, but there is no evidence before me that would justify the suggestion that Mr Rodd acted in any way unfairly or unconscionably towards Mr Thorpe. Indeed, the evidence suggests that Mr Thorpe would not have tolerated such treatment.
3. Events of 20/21 November 2000
3.1. I have already outlined what Mr Rodd told Senior Constable Wright on the afternoon of 22 November 2000 after he had been found by the Gurneys. When he gave oral evidence, Mr Rodd expanded upon his description of these events, and underwent an extensive cross examination by Mrs Sheppard, Counsel for Mrs Thorpe. Having heard Mr Rodd in the witness box, I see no reason to doubt the veracity of any of the evidence he has given in this inquiry.
3.2. The salient points of Mr Rodd’s evidence were as follows:
· Mr Rodd still had part of his quota for the year unfilled and, if it had not been filled by the end of the calendar year, it would have been wasted. He was considering a proposal from two other fisherman to transfer the unfilled portion of his quota to them. Danny Thorpe had been unhappy at this prospect since he would lose income, so Mr Rodd decided to fill the rest of his quota himself, for his own reasons, and so that Mr Thorpe could get his percentage (T263);
· Mr Thorpe saw the weather forecast on the evening television news on 19 November, and told Mr Rodd that it would be windy on 20 November, but ‘things should improve because there was a big high pushing in’ (T265). Mr Rodd added that, in any event, fishermen did not place great reliance on weather forecasts, because the weather stations in the area are so far apart, and ‘quite often the weather reports up here were very unreliable’ (T265);
· After launching the boat, they travelled to the ‘Liberty Ship’, a wreck on the north side of Goat Island. The area was protected from the strong southerly wind that was blowing. However they only found small abalone, and there was evidence of extensive poaching (T267);
· The men then travelled to Lacey Island, which is further out from Ceduna and south-west from Goat Island. They fished in a sheltered bay there for a few hours;
· After fishing at Lacey Island, they travelled east, back towards Evans Island, by which time the swell had become greater and the weather was deteriorating, and so they decided to cease fishing for the day. Mr Rodd said that this was around 11am (T268);
· Having taken all the gear back onto the boat, they were travelling in a generally northerly direction back towards Goat Island intending to travel back to Ceduna. In doing so, they had to pass an area on the western side of Goat Island which Mr Craig told me was unpredictable and hazardous, although Mr Rodd said that he was not aware of that at the time (T269). I will deal with this issue later;
· Mr Rodd explained what happened as follows:
'A. After we packed all the gear up, Danny was packing all the gear up and I was breathing pure oxygen just as a decompression sort of - because I wasn't going back in the water to decompress, I just breathe pure oxygen on the boat. We packed up all the gear and we started heading back towards Goat Island and we were going to round Goat Island and head back towards Ceduna in the lee before cutting back across into the main channel. We were travelling quite comfortably. It was blowing and we had a following sea behind us. The boat seemed to be travelling quite nicely and I decided to have a sandwich. I was leaning over the shelling table looking out over the back of the boat. After I'd had a cup of coffee and a bit of a sandwich, I decided I'd ring my wife and tell her that we'd be in around lunch time-ish and we'd be heading home. That's when the boat sort of went down the face of a wave and just ploughed into the back of the next wave.
Q. What did you experience when that happened.
A. I was thrown backwards because I was facing over the back of the boat and I was thrown into the console.
Q. Did you say anything to Danny about the boat.
A. No, when I turned around and seen all the water, I said to Danny, just flatten it.
Q. Did he.
A. Yes, he did, that's when a lot of water rushed to the back of the boat and the boat was still planing but one of the outboards stopped and Danny pulled the motors into neutral cause an outboard won't start in gear and instead of pulling just one motor off, because the controls are both together, he pulled both controls back and well that was the last I sort of seen - I went for a bucket and I started bailing but once the power of the boat actually stopped, the water rushed forward in the boat again and that's when the bow of the boat went back down and the boat lost stability and just flipped.
Q. Went over.
A. Yes, went over.
Q. Did that all happen fairly quickly.
A. Unbelievably quick.' (T270-271)
· After the boat capsized Mr Rodd and Mr Thorpe clambered up onto the upturned hull of the vessel and Mr Rodd collected as much of the floating equipment as he was able. He dived under the boat and recovered the Emergency Position Indicating Radio Beacon (‘EPIRB’) from the console. He said that he passed the EPIRB to Mr Thorpe. Mr Thorpe turned it on and said it was going, and threw it into the water, after tying the connecting line to the boat (T276);
· Mr Rodd retrieved the two life jackets and two containers containing flares and flashing lights and other emergency equipment (a mirror, a ‘V sheet’, etc). He also retrieved Mr Thorpe’s lunch box and a water container (T277);
· Mr Rodd dived under the boat on several occasions to expel compressed air from the shark cage into the hull of the boat to try and keep it afloat. In doing so, he pushed the shark cage out of the way and it sank out of sight (T278);
· While he was diving under the boat on these occasions, fuel and oil got into Mr Rodd’s eyes, burning them. He said that this was the reason why his eyes were in such bad condition when he was found on 22 November (T295);
· At one stage during the afternoon they saw a prawn boat called the Lincoln Lady heading out to sea from Ceduna. They let off a rocket flare and Mr Thorpe stood up on the hull of the boat holding up the ‘V sheet’ like a big flag. They let off another rocket flare, persisted with the ‘V sheet’ and then let go a red hand-held flare but the boat did not change course (T283). Mr Lewis Bryant, the skipper of the Lincoln Lady, said that he saw the two men that morning as they were heading out to sea, and the Lincoln Lady was coming in. I will refer to this evidence later when discussing the weather conditions. Mr Bryant said that his boat set out to resume fishing at around 5pm, and this may have been when Mr Thorpe and Mr Rodd saw them. I accept that the crew of the Lincoln Lady did not see the two men in distress;
· Mr Rodd said that he still had his wetsuit on from diving. There was a spare wetsuit aboard which he said he tried to get Mr Thorpe to put on. He wanted to swim to Goat Island which he said was ‘close’, he could see the rocks and waves breaking down the side of the island (T285). Mr Thorpe refused to do so, saying he would not leave the boat (T286). Mrs Thorpe confirmed that this was her husband’s attitude. She said:
'Danny used to say to me that if anything happened to the boat the EPIRB would save him, he once took me outside and showed me the satellites and explained how it all worked. I know that in the event of the boat overturning, Danny would have stayed with the boat. He believed it was always best to stay with the boat or car if stranded somewhere.'
(Exhibit C18a, p3)
· In fact, it was not until after the prawn boat had gone past and night was approaching that Mr Rodd decided to set out for Goat Island. His plan was to get from Goat Island across to St Peter Island and then light a big fire (T287). By this time, they had drifted north-west away from Goat Island, so much so that he was no longer able to see the detail of the island (T288);
· When he left the boat, Mr Rodd had his wetsuit, flippers, and the lid from an ‘esky’ to aid flotation. He also carried a flare jammed down the front of his wetsuit. All the other equipment was left with Mr Thorpe (T289). He said that he pleaded with Mr Thorpe to come with him, but he refused (T289). The men had left some stubbies of beer in an esky in the back of Mr Rodd’s car when they left to go fishing. They planned to drink them to celebrate his birthday that afternoon. As Mr Rodd left, Mr Thorpe said to him:
'I’ll be drinking the stubbies before you will.' (T290)
As Mr Rodd swam away, he last saw Mr Thorpe sitting on the bow of the boat with one leg over either side (T291);
· Mr Rodd was unable to reach Goat Island. He continued to swim but all he could see was the lights of Ceduna. He headed towards them but thought that he was going in the wrong direction. He decided to go back to the boat but could no longer see it. He then realised that he had no choice but to go with the wind and the waves. He said:
'I paddled with the wind slowly all night, holding the esky lid, kicking with my flippers slowly so as not to disturb the water too much to attract sharks.'
· Eventually, Mr Rodd was washed up on rocks and he clambered ashore. He left his flippers and the esky lid as a signal to alert searchers. He climbed the cliff, crossed sand dunes and followed a track leaving arrows as signals. He headed towards Ceduna. He eventually arrived at a bay that he recognised, crossed a number of small creeks, into mangrove country. He survived by eating razor fish and finding a small amount of water;
· On several occasions, Mr Rodd heard aeroplanes pass overhead, but he was not seen. He covered himself in seaweed to prevent being eaten by mosquitos;
· The next morning, he found a paddock, and then a road which he followed, after leaving another arrow. He eventually found a sheep trough and drank water and lay in the trough, washing out his eyes. After resting, he continued walking, eventually finding a old farmhouse. Inside, he found some matches with which he lit a fire, burning old tyres and cardboard in a 44 gallon drum. Even this did not attract attention. He took some old clothes from the house and walked back to the intersection where he was eventually found by Mr and Mrs Gurney;
3.3. Assuming that Mr Rodd starting swimming in the late afternoon of 20 November 2000, and swam until more than an hour after daylight the following morning, it would seem that he spent at least twelve hours in the water before being washed ashore. He then spent the entire day and night of 21 November and most of 22 November, until he was found at about 3pm by Mr and Mrs Gurney, walking through difficult and inhospitable country without food or water. Having survived this remarkable test of endurance, Mr Rodd’s only preoccupation was the welfare of Mr Thorpe.
4. The search
4.1. The details of the extensive air, sea and land search for the two missing fisherman, and later for Mr Thorpe after Mr Rodd was found, are outlined in a number of statements received at the inquest. They are contained in a running sheet consisting of 18 pages containing much detailed information as to the extent of the search (see Exhibit C28b).
4.2. It is appropriate to comment that this evidence establishes that the search was extremely extensive, and that every attempt was made to locate the missing men.
4.3. The police record commences with Mrs Rodd’s call to Ceduna Police Station at 1200 hours on Tuesday, 21 November 2000, advising that Messrs Rodd and Thorpe were overdue from abalone diving, having been last heard from at 8am the previous day. It was ascertained that Mr Rodd’s 4WD vehicle was still parked at the Ceduna boat ramp.
4.4. An aeroplane with spotter was organised from Streaky Bay at 12:15pm.
4.5. At 12:25pm a large, 8 metre ‘Shark Cat’ vessel belonging to a local boat charterer was organised and was ready to search within an hour.
4.6. Other fishing boats in the area were alerted and agreed to commence searching.
4.7. By about 1:30pm a crayfishing boat operated by Mr Retsas had been contacted and was in the Evans Island area and had commenced a search. By the same time the aeroplane was leaving Streaky Bay, and was in the area searching by about 2pm.
4.8. By this stage, Senior Sergeant Kym Thomas, Officer in Charge of Ceduna Police Station, was the Forward Commander for the incident. He commented:
'At this stage Ceduna Police Station had become inundated with telephone calls from the media, relatives of Rodd and Thorpe, and fellow abalone divers. Indications were that Rodd was a reliable person who did not take risks. From the information gained a specific search area could not be established however there had been a strong south-easterly wind for the previous two days so an area between the coastline west of Ceduna and waters between Puckridge’s Boat Ramp and Evans Island, including Evans Island itself, Goat Island and St Peters Island formed a likely search area however other nearby islands could not be excluded.'
(Exhibit C5a, p3)
4.9. By 2pm, the aircraft had conducted a search of Evans and Lacey Islands and was on its way to commence a search of the area around the Isles of St Francis. During the afternoon more and more vessels who were in the general area were contacted and joined the search.
4.10. At about 3pm, the aircraft reported receiving a distress signal of the type given off by EPIRBs, in the vicinity of Lounds Reef which is north-west of Goat Island and several kilometres west of where Mr Rodd was eventually washed ashore.
4.11. By 3:30pm the aircraft spotted two eskies on the east end of Bellemore Beach. The State Emergency Service (‘SES’) was despatched to the area under the direction of Senior Constable Koerner to conduct a land search of Bellemore Beach and the beach between Rocky Point and Point Bell. By late afternoon, there were two aircraft involved in the aerial search, three substantial vessels involved in the sea search and the SES were involved in the land search.
4.12. At 4:45pm one of the aircraft spotted a life jacket on the beach halfway between Rocky Point and Point Bell. They also spotted another esky on the beach 200 metres west of Point Bell. By 5:25pm Senior Constable Koerner and his party located the life jacket and esky. The esky was engraved ‘W20’, which was the registration number of Mr Rodd’s boat. At about 5:40pm, the party located an EPIRB. The running sheet records that it was switched on, and ‘he has now turned it off’.
4.13. Between 5:25pm and 11:39pm that evening, a further 18 items were located in that general vicinity including a buoy, eskies and lids, a coffee mug, and other articles, all of which were later identified by Mr Rodd as having come from W20. An orange ‘pillow’, which was part of the flotation inserts in a life jacket, was located just east of Bellemore Beach at about 11:40pm by Senior Constable Koerner and his party.
4.14. The search recommenced at about 6:50am on 22 November 2000. About 30 people including SES members, pilots of light aircraft, local professional fisherman, volunteers and members of the abalone industry were briefed at the Ceduna Police Station at that time. Land, air and sea search coordinators and groups were appointed and briefed independently regarding their search patterns (Exhibit C5a, p7). By this time there were four aircraft involved in the search.
4.15. At about 9:30am a damaged life jacket and a damaged lunch box with a green lid were located in a small bay east of Bellemore Beach. The bottom section of the life jacket had been shredded and the buoyancy pillow was missing.
4.16. At about 10:40am one of the searching boats located the diving hoses which had been spotted from the air, at a point just west of Goat Island. A buoy was attached to the hoses and a team of divers from the Water Response Section was requested to attend.
4.17. At 11:20am Mr Norman Craig, whom I have already mentioned, dived in the area where the hose was found. He followed it down and found Mr Rodd’s boat. It was sitting on the bottom, upright on the sea floor and not drifting. He confirmed that there were no bodies in the vicinity of the boat.
4.18. It appears that there was some breakdown in communication between Sergeant Codrington, who was a police officer aboard one of the searching boats and who authorised Mr Craig to dive on the vessel, and Senior Constable Wright, who was the SARMC, who indicated that Mr Craig’s dive was unauthorised. However, from my point of view, nothing turns on that issue.
4.19. While this was occurring, land searches of Goat and St Peter Islands were carried out without result.
4.20. Following the discovery of Mr Rodd and the information he imparted to Senior Constable Wright, the search in and around the Davenport Creek and Tourville Bay areas was intensified. A search was initiated involving a dinghy and jetskis, and the police helicopter searched from the air. The aerial search continued into the evening and at about 7:55pm the articles left by Mr Rodd were located at Point Peter.
4.21. On Thursday, 23 November the sea and air search was recommenced but, as I have already mentioned, was scaled down that afternoon to a land search on the basis that it was highly unlikely that Mr Thorpe would have survived so long in the water. A number of the items recovered also showed signs of damage by shark bite, and this was another factor in the decision making. I will discuss this issue again later.
4.22. The searches of the coastline continued on Friday, 24 November and Saturday, 25 November, and sea searches around the perimeter of St Peter’s Island and Goat Island were also conducted, again with no result. These searches continued into the following week but nothing further was found. The final search was conducted on Tuesday, 28 November 2000.
5. Location of boat
5.1. As I have already mentioned, diving hoses were seen floating on the water at about 10:20am on 22 November 2000. The map coordinates were reported to search headquarters.
5.2. Sergeant Peter Codrington who is stationed at Ceduna in the Criminal Justice Unit, and who is also the Controller of the Ceduna SES Unit, was aboard one of the searching boats when he attended at the site.
5.3. With Sergeant Codrington’s permission, Mr Norman Craig dove on the vessel. He followed the floating hoses down to a depth of 100 feet and found the boat sitting upright on the sandy bottom. He could see no apparent damage to the vessel (T103).
5.4. At one stage, Mr Craig’s leg became entangled in some line and he picked up a knife from the port-side gunwale and cut himself free.
5.5. The police Water Response Section dove on the vessel on the following day, 23 November 2000. The divers found an engine cover approximately four or five metres away from the vessel, and a dive computer about three metres away (T171).
5.6. The position of the boat, sitting upright on the sea floor, is important because Mr Robert Wright, the Shipwright Surveyor employed by Transport SA, expressed some doubts in his report (Exhibit C41) about whether the boat overturned, as described by Mr Rodd. I will deal with each of his concerns in turn, and the reasons why those concerns have been answered adequately:
· The covers over the compressor engine and the starting battery would have fallen out of the vessel – he accepted the evidence of Mr Rodd that these were held on with ‘occy straps’ and hence would not have fallen out (T366);
· A number of loose items such as tools, etc did not fall out as they should have if the boat was inverted – he accepted that a number of these tools were in the console, or were prevented from falling out by falling under the lip of the gunwale (T369);
· He questioned the absence of an anchor and two life buoys on the vessel – he accepted Mr Rodd’s explanation that the anchor fell into the ‘Bimini’ roof of the boat when it was inverted, that the life buoys were attached to the roof struts with plastic ties, and that these items were lost when the roof fell away from the vessel as it inverted (T372).
5.7. Ms Wade, Mr Thorpe’s sister, pointed out that Mr Craig retrieved Mr Thorpe’s diving watch, which was hanging on an ‘L’ shaped hook on the dashboard of the boat. She suggested that it was unlikely that the watch would still be there after the boat was inverted for several hours as alleged by Mr Rodd. Mr Wright said he was unable to comment (T381). This issue was not put to Mr Rodd when he gave evidence, so he did not have the opportunity to comment. As the issue was not raised earlier, it has not been possible to test Ms Wade’s theory. I am advised that the boat has now been altered so that it is no longer possible to investigate her assertions. In the absence of any evidence of that nature, I do not draw any adverse inferences against Mr Rodd’s version of these events.
5.8. Mr Rodd and another diver, Mr Jonas Woolford, dove on the boat on 31 January 2001. Mr Rodd said that he had been advised by his solicitor and his insurance company that the floating hoses presented a hazard to shipping for which he was responsible (T293). He said that he advised the police of his intentions. He said he was given the coordinates for the position of the vessel by Superintendent Schluter, the Divisional Superintendent at Port Lincoln (T337).
5.9. Mr Rodd said that he retrieved the hoses, which he had to cut as they were stuck underneath the boat, a wallet, an oxygen bottle, a chart with his secret fishing spots on it, and a piece of diving equipment from the boat.
5.10. Retrieval of the boat
On 17 and 18 February 2001, Mr Rodd’s boat was retrieved from the ocean floor by Sergeant Badenock and his colleagues from the Police Water Response Section at the request of the Survey Section of Transport SA (T167). The boat was retrieved by divers attaching a 5 tonne lift bag to the vessel. This was filled with air and lifted the vessel to the surface. The vessel was towed to Thevenard Wharf where it was taken into Mr Wright’s control. He conducted a detailed examination of the vessel.
6. Issues arising at the inquest
6.1. Condition of the boat
As I have already mentioned, Mrs Thorpe alleged that her husband was concerned about the condition of the boat owned by Mr Rodd and which he was required to operate. Indeed, she referred to her late husband’s disappointment that the boat passed the survey in April 2000 (Exhibit C18a, p3).
6.2. The boat had its last survey on 13 April 2000. It was conducted by Mr Dale LaVars, a Marine Engineer employed by Transport SA as a Marine Engineer/Surveyor.
6.3. Mr LaVars explained that the vessel was classified as a ‘Class 3C fishing vessel, restricted sea going’. Because the vessel was less that 7.5 metres in length it was sufficient, because the vessel did not have a life raft or internal buoyancy, that it carry two life buoys, one with a light and one with a line (Harbours and Navigation Act, 1994 and Uniform Shipping Laws) (T195).
6.4. Mr LaVars carried out his survey of the boat at Mr Rodd’s premises at Port Lincoln. On an inspection of the outside of the hull, there were no signs of cracking or corrosion or other signs of water being admitted to the inside of the boat (T198).
6.5. Mr LaVars said that Mr Thorpe was in attendance when the survey was conducted, and that he did not draw anything to Mr LaVars attention that needed to be investigated in greater depth. In particular, he did not make any complaint about the condition of the boat (T200).
6.6. Mr LaVars noted that the bottom of the hull had been replaced in March 1994, as had the engines. During that process, the foam internal buoyancy was not replaced.
6.7. The only deficiencies noted at the survey on 13 April 2000 were that the EPIRB did not carry a label with an expiry date on it, and so he directed that the batteries be replaced. The boat also did not carry a whistle to attract attention (T208). In all other respects, Mr LaVars said that the boat was fit to go to sea (T213).
6.8. A statutory declaration was filed on 26 April 2000 stating that the deficiencies had been remedied (T216).
6.9. In answer to questions from Ms Wade, Mr LaVars said that the life jackets were sound (T244). He said that the 20 or so welds noted in the hull (to plug holes caused by corrosion) were sound and did not detract from the sea worthiness of the vessel (T247).
6.10. Mr Rodd acknowledged that the boat was one of the older boats in the fleet, but insisted that it had been looked after through the years and was in good condition (T317).
6.11. There is an allegation before me by a man named Kelvin Krahge who alleges that Craig Kelson and Mark Kotz, both builders from Port Lincoln, told him that Mr Rodd’s boat was ‘stuffed’ (Exhibit C22b). This was refuted by Mr Kelson who described the condition of the boat as ‘fair’ (Exhibit C19a, p2), and Mr Kotz who described its condition as ‘average for its age’ (Exhibit C20a, p2). Mr Rodd also refuted the allegation that Mr Kelson had refused to work on the boat because of its condition (T317).
6.12. All of this rumour and innuendo about the condition of Mr Rodd’s boat was put to rest by the examination of the vessel by Mr Wright after it was retrieved in February 2001. Mr Wright conducted a detailed examination of the vessel to try and ascertain whether its condition contributed to its sinking, and he concluded that the hull was watertight at the time the boat sank (T365). Although some corrosion spots had developed in the hull during the month that it had been underwater, these were not a factor in the sinking (T382).
6.13. Mr Wright also corroborated another aspect of Mr Rodd’s, in that his examination revealed that the motors were not running at the time they were inundated by water (T371).
6.14. In answer to allegations that the boat was overloaded and therefore unstable, I received evidence in the form of a report from a Mr John Samarzia, who undertook a stability assessment on Mr Rodd’s vessel on 18 February 2002. There is no specific requirement for such a test to be performed as part of a survey, but this test was performed in order to try and reach an understanding of the sinking.
6.15. The outcome of the test by Mr Samarzia indicated that Mr Rodd’s vessel was fit for its purpose and was not predisposed to capsize. A lack of stability was not considered a contributing factor to the loss of the vessel. I was informed that it would have required a mass of 484kg, placed 500mm above the working deck, to reduce the stability of the vessel to a minimum requirement. Such weight would have been additional to the usual load carried by the vessel including motors, equipment and abalone catch (T396).
6.16. It is possible to conclude from that information that the size of the vessel and its loading were not contributing factors to the loss of the vessel.
6.17. The weather
It was strongly argued by Mrs Sheppard, Counsel for Mrs Thorpe, that the weather conditions were so bad on 20 November 2000 that Mr Rodd and Mr Thorpe should not have put to sea.
6.18. The evidence before me is that the weather forecast for that day indicated that the winds would be 20 to 30 knots, with seas of between 1 and 3 metres (Exhibit C28c). A ‘strong wind’ warning had been issued by the Bureau of Meteorology.
6.19. Mr Allan Suter, the owner of a vessel of similar size to Mr Rodd’s which he operated as a charter tourist and fishing vessel, said that the weather was such that he would not go out to sea except in an emergency (Exhibit C12b, p2).
6.20. Mr Robert Siegmann, an abalone sheller working in waters near Elliston, described the weather on that day as ‘disgusting’, so much so that he went home (Exhibit C23a, p2).
6.21. Mr Lewis Bryant, the Captain of the Lincoln Lady, a prawn fishing boat which is much larger than Mr Rodd’s, said that the weather was so rough on his way into Ceduna during the morning of 20 November 2000 that he thought Mr Rodd and Mr Thorpe were ‘crazy’ when he saw them going to sea. He commented that it might have been safe in the lee of the wind around Goat Island, but it would have been too rough anywhere else. The Lincoln Lady put to sea again at about 5:00pm that night, and Mr Bryant said the weather was still ‘quite bad’ at that time (Exhibit C42).
6.22. At about 8:50pm on 19 November 2000 Mr Bryant called off fishing for the evening because the weather was too rough and he anchored the boat in the lee of an island to keep out of the weather.
6.23. Information tendered by Mr Apps, Counsel for Mr Rodd, suggests that, relatively speaking, abalone diving was carried out on a number of other days at around that time in conditions that were just as bad. For example on 10 and 16 January 2001, 17 vessels were out diving in conditions which were quite comparable to those which were present on 20 November 2000 (see Exhibit C43).
6.24. Mr Craig, who is a very experienced abalone fisherman and a most impressive witness, told me that fishermen in the area did not slavishly follow weather forecasts. It was well known that weather forecasts on the West coast of South Australia are often inaccurate because they rely on readings taken from weather stations as far apart as Esperance and Port Lincoln. I discussed this issue in the matter of Woolford and Richter (Inquest 12/94). He said that although the weather forecast is used as an indicator, it is usual for most crews to form their own judgment about whether to go out (T112). In particular, he said that a fisherman would need to go out past Goat Island, which along with St Peter Island, shelters the waters around Ceduna, to check on the weather (T113). He said that the boat was quite capable of operating in conditions where the wind was blowing at 25 to 30 knots, although it would be necessary to ‘throttle off a bit’ (T124). In particular, he said that the size of the swell was more important than the strength of the wind (T136). He said that if there was a large swell, it was necessary to adjust the speed of the boat to ‘hang on the back of the wave’ and adjust the throttle to keep in front of the wave coming up from behind (T141).
6.25. Mr Craig said that the place where Mr Rodd and Mr Thorpe capsized, just west of Goat Island, is considered particularly hazardous, as there are large underwater sand dunes in the area which cause huge ‘upwellings’, or swells. He said the area is ‘very steep and it’s hazardous’ (T110).
6.26. Mr Rodd’s evidence was similar to that of Mr Craig. He said that he and Mr Thorpe had talked about the weather, and that Mr Thorpe had seen the weather report on the previous night’s television news. He told Mr Rodd that it would be windy, but that it should improve during the day (T265).
6.27. The men decided to go to Goat Island and check out the weather for themselves. He said they did not rely much on weather forecasts but rather would go out and see what it was like. He said that once they were out past Goat Island, if the weather did not look promising, they would have come home (T266). He said that as they left for the Ceduna Boat Ramp, the wind was from the south and was blowing at about 20 knots with a small to medium swell. When they were in the lee of Goat Island, he described the conditions as ‘beautiful, flat calm’ (T310).
6.28. As I have already related, it was only when the weather became rougher during the afternoon that the men decided to cease fishing for the day and head for home.
6.29. All of this evidence is somewhat contradictory and given with the benefit of hindsight. Although the weather was clearly rough on 20 November 2000, I am not satisfied that, having regard to the generally prevailing practices in the abalone industry, it was reckless or inappropriate to put to sea on that day. As I have already mentioned, I accept Mr Craig’s evidence, which corresponds with that of Mr Rodd, that it was common industry practice to take a boat out past Goat Island and check the weather conditions before making a firm decision to continue fishing. This is what Mr Rodd and Mr Thorpe did.
6.30. The decision to put to sea should be judged in context of the industry in which it is made, an industry which is known to be hazardous and financially rewarding. Both Mr Rodd and Mr Thorpe were experienced mariners, and knew the risks they were undertaking. Their decision to put to sea was reviewed later in the day when the conditions deteriorated and they made the appropriate decision to return.
6.31. Having said that, however, the possibility of a misjudgment, or a sudden deterioration in the weather, should never be discounted. In my opinion, for vessels of such small size operating in the open sea, it should be compulsory to carry a self-inflating life raft, with a self-activating EPIRB built in. The life raft should be mounted on the boat and fitted in such a way that it automatically detaches and inflates in the event of a capsize.
6.32. Condition of the EPIRB
There is no doubt that, had the EPIRB worked effectively, Mr Thorpe and Mr Rodd would have been found, with the boat, within a short period of time after it was activated. As I understand it, the basic function of the EPIRB is that, when activated, it sends a signal to a series of satellites and the signal is then relayed to ground stations and monitored at the Rescue Coordination Centre of Australian Search and Rescue (AusSAR). Once the signal is detected, the position of the beacon can be plotted by triangulation and the rescue is then made relatively simple. Sergeant Codrington, the local area SES Controller and an extremely experienced seaman, stated that the rescuers would have been at the spot within 30 minutes of satellite contact had the EPIRB worked correctly (Exhibit C7a, p6).
6.33. There is a dispute on the evidence as to the condition of the EPIRB when it was found on Bellemore Beach on 21 November 2000.
6.34. Senior Constable Koerner said that when he was handed the EPIRB by one of the SES members, Ms Bev Bedson, it did not have an aerial on it at all. He said he took particular note of that fact because ‘it struck me as strange and also I was thinking forward to any possible Coroner’s hearing that might result …’ (T71).
6.35. Ms Bedson, on the other hand, said that when she found the EPIRB, it had part of its aerial intact, but it was ‘a quarter to a half of what I thought it should be … and was probably less than but approximately the same size as a cigarette packet’ (Exhibit C36).
6.36. Mr Allan Suter also gave a statement that when the EPIRB was placed in the rear of his 4WD on Bellemore Beach, before it was taken back to where Senior Constable Koerner was situated, it still had ‘one and a half inches of aerial still screwed into the attachment’ (Exhibit C30a).
6.37. Senior Constable Koerner described both pieces of evidence as ‘clearly wrong’ (T72). He said that Mr Suter was not even present when the EPIRB was found, and that he did not arrive at the scene until after the search was finished (T71). Ms Bedson’s statement, in which she says that she gave the EPIRB to the police two or three hours before Mr Suter arrived, supports Senior Constable Koerner on that topic.
6.38. Certainly, the EPIRB had no aerial by the time it was handed by Sergeant Koerner to the Technical Support Unit of SAPOL, for analysis (see his statement Exhibit C11a).
6.39. On the basis of this evidence, I am not prepared to find that Senior Constable Koerner is wrong. He has a clear recollection that there was no aerial on the EPIRB at all when it was handed to him. I find it highly unlikely that anyone would have unscrewed the aerial, or that it came off accidentally, between the time it was found on the beach and the time it was handed to Mr Koerner. On the balance of probabilities, I find that Mr Suter and Ms Bedson are mistaken, and that there was no aerial on the EPIRB when it was found.
6.40. Sergeant Rohde of the Technical Support Unit found that the EPIRB was not in a serviceable condition when he tested it. It had admitted water because the seal had been breached. The batteries were flat but when new batteries were installed, the device worked satisfactorily. The EPIRB was tested with a substitute aerial and worked well when the aerial was removed during testing, the satellite lost the signal (Exhibit C11a).
6.41. I am satisfied that no signal was received by the satellite, and hence by AusSAR, on 20 November 2000. Exhibits C28e and C28f establish that there were two flights over the area in question by satellites on that day which would have received the signal had it been emitted, and no signal was received.
6.42. It is now impossible to determine clearly why the WPIRB failed to function. Obviously its signal was not strong enough to reach the satellite, yet if VH-LGM received a weak signal from it while flying over Bellemore Beach, it was still functioning to some extent at that point, almost a day after Mr Thorpe turned it on. Of course it cannot be proved whether or not VH-LGM was receiving some other signal that day, either.
6.43. The fact that water had penetrated the unit is a cause for concern. Mr LaVars directed that the batteries be replaced in the EPIRB following the survey on 13 April 2000. He told me that the batteries could be replaced by a dealer, or it is possible to do it yourself (T210). Mr Rodd told me that he paid an account for new batteries, which is now Exhibit C35c, and said that Mr Thorpe told him that the batteries had been replaced (T328).
6.44. Mr Apps made the sensible suggestion that, since there was still no date stamp on the EPIRB, it seems likely that Mr Thorpe replaced the batteries himself (T241). The unit may not have been completely watertight when he reassembled it.
6.45. Having regard to the potentially life-saving value of an EPIRB, and the extent to which Messrs Rodd and Thorpe placed their faith in it, it seems unsatisfactory that a layman, even an experienced and competent one like Mr Thorpe, should be allowed to change the batteries. I understand that newer model EPIRBs have a long-lasting lithium battery, and when the battery is flat (which takes years) the entire unit should be discarded.
6.46. Alternatively, I consider that if batteries are to be replaced, they should be replaced by a properly authorised dealer, who should be required to attach a sticker giving information about the identity of the dealer, and when the next replacement should occur. Otherwise, there should be warnings against the batteries being replaced by other than an authorised dealer.
6.47. Usefulness of radio
There was considerable discussion about the usefulness or otherwise of radios being carried on fishing vessels such as Mr Rodd’s. For example, Mr Craig told me that radios have very limited usefulness on the West coast (T126).
6.48. I was told by Sergeant Codrington that a VHF repeater station had been constructed on St Francis Island, near Goat Island, since this incident, and this had greatly improved radio communications in the area (Exhibit C7a, p6).
6.49. A radio would have been no use in this situation, because the sudden capsize of the vessel would have rendered it inoperative.
6.50. I was told that mobile telephones work to some extent in the area, although their performance is patchy. I consider that it should be made compulsory that commercial fisherman should carry a satellite telephone in a waterproof cover so that communication can be assured.
6.51. I note from the materials supplied by the abalone industry (SAAIA) that they are making efforts to standardise the type of radios to be used and to ensuring their effectiveness. This is obviously a useful thing to do and should be encouraged.
6.52. Mr Rodd’s decision to leave the boat
The fact the Mr Rodd decided to strike out by himself and leave Mr Thorpe sitting on the upturned fishing boat is a matter which obviously distresses the Thorpe family, in light of the fact that he survived and Mr Thorpe did not.
6.53. Mrs Thorpe told me that her husband always had a strong view that if he got into difficulties he would stay with the boat or car, whatever the case may be (Exhibit C18a, p3).
6.54. Senior Constable Wright, who is highly experienced in search and rescue, emphasised that the decision was a matter for individual assessment in light of the particular circumstances at the time, although he conceded that it was generally better to stay with the boat (T52).
6.55. On the basis of Mr Rodd’s evidence, there was a strong disagreement between the two men as to the best approach. Mr Rodd told me that he pleaded with Mr Thorpe to come with him, but that Mr Thorpe told him that he was ‘crazy’ and that he would get ‘eaten’. He said that Mr Thorpe refused to put on a wetsuit because he would look like a seal and thus be a target for sharks, and that it would also have made him harder to see (T289).
6.56. Mr Rodd told me that when he left the boat, Mr Thorpe had two life jackets on, and had a number of items to provide him with buoyancy including eskies. He also had a water bottle, the wetsuit, containers with flares and some food (T334).
6.57. Mr Rodd’s statements, made after he was found, that he should never have left Mr Thorpe must be seen in light of his distress at the time. I do not see them as an admission of wrong-doing.
6.58. This issue could be the subject of endless debate. No doubt Mr Rodd has asked himself on many occasions whether, if he had stayed with the boat, the outcome might have been different. It is not now possible to say.
6.59. The predicament in which the men found themselves was extremely dangerous, and they must have both been deeply distressed when they realised that they may not be found. In those circumstances, it is unfair to comment on their decision-making in retrospect, with hindsight of the outcome, and with no real understanding of what it must have been like for the two men at the time.
7.1. Finding of death
In all the circumstances of this case, it is appropriate for me to make a finding that Danny Thorpe died on or about 20 November 2000. He disappeared on that date, having last been seen by Mr Rodd when he swam away from the overturned fishing vessel, sitting astride the bow of the vessel wearing two life jackets, an orange weatherproof coat and trousers.
7.2. Since that time, Mr Thorpe has not been found. If he had survived, I have no doubt that he would have been found.
7.3. The evidence of Dr Jane Taylor, the Forensic Odontologist, discloses that a number of items which were found by the searchers had scratches and bite marks on them consistent with having been inflicted by a white pointer shark. In particular, scratches on the lid of the clear plastic food container and the wire which connected the life jacket to a light displayed such markings, and there were less conclusive marks on the grey fish bin and another piece of a plastic box (see Exhibit C1a).
7.4. The life jacket worn by Mr Thorpe sustained damage to the extent that the outer covering had been shredded, and the inner flotation pillow had become separated, but it is not possible to identify the mechanism by which this damage occurred, nor is it possible to determine whether Mr Thorpe was still wearing the life jacket when this damage was incurred.
7.5. I also take into account the evidence of Senior Constable Wright that, having regard to the water temperature in the area at the time, and the fact that Mr Thorpe was not wearing a wetsuit, it was unlikely that he would have survived immersion for longer than a few hours (see Exhibit C29).
7.6. In all those circumstances, it is not now possible to determine the precise cause of death, whether it was by drowning, hypothermia, or trauma associated with shark attack. I find that the cause of death has not been determined.
8.1. Section 25(2) of the Coroner's Act, 1975, states as follows:
'A coroner may add to his or her finding any recommendation that might, in his or her opinion, prevent, or reduce the likelihood of, a recurrence of an event similar to the event that was the subject of the inquest.'
8.2. I have received a number of very sensible suggestions as to recommendations I might make in this matter. For example, Senior Sergeant R G Pain of the Kangaroo Island Police Station has suggested:
'All recreational and smaller commercial vessels ie. fishing/charter/abalone boats, etc. have the international distress sign of a black V on a bright orange background painted on the bottom of the boat, thus if it overturns it would be readily visible to searchers.'
I think that is a very good idea, and one which might be taken up by the Department of Transport in consultation with the fishing industry. I do not think, however, that I am able to make Sergeant Pain’s suggestion the subject of a formal recommendation in this case, because the boat hull sunk well before the search commenced.
8.3. I was advised that the Abalone Industry of South Australia Inc has been actively considering a number of issues to enhance the safety of its members at sea. For example:
· steps have been taken to ascertain the extent of the resources owned by members of the Association which might be used in a search;
· attempts are being made to standardise the types of radios used aboard diving vessels to improve communications;
· a system whereby members of the Association notify a central point of their area of operations for the day (as they are required to do by the Department for Primary Industry and Resources (‘PIRSA’) regulations), and to notify upon completion of diving operations for the day, thereby establishing what aviators call a Search and Rescue (‘SAR’) watch.
8.4. PIRSA specifically advised me that they are not prepared to undertake the role of maintaining a SAR watch (see the comments of Mr Illingworth, their Counsel, at T438). I agree that such schemes are problematic (see my comments in Grossmueller, Inquest number 16/99).
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