Stephen Charles Chaney v Commonwealth of Australia

Stephen Charles Chaney v Commonwealth of Australia - [2005] NSWSC 92 - NSWSC 2005 case summary — Zoe

[11]

JUDGMENT 1 HIS HONOUR: On 5 November 1982 the plaintiff, Stephen Charles Chaney, then aged 21, was a soldier in the Australian Army engaged in physical training with members of his unit on South Melbourne Beach. With other soldiers he swam and ran along the beach before being called upon to participate in a supervised exercise in which he was required to carry a fellow soldier on his back a certain distance up the beach and return. He claims that, just as he was positioning himself to take the weight of the person who was to be his partner, a soldier jumped on him without warning and occasioned an injury or injuries from which he still suffers and for which he seeks damages from the defendant, the Commonwealth of Australia. 2 The plaintiff claims that the Commonwealth is liable for the injuries occasioned to him in the course of his employment, that being as an enlisted soldier with the Australian Regular Army. The plaintiff complains of constant back, neck and head pain and urological difficulties. It is alleged that the defendant, by its servants or agents, being those army personnel of higher rank than the plaintiff and who were responsible for the conduct of the training at the beach, breached the duty owed to the plaintiff to take reasonable care for his safety by failing to provide "a proper and safe system of conducting its operations and sufficient supervision of the same". 3 There is no dispute that the Commonwealth owed the plaintiff a duty of care in relation to the conduct of the physical training in which he was involved on the beach. There is no dispute that the plaintiff was injured to some extent during the course of the exercise in which he was taking part on the beach, referred to by the plaintiff as "a piggyback" or, more appropriately, "a Fireman's carry". The Commonwealth, however, contends that the Court would not be satisfied that the plaintiff's account of the incident, said to have been the cause of his present physical and mental condition, is reliable. It also takes issue with the extent of any injuries that the plaintiff has suffered or now suffers as a result of the incident occurring at South Melbourne Beach

[13]

The period of Army service 5 In the period leading up to the incident in 1982, the plaintiff served at a number of army bases in New South Wales and Victoria. He was attached to various transport companies, initially as a driver and later in administrative positions. Eventually he attained the rank of corporal. He participated in, and enjoyed, the various sporting activities and physical training that were a feature of army life as he knew it. He played a variety of sports as a soldier including cricket, volleyball, squash, and soccer. 6 Physical training activities were conducted at all the bases at which he served on a five days per week basis, usually in the mornings. The sessions were of approximately 25 minutes in duration and were always supervised, usually by at least one Physical Training Instructor (PTI). In the absence of such an instructor, the training was conducted and supervised by an officer or a senior NCO. 7 On an occasion in April 1982, when the plaintiff was stationed at Enoggera undertaking a clerk's course, he participated for the first time in a game called "murder Frisbee". This was a team contest conducted in a gymnasium under the supervision of a warrant officer and involved 36 players. During the course of the game, the Frisbee was thrown to the plaintiff. He fell to the ground and another player landed on top of him causing him to feel severe pain to his lower back. He had difficulty getting back to his feet. 8 He reported the injury to the Regimental Aid Post (RAP) and was told to treat his back by applying Dencorub. There is a Medical Attendance Form dated 19 April 1982 relating to this injury (Ex B6). It records that the plaintiff suffered a "direct blow to the back". He complained of "pain on bending or extension" and his movement was "tender in all directions". He was placed on restricted duty with "no P.T. to include 25-4-82". 9 The plaintiff continued to experience pain for about one week after this incident. However, he recovered fully from the injury and before he returned to his army base in Victoria he participated in a squash competition, without pain or inconvenience, Thereafter he continued to participate in all forms of physical training and sports without restriction until the incident at South Melbourne Beach. 10 In cross-examination the plaintiff acknowledged that accounts he had given of the "murder Frisbee" incident included the following: that the person, who had fallen on him, had landed with his knees in the plaintiff's back; that the person weighed variously between fifteen and thirteen stone; and that the plaintiff had to be assisted back to barracks. There was suggestions in some of the medical reports tendered that this incident had been the source of his present back pain, but the plaintiff denied that this was so. I will return to this issue in some detail later. 11 The incident at South Melbourne Beach occurred on 5 November 1982. As this is the basis of the claim I will deal with the plaintiff's evidence on this matter separately. 12 In December 1982 the plaintiff was transferred to the Albury Transport Unit. He continued to experience pain in his back and left leg. At one point he was referred to a chiropractor. Although he continued to be involved in physical training sessions at the various army bases where he was stationed, the pain in his lower back and left leg persisted to varying degrees. He particularly experienced difficulty running. It is the plaintiff's evidence that, in effect, he never recovered from the injury sustained in the incident on South Melbourne Beach.

[17]

Sporting attractions, I have always been involved in sport and within my current employment the ability to participate is restricted, with your dept, the dept gives me an opportunity to actively participate in [them]. 16 The plaintiff commenced employment as an officer with Corrections in January 1987 and completed an initial training course without incident. He continued in that employment until September that year. His duties involved him in physical activities including tower duty, patrolling catwalks, searching cells and restraining prisoners. He had no serious health difficulties during this period. 17 However his back pain re-emerged. He had two episodes in 1987 that required admission to Goulburn Base Hospital. The first was between 10 and 19 September, when he found himself unable to stand after sitting in a chair the day after a game of squash. He was placed in traction to ease his pain. On 19 September he underwent a myelogram. The second admission occurred between 13 and 16 December, after he was unable to straighten his back. Again he was placed in traction. 18 In August 1988 he underwent surgery to fuse his spine. Following this surgery he found that the back pain was relieved for about six months but gradually it returned such that he found himself unable to stand upright. By this time he was living in Taree with his second wife. He never returned to work for Corrections after September 1987. 19 Because of his continued complains of back pain, the plaintiff was readmitted to hospital in December 1989 and underwent surgery to remove the screws and plates inserted in the first operation. It was following this surgery that the plaintiff began to suffer urological difficulties. From this time he was confined to a wheelchair for most of his waking hours because of the pain in his back and legs. 20 He was divorced from his second wife. A short time later he married for a third time but that marriage also failed. 21 Since December 1989 the plaintiff has been continually under the care of various general practitioners, specialists, and psychiatrists. His sister had been his full-time carer for about three years prior to the hearing. Neither of his children now resides with him. He spends his time in unpaid work on committees and counselling others. He believes that he is unable to work on a full-time basis because his physical condition varies from day to day and by reason of the changing requirements for his care depending upon the severity of his pain. He spends 80 per cent of his time in a wheelchair. He feels that he has reached a point of stability in control of his pain because of the insertion of an intra-thecal pump that administers metered doses of painkillers to him.

[26]

The plaintiff's medical history 30 In effect the plaintiff's evidence is that he was generally fit before the piggyback incident in November 1982 but thereafter suffered continuous pain to his lower back. On his account his present symptoms stem from the injury suffered at South Melbourne Beach. 31 A summary of the plaintiff's medical record, both while serving in the army and after his discharge, is contained in an annexure to this judgment. 32 From early 1982 the plaintiff complained of intermittent back pain on three separate occasions: first on 18 February 1982, after a cricket match; the next after the "murder Frisbee" incident in April 1982; and then finally following the piggyback incident on 5 November 1982. Thereafter, he made frequent complaints of pain to the back. On each occasion after 1982 the Army Medical Board (AMB) examined the plaintiff, he is identified as being "abnormal" in the spine. There is no evidence as to the criterion for making that determination or upon what material it was based. 33 However, there are reports of the plaintiff being free of symptoms in the period shortly after the piggyback incident, for example after chiropractic treatment in December 1982 (Ex B15). In evidence the plaintiff denied that he was symptom free at this time or at any time after November 1982. 34 In February 1983, after the plaintiff's back had been x rayed and no abnormality detected, Dr Isbister formed the opinion that the plaintiff had a "normal back - which had been strained" (Ex B18). The record of the AMB examination of the plaintiff in February 1983 states "No pain at present" and that the plaintiff does "PT thrice w(ee)kly" but notes "wears sorbothane heel insert for running". Despite these findings the plaintiff was still identified as having an "abnormal" spine. 35 In March 1983 there is a medical report noting that the plaintiff complained of pain in the lumbar region of his back. In August of that year the plaintiff was issued with new boots in order to accommodate the sorbothane inserts "which have alleviated his low back pain while running, doing PT etc" (Ex B22). 36 In February 1984, the report of the examination by the AMB indicates that the plaintiff was asymptomatic in relation to a "LS strain". 37 By April 1984 the plaintiff was again complaining of "nagging" lower back pain as a result of an "injury at PT in Melbourne - 82" (Ex B24). The plaintiff was referred to Dr Bentivoglio, an orthopaedic surgeon. A report of his examination refers to the plaintiff suffering from low back pain on and off for two years "since injury to back at a gym", presumably a reference to the "murder Frisbee" incident. He considered that the plaintiff "could well have disrupted a LS Disc as result of injury 2 yrs ago" (Ex B25). However, an x ray revealed only a "straightening of normal lumbar lordosis [the curve of the spine]". 38 From April to August 1984 the plaintiff continued to complain of lower back pain despite a course of physiotherapy and the use of a corset. 39 In August 1984 the plaintiff was hospitalised for an assessment of his condition as a result of complaints of severe pain to the back and down the left thigh. At this time Dr Collins thought that there were signs that the plaintiff was exaggerating his disability. When a CT scan produced no sign of abnormality, the plaintiff was discharged from hospital. In October of that year Dr Bentivoglio expressed the view that the symptoms did not warrant surgery. 40 Throughout 1985 the plaintiff was examined without any specific finding made as to the cause of his back pain. He was diagnosed as having "non specific low back pain" and prescribed an anti-inflammatory medication. 41 In 1986 examination notes of the AMB indicate that the plaintiff was complaining of occasional back pain but "nothing constant" and obtained good results at times from the use of a back brace (Ex B52). 42 On 30 October 1986 there was a determination made for the purposes of compensation that the plaintiff sustained personal injury arising out of his employment on 5 November 1982 namely "low back strain with left sciatica" (Ex B56). In November of 1986 the plaintiff sought to be excused from running because it produced a pain in his left leg. He also complained that his back condition was exacerbated after lifting heavy furniture. In December of that year the AMB examination diagnosed him as suffering from chronic low back pain. 43 By 1987 the plaintiff was assessed as being 15 per cent impaired by reason of his back pain. There was a provisional diagnosis that it was a result of a possible lumbar disc lesion (Ex B62). The plaintiff was hospitalised for traction on two occasions in this year. On 18 September he was subject to a lumbar myelogram. It did not reveal any abnormality (Ex B66), although there was some suggestion that it showed "nerve root involvement…..but this is not gross" (Ex B71). The plaintiff maintains that following that procedure he commenced to suffer severe headaches and neck pain, although there was no complaint made by him to any medical practitioner or hospital staff until 1990. 44 In 1988 there were further attempts made to ease the plaintiff's pain. The first was an epidural injection administered on 21 July 1988 (Ex B73). On 19 August of that year Dr Robson carried out a spinal fusion by the use of plates and screws. This surgery was thought to be warranted because of "some degree of instability at the L5-S1 disc level so that operation and fusion with nerve root release at that level offers him a good chance of long term improvement" (Ex B71). 45 Dr Robson reviewed the plaintiff in March 1999 and was satisfied with the physical result of that operation (Ex B75). He reported that the plaintiff was "pretty comfortable except when he straightens up after having been stooped over, and he is a little uncomfortable but otherwise he seems able to manage pretty well". However, after about a period of six months, the plaintiff commenced to complain of constant back pain radiating to both legs and his groin. As a result he needed total bed rest on occasions. Because of the pain he could not stand straight and he started to use a wheelchair. 46 On 8 December 1989, the plates and screws inserted the previous year were removed. It was reported however that the spine was "rock-solidly fused………there is no doubt about this" (Ex B77). 47 It was following this operation that the plaintiff first complained of urinary retention problems. 48 Despite the fact that an X ray indicated a solid fusion of the plaintiff's spine (Ex B78), the plaintiff continued to complain of severe back and leg pain. In March 1990 he was unable to stand or sit for periods longer than 40 minutes and suffered "frequent exacerbation of pain requiring total bed rest" (EX B79). He was admitted to Manning Base Hospital in July 1990 complaining of leg pain and urinary retention. He also spent a period in Lady Davidson Hospital in 1990 and appeared to improve, at least to the point of not requiring a wheelchair on his discharge. But shortly after his release he resumed reliance upon a wheelchair for general mobility. 49 By February 1991 the plaintiff was complaining that he could not stand or walk for more than 10 minutes without experiencing back pain. There was a concern that there may be some abnormality at the L4-5 disc (Ex B89 and B92). However, by July 1991 it was considered that no further surgical intervention could assist the plaintiff but that he might benefit from treatment at a pain clinic (Ex B93). By September 1991 he was assessed as being totally incapacitated for work. 50 In 1992 the plaintiff was treated for pain relief and depression. Psychiatrists treating the plaintiff were of the view that his psychiatric problems were a result of his physical condition and the attendant pain (Ex B100). A psychiatrist, Dr Lambeth, was of the opinion that the plaintiff was suffering from Chronic Dysthymic Disorder, a depressive illness, resulting from his pain and inability to function because of it (Ex B102). 51 Dr Wade King, who was treating the plaintiff for pain relief, in a report of 3 August 1992 raised a suggestion that the plaintiff's pain was a result of "post-operative arachnoiditis, cauda equina problems and disturbed sympathetic function" (Ex B102). He maintained this view in a report in June 1993 also opining that the plaintiff's headaches were a result of his spinal injury and the treatment of it. This diagnosis was a matter of strong controversy at the hearing before me. Although Dr King was required for cross-examination, he could not be located at the time of the hearing and his evidence was, therefore, untested. 52 By early 1994 the plaintiff was declared to be unfit for work as a result of a lumbar disc lesion and a dysthymic disorder, both of which had been earlier recognised by the Department of Veterans' Affairs. There were opinions expressed that he suffered from a disc lesion that had been exacerbated by back surgery. He was also found to be suffering from a neuropathic bladder associated with his spinal surgery. He complained of chronic headaches and neck pain. Dr Baz, an occupational physician, formed the view that he was unlikely to have a successful outcome from further rehabilitation (Ex B107). Dr Grant, an urologist, was of the opinion that it was unlikely that his bladder function would improve and the plaintiff would require self-catheterisation for life (Ex B108). 53 From 1995 onwards the plaintiff was frequently admitted to hospital for pain management or to treat his neuropathic bladder. He spent much of his time confined to bed (Ex B120). 54 In October 1996 the plaintiff was complaining of increased loss of sensation to his lower limbs. He was generally confined to a Spinal wheelchair or in bed. 55 In February 1999 he complained that the pain was worse than ever and was experienced from his groin to his feet. He continued to suffer neck pain. He was also experiencing general weakness in the lower limbs and burning pain in his legs (Ex B131). In May 1999 the plaintiff was admitted to treatment for Post Traumatic Stress Disorder at the St John of God Hospital and was an inpatient from 14 May to 8 July. Dr Smith, who treated him at the hospital, gave evidence before me and I will deal with this issue later. 56 The plaintiff continued to be treated for pain relief and associated psychiatric disorders throughout 2000 and 2001. He lived with his sister and continued to spend the large part of his waking time in a wheelchair or motorised scooter. He had difficulty in maintaining his personal care although on some days he could brush his teeth and shave. Otherwise he relied on a personal assistant. He self-catheterised his bladder thrice daily. 57 Throughout 2000 and 2001 he was being treated once a fortnight by a psychologist, Mr Grant, for Chronic Pain Disorder. In August 2001 an intrathecal pump was inserted to help him find relief from pain. The pump is refilled every 4-6 weeks. In a report dated 8 August 2001 Dr Smith expressed the opinion that the plaintiff was still displaying some symptoms of Post-Traumatic Stress Disorder and was suffering from Chronic Pain Syndrome and a Dysthymic Disorder. 58 In a report dated 2 December 2002 Mr Grant stated that the plaintiff thought that the use of the intrathecal pump had improved his quality of life. 59 The plaintiff appeared before me in a wheelchair. He was fitted with the intrathecal pump. He complained of continually suffering from pain in his lower back, left leg, and neck. He suffered from headache. He experienced pins and needles in his arms. His hands constantly shake. He was receiving psychiatric treatment, medication for pain relief and physiotherapy. Although he can walk unaided for short distances, it causes him discomfort and he is severely stooped over. He is able to drive himself and has been provided with a vehicle by the Department of Veterans' Affairs.

[28]

Failed back syndrome? 63 The plaintiff contends that he suffered a serious injury to his spine as a result of the incident on South Melbourne Beach. The plaintiff's case is generally represented by the reports and evidence of Dr Russo, a medical practitioner described as a "consultant in pain management". He was previously an anaesthetist. He has been treating the plaintiff since 2001 for pain relief. He diagnosed the plaintiff as suffering from failed back syndrome, also known as failed back surgery syndrome, derived from either of the two back operations carried out between late 1990 and July 1991. More particularly he was of the opinion that the plaintiff was suffering from arachnoiditis, an inflammation of the arachnoid lining of the spinal chord resulting from either one of the operations to his back. This, he believed, was the cause of the pain to his hips and legs. 64 The Commonwealth challenged the expertise of Dr Russo to make such a diagnosis, maintaining that this condition is usually diagnosed by a radiologist in conjunction with a neurosurgeon. Dr Russo would not agree that the reliability of the diagnosis was limited to such experts. He believed that a "pain physician", such as himself, was capable of making such a diagnosis on clinical grounds alone. He did not believe that the diagnosis of this condition necessarily relied upon support from an MRI scan. He was of the view that radiologists did not always identify the condition and that he would need to examine the scan himself (T178). He had not viewed either of the MRI scans taken of the plaintiff. The effect of Dr Russo's evidence was that he presumed that, by reason of the plaintiff's complaints and history, he was suffering from either arachnoiditis or some other nerve root damage arising from scarring after surgery notwithstanding the absence of any radiological finding to support the diagnosis. 65 Dr Russo was also of the opinion that the plaintiff suffered a degenerative lumbar disease at the L5-S1 which caused his back pain. This was notwithstanding the radiological report of a successful fusion. 66 Dr Cook saw the plaintiff in 1992 and was of the view that the plaintiff's condition could be described as failed low back surgery resulting from the surgery in 1990-1991, surgery that he believed was "ill-conceived". He was of the view that the plaintiff's headaches were also a result of the failed spinal operation. During his evidence he explained his understanding of the mechanics whereby pain is referred to the head from the spine by transmitted forces (T 197). He found support for his view in the opinions of Dr Wade King, to whom he referred the plaintiff for treatment. 67 However, Professor Taylor, who gave evidence on behalf of the Commonwealth, had this to say about the alleged relationship between the headaches and spinal injury:

[44]

Psychiatric testing confirmed the diagnosis of anxiety state in March 1980. It was considered it was a reactive state and not a generalised personal trait. (P161) He progressed well with relaxation training and gained control of tension. Medication was ceased. Continued improvement was noted in June 1980 until an unexpected (sic) transfer was blocked by a commanding officer. (P158) No further treatment was considered necessary by his psychologist in July 1980. 88 It was noted in his AMB examination in December 1980 that the plaintiff was suffering from a "mild underlying anxiety state" and had displayed psychosomatic symptoms. His emotional stability was noted as abnormal Ex B3. A similar finding was made in the examination in August 1982. However, in February 1983 Dr Mason thought the plaintiff could be "upgraded medically" as he seemed to have adapted "fairly successfully to Army life after a rather prickly start, and could do well in the future" (Ex B19). Yet the plaintiff was still categorised as abnormal for emotional stability and mental capacity in the AMB examination of February 1984 (Ex B). It was in this year that Dr Collins thought the plaintiff was exaggerating his symptoms. 89 In February 1985 the plaintiff was noted as being normal in his emotional stability and mental capacity in the AMB examination. The plaintiff was discharged at his own request from the army in 1987. 90 In January 1991 the plaintiff was given rehabilitation treatment at the Lady Davidson Hospital. The clinical report notes that the plaintiff denied depression but "is very angry towards medical profession and DVA (Department of Veterans' Affairs)". Although the plaintiff appeared to improve his mobility while undertaking the treatment he relapsed after discharge and returned to the use of a wheelchair. It was noted in a report of Dr Gyory, the Director of Rehabilitation Medicine at the hospital, that "ambivalence to rehabilitation needs monitoring". 91 In 1992 the plaintiff came under the care of a psychiatrist, Dr Sandfield, for the treatment of pain by various medications, including Phenergan, Tegretol and Epilum. By this time the plaintiff's mobility was extremely restricted by reason of his back pain and he was suffering from recurrent headaches. Dr Sandfield was unable to find that the plaintiff suffered from any psychiatric illness (Ex B99). In a report to the Department of Veterans' Affairs (Ex B100), he stated that the plaintiff should be treated "as a person in chronic pain who might improve by rationalising his medication".

[50]

[The plaintiff] was exposed to two traumatic events in which he experienced serious injury". He opined that the plaintiff's psychological injuries "are a direct outcome of the injuries that he sustained during April and November 1992". 100 In a report of August 2001 (Ex B144) Dr Smith revised his opinion of the significance of the April 1982 incident stating that it was the November 1982 incident that was the most significant injury. He noted that the plaintiff was "most adamant that this was the most significant injury and impacted upon him initially from a physical and subsequently psychological point of view". Dr Smith also indicated that there were other traumatic incidents arising during the plaintiff's army career including the death of another soldier in an motor vehicle accident, the witnessing of the "sequelae arising from a young man in the army who placed a gun to his head in ?1984", and a "macabre accident involving the death of a lieutenant at Puckapunyal when a tank decapitated his lieutenant's (sic) head". 101 Dr Smith reported that the plaintiff benefited from treatment at the hospital and that at the time of discharge "was much improved in regard to his psychological outlook" but that he would require ongoing psychological support for an indefinite period. 102 In his report of 17 January 2001 (Ex B140), Mr Grant refers to the fact that the plaintiff's request to attend a number of follow up Post-Traumatic Stress Disorder residential sections had been declined, presumably by the Department of Veterans' Affairs. He states that the plaintiff was "bitterly disappointed" that his request was denied. Mr Grant provided the plaintiff with "similar educative topics covered in their program". 103 When Dr Smith reviewed the plaintiff in August 2001, he was no longer exhibiting symptoms of Post-Traumatic Stress Disorder but still required on-going psychological support. 104 Dr Smith gave evidence before me. He was strenuously cross-examined about his diagnosis and, in particular, the relationship between Post-Traumatic Stress Disorder and the two incidents in 1982. Dr Smith confirmed that he had received no history of any flashbacks or recurrent dreams, symptoms of Post-Traumatic Stress Disorder, in relation to either of these incidents (T 156) but nevertheless he was of the opinion that the disorder was a result of a number of traumatic incidents over the period in the army. He believed that the "murder Frisbee" incident pre-disposed the plaintiff to Post-Traumatic Stress Disorder and he was exposed to multiple traumatic events thereafter. The plaintiff was also a person who, in Dr Smith's opinion was vulnerable and "sensitive to medical issues". 105 Dr Smith was taken to the DSM IV definition for Post-Traumatic Stress Disorder and asked whether the plaintiff fulfilled the conditions for the condition having regard to the type of trauma specified and the general requirement that the symptoms occur within about three months of the triggering event. In particular Dr Smith was questioned about any link between the incidents in 1982 and his subsequent psychiatric illness, in the absence of any evidence of nightmares or flashbacks relating to those incidents (T164). Dr Smith was of the view that the absence of such a symptom was not essential to the diagnosis but it was sufficient that there was "recurrent and intrusive, distressing recollections" of events. However, he appeared to accept that there was no history of the plaintiff recounting distressing events in relation to the incidents in 1982 (T165).

[51]

Liability 106 As noted at the outset of this judgment the issue on the question of liability is a relatively narrow one: is it more probable than not that the plaintiff was injured at South Melbourne Beach on 5 November 1982 when another soldier unexpectedly jumped on his back as he was about to prepare himself to carry the soldier up the beach? If he was, there is no issue that the Commonwealth is liable for any injury he suffered as a result. If he was not, then the Commonwealth is not liable for any injury he suffered in the course of carrying out the training on the beach. 107 The answer to this question largely resolves on a finding of the reliability of the plaintiff as an historian of events on that day. It was never suggested directly to the plaintiff that he was being deliberately untruthful in his account of that event although generally the Commonwealth asserts that little or no weight can be placed upon the account given by the plaintiff of his history of injury after April 1982. It is clear that the plaintiff suffers from some psychiatric condition that may or may not influence his version of events related to his injuring his back and his subsequent condition from 1982 until the date of the hearing. Fundamental to a resolution of the issue of whether the plaintiff suffers from any physical injury as a result of the incident in November 1982 is an assessment of his mental state over the period from about 1979 to the date of hearing. 108 In many cases a primary source of information to a tribunal of fact in determining whether to accept the evidence of a witness will be an assessment of the witness as he or she gives evidence at the hearing. This assessment relates to both credibility and reliability. While there are limits to the weight to be given to that factor, see for example Fox v Percy (2003) 214 CLR 118 at [31], it is generally considered to be a matter which may be significant. In the present case for the following reasons the manner in which the plaintiff gave evidence is not an appropriate basis to make any determination of his credibility or reliability.

[52]

An observation of the plaintiff giving evidence 109 During the course of the plaintiff's evidence I became concerned as to the manner in which he gave his evidence and what it might indicate as to his mental state at the time. I should note that he gave evidence seated in his wheelchair on the floor of the court and situated at the end of the bar table. I noted that he was often slow to answer questions, had difficulties remembering dates and the sequences of events, had to ask that questions be repeated and appeared at times to be mouthing the question as it was being asked of him. These peculiarities in his demeanour indicated to me that he might have been having difficulty concentrating. 110 I enquired of counsel whether there would be any evidence placed before the Court relating to the medication that the plaintiff was taking at the time of the hearing and whether it was possible that any of that medication could be affecting his capacity to give evidence. In due course, a document setting out the plaintiff's daily intake of medication over the period of a week was tendered without objection and became Exhibit F in the proceedings. 111 The evidence of Dr Smith, a consultant psychiatrist, was that some of the drugs on that list were capable of affecting cerebral functioning and could result in clouding of consciousness, a sense of confusion, impairment in concentration, lethargy, drowsiness, blurring of vision, slurring of speech and an inability to focus. Memory impairment was another side effect mentioned by Dr Smith in relation to a particular benzodiazepine, Alodorm, of which the plaintiff's dosage of 3mg was regarded by the doctor as being above the recommended rate. 112 I do not intend to refer to all of the evidence in relation to each of the drugs taken by the plaintiff. It is sufficient to note that Dr Smith's evidence has confirmed my initial impression that the plaintiff was being adversely affected by medication during his time in the witness box so that little weight could be attached to his demeanour when giving evidence or the manner in which he answered questions. In fact, any decision about the reliability of the plaintiff's evidence has to be founded on material other than the manner in which the plaintiff gave evidence. However, there is nothing to indicate that the plaintiff was adversely affected to any significant degree by any medication when he gave the various accounts of the incident at South Melbourne Beach prior to giving evidence before me.

[56]

This brief statement, in the first person, is signed by the plaintiff. While it does not exclude the fact that the injury occurred in the way the plaintiff claims, I find it curious that neither the plaintiff nor the person receiving the information thought it necessary to record that a soldier jumped on the back of the plaintiff, if that was what occurred, or at least to indicate that the injury was caused by impact rather than while carrying the soldier. 117 True it may be, as the plaintiff's argues, that the absence of detail may be a result of deficiencies by the person receiving the information from the plaintiff and that these are brief statements of the incident not designed to explore the cause of any injury that the plaintiff may have sustained. If they stood alone, they may not be of any great significance except that on the first occasion the plaintiff complained of injury arising from the incident on 5 November the record indicates he was carrying a soldier. But these accounts do not stand alone and to some extent they are consistent with later accounts said to have been given by the plaintiff over many years to various medical practitioners. There are a number of occasions where the plaintiff's account of the incident on 5 November 1982 has been recorded as indicating that the injury arose while the plaintiff was carrying a soldier. These versions are consistent with the first record of the circumstances in which he was injured and are not inconsistent with the second account. 118 The simple fact is that the army records contain no account of the plaintiff complaining that another soldier jumped on him during training on South Melbourne Beach. This can be compared with the fact that the record of complaint by the plaintiff about the "murder Frisbee" incident in April 1982, Ex B6, notes that there was a "direct blow to the back" consistent with the plaintiff's account of being jumped on by another soldier. 119 It was submitted on behalf of the plaintiff that the absence of any detailed record by the treating army medical officers of the incident giving rise to the injury is consistent with their lack of concern to know the cause of the injury in order to treat it. That submission does not accord with my general experience of treating doctors or my expectation that, in order to treat an injury, a medical practitioner would need to have some idea of how it was caused. Nor is it consistent with the fact that both medical practitioners treating the plaintiff in 1982 did make a brief record of the circumstances in which the injury was sustained. In April 1982 the medical officer noted it was a result of a "direct blow to the back" and the medical officer in November 1982 noted that it occurred when the plaintiff was carrying a soldier. That is clearly all they needed to know about the cause of the injuries in order to treat them. Whatever the medical officer treating the plaintiff in November 1982 was told by him about the cause of the injury, he understood that it occurred as a result of the plaintiff carrying another soldier. 120 In September 1986 the plaintiff filled in a claim form, Exhibit E. One of the fields to be filled in by the claimant is headed "How did injury occur OR what were you doing when symptoms of disease first become apparent?" The plaintiff has written, "participating in PT". While by itself this may have no great significance, it seems to me to be more consistent with the injury occurring while the plaintiff was carrying a soldier rather than being jumped upon by a soldier: the plaintiff is describing what he was doing at the time of the injury rather than indicating how the injury occurred. If he were jumped up, I would have expected him to say so, as being an account of how the injury occurred rather than simply indicating what he was doing when injured.

[57]

(b) Inconsistent later accounts 121 There are a number of records of accounts apparently given by the plaintiff to various medical practitioners after his discharge from the Army in 1987. The Commonwealth submits that if, as the plaintiff contends, no attempt was made to obtain a detailed description of events by the army medical staff, that criticism cannot be made of these later occasions when accounts were taken by the examining medical practitioners who would have been concerned to understand how the injury occurred and not just recount the symptoms for treatment purposes. 122 In June 1987, Dr Lim, a specialist in rehabilitative medicine, examined the plaintiff. He was given an account that the injury occurred when the plaintiff was undergoing a PT exercise where he had to carry another serviceman for 200 yards. Dr Lim's report notes that the plaintiff was only able to manage to carry the soldier about fifteen feet before experiencing a sharp pain in his lower back and left leg. There is no mention in this report of the injury occurring when another soldier jumped on the plaintiff's back. The plaintiff gave accounts to the effect that the injury occurred while carrying another soldier to Dr Middleton in March 1990, Dr Gyory in November 1990 and Dr Kerridge in September 1992. The report of Dr Lyttle, dated 31 March 1988, simply states that the plaintiff was first injured in December 1982 when he was involved in piggy-back races at South Melbourne Beach. 123 Again the failure of these medical practitioners to mention the crucial fact that the injury occurred by an impact between the plaintiff and another soldier, however expressed, may be a result of unreliability by the medical practitioner rather than the plaintiff. But the likelihood of such a scenario diminishes as the number of accounts increases and when they are seen in light of the accounts recorded before the plaintiff was discharged from the army. They are all consistent with the plaintiff stating that the injury occurred while he was carrying a soldier. 124 The first occasion where any record is taken of the plaintiff giving an account of being jumped on by another soldier is found in the report of Dr Kerridge dated 1 September 1992. However, the reference to the plaintiff being injured in this way is not in respect of the incident at South Melbourne Beach, but rather to the "murder Frisbee" incident in April 1982. Dr Kerridge gave evidence before me and it was never suggested to him that he might have erroneously recorded the account given by the plaintiff of the incident in November 1982. Yet the plaintiff maintained in evidence that he had always given a consistent account of the circumstances in which he received his back injury. 125 The first report where reference is made to the plaintiff being jumped on in relation to the physical training at South Melbourne Beach is that of Dr Prakash dated 14 February 1994. That report contains the following passage:

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……..Mr Chaney was again participating in physical training in the Melbourne area. He was involved in the instruction of a "fireman's carry". A soldier as part of the exercise was required to jump on Mr Chaney's back, laying across the back and neck and be carried. On this occasion with a soldier on his back, Mr Chaney made 3 or 4 steps and collapsed. The soldier fell onto Mr Chaney and he passed out………. 133 As I understand this version, Mr Chaney did not collapse when the soldier jumped on his back. Rather the soldier was on the plaintiff's back when the plaintiff collapsed under his weight, the soldier then falling on him while he was prone on the ground. Although this version contains a reference to a soldier jumping on the plaintiff's back, that seems to be part of an account of how the fireman's carry was performed. This version seems to me, again, to be consistent with the plaintiff suffering injury while carrying the soldier rather than when the soldier jumped on to him before he attempted to carry him. Mr Grant's report of 29 January 2001 simply refers to the injury as being suffered "during training ie. participating in 'fireman's carry'". 134 There are versions after 1994 more consistent with the plaintiff's account of a soldier jumping on him. In his report of 23 May 2001, Associate Professor Jones records briefly the account of the incident at South Melbourne Beach as follows: "There was a fireman's carry from A to B and someone jumped on him. He took three or four steps and then collapsed". In his report of 11 April 2001, Dr Russo records that the history given as "he sustained an injury in 1982 when a soldier jumped on his back to do a carry". 135 In my view the substantial majority of the versions of the November 1982 incident recorded by medical practitioners throughout the whole of the investigations of the plaintiff's injury from the date of the injury to the time of the hearing are consistent with the injury occurring while the plaintiff was carrying a soldier.

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The first position is when you are actually on the ground, on your knees with your hands to balance yourself. That's the first position you would adopt to do a fireman's carry. The second position is your partner comes up to you and addresses you and says "I am going to be your partner". The partner then climbs on top of you, puts their (sic) right arm over and under your chin, the left hand goes in the small of your back, you then raise yourself and the partner and you are then prepared and ready to participate in whatever commands you were given. That's the correct procedure, sir. 142 The plaintiff acknowledged that he could have been bent forward but "it was not to take the weight of my partner, it was to get into a position to take the weight" (T61.35). He had to take up a kneeling position before the partner commenced to mount him. The plaintiff maintained that he had commenced to take up the carrying position, notwithstanding that he had not in fact been partnered off with another soldier. He was adamant that he was to wait in this position until a soldier came to him and tapped him on the shoulder indicating that he was to be his partner (T64). 143 I made it plain at the hearing that I had some difficulty in understanding the plaintiff's evidence. It seemed to me at the time, and still does, that it was a most inefficient way for the exercise to be organised: soldiers would simply take it upon themselves to enter into the prone position as a carrier without any determination or designation as to who of the group were to be carriers and who passengers for the first run down the beach. Yet despite my raising this concern with the plaintiff, he maintained that this was how the exercise was always conducted. This is notwithstanding that it appears to be at odds, to some degree, with the description he gave of the demonstration by the PTIs in evidence in chief, set out above, and apparent instructions given to his solicitor as set out below. 144 In a letter from the plaintiff's solicitors to the Manager of Unisearch House dated 11 January 2001, (Ex 2), the following passage occurs:

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(i) Jones v Dunkel 151 The plaintiff relied upon the failure of the Commonwealth to call a particular witness, whose signature and registration number appears on one of the army documents, and who, it appears, was present on the beach at the time the plaintiff suffered his injury. 152 The plaintiff's submission was that by the time the hearing commenced there was no issue as to the fact that the plaintiff was involved in a PT exercise at South Melbourne Beach involving piggybacking, notwithstanding that such an incident was denied in the Defence filed shortly before the hearing. The Court, it was argued, should, therefore, assume that the Commonwealth was able to receive instructions to substantiate the Defence when it was filed. 153 It is submitted that it could reasonably be expected that the defendant would call the witness, and that from the failure to do so, I should draw an inference that the witness could not have assisted the defendant's case being that no person jumped on the plaintiff's back during the course of the exercise. The failure to call this evidence, it was contended, allows the Court to more comfortably accept the plaintiff's account that the incident occurred in the way he has given in evidence. 154 In the Report of an Injury or Illness dated 30 December 1982 (Ex.B10), a signature appears in the field "Signature of Witness to Incident". Although the signature appears to be undecipherable, the clearly written registration number of the witness also appears in the document. The plaintiff submitted that in these circumstances it would not have been difficult for the defendant to identify, locate and produce that witness to give evidence. 155 The Commonwealth submitted that there was never any need to seek out this witness because there is nothing to indicate that the witness could give evidence that would throw light on the issue in dispute between the parties. The fact that there was a piggyback race at South Melbourne Beach on the day in question is not now in dispute. Nor is the fact that the plaintiff suffered back pain at that time. The one thing that is in dispute is whether the plaintiff was jumped on, and, in the defendant's submission, it cannot be assumed that the witness could give any relevant evidence on that issue. This is because what the witness is attesting to in the report is the following statement contained in the field "Brief circumstances surrounding illness or injury":

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(ii) Admission of liability by Commonwealth 158 The Department of Veterans' Affairs have accepted that the plaintiff was injured in the course of his army service and that as a result he suffered the following disabilities: (1) lumber disc lesion; (2) dysthymic disorder and (3) neuropathic bladder, the latter two injuries being related to the first. The plaintiff was granted a Disability Pension from 14 August 1986 rising from 30 per cent to 80 per cent of the General Rate by 7 December 1988 and increased to Special Rate from 22 December 1988; see Exhibit J. 159 It was submitted on behalf of the plaintiff that the acceptance of the injuries and the payment of a Disability Pension should be taken as an admission by the Commonwealth of its liability for the injuries suffered by the plaintiff. The Commonwealth submitted that the Court would not find that the acceptance of the disabilities was an admission of liability. 160 A number of documents were tendered by the Commonwealth in answer to Exhibit J; see Annexure A to the defendant's submissions of 16 February 2004. These include a claim for pension made by the plaintiff on 12 November 1986. This form indicates that the plaintiff first noticed his injuries including "constant pain in the lower back and down left leg" and "being unable to enjoy normal physical activity" from February 1983. Although the claim form refers to the plaintiff's participation in physical training it is non-specific as to when or how the injury occurred. 161 A Delegate of the Repatriation Commission and of the Secretary, Department of Veterans' Affairs determined the claim on 19 August 1987 and gave reasons for that determination based upon "medical investigations" carried out by the Department. A Medical Entitlement Report dated 23 June 1987, describes the injury suffered in November 1982 as arising in the course of the plaintiff carrying a soldier when he "experienced a sharp pain in the lower back and left leg". At the time of this report and the subsequent determination the injury for which the pension was granted was "lumbar disc lesion". 162 A further claim was made in December 1992 this time in respect of "recurrent severe headaches" and "urinary problems". The medical report in support of these claims was supplied by Dr Ian Cook, the general practitioner from Taree. He stated that both conditions were a result of the plaintiff's "unsuccessful lumbar operation". The reasons for the Determination of that Claim identified "neuropathic bladder" as the injury in respect of which the pension was granted but not the headaches. The neuropathic bladder was considered to be "a condition secondary to spinal surgery for chronic-back pain connected with the member's accepted defence-caused condition of lumbar disc lesion". 163 The Court was taken to authorities on the use to be made of determinations for compensation as admissions of liability and admissions generally but it does not seem to me to be necessary to refer to them in any detail on the facts of this particular case. I note that the authorities to which the Court was referred were Huysse v Snowy Mountains Hydro-Electric Authority [1975] 1 NSWLR 401; Lustre Hosiery Limited v York [1935] 54 CLR 134; Hill v Commonwealth [2003] NSWSC 1025; and Spiteri v Commonwealth [2003] NSWSC 391. Whether or not a determination for the purposes of compensation is an admission and whether, if it is, it should be accorded any weight will depend upon the circumstances of the particular case. 164 In the present case the issue for the purposes of establishing the Commonwealth's liability for any injury arising from the training on South Melbourne Beach was, as I have already indicated, whether the court was satisfied on the balance of probabilities that any injury occasioned to the plaintiff on that occasion was a result of his being jumped on by another soldier. There is nothing in the determination that can amount to an admission of liability on this basis. Liability seems to have been assumed, at least so far as the incident on 5 November 1982 is concerned, because the plaintiff was injured in the course of carrying a soldier during physical training. But that was not the basis upon which the plaintiff's claim was placed before me and it was never contended that the Commonwealth was liable if the injury had been occasioned in that manner.

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(iii) A final comment on liability 165 During my considerations of this question I was concerned as to whether the determination of other issues in the case might impact upon the determination of the issue of liability. In particular, I was troubled by the question whether a relevant factor, in determining how any injury occasioned to the plaintiff occurred, was the nature of the injury inflicted. 166 It seems at the end of the day that, if the plaintiff suffered from a spinal injury on 5 November 1982, it was a disc lesion or it precipitated a disc lesion that later led to surgery. I was impressed generally by the evidence of Professor Taylor. He accepted that it was likely that the plaintiff suffered a disc lesion at L5/S1 in 1982. But a lesion can, according to the Professor's uncontradicted evidence, occur with or without trauma, and yet the pathology is the same (T242.3). He gave examples of manoeuvres that might result in lesion where a person had a degenerative disease, such as bending over to put on a pair of socks, playing sport such as tennis football or squash or participating in PT. If the plaintiff was already suffering from a degenerative disease of the particular area of the spine where he suffered the lesion, it would not have needed an impact injury to cause the lesion. To that extent it might be important to determine whether the incident in April 1982 could have precipitated the lesion that later caused the plaintiff's back problems. 167 However, it seems to me it is unnecessary for me to make a conclusion about the cause of the plaintiff's condition to determine the issue of liability. It does not seem to me, and certainly was not argued to the contrary by the plaintiff, that it is inconsistent to find that I am not satisfied on the basis of probabilities that the plaintiff was jumped on by another soldier during the fireman's carry but that the November injury either caused or resulted in a disc lesion. For example, there is an account given by the plaintiff of him collapsing under the weight of his passenger and the other soldier falling upon him. Such an event, as I understand it, might give rise to an injury of the type complained of by the plaintiff.

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(a)Back and leg pain (i) Evolution of the plaintiff's back problem 170 There is no dispute that neither the injury sustained after the plaintiff was playing cricket in February 1982 nor the injury following the "murder Frisbee" incident were thought to be serious at the time. There is little doubt that after each incident the plaintiff appeared to recover completely after a short period of minor treatment. The Commonwealth does not contend otherwise. As I have already noted, the AMB examination in August 1982 found the plaintiff fit and that his spine was "normal". 171 Nor is there any dispute that the plaintiff received an injury as a result of his participation in the PT exercise on South Melbourne Beach. It is plain from the medical examination of the plaintiff following the incident (Ex B8 and 9) that he complained of pain to the lower back. The plaintiff was still troubled to some degree by back pain through to December 1982 and was being treated for lower back pain and sciatica. He was assisted in overcoming his discomfort by the use of a heal support. In December 1982 he was reported as being symptom free after a course of treatment by a chiropractor. There is no real suggestion of the plaintiff thereafter being in any significant degree of discomfort from back pain until April 1984. 172 The Commonwealth submitted that the plaintiff was "somewhat resistant in cross-examination to suggestions he was symptom free after November 1982". It was argued that the plaintiff's evidence should be taken to mean that he was asserting that at all times after November 1982 until his discharge from the Army in 1987 he continuously suffered from the symptoms of his lower back problem. This assertion, the defendant points out, can be contrasted with instances where the plaintiff is recorded as having told various doctors that he was symptom free. It is inconsistent with the fact that from January 1983 to mid-1984 the plaintiff was graded as "FE", that is "fit everywhere". 173 One example of the plaintiff's evidence relied upon by the defendant is that the plaintiff denied in cross-examination that he was symptom free or would have told the chiropractor treating him in December 1982 that he was symptom free after a course of treatment ending in that month. Yet the medical records contain such a statement attributed by the chiropractor to the plaintiff. Similarly the plaintiff denied that he had told Dr McKenzie in February 1984 that his lower back was asymptomatic. He said that it was not correct that he had suffered low back pain on and off for a period of two years, as Dr Bentivoglio recorded. 174 The plaintiff did admit that he was participating in physical training throughout 1983 to 1986 but stated that he was on restrictions from time to time and was unable to participate in some physical activities, such as sit-ups. He maintained that throughout this period there were occasions where he found himself stooped over and unable to stand straight. Although his evidence was that he presented to medical officers in this condition, there is no record of him making such a complaint or of any observation that this was so. 175 The Commonwealth submits that care must be taken when considering medical reports that are based upon a history apparently given by the plaintiff of continuous injury derived from a single injury, such as that being inflicted on South Melbourne Beach. Although the plaintiff was referred to Dr Bentivoglio in 1 April 1984, there was no complaint of pain, at least so far as any report to a medical officer is concerned, between February 1984 and that date. 176 The plaintiff argues that the evidence reveals no more than that the severity of the symptoms fluctuated from time to time but that this fact is not relevant to a determination of either the diagnosis of the injury suffered or the cause of the injury. 177 Professor Taylor's evidence was that a characteristic feature of an invertebral disc disorder in adults is intermittent pain and there may be long periods where the patient has no symptoms at all. He said (T242.18):

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(ii)The plaintiff's attribution of cause 179 Throughout the records of the histories apparently given by the plaintiff of his back pain are references to it arising in circumstances which appear to relate to the 'murder Frisbee" incident rather than the exercise at South Melbourne Beach; See for example the reports of Dr Bentivoglio in April 1984 and Dr Vernea in June 1985, and notes taken on admission to Goulburn Bass Hospital in December 1987. These accounts are, unlike the histories of the piggyback incident, consistent in attributing the injury to the fact that another, heavier soldier jumped on to his back or "spine". The plaintiff, however, was adamant in his evidence that he completely recovered from any injury arising from the "murder Frisbee" incident and that it was the piggyback incident that caused him pain in the back from which he was for all intents and purposes never pain free thereafter. He denied that he had attributed his history of back pain to the April incident. 180 There can be little doubt that the "murder Frisbee" incident was a trauma to the plaintiff's spine and, as I have indicated, in many histories taken from the plaintiff this is seen as the commencement of the plaintiff's back pain. Dr Selwyn Smith saw the April injury as a traumatic incident of equal importance with that of the November incident until he changed his view at the insistence of the plaintiff. However, the actual seat of the injury in the April incident is not clear. 181 Dr Pell, however, formed the view that the April 1982 injury was not a significant one because no x-rays were taken, whereas x-rays were taken after the November 1982 injury. It certainly seems to be the case that after the April incident there is only one complaint made by the plaintiff about the injury, and that was on the day of the incident, and no suggestion of recurrent pain after the initial injury was treated. It seems that it was not treated as being anything more serious than a strain. 182 However, it was never really suggested in the evidence that the April 1982 incident resulted in trauma sufficient to cause a prolapse of the disc or of some injury of the spine that later manifested itself after the November 1982 incident. But as I understand Professor Taylor's evidence, an injury, even a minor one, can act as a precipitating factor to disk degeneration (T237.1). 183 The most telling evidence against the plaintiff's assertion of constant back pain since November 1982 is the history surrounding his discharge from the army and his seeking employment with Corrections. It should be recalled that he did not seek a discharge from the army on the basis of his back condition or his inability to play sport or participate in PT. He sought a discharge in order to care for his children after separation from his wife (Ex 6). His application to join Corrections emphasises the increased opportunity to participate in sport that the position would provide to him and stressed his prowess in physical activities with the army. There was no suggestion by the plaintiff that he was deliberately deceiving Corrections as to his physical capacity. He carried out his training as a corrections officer and served without apparent difficulty until September 1987. For a short period he worked as a cleaner in private enterprise. 184 As the Commonwealth submits, these facts at least indicate that the plaintiff is an unreliable historian and cast doubt about any diagnosis based upon a finding that the plaintiff's back condition stems from November 1982, on the assumption that the plaintiff recovered after the April 1982 incident but not after the November 1982 incident. 185 But I do not believe that the periods when the plaintiff was apparently pain free indicate that his current medical condition is not derived from the injury in November 1982 or that this injury did not contribute to it. Accepting that persons can spontaneously recover from a disc injury for a period might tend to explain how it was that the plaintiff was able to carry on apparently physical demanding employment outside the army. The fact that the plaintiff seems to have suffered considerable pain and back problems after playing squash in 1987 is not, on my understanding of the evidence, inconsistent with his having suffered a spinal injury in November 1982. 186 It does not seem to me to matter whether the injury in November 1982 led to a disc lesion as a result, possibly, of degeneration caused by an injury in April 1982 or whether the injury in November itself acted as a precipitating factor to a later lesion. It was either a cause or a contributing cause of the later spinal injury that required surgery. There was no evidence of the plaintiff suffering generally from a degenerative disease of the spine and, as I understand it, Professor Taylor accepted that there was likely to have been a disc lesion in 1982 and did not suggest that there was no connection between the operation in 1988 and injury in 1982. He only had doubts as to whether an operation was the appropriate response to the plaintiff's symptoms.

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(iii) The diagnosis 187 The Commonwealth submits that there is no reliable diagnosis provided by any of the treating or reporting medical practitioners that explains a physiological basis for the plaintiff's complaints of continuing pain in his lower back. Neither of the MRI scans performed in June 1991 and March 1999 reveals any physical condition that might be the cause of the plaintiff's complaints. The CT scans and X rays similarly do not suggest any abnormality in the plaintiff's spine. The Commonwealth argues that there was insufficient evidence of causal connection between either the surgery to the plaintiff's back and his physical condition thereafter or between the incident on 5 November 1982 and the plaintiff's condition after 1989. 188 From April 1984 there are suggestions in the reports of treating and examining medical practitioners that the pain suffered by the plaintiff to his back and legs was caused by a lumbosacral disc disruption or a disc lesion arising during the course of the plaintiff's army service. Dr Lyttle in 1988 came to the view that the plaintiff had disability at the L5/S1 level and, hence, he felt that the surgery that was performed in August of that year might offer the best chance of alleviating the plaintiff's problems. I have not heard from either Dr Lyttle or Dr Robson, the treating physicians at the time of the surgery. I am not prepared to completely discount their apparent finding that the plaintiff suffered a spinal injury for which they believed the appropriate treatment to be a removal of the disc and fusion of the spine. I do not understand Professor Taylor's evidence to suggest that the plaintiff did not suffer an injury for which Dr Lyttle treated him. Professor Taylor may not have operated on the plaintiff had he been treating him, but the effect of his evidence was not to suggest that Dr Lyttle had misdiagnosed the plaintiff. 189 As I have already indicated, I am satisfied on the balance of probabilities that the plaintiff suffered a spinal injury either as a direct result of the incident on 5 November 1982 or that this incident contributed to that injury. I am satisfied on the balance of probabilities that this injury was ultimately treated by surgery in 1988 and again in 1989. 190 However, the diagnosis of his current back and leg pain is more problematic. There is little doubt that the operations performed in 1988 and 1989 were successful in terms of achieving the physical result sought. The evidence is that there was a solid fusion of the plaintiff's back after removal of the injured disc, notwithstanding that Dr Pell described it as a partial fusion based upon a report of an MRI scan. Therefore, had there been a disc lesion, it's effect was removed by the operations performed on the plaintiff. Yet the plaintiff continued to complain of back and leg pain continuously thereafter. 191 Dr Russo believed that the plaintiff was suffering from arachnoiditis as a result of this surgery. The evidence for that diagnosis is slim indeed. It really amounts to no more than the doctor taking the plaintiff's complaints of pain at face value and attempting to determine the cause of the pain without any investigation of whether there was physical, objective evidence to support the diagnosis. Dr Russo appears to be alone of the experts called before me who believes that such a diagnosis can be made without evidence of it appearing in a MRI scan and without the expertise of a neurologist. Dr Pell was of the view that arachnoiditis was "usually a radiological diagnosis" and that either an MRI or myelogram "would make the diagnosis". Professor Taylor was more robust in his condemnation of this diagnosis. 192 MRI scans in 1991 and 1999 failed to show any abnormality that might account for the plaintiff's condition. Dr Russo explained the absence of any evidence of arachnoiditis shown in these tests on the routine failure of radiologists to identify the condition from the scans. Although he would often find the evidence on inspection of the film, he had not seen either of the MRI scans taken of the plaintiff's back. I am not satisfied that the diagnosis has any reliability at all given the lack of objective or suitably qualified evidence to support it. The plaintiff's final submissions made no reference to it. 193 Dr Pell described the plaintiff as suffering chronic pain syndrome. He accepted that this was not a diagnosis but merely a description of the plaintiff's condition. It was based primarily upon his examination of the plaintiff over the period when he was under his care for pain management. 194 Similarly the diagnosis of Dr Cook of "failed back syndrome" is descriptive of the plaintiff's condition rather than a diagnosis. In effect he believes that the plaintiff's current pain in the back and legs to be a residue of the back surgery that the plaintiff underwent in 1988 and 1989 without being able to assign a specific physiological cause. 195 The Commonwealth argues that there is nothing to show that any injury that the plaintiff now suffers can be linked to the back surgery, or that the surgery was linked to the incident at South Melbourne Beach. I have already indicated that I have reached the view that, at least on the balance of probabilities, the plaintiff suffered an injury to the spine on 5 November 1982 that either directly or indirectly led to a disc lesion. I am also satisfied on the balance of probabilities that the injury resulted in the surgery to fuse the plaintiff's spine. 196 Although no specific physiological basis can be assigned to account for the plaintiff's complaints of pain to the back and legs, it seems to me that it does not necessarily follow that the pain, if it exists, cannot at least on the balance of probabilities be attributed to the back injury and the consequential surgery. As I understand the evidence of Professor Taylor, it is not unusual for pain, or complaints of pain to continue after back surgery, even where it appears that the surgery was successful in achieving its aim. He said (T238):

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He was not asked during evidence to amplify this statement and I do not understand what it was about the plaintiff's history and examination that were inconsistent with a physical cause of the plaintiff's condition, either past or present. For example, I do not understand what specific complaints made by the plaintiff were found by Professor Taylor to be inconsistent with a recognised disease or disorder. Nor do I understand what part of the plaintiff's history he found to be unacceptable. 199 This assessment stands in stark contrast with other, apparently reputable, expert opinions that there was a physical cause for the plaintiff's condition even if that cause could not be identified in specific terms. I am prepared to accept that a treating physician may be in a better position to give a reliable diagnosis of a patient than might a person who examines the patient relatively briefly for medico-legal purposes. I could also be persuaded that there are some physicians who are more ready to find an injury or physical cause of a patient's complaints in order to treat it. I appreciated Professor Taylor's view that pain management by intensive drug treatment may not ultimately be beneficial to the patient. 200 It seems to me that one cannot consider the question of whether there is a physical cause of the plaintiff's condition without reference to his psychiatric state. I believe that there is at times a degree of exaggeration displayed by the plaintiff in relation to his current symptoms and the history of his condition. It has been commented on by a number of practitioners throughout the plaintiff's medical history. Dr Collins found the plaintiff to be exaggerating his disability in August 1984. Dr Baz found that the plaintiff had a "general air of exaggeration" during the course of her examination of him in February 1994. It seems clear from the report of Professor Taylor that he believed the plaintiff was exaggerating his condition during the course of his physical examination of him. Dr Kerridge formed the same opinion in September 1992 and believed that a psychiatrist as well as a neurosurgeon and neurologist should examine the plaintiff. Associate Professor Jones in his report of 23 May 2001 also comments on, what he believed to be, exaggerated posturing by the plaintiff to emphasise his disability during his examination of him. 201 However, there is no suggestion that the plaintiff is malingering, that is wilfully lying about his condition for the purposes of obtaining compensation or some other benefit. No suggestion was made to the plaintiff that this was the case during cross-examination of him. Although Professor Taylor believed that the plaintiff was suffering from Munchausen's syndrome, and, as I understand it, was wilfully lying about his condition for psychological reasons, there is no psychiatric evidence before me to support that diagnosis. Although there is some mild support for this diagnosis by Professor Kerridge in his report of 10 August 2003, there is evidence to challenge that finding in the reports of Dr Selwyn Smith of 9 August 2001 and, to a lesser extent, Dr McClean of 27 March 2000. 202 The chief proponent of the diagnosis of Munchausen's syndrome appears to be Dr Bell, a psychiatrist. He was not called before me nor was any report by him tendered in evidence by the defendant. Yet there are discussions of a report by Dr Bell expressing his view of the psychiatric state of the plaintiff in a number of reports that were in evidence before me. Professor Taylor indicates that he had a report from Dr Bell dated 16 May 2001 that he found very "detailed and complete" and upon which he relied for establishing the medical history of the plaintiff. Associate Professor Jones refers to a report by a psychiatrist of 28 pages and dated 16 May 2001, which I infer is this same report. 203 On the plaintiff's side Dr Selwyn Smith was asked to express his opinion of a report of Dr Bell dated 16 May 2001 and in a report of 9 August 2001 critically analyses the report and Dr Bell's findings. It is in this report that Dr Smith discusses the diagnosis of Munchausen's syndrome and states why he believes that the diagnosis does not apply to the plaintiff. Dr Smith was not cross examined on the contents of this report when giving evidence before me. 204 During the cross-examination of the plaintiff I raised my concern that the Commonwealth were not making clear what matters were in dispute by failing to put allegations to the plaintiff as to both the cause of the injuries he suffered and the nature of the injuries. In answer to these concerns the Commonwealth put to the plaintiff the following relevant propositions each of which were denied by the plaintiff:

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The recurrent headaches are considered due to mechanical dysfunction of the C2-3 spinal segment, and in particular of the right zygapophysial joint at that spinal level, presumably as a secondary effect of the overall disturbance of spinal function complicated by the effects of myelogram. 211 Dr McClean was treating the plaintiff for pain management in connection with his neck pain and headaches in addition to his back and leg pain in 1996 and again in 1999. He accepted that the MRI in 1991 did not give " a clear indication for the pain he is experiencing". Although he suggested that another MRI might be undertaken in 1999 he never saw the plaintiff again after that year. 212 I have earlier referred to the evidence given by Dr Cook as to his opinion that the headaches suffered by the plaintiff were an "indirect sequelae of this unsuccessful lumbar spinal operation" and his explanation for the opinion. I have also referred to Professor Taylor's view of that thesis expressed in uncompromising terms. Having regard to the latter's undoubted experience in spinal injuries and their consequences, I am not satisfied that the headaches can be associated to the operations in 1988 and 1989. The plaintiff ultimately made no submissions as to the cause of the neck pain and headache. 213 The plaintiff's evidence was that the headaches occurred after the myelogram in September 1987 and that he complained to medical practitioners of headaches shortly after the treatment. There is, however, no record of such complaints contained in the hospital records relating to that admission or during an admission later that year when the plaintiff was given traction. There is simply no record of the plaintiff suffering from headache or neck pain until a report of March 1991 and this is despite numerous medical examinations of the plaintiff and a number of admissions to hospital. 214 As I understand his report Dr Burton did not suggest that the headaches could be attributed to the myelogram notwithstanding that the plaintiff gave him a history of the headaches and neck pain commencing about that time. Cross-examination of Professor Taylor, who explained the history of myelograms and the change from oil-based to water-based dyes in the 1970s, did not suggest that the myelogram may have caused the plaintiff's neck pain or headaches nor was he cross-examined on such a proposition. 215 I am not satisfied that any neck pain or headaches from which the plaintiff suffers are a result of any treatment administered to him in connection with an injury to his back and certainly not a result of the myelogram or the back surgery.

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Neuropathic bladder 216 There is no doubt that the plaintiff does suffer from a neuropathic bladder but the cause of that condition is problematic. Professor Taylor did not believe that it was a result of surgery to the plaintiff's back in 1989. He thought that the condition could be attributed to the plaintiff's Munchausen syndrome and that the plaintiff had intentionally retained urine as a result of that condition. But as the Commonwealth did not ultimately advance the argument that the plaintiff was exhibiting Munchausen's syndrome, it is difficult to know what weight, if any, should be given to Professor Taylor's evidence in respect of the cause of the plaintiff's urinary problems. 217 Once more one of the difficulties in the case is that the plaintiff is, and has always been, a very poor historian of events and little, if any, reliability can be placed upon any attribution he might give for his injuries. But in effect the plaintiff's case is that as a result of the second surgery, that is the operation to remove the plates and screws in 1989, he suffered some spinal damage that resulted his urinary difficulties. This is the history that was given to Dr Grant and upon which he based his conclusion that the plaintiff's urinary problems were related to the surgery in 1989. Dr Grant in evidence before me admitted that causation of the plaintiff's condition was not of relevance to him because the treatment was the same whatever the reason for the condition, and so he never went behind what he was told by the plaintiff (T 188). 218 On the assumption that the plaintiff voided satisfactorily after both the first and second operations during which he had been catheterised, Dr Grant concluded that these facts "would tend to rule out damage to the cauda equina as the cause of any urinary problems". On being informed that the hospital records showed that the plaintiff was unable to void on the day after the surgery, Dr Grant thought that this was consistent with injury during the operation. However, when informed further that, when the catheter was removed 3 days after surgery, "urine had passed in the toilet" after removal of the catheter, Dr Grant thought that this made it "much less likely that this is a neurological problem". The doctor was concerned that there was no evidence as to the amount of urine that the plaintiff had been able to pass, yet he still came to the view that this history tended to make his diagnosis less reliable. 219 Professor Taylor in his report of 11 March 2002 disputed Dr Grant's findings. He stated that there was no evidence of any injury to the cauda equina in the initial operation and noted that the urinary difficulties did not manifest themselves until "well after" the second operation. Professor Taylor noted that there was no record of any "misadventure" during surgery and that the plaintiff was voiding satisfactorily after the catheter was removed following both surgeries. He was of the opinion that these facts ruled out any iatrogenic damage to the cauda equina as the cause of the later urinary problems. As I have already indicated, Professor Taylor thought that the plaintiff had retained urine during a hospital admission in 1990. Professor Taylor was not cross-examined on this issue. However, the plaintiff points out that Professor Taylor was in error in believing that the plaintiff's urinary problems stemmed from 1990. 220 Dr Russo accepted that in his report he had recorded that the plaintiff's bladder problems commenced after the first surgery and this was a mistake. He expressed the view that it was more likely that there would be cauda equina damage in an operation to remove the screws and plates in the plaintiff's back than in the surgery that fused the spine and inserted that hardware. He accepted, however, that the second surgery was not as close in proximity to the cauda equina as was the initial surgery. The view of Dr Russo as to the likelihood of the second operation causing damage to the cauda equine was not taken up with Professor Taylor, who had clearly more expertise in relation to spinal surgery and its possible repercussions than Dr Russo. Nor was it raised with Dr Grant. 221 Dr Grant acknowledged there could be other reasons for the plaintiff's urological problems other than an injury arising in the course of an operation. He did not indicate what they were other than that a person suffering from Munchausen's syndrome might mimic the condition. The plaintiff argues that there is no other plausible explanation put forward to explain the plaintiff's urological problems other than that it occurred as a result of injury in the second operation. But that was because the issue was not fully investigated with the expert witnesses: Dr Grant, Professor Taylor or Dr Russo. In answer to questions by the Commonwealth, Dr Grant said that there were " a number of other causes" for bladder problems other than injury arising in spinal surgery or Munchausen syndrome but that was the extent of the evidence. 222 There is no doubt that urological difficulties can arise after back surgery because of some injury such as nerve damage. As I understand the evidence, this may be because of damage to the cauda equina or damage at the very bottom of the spinal chord. The latter injury may be associated with pelvic surgery. Nerve damage associated with spinal surgery might occur in the area in which the plaintiff's surgery took place. Dr Grant formed the view that the plaintiff's condition arose from damage associated with spinal surgery by reason of both his "urodynamic findings and on the history" (T191). I do not understand the significance of the finding to the diagnosis as distinct from the history received. Although Dr Grant did not resile from his opinion as to the cause of the plaintiff's bladder condition he stated that the hospital records "tended to detract from it, it is not impossible, but it tends to make it less likely". 223 Despite the plaintiff's history as to his bladder problems and an initial attraction to the apparent association between the surgery and his inability to void, I am not satisfied that the urological difficulties he experiences are derived from the surgery. In coming to this view I do not take into account the suggestion of Munchausen syndrome as an explanation for his condition. But that does not mean that there may not be some other explanation for his difficulties, although they were not considered in the course of the evidence of either Dr grant or Professor Taylor. The fact that Dr Grant was prepared to doubt his diagnosis of an injury associated with surgery after becoming aware of the hospital records indicates to me that he must accept the real possibility of some other cause not associated with the back surgery. At the end of the day his evidence was that it was not impossible that the surgery caused the bladder problems, but I have the distinct impression that he all but resiled from his earlier diagnosis. 224 I take this evidence into account with the evidence of Professor Taylor notwithstanding that his explanation for the injury is no longer an acceptable one. There is simply nothing apart from the bladder condition to suggest that there was any injury to the plaintiff's cauda equina or any other nerve tissue that would account for the condition. I find Dr Russo's evidence generally to be unreliable because it does not have the support of the other experts, particularly in respect of his diagnosis of arachnoiditis. That undermines my confidence generally in his views as to the causes of the plaintiff's complaints of pain. I would not be prepared to act upon his assertion that it was more likely that the second operation caused an injury to the cauda equina than the first.

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Psychiatric Disabilities (a) Generally 225 There is no doubt in my mind that the plaintiff suffers from a psychiatric disorder that accounts for much of his past history and his present symptoms. It may be that this psychiatric condition gave rise to the inappropriate or exaggerated behaviour he displayed when examined by some medical practitioners and his apparent lack of interest in rehabilitation when at the Lady Davidson Hospital. It will be recalled that shortly after being discharged from that hospital he returned to almost permanent use of a wheelchair despite apparent improvements made while a patient there. 226 Whether this psychiatric disorder is described as functional overlay to some physiological injury, as Associate Professor Jones described it, as a factious disorder or by some other term, such as chronic pain syndrome, does not seem to me to matter very much. The evidence for this psychiatric condition arises from the apparent disparity between his physiological condition and his complaints of pain, once malingering or Munchausen syndrome is put to one side. But this is not the only basis for concluding that he suffers from such a condition. There is evidence to support a finding that he was a person who, at the time of his injury in 1982, had a predisposition to be overly concerned about, and to overly react to, his physical condition. 227 I have already made reference to the report of Dr Baz and her account, apparently taken from army records available to her, of the plaintiff's psychiatric history before 1982. That material reveals that there was a concern that he was suffering from a psychiatric condition as early as September 1979. There were occasions when the plaintiff was complaining of pain which were investigated with a negative result. The plaintiff had expressed strong views in 1980 about the inability of doctors to diagnose his illnesses and sought a medical discharge. This was refused. In May 1980 he was diagnosed as suffering from reactive anxiety. 228 I have also noted that his army records indicate that in December 1980 the results of his AMB examination indicated that he was suffering from an "underlying anxiety state" and he was "suffering from psychosomatic symptoms". In August 1982 the AMB examination found him to be "abnormal" for emotional stability and it was recommended that he avoid employment under stress conditions. 229 True it is that in 1983 it was thought that he had adapted well after a "rather prickly start", but I cannot ignore the fact that much of the evidence in the case indicates that the plaintiff is complaining of pain with little or no objective evidence to support his complains and that he shows the same attitude of annoyance with the medical profession for a perceived inability to cure him. He is apparently still harbouring resentment against army personnel because he believes they erroneously treated him as a malingerer. 230 It is unnecessary to go through the plaintiff's medical history as referred to in Dr Baz's report in any detail, but it is apparent that there have been differences of opinion as to whether there exists any psychiatric involvement in the plaintiff's account of his symptoms. There was a diagnosis of the plaintiff suffering from "abnormal illness behaviour" in May 1990. However, I note from Dr Baz's report that a claimed disability based upon this diagnosis had been rejected by Veterans' Affairs. 231 Dr Baz formed the opinion that the plaintiff was suffering from pain as a result of a back injury but found that the plaintiff was also suffering from a Dysthymic Disorder the consequences of which appear to have been more debilitating than the physiological consequences of the back injury. There appears to be little contest that the applicant does suffer from such a disorder regardless of whether there is also a psychiatric element to his complaints of pain and his resultant physical disabilities. The Commonwealth's submissions addressed only the evidence of Post Traumatic Stress Disorder. 232 I am satisfied that the plaintiff's present psychiatric disorders are connected to the physical injury suffered to the spine in November 1982 and the consequential pain and treatment. The plaintiff was a fragile person so far as his reaction to pain and his concerns about his physical health prior to the incident at South Melbourne Beach. He was also a person prone to reactive anxiety. His pre-injury fragility has resulted in his reaction to the onset of pain in his back, particularly in 1987 and thereafter. Even if there is no clear physiological basis for his current symptoms and disabilities relating to his complaints of back and leg pain, I believe they stem from his psychiatric disorders arising from the injury to his spine when it manifested itself in a disc prolapse in 1987.

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These symptomatologies combined with his own injuries resulted in diagnostic criteria for Post traumatic Stress Disorder. 240 Until Dr Smith's report in March 2000 and despite frequent psychological and psychiatric examinations, there has never been any suggestion that the plaintiff has "persistently re-experienced through recurrent and intrusive distressing recollections, images, thoughts and perceptions of being harmed" as Dr Smith records. In any event, the plaintiff is such a notoriously poor historian of events, including his own physical state of health at any particular time, that I could not confidently rely upon any diagnosis based upon self-report without some objective evidence to support the history or some contemporaneously recorded account of his physical and mental state. 241 For example, there is no account of any nightmares, such as the plaintiff described to Dr Smith, to psychologists or psychiatrists who examined him before 2000 even though the plaintiff maintained in evidence that they existed throughout his army service. The plaintiff's only explanation for this deficiency in cross-examination was that "it was just too hard to try and talk about things that just hurt like hell". The registrar of the St John of God Hospital who took a history for admission of the plaintiff in 1991 recorded only a two-year history of symptoms including nightmares. 242 Dr Smith was extensively cross-examined by the Commonwealth on his diagnosis of Post Traumatic Stress Disorder. During the course of his evidence (T154) Dr Smith made it clear that he saw the stressors giving rise to the condition as being a "constellation of those stressors" being "the injuries to his back plus the other stressors in the army pertaining to the death of his colleagues". 243 He was cross-examined about the absence of any report of flashbacks or nightmares in respect of any of the three traumatic incidents relating to the back injury. Dr Smith maintained that he did not need that specific symptom to diagnose the disorder and that, in effect, there was no requirement for a link between an event and the symptoms. According to him the disorder arises from "multiple exposures to traumatic events" and that the plaintiff had more than one event. 244 None of the three incidents related to the back injury regarded by Dr Smith as being traumatic seem to me to have been considered by the plaintiff as being so at the time or before 1990. Certainly they were not traumatic in the terms of the criteria for the diagnosis of Post Traumatic Stress Disorder under DSM IV: see Transcript at 158. DSM IV states that "symptoms usually begin within the first three months of the trauma" yet there is not the slightest suggestion in any of the plaintiff's extensive medical history of any symptoms manifesting themselves until at least 8 years after the events. I appreciate Dr Smith's statement in evidence that the 3 months is not "set in stone" but even so the delay is so extensive in the present case that it raises doubts in my mind that the disorder has anything to do with any event in 1982. 245 Dr Smith's answer to these criticisms of the diagnosis is to emphasise the multiplicity of the stressors involved. However, I simply do not understand how events that do not on their face appear to be traumatic and are not apparently treated as traumatic by the patient at the time or shortly thereafter, and in respect of which there is no linking symptom, such as flashbacks of the event, can be identified as stressors for the purposes of the diagnosis, when there are other events that are clear stressors within the DSM IV criteria. I understand that all the stressors relied upon occurred while the plaintiff was serving in the army but apart from that fact there is not the slightest suggestion that they were in any other way connected. 246 Dr Smith in his second report does indicate some connection between the death of the friend and the injuries in the following passage:

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I am of the firmest view that the situation is irretrievable and that Mr Chaney will continue to be an immense burden to himself, to his family, to society and to the medical profession. 250 However, by the use of the intrathecal pump the plaintiff's condition has stabilised but there is no likelihood of improvement. There is, however, no suggestion that the plaintiff's life expectancy has been reduced by the injuries. 251 In summary then the plaintiff suffered a spinal injury in November 1982. From that time until 1987 he suffered little pain or discomfort as a result of that injury. There was occasional discomfort experienced by the plaintiff particularly at times of physical exercise, but there were considerable periods when he was largely pain free. The use of shoe inserts, occasional treatment from a physiotherapist or the use of a corset or back brace largely relieved what discomfort he felt. I do not believe that he was seriously discomforted during the period that he was working outside the army. 252 In September 1987 his condition deteriorated and thereafter he suffered continual pain in the back and legs relieved for relatively short periods by treatment and the first attempt at spinal surgery. By March 1990 he was complaining of back pain radiating to his legs and he found he could not stand or sit for periods of more than 40 minutes at a time. By 1992 he was complaining of almost constant pain and was seeking both pain management and psychiatric treatment for a dysthymic disorder and chronic pain syndrome. Although throughout this period he was suffering from other conditions that I have held are not related to the spinal injury, namely the headaches and bladder problems, it is clear that his major disability was caused by the pain to the back and legs and the associated psychiatric condition. The plaintiff continued in this condition with fluctuations in the extent of his pain and its effect upon him until the insertion of the intrathecal pump in October 2001. 253 Since 1987 the plaintiff has been by his disabilities deprived of his interest in sports and physical training that he actively pursued both in the army and in Corrections. They have interfered with his relationships with family members and others, although with the help of several women with whom he had relationships over this time he was able to bring up his children from the first marriage. They left home in their late teens. He has been restricted in his ability to travel at will and limited in the tasks he can perform. He does have some interests and counsels persons who come to see him without charge. His sister is his full-time carer. 254 I would have awarded general damages in the sum of $250,000. 255 I would have allowed interest on half that sum for a period of 20 years at 2 per cent. This is because the plaintiff has suffered the most severe disabilities since 1987 but before he received the benefit of the intrathecal pump, and the period of 20 years seems to me to be a reasonable period to reflect the varying degrees of pain and disability suffered by the plaintiff since 1982. 256 The major dispute between the parties on the question of economic loss, if the Commonwealth's liability for the injuries were established, centres upon whether the loss should be calculated on the basis that, had he not been injured, the plaintiff would have continued to work until retirement as a soldier or whether he would have continued to work in Corrections. He has no capacity for any significant future earnings. 257 It is clear that the plaintiff left the army voluntarily and not for any reason associated with his injuries. He had determined upon a career with Corrective Services for the reasons he gave in his application. Although he gave evidence that he wished to re-enlist in the army in 1988, by this time he had suffered the serious deterioration in his health following the squash game in 1987. He said that he wished to re-enter the army as a Corporal and continue his career. I doubt this evidence, as it seems to me inconsistent with the reason that he had left the army a relatively short time before. He lost his employment with Corrections because of the amount of time he was off work as a result of the increased pain to his back and not because of any difficulties with Corrections or his work that might have led him to wish to terminate that career. I do not know whether he would have been re-enlisted even had he made application to re-enlist in 1988. 258 I believe it would have been appropriate to consider his past and future economic loss on the basis of his continued employment in Corrections. The appropriate value of these losses has been calculated by Howarth (NSW) Pty Limited in a report tendered by the defendant. They are as follows:

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Past economic loss $364,918 Interest on past economic loss $259,232 Future economic loss $478,109 Superannuation loss $70,165 259 It also seems reasonable to allow for an amount for loss of long service leave of about $25,000 based upon the assessment made by accountants on behalf of the plaintiff. 260 Because of the plaintiff's predisposition towards a functional overlay in respect of physical injuries, which I believe accounts for a considerable part of his present condition, I would have calculated contingencies at 25 per cent and reduced the amount for economic loss accordingly. 261 The plaintiff has made a claim for expenses in relation to adapting his home for the use of a wheelchair and various items of special equipment. These seem to be generally appropriate. However, two items seem to be unjustified. The first is the fitting of air conditioning to his home. While no doubt this would improve the plaintiff's quality of life, it does not seem to me to be justified by reason of the particular nature or extent of the plaintiff's injury. Secondly, as the plaintiff fears drowning and has never availed himself of hydrotherapy because of his fear (T45.50), the claim for a swimming pool is unsupportable. 262 The costs of these various amenities and equipment is set out in the plaintiff's submissions in accordance with the report in Exhibit C although no attempt was made to compute them. 263 There is no evidence before the Court of past out of pocket expenses and future expenses have been listed in the plaintiff's submissions but not computed. 264 There was little or no evidence led from the plaintiff as to his past domestic assistance. In 2000 Dr McClean reported that the plaintiff "could not help with many household chores". Attempts to vacuum or make his bed resulted in exacerbation of pain resulting in his returning to his bed for a number of days. Dr Baz's report indicates that in 1991 the plaintiff reported that he could do grocery shopping with difficulty but could not help in any other household chores. He could wash dishes from his wheelchair but with difficulty. A functional assessment report in 1990 (Ex B83) describes the plaintiff undertaking set tasks that would indicate that he would have little difficulty in attending to almost any household chore. A physical function report in the same year (EX B81) indicated that the plaintiff had a 75 per cent level of independence for personal care and 50 per cent for domestic activities. He needed assistance for cleaning, laundry and gardening. Prior to 1990 there is little evidence as to the amount of assistance the plaintiff required but he needed almost none before 1987. As I understand the evidence, the plaintiff's sister has been caring for him since 1999 but she was not called to give evidence before me. 265 The report of the Mid-Coast Domestic Service dated 26 March 2000 (Ex C) at page 12ff contains a "Schedule of Care". The first part of that Schedule is entitled "Post-accident Assistance". This is based upon reports by the plaintiff as to the amount of care he has required since 1982. The plaintiff did not adopt it in evidence. In any event I have already commented upon the poor quality of the plaintiff's historical accounts. Some of the account in the report does not seem to me to be borne out by the evidence. It is estimated that his care to 31 December 1998 amounted to $234,927. I would have thought that a closer approximation was $175,000. There is a further $50,000 cost to 13 March 2002 and a further $300,989.40 to 28 February 2003. Thereafter the cost was $2,099.50 per week or $110,659 per annum. He would be entitled to interest on the cost of past assistance at about 6 per cent. 266 There is an estimate of his future care based upon 42 hours per week and calculated by the plaintiff on a life expectancy of 35 years at $2,389,231.

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1982 · 19 February - Attendance on medical officer complaining of lower back pain after playing cricket. · 19 April - Medical examination following the "murder Frisbee" incident. · 18 August - Examination by AMB. "Normal" for lower extremities, feet, spine, posture. "Abnormal" for emotional stability - to avoid employment under stress conditions. (Ex B7). · 5 November - Examination following "piggyback" incident. (Ex B8). · 8 November - Medical examination. Lower back pain and left sciatica. · 12 November - Medical examination. Lower back pain less. Fit for restricted duty. · 18 November - Attendance on chiropractor. Recommend a Sorbothane shoe insert to help lower back condition. · 19 November - Medical examination. Request Sorbothane heel insert for running. Fit for restricted duties. · 26 November - Medical examination. Complaint that sit-ups hurt his back over L/S area. · 9 December - referral to specialist for "low back sprain" · 9 December - Examination by Dr Brady. Sacrum and left ilia sublaxed. Chiropractic care. (Ex B 15) · 15 December - Chiropractic treatment. "Seemed totally symptom free". (Ex B15) 4. 1983 · 4 January - Specialist report by Dr Brady - Prognosis is very good. · 1 February - Referral to Dr Isbister, orthopaedic surgeon, re history of back injury since October 82. Referral to psychiatrist re history of mild anxiety, inability to cope with discipline. · 2 February - Examination by AMB. "Abnormal" for spine. "Back injury Oct-Nov 82 playing on beach…..No pain at present. Does PT thrice wkly. Wears sorbothane heal insert for running". Diagnosis: "old back strain". · 7 February - Examination by Dr Isbister. "Normal back which has been strained." · 9 February - Examination by Dr Mason. "Can be upgraded medically, he would seem to have adapted fairly successfully after a rather prickly start…" · 31 August - Medical examination. Requests new footwear "to accommodate sorbothane shoe inserts which have alleviated his low back pain while running, doing PT etc". - Recommended. 5. 1984 · 20 February - Examination by AMB. "Abnormal" for spine - "L-s strain, asympt(omatic) now. · 11 April - Medical examination: "nagging back from low down….lumbar area…….injury at PT in Melbourne - 82." Fit for restricted duties, no active duties or PT a week. Referral to Dr Bentivoglio for "recurring low backache". · 24 April - Examination by Dr Bentivoglio "accident 1982 at gym - playing killball - another player jumped on back (13 stone)". (Ex B28) · 24 April - Report Dr Bentivoglio- "2 yrs LBP on & off since injury to back at a gym - LBP present most of the time occasional radiation to (L) Knee region - locking - if anything worst recently". "Could well have disrupted a LS Disc as result of injury 2 yrs ago". (EX B 25) · 26 April - Medical examination - "to start physio Mon 30 Apr needs PT restrictions until then". · 9 May - Medical examination - "short run this AM, developed acute (L) sciatica extending to buttock at 2.30 pm. No recent trauma". Not fit to 11 May. (Ex B30) · 14 May - Medical examination - "back has improved. Still has some minor radiation of pain" (Ex B31) · 26 June - Review by Dr Bentivoglio "If anything worse" - review 1 week. (Ex B32) · 3 July - Review by Dr Bentivoglio "Try corset L/S" - review in 6 weeks. · 1 August - Medical examination - "Sudden onset of pain in back and down left thigh………….impossible to examine because of his complaint of pain". Admit 2 Mil Hosp for assessment. · 1 August - Admitted to 2 Mil Hosp - " back pain dates back to injury 1982 when player fell on him" - "has a long long long history of functional disorder". (Ex B41) · 1 to 8 August - Hospitalised 2 Mil Hosp. · 6 August - Examined by Dr Collins - "This man has at least 3 positive signs of voluntary exaggeration of disability….CT scan….if no abnormality he should be discharged to unit". (Ex B43) · 7 August - C.T Scan - "Only abnormal finding of this study is minor central postero-inferior disc bulging of L5-S1 which does not cause direct compression on the thecal sac or associated nerve root structures". (Ex B44) · 8 August - Discharged as CT normal. · 10 August - Medical examination - Has no symptoms found · 9 October - Review Dr Bentivoglio - "Corset some help……I feel back problem is due to disruption L5S1 Disc level". Symptoms do not warrant surgical investigation. (Ex B36)

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Cases Cited (4)