On all the evidence, I conclude that there were fractures at all three levels.
11 The first question in the case is whether the plaintiff sustained his injuries in the way he described. He was cross-examined to suggest he had given a different account very shortly after the event. This was contained in a Department of Defence form headed "REPORT OF AN INJURY" signed by the plaintiff and dated "27 Nov 1988" in some other hand. The form was completed by a typewriter to show the manner in which the injury occurred as follows: "Whilst rappelling from a helicopter, I lost control of my brake due to a kink in the rope."
12 The form showed the name of only one witness - WO2 J. Remynse, by whom it purported also to be signed. The plaintiff said the form was presented to him already completed, whereupon he protested, but was required to sign it. Shortly afterwards, he gave an account in writing which is consistent with his evidence. No evidence was called, either from Warrant Officer Remynse or from the clerk who, the plaintiff alleged, required him to sign the form, or from anyone else, to show the source of the version set out in the form, or to deny the plaintiff's explanation. I should add there was a second undated form, headed "CLAIM BY EMPLOYEE FOR COMPENSATION FOR INJURY OR DISEASE", completed in the same way and to precisely the same effect, so far as the manner of injury was concerned, which the plaintiff claimed to have been signed by him at the same time and subject to the same protest. It seems unlikely that either form was in fact signed on the date written as the date of the signing of the report of injury, or that the plaintiff was able, immediately after his injury, to prepare these documents. The documents are likely to have been prepared by an appropriate clerical person after he had ascertained the information in them. Whether the relevant information was ascertained accurately, bearing in mind the plaintiff's firm denial and his assertion that he was required to sign under protest, could only be determined after a consideration of the evidence of the person who did fill out the forms (it was almost certainly one person, since the completion of the forms reveals similarities that could hardly be coincidental). The failure of the Commonwealth (without explanation) to call evidence on this point therefore makes it difficult to reject the plaintiff's evidence concerning the circumstances in which he signed the documents. Furthermore, the Commonwealth tendered a statement of an eyewitness which confirmed that, when the plaintiff and the others left the helicopter, they "seemed to swing together and meet approximately half way to ground". That appears to confirm the plaintiff's account, and makes no mention of any suggestion at the time of a kink in the rope. A second statement tendered by the Commonwealth neither refers to any collision, nor mentions any kink in the rope. It attributes the fall to the plaintiff not having his "hand securely on his rope"; but, of course, depending when the observer first noticed something was wrong, this might have been an accurate observation of a consequence of an earlier collision immediately beneath the helicopter. A suggestion in one of the statements that the plaintiff did not really fall very hard is contradicted both by the other and by the medical evidence, which shows a young man would be unlikely to sustain a compression fracture of L2, quite apart from the additional fractures, without a fairly severe impact. Vertebrae have significant compressive strength.
13 In all the circumstances, but ultimately on my assessment of the credibility of the plaintiff's account itself, I accept that account as true.
14 That leaves the question whether, the injuries having been sustained in this way, the Commonwealth is liable for them. In my opinion, the collision the plaintiff felt under the helicopter was probably a result of the lack of any opportunity for an adequate rehearsal of the difficult task to be carried out. Skill and timing were needed, as well as a full measure of control over their own instinctive reactions by those performing the operation. I think at least the person who collided with the plaintiff failed to achieve what was required, with very serious consequences. That he did so fail was caused by the lack of adequate rehearsal. The evidence of Mr Herrick makes it clear this was a known risk, and the remedy was also known. I conclude that the Commonwealth is liable in negligence.
15 The plaintiff had a difficult childhood. He was in a church foster home for six months at about five years old, his parents having separated before his first birthday, and his mother having encountered problems coping with alcohol. He was at seven different schools over a period of nine years, ultimately leaving school at the age of 16, when he was in year 11 at Randwick North High School. Over the next ten years, he worked in a variety of occupations including labouring, working on a fishing trawler, and working for about three years as a kitchen hand in a restaurant at Bondi Beach. On 30 April 1983, at the age of 25, he joined the Army Reserve, being chosen, the next year, as one of 22 out of 300 applicants, to be appointed to a commando unit, the First Commando Unit which was based at Mosman. In the activities of that unit, he found much personal satisfaction, achieving the rank of Lance-Corporal in July 1987. He described his army life as "a wonderful experience, and the people I trained with [he said] became a sort of de facto family in a sense".
16 For most of the time after the plaintiff joined the Army Reserve, he engaged in no other employment, although from August 1987 to January 1988, he worked as a leading hand builder's labourer on a particular construction job earning $1058 gross per fortnight. But this work was done more as a favour to the builder than for its own sake. The plaintiff had no firm plans for an economic future outside the Army, and when he left the construction work, he began a selection course for the Special Air Services Regiment, with a view to a permanent army career in that unit. But he failed the course, and although he says he continued to have the ambition to pursue the matter, it must be very doubtful whether, at the age of 31, he could have reversed that failure. This does not mean that the possibility of his success should be left out of account in the assessment of his economic prospects, had he not been injured, just as the possibility he might ultimately have contented himself with the easier path of an infantry battalion in the regular army must also be evaluated, so long as it should be seen as real: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; Ahmedi v Ahmedi (1991) 23 NSWLR 288 at 302-303; State of NSW v Moss [2000] NSWCA 133 at [71]; Joukhador v Donnelly [1999] NSWCA 468.
17 The plaintiff's evidence does, I think, indicate that he had a general desire to join the regular army, not limited to his undoubtedly strong specific desire to achieve acceptance into the Special Air Services Regiment. He explained that he joined the Army Reserve at a time when there were "no regular Army enlistments for about three and a half years", so that his "only other option was the Army Reserve and wait for an opportunity to get into the regular Army". In the meantime, he was learning military skills. He passed a course in rappelling in September 1984; had an application to attend a Special Air Services course refused following a psychological interview in November 1985; did a further rappelling course from 30 November to 8 December 1985; did a course known as a Mountain Leader course, which involved rappelling in mountainous terrain, in April 1988; failed an instructors' course in roping and rappelling in May 1988 (but was accepted as an assistant instructor in roping and an instructor in airborne rappelling); was admitted to a regular Army engineers divers' course on 31 August 1988, for a period of six weeks; and completed on 13 November 1988 a small craft handler assistant instructors' course taken over 16 days. It is clear that the tempo of his army activities had increased during the year that led up to his helicopter accident. His evidence was: "I intended to make it [army service] my life."
18 After his injury, the plaintiff returned to duty (but he says he was not really fit to do full duties) on three weekends in June and July 1989. He was still suffering pain and spasms and was not able to continue. He was referred by an Army medical officer to Dr Bentivoglio in August 1989, and was discharged from the Army Reserve on 9 November 1989. He received compensation payments until after he saw Dr Pincus in January 1990, when those payments were stopped. Indeed, in cross-examination, the plaintiff conceded that he considered himself fit for work in January 1990.
19 It does not appear that the plaintiff did any work, or made any consistent efforts to obtain work from then until late 1992. He seems rather to have remained hopeful of achieving full fitness, for he says he exercised, and in 1991 he sought certification as a commercial diver, passing a written test, but being advised that he could not be certified medically fit for that activity. Dr Yeo's reports make it clear the risk of spinal bends was regarded as having been increased by his injury, so that it was recommended he not dive. The occupation of a civilian diver had been contemplated by the plaintiff, in the period shortly before his injury, as an alternative to the Army which he might pursue if he failed again to secure admission to the Special Air Services Regiment.
20 In late 1992 and into 1993, for about six months, the plaintiff worked with a company known as Paradynamics in Prahran, a Melbourne suburb. He obtained this employment under the Commonwealth "Job Start" programme. The work was making holsters for military or police use. The plaintiff claimed to suffer back pain after some time in this employment, but it clearly interested him, and led to his working on boot and cap designs for military use, which, however, came to nothing at the time. However, in 1996, the plaintiff followed it up to the extent of doing a course one evening a week for six months at Sydney Technical College in footwear pattern making.
21 In 1998, pursuant to the Commonwealth New Enterprise Incentive Scheme, the plaintiff did a course lasting six weeks at Mission Employment Katoomba to teach him how to formulate a business plan. The plaintiff had previously, following his work at Paradynamics, arranged for the production of camouflage tape for army use, and, as he put it: "I started on the business aspiration for selling my camouflage tape product as a business". He sold it to various army units. He also designed and made 30 holsters for 4RAR, about 200 pouches and 20 rifle slings. He traded under the name Tactek, grossing about $18,000, but not breaking even after expenses. He expressed in evidence the hope of continuing this business in the future, claiming to have devised at least 12 different designs of products with military utility. He made it clear his medical condition had not prevented him carrying out research and administrative duties in connection with his attempt to establish himself in business. Nor did he suggest it prevented him performing as a salesman.
22 The plaintiff, however, gave evidence of fatigue and lower back pain "[e]very morning" on waking, with spasms and very poor sleep. He has a feeling of "abandonment", he says. He fills in time reading, and tries to "socialise up at the café to play chess" to get himself out of the house. He has spoken of doing a university course in naval architecture, but nothing came of that.
23 It is difficult to evaluate the extent of the diminution of the plaintiff's working capacity since January 1990. As I have said, he thought himself fit for work then, and the evidence does not reveal that anything happened to render him less so afterwards, at least physically. Perhaps he lost interest, for some time, and regained it only sporadically, upon being deemed unfit for special forces activities, including as a commando. After all, his working record prior to his injury had large gaps when he was on social services. To make this observation is not to overlook Dr Bentivoglio's view that it "is likely [he] will continue to experience some degree of symptoms present in his back region probably indefinitely", and that he -
"will always have to be careful to avoid activities which are arduous in nature or which require him to do bending and twisting movements of his back."