Craig Andrew Elliott v Commonwealth of Australia

[2003] NSWSC 521

CITATION:	Craig Andrew ELLIOTT v COMMONWEALTH OF AUSTRALIA [2003] NSWSC 521
HEARING DATE(S):	03/03/2003 to 19/03/2003
JUDGMENT DATE:	31 July 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Foster AJ at 1
DECISION:	(Further Directions hearing 9.30am Tuesday, 5 August.)
CATCHWORDS:	Damages for injuries sustained, disabilities and consequential losses allegedly occasioned to plaintiff whilst undergoing initial recruit training in the Army.
CASES CITED:	Croft v Commonwealth of Australia, unreported, 8 July 1988 Groves v Commonwealth of Australia (1982) 150 CLR 113 Zeppelin v Commonwealth of Australia, unreported, 28 March 2002 Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 641
PARTIES :	Craig Andrew Elliott - Plaintiff Commonwealth of Australia - Defendant
FILE NUMBER(S):	SC 20467/99
COUNSEL:	Mr H. Shore - Plaintiff Mr R.E. Williams QC with Mr B. Skinner - Defendant
SOLICITORS:	Thomas & Company - Plaintiff Australian Government Solicitor - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

FOSTER AJ

THURSDAY, 31 JULY, 2003

20467/99 Craig Andrew ELLIOTT v COMMONWEALTH OF AUSTRALIA

JUDGMENT

1 HIS HONOUR: These proceedings were commenced in the District Court of New South Wales and were later transferred for hearing to this Court. The plaintiff, Craig Andrew Elliott (“Mr Elliott”) sues the defendant, Commonwealth of Australia (“the Army”), to recover damages for injuries, disabilities and consequential losses allegedly occasioned to him in an accident which occurred on 25 February 1987 at the Australian Army Base at Kapooka near Wagga Wagga in New South Wales. Mr Elliott was undergoing initial recruit training at the base, at the time of the accident, having entered the Army as a recruit on 11 February 1987. Whilst running up a hill in a group of other recruits, he slipped, fell forward, and injured his left knee. The nature and extent of that injury and its consequences are the subject of considerable dispute in the case. The defendant also disputes that it incurred any liability to the plaintiff because of this training accident. It is convenient, in the first place, to consider the question of liability.

Liability

2 The plaintiff was born on 16 July 1969 and was seventeen years of age when he sought to enter the Army, around September 1986. The evidence indicates that he was a strongly built, fit, young man. He had had some problems with his left knee, commencing with a sporting accident in early May 1980, to which reference will be made later. The investigation of these problems delayed his acceptance into the Army but, after receiving medical clearance to which I shall also make later reference, he was accepted for army recruit training on 16 December 1986 and formally entered the Army as a recruit on 11 February 1987. He was then sent to Kapooka Base for initial infantry training. It is clear that he was a well motivated recruit who wished to spend at least the next six years in the Army, with a strong possibility that he would, at the completion of that period, seek to extend his Army service into the future.

3 I am satisfied that, to those who would undertake his training, he would have presented as an apparently physically fit, strong young man, whose knees and other weight bearing joints would have had the necessary integrity to accommodate to the rigours of the recruit training course.

4 It is not disputed that the defendant owed to Mr Elliott a common law duty of care, founded upon the common law of negligence. The accident occurred, of course, in ordinary peace-time training exercises, so that no complications arise in this case attributable to the questions of war service. The existence of the relevant duty is not disputed in the pleadings. The question posed for my determination is, therefore, whether, in the circumstances, there was any breach of the duty (Croft v Commonwealth of Australia, unreported, 8 July 1988, per Grove J, dicta of High Court of Australia in Groves v Commonwealth of Australia (1982) 150 CLR 113, Zeppelin v Commonwealth of Australia, unreported, 28 March 2002 per Burchett AJ.)

5 I turn, then, to a consideration of the facts bearing upon the question of breach. The evidence, in this regard, comes from the plaintiff himself and from ex-Sergeant Hoile who, in relevant respects, was in charge of the plaintiff’s physical training up to and including the occasion of the accident. I am satisfied that the plaintiff is a credible and reliable witness and that I should accept his version of what occurred and of its effects upon him. In the nature of things, one would expect him to have a much clearer recollection of the accident and its surrounding circumstances than would Mr Hoile. Mr Hoile, although obviously endeavouring to assist the Court, had little recollection of the actual events of the accident, beyond remembering that it occurred and that the plaintiff suffered injury. He was, however, able to give evidence as to the nature of the training provided to the plaintiff and other recruits at his level up to the time of the accident in the third week of training, and also the general course of recruit training over its full period. His evidence made it clear that there was a significant training program in which physical training of the type conducted by him played a significant role. Indeed, it appears from his evidence that there was a laid down program of physical training, the purpose of which was to enable the recruits, to achieve, in graduated stages, a level of physical fitness, bodily strength, and general agility to undertake military tasks which became increasingly demanding and difficult. These culminated, at the end of the training period, in an obstacle course, referred to in the evidence as “the Challenge”. The satisfactory achievement of this was required to enable them to pass from the recruit phase of the Army into further training. Mr Hoile, quite properly, indicated that no recruit could be expected to deal with this final aspect of training before he had been brought to the necessary level of physical fitness by undergoing the graduated program.

6 Although I infer that the program existed in some written document or documents, these were not introduced into evidence. However, the evidence given orally by the plaintiff and Mr Hoile, together with the course of conduct of the case on behalf of the Army, enabled me to determine, on the balance of probabilities, what might or might not be reasonably expected of recruits in their training up to and including the date of Mr Elliott’s accident.

7 It is plain that the purpose of physical training was to toughen the recruits physically and that this involved some risk of injury. The defendant introduced into evidence (Exhibit “17”) a file containing reports of injury incurred during training at Kapooka for the months of February through to June 1987. This file sufficiently indicates that injuries occurred in various phases of recruit training and frequently involved injuries to joints such as knees and ankles, occasioned at various levels of that training. Quite plainly, any decision as to whether or not a breach of duty occurred in the present case must take into account that the recruit training course necessarily involved some risk of injury to the participants. Equally obviously, as was acknowledged by Mr Hoile, the purpose of the training was to progressively toughen the recruits physically and not to injure them. Some risk of injury was necessarily involved in the fulfilment of the training program. However, in my view, the Army owed to its recruits a responsibility to avoid exposing them to unnecessary risk, being risk which was not required for the orderly fulfilment of the program.

8 For the purpose of this case, I am interested only in the constituents of the program which, I infer, had been established for the training of recruits in the first three weeks. These were undoubtedly physically demanding but, I am satisfied, were not intended to impose upon the recruits unnecessary risks of physical injury. I do not need to set them out in detail. They involved work in the gymnasium, including exercises such as sit-ups and push-ups, rope climbing, cross country running over dirt tracks, squad drill on laid down bitumen surfaces, and running in formation, which could involve sudden stopping with rear ranks bumping into those in front, occasioning some falls, until, presumably, control was learnt. There was also endurance training which involved marching and proceeding at double time, in army boots, greens and webbing. All of the physical training was not conducted in this gear. When boots were not worn, ordinary rubber soled running shoes were used.

9 Mr Elliott took part in all the training activities. He was able to perform them and suffered no injury in so doing.

10 One of the training areas at Kapooka was what appears to be a purpose built training ground. It was a hill area described as “the moguls”. It consisted of a set of flat terraces leading to relatively steep, short inclines, followed by another terrace and another such incline until the top of the hill was reached. It was a grassed area. Running up and down it was part of recruit physical training, such running being conducted in formation. Although expert evidence was admitted in the case to this effect, I am satisfied on a consideration of the description of the area that, as a matter of common sense, the abrupt changes from flat surface to incline surface, would involve obvious risks of slipping, on the part of persons running up and down the hill. In fact particular care and a reasonably high level of agility on the part of a runner would be required to retain footing and prevent falling. Nevertheless, it cannot be, nor was it, asserted, that it was an inappropriate area for the training of recruits in bodily control and agility and for the general toughening of their limbs and weight bearing joints for the difficult training challenges ahead and for the required levels of physical fitness and agility of infantry soldiers.

11 The plaintiff suffered his accident whilst running up this hill together with his training squad of approximately thirty recruits. I turn then, to the evidence relating to this incident.

12 The plaintiff testified that, on 25 February 1987, the training day commenced with his squad of recruits being marched to the gymnasium complex at the Base for a session of physical training, which was to be conducted by Sergeant Hoile. He, like the others, was wearing issued socks, shorts and a T-shirt. His running shoes had been purchased at the Base canteen, with a rubber sole the tread of which was not “extremely detailed”. The march to the gymnasium took five to ten minutes and involved passing the area of the moguls. As they did so, Mr Elliott noted that the area of the hill was being watered by a sprinkler system. Indeed, he felt the spray from the sprinklers as he marched past. The whole area of the hill was being covered by water from the sprinklers, which stood on triangular stands and were of the type “that click and keep moving around”. They had a circular spray pattern which covered a radius of 15 to 25 metres. After passing the moguls, the squad moved into the gymnasium block.

13 In the gymnasium they were passed into the care of Sergeant Hoile, who trained them for an hour in physical exercises such as sit-ups, push-ups and rope climbing, which the plaintiff said was reasonably tiring. He said that his legs and knees basically got used to this exercise but that he “wasn’t used to it all the time.” Although this answer is not particularly clear, I gather from it that he had not reached the stage in his physical strengthening, that he did not experience, to some extent at least, fatigue in the legs occasioned by the physical exercises he was required to undergo.

14 Towards the conclusion of the physical training session, Mr Elliott said, and I accept, that two members of the platoon “were basically mucking-up” and that Sergeant Hoile “imposed a penalty on the whole team”, which involved ordering them to run up and down the moguls eight times as fast as they could. There were thirty recruits and they did this run as “one great big mob”. When they set off to do the run, sprinklers were still operating on the hill over to the left hand side of the area over which the run was to be made. The area of the run was not then being sprayed, although the sprinkler stands were still in position. The grass over which they ran was still wet. The run involved proceeding from the bottom of the hill over the successive terraces and inclines to the top and then down again. Although the evidence is not entirely clear, I accept that the plaintiff had run up and down the hill twice and that he was in process of running up the hill again when, at about the half-way mark his left foot slipped on an inclined area, sliding backwards under him and precipitating him forwards in a twisting motion. He said “the rest of the body went forward and I slipped causing pain to the knee, very strong sharp pain…..basically in the knee from the inside.” He was not able to carry on with the run and later went to the regimental aid post and from there to the Army hospital known as 7 Camp Hospital. I shall refer to his course of treatment later in these reasons. It is sufficient for present purposes to state that he had obviously suffered a significant injury to his knee. This fact was observed by Sergeant Hoile who directed that he cease the run and seek medical attention.

15 Mr Elliott said that, after he fell, he observed the skid mark from his foot in the wet grass which was, apparently, both on the flat and on the incline. The grass was wet and “was basically trodden into the mud, dirt area.” He also said that, in his opinion, the grass was three or four inches long in the area where he slipped.

16 Mr Hoile was not able to give a description of the plaintiff’s accident, beyond recollecting that he saw the plaintiff on the ground holding his knee and obviously injured. He could not remember seeing the fall but pointed-out that it would have been difficult to do so having regard to there being “eighty legs” proceeding up the hill. He gave other evidence, however, which it is important to consider on the issue of liability.

17 Mr Hoile left the Army in 1994. He had been based at Kapooka from July 1984 until the end of 1987 and held the rank of Sergeant Physical Training Instructor. He was engaged, on a regular basis, in the physical training of recruits. Since leaving the Army he has been engaged in physical training and now manages a Fitness Centre at La Trobe University, Bendigo. It is reasonable to regard him as being, then and now, an expert in physical training. This would involve an ability to assess the capacity of trainees safely to undergo particular levels of exercise, having regard to their observed condition of fitness.

18 He said, in evidence, that he made regular use of the moguls for training purposes, a couple of times per week. He said “I ran them up and down the moguls in all conditions. Whether it was hot, dry, raining, in winter, summer, it didn’t matter.” He further said that no recruit had suffered injury in one of his lessons, apart from the plaintiff, “running up or down or over the moguls.” There had, however, been many spills in his lessons, normally when recruits were running down the hill but that there were no injuries “because it was a grass surface”. He said that the running of a platoon up and down the hill was performed in an orderly manner in ranks and that the fact that sprinklers operated on the grass area in the summer months did not deter him from using it as a training area. He did not have any specific recollection as to the watering on the day of the accident. He agreed, however, that wet grass was slippery and more particularly so when a person was travelling fast over it, with changes in incline, and in situations where visibility was obscured “with the eighty legs”. He also agreed that running shoes would be less able to cope with slippery conditions than football boots or the like and that running of the type undertaken by the platoon on the day of the accident on wet grass produced a situation where “it would have been quite foreseeable that somebody might slip…and that if somebody slipped, depending upon how awkwardly or otherwise they fell, they might be injured.” These particular damages were emphasised in the report of Dr Neil Adams, Ergonomist, whose evidence I accept.

19 Mr Hoile rejected the suggestion that, as the plaintiff had alleged, he would have imposed a “punishment” on the recruit platoon but stated that it would not be unusual to impose an additional training task at the end of an allotted period, if he felt that “their training wasn’t up to standard in that period.” This was “instructor’s licence if we thought it was required” and the additional task could come from “a wide range of activities.” He accepted that he could readily have chosen, on the day in question, running along the road as an additional task to be imposed upon the platoon at the end of the session and that there was no necessity for them to be run up and down the hill. Again, Dr Adam’s evidence indicates, as does common sense, that this would have been a proper and reasonable alternative course to have taken.

20 As to the plaintiff’s assertion that the platoon was required to run up and down the hill eight times, Mr Hoile was quite adamant that he would not give such an order “in that time in training”, meaning that it would have been “unsuitable, having regard to their level of training” and “something that they shouldn’t be asked to do”.

21 Mr Hoile was not in a position to, and did not in fact, deny that he had commanded the platoon to perform the task asserted by Mr Elliott. I formed a favourable impression of Mr Elliott as a witness and I accept his evidence in this regard. Accordingly, I determine the question of liability in this case on the basis that, at least as a disciplinary measure, Mr Hoile ordered the recruits, at the end of the physical training session, to perform the additional task of running up and down the moguls, in conditions where the grass was both wet and long, eight times.

22 Another factual question presents itself. Had this platoon of recruits ever previously run up and down the moguls in any conditions? Was the running of the moguls, in fact, part of the ordinary toughening program in the first three weeks of physical training? I have come to the conclusion, on the balance of probabilities, that it was not so included. In the first place, the plaintiff, although remembering seeing recruits running on the hill, does not remember doing this himself before the day of his accident. Mr Hoile, although giving evidence of extensive use of the hill for training purposes, does not say that he used it for recruits who were only in their third week of training. His evidence, to which I have referred above, suggests the contrary. Moreover, the plaintiff was questioned very closely in cross-examination as to the training activities in which he had engaged prior to his accident, with very specific training exercises being suggested to him. It was never suggested that those exercises involved running up and down the moguls. Clearly, having regard to what I regard as their purpose built contours with rapidly changing levels, they presented particular difficulties, particular physical challenges and particular dangers of injury. I conclude that they were not normally used before recruits had achieved a degree of physical strengthening and control not achieved in the first three weeks of training. Moreover, when they were used, it was on the basis that the running was conducted in an orderly fashion, not in an uncontrolled mob.

23 Given that there was a reasonably foreseeable risk of injury in the activity that the plaintiff was called upon to perform, the question whether there was a breach of the Army’s admitted duty of care to the plaintiff falls for determination in accordance with the principles enunciated by Mason J in Shirt vWyong Shire Council [1978] 1 NSWLR 631 at 641. His Honour said:

“The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”

24 In this case I find that there was a risk of significant magnitude that a person in the position of the plaintiff, with his perceived level of training and fitness could slip, fall and injure himself in the course of the commanded activity. This risk was also unnecessary. The activity was not part of ordinary training at the plaintiff’s level, so that the risk was not an ordinary incident of his training. Although it was not unreasonable that an additional task should be imposed as a disciplinary measure, it was unreasonable to choose this particular task. It increased both the risk of injury and the probability of its occurrence. Furthermore, the same result could have been achieved, namely the reasonable assertion of authority, by requiring the run on flat dry ground. There would have been no difficulty or inconvenience involved in taking such a course. In my view, it was not reasonable to require the plaintiff to run as a member of what appears to have been an uncontrolled mob, up and down this wet and slippery hill several times at a fast speed in ordinary rubber-soled shoes.

25 In my opinion, the plaintiff has succeeded in establishing that the Army committed a breach of its admitted duty of care to him, which breach occasioned him physical injury. Accordingly, I find liability established in his favour and turn to the question of damages.

Damages

26 The medical evidence in this case has been lengthy and complex. The plaintiff has had nine operations performed upon his left knee by seven different surgeons, all of whom have provided reports which have been tendered in evidence. A number of other medical practitioners have been qualified on each side to express opinions about the plaintiff’s injury, its extent, consequences, and causation. Their reports have also been tendered. Also full medical files from medical practices, insurers and the like have been tendered. Some short explanatory oral evidence, by three medical practitioners, has been given. Otherwise I have had recourse to other sources of medical information in order to gain an understanding of the plaintiff’s knee injury and the nature of the complicated operative interventions that have occurred. I do not regard this as a satisfactory situation, but understand that it is the procedure currently adopted in personal injury cases.

27 It is the plaintiff’s contention that the problems with his left knee and their consequences, in respect of his loss of ordinary enjoyment of life, disability, and financial loss, are the result of the injury, in respect of which he sues. It is the defendant’s contention that the effect of that injury was relatively short-lived and that the plaintiff’s problems stem from an earlier injury for which it has no liability. It also contends that the plaintiff’s problems resulting from injury to his left knee are not as serious as claimed in the plaintiff’s case. I shall deal, in the first place, with the question of the effect of pre-1987 injury to the plaintiff’s left knee.

Effect of pre-1987 Injuries

28 It is not contested that, in early May 1980, when the plaintiff was aged eleven, he sustained an injury to the left knee whilst playing basketball. He remembers twisting his left knee, when his left foot entered a hole in the playing field which he had not noticed. There was pain and swelling, sufficient for his parents to take him to their local doctor, Dr Paul Hemming, who saw him on 10 May 1980. The problem did not resolve and Dr Hemming referred him to Dr Beetham, a consultant orthopaedic surgeon in Ballarat. Dr Beetham found “tenderness mainly over the upper attachment of the medial ligament.” He also found that “there was a little medial laxity in the knee compared with the right side.” He diagnosed either an epiphyseal strain or a damaged medial ligament and prescribed treatment by way of immobilisation in a plaster splint. By 20 May 1980 the doctor noted that “he suffered some soreness and feeling of pain in the medial aspect of the left knee when he put weight on it, but he was otherwise progressing satisfactorily.” As the doctor was going overseas, his partner, Dr Carter took over the management of the plaintiff. On 27 May 1980 the plaster cast was removed. An x-ray indicated no calcification which suggested that no epiphyseal injury had occurred. There was no instability in the knee and, by way of further treatment, a bandage was applied to the left leg.

29 On 17 June 1980 Dr Carter reviewed the plaintiff, noting that he was fully active and recovered. He was already back playing soccer and had no evidence of any restriction in the left knee.

30 In a report of 14 July 1988 Dr Beetham expressed the view that the plaintiff had had a “medial ligament strain of his left knee from which he appeared to have recovered fully.” He expressed the view, at that time, that he should not have any further problems.

31 In a later report on 15 April 1992 Dr Beetham adhered to the view that the 1980 injury had been a tear of the medial ligament from which he had recovered well. In a later report (1 April 1997) the doctor, in referring to the 1980 injury, said that he considered that it had been an epiphyseal strain of the upper tibia, with a possible ligament injury, the epiphyseal fracture having healed. It is somewhat puzzling why the doctor in this significantly later report should have adopted what was an alternative diagnosis in 1980. However, in my view, nothing turns on this, as the doctor was quite satisfied that, whatever the cause, full recovery had occurred. It is clear, also, that this view was shared by his partner, Dr Carter, who had taken over the case.

32 Evidence from the plaintiff’s treating general practitioner, by way of a series of terse clinical notes which have been tendered in evidence, without the benefit of any explanation from the doctor, indicate that between 1980 and July 1986 the plaintiff had some further difficulties with his left knee. Neither the plaintiff nor his mother, whom I considered to be a reliable witness, were able to recall these incidents. I must accept, however, that they did in fact occur but would note that they do not appear to have been of sufficient importance to have impressed themselves upon the recollection of either the plaintiff or his mother. However, as reliance is placed upon them by the defendant, I shall now refer to them in the order in which they appear in the doctor’s notes.

33 It appears that on 26 May 1981, the plaintiff twisted his left knee again and, upon consulting Dr Hemming, was prescribed a crepe bandage and crutches for one week. The plaintiff has a dim recollection of being on crutches but thought that this related to an ankle injury. In any event, Dr Hemming, on 2 June 1981 recorded that the plaintiff was “okay now.”

34 In May 1984 two events are recorded in the doctor’s notes, one a fall down steps resulting in no pain then but possibly related to an episode of pain felt ten days later, when he alighted from a glider. Dr Carter was consulted, physiotherapy occurred and the matter resolved. Dr Carter, in a report of 29 September 1986 refers to this incident as involving “a partial straining to the medial capsule.”

35 On 15 May 1985, Dr Hemming records “the plaintiff twisted his left knee while playing cricket, leading to a diagnosis of muscle-tendon strain.” It is difficult, in my view, to attribute any significance to this boyhood injury. Finally, on 23 July 1986, Dr Hemming’s note indicates a flare-up of pain in the left knee. Neither the plaintiff nor his mother can recollect what this was about. It was obviously not a matter that they regarded as serious.

36 In September 1986 the plaintiff attended for an Army medical examination which was conducted by Dr Ross Cook. This examination was held in relation to his application to join the Army. He had, in answer to questions in an appropriate Army form, indicated that he had had a prior problem with his left knee. Reference was made to Dr Hemming who referred the plaintiff to Dr Carter. Dr Carter examined the plaintiff on 29 September 1986 and reported to Dr Hemming the same day. The report was obviously intended to be forwarded to the Army. Dr Carter was given a history, which I am satisfied was accurate, to the effect that the plaintiff, after the 1980 injury, had resumed active sport at school. The plaintiff’s evidence and that of his mother, amply supports this. Indeed, the plaintiff had been selected to represent the State, at schoolboy level, in the sport of indoor cricket, but was prevented from doing so only because he had broken a finger. He had played all other active schoolboy sports, such as basketball and football, without difficulties. Dr Carter considered this history when examining the plaintiff. He also considered matters raised by the Army doctor. He reported his examination as follows:-

“The examination shows that he is a very solidly built lad with strong general muscular development. I was unable to confirm any discrepancy between calf or thigh muscle girth, bulk or power. I understand there had been some question raised as to possible muscle wasting, but was unable to confirm this. In fact, I really could not detect any signs that I would regard as abnormal – there was questionably some slight tenderness on the medial aspect of the patella, however the patello-femoral mechanism seems normally orientated and is quite stable. There was no difference in the stability of the knee antero-posteriorly on the left side when compared to the right, and in all, I felt that the examination was without concern.”

37 The doctor arranged an x-ray the result of which also occasioned him no concern. He concluded that he did not “feel that any treatment is needed, I can see no barrier against him being accepted for his Army apprenticeship training…”

38 On the basis of this expert assessment, the plaintiff was accepted into the Army as a recruit. As already indicated, he was able to undergo what was clearly a rigorous program of physical training, without any problems, until the occasion of the accident.

39 After the accident the plaintiff was unable to obtain immediate treatment. It appears that he endeavoured to continue with training but pain and increasing disability in the left knee prevented his further participation. He reported to the regimental aid post at approximately 12.30pm. The relevant report shows that, upon examination, by a medical orderly, he was found to be suffering from pain below his left patella and on the medial and lateral sides of the knee joint as well as in the area behind it. There was tenderness, swelling and bruising at the time. The level of pain in the patella is recorded as being “++”. He was referred for examination to Dr Rudzki, the regimental medical officer, who, apparently, suspected damage to the plaintiff’s medial meniscus and sent the plaintiff to Seven Camp Hospital, after putting the plaintiff’s leg in a splint. Quite plainly the injury was regarded as severe, requiring specialist attention. From hospital he was taken to Wagga Wagga for the purpose of examination by an orthopaedic surgeon, Dr Huntsdale, who performed an arthroscopy which, apparently, did not reveal any abnormality within the knee. The plaintiff remained in hospital at Wagga Wagga after the procedure but, shortly thereafter was admitted back into Seven Camp Hospital where, as he said, he remained for about four months. The hospital record indicates a stay of sixty-six days. Whatever the exact period, it is obvious that it was of significant duration.

40 The plaintiff states that, whilst in hospital, he went through a process of rehabilitation involving “lots of physio, swimming, physiotherapy every day.” During this period there was an attempt to teach basic drill with a view to him joining a platoon, once he had recovered. However, the plaintiff, in evidence which I accept, indicated that he wasn’t getting much better during this period and was continuing to experience pain of a disabling kind. It appears that this was made worse by the occasional requirement that he get up onto and down from the rear of Army trucks.

41 Prior to his returning to Seven Camp Hospital, after the arthroscopy in Wagga Wagga, he was given leave for a couple of weeks and returned to his home in Ballarat for recuperation. He was on crutches at the time and continued to suffer pain. He had been instructed by the Army that, should he need further attention whilst on leave, he should consult Dr Jenkins of Ballarat, who was an Army Reserve doctor. He did so and was referred by the doctor to a Radiologist for the purpose of an arthrogram being performed on his left knee. The Radiologist reported that “the appearances indicate an incomplete tear involving the posterior one-third of the medial meniscus arising from the inferior aspect of the meniscus.”

42 Evidence has been given to suggest that this radiological finding should be discounted in view of the failure to detect any meniscal damage on arthroscopic examination. However, the plaintiff, at this time and thereafter, was experiencing locking and clicking of the left knee joint which, the evidence establishes, is a sign of meniscal damage. Moreover, there is other evidence in the case, which I accept, that this particular area of the medial meniscus can be difficult to visualise arthroscopically. Other matters referred to in the evidence are suggestive of some meniscal damage occasioned in the February 1987 accident. I am satisfied, on the balance of probabilities, that the subject accident did in fact occasion some damage to the plaintiff’s left knee in this area which, although difficult to detect has contributed to the long history of disability in the plaintiff’s left knee.

43 The plaintiff’s continuing problems in the knee led to his having a further arthroscopy, performed by Dr Shannon in Melbourne on 21 July 1987, the plaintiff then being at the Watsonia Army Base, preparatory to his discharge from the Army, on the basis of his being medically unfit. Dr Shannon had the benefit of the arthrogram ordered by Dr Jenkins. He noted that the plaintiff had improved a little but that his symptoms had reoccurred and that, when he examined him, “he was complaining of pain and a feeling of insecurity in his knee, particularly climbing up and down trucks.” On examination Dr Shannon found some tenderness on the postero-medial joint line of the knee and slight anterior cruciate ligament laxity. In view of these signs, symptoms and history he performed a further arthroscopy the results of which were as follows:-

“The arthroscopy demonstrated mild synovitis and some thickening of the infer-patella fat pad. The anterior cruciate ligament was intact but a little lax. The joint surfaces were normal, the posterior horn of the medial meniscus was considered to be slightly hyper-mobile but no tear or true separation could be demonstrated.”

44 Dr Shannon did not think reconstructive surgery was warranted but recommended an intensive exercise program. This program was apparently undertaken but did not result in any significant level of recovery. The plaintiff, in his evidence, said that he had a feeling of weakness in the knee when he saw Dr Shannon, which was not present before he joined the Army and which has never gone away.

45 On 29 September 1987 the plaintiff was medically discharged from the Army. This was clearly a significant disappointment for him as it brought to an end his intended Army career. There is no suggestion in the evidence that the plaintiff was otherwise than fully co-operative in his treatment or that his problems with his left knee were not entirely genuine.

46 As I have indicated, it is the basic contention of the defendant that the slipping incident of 25 February 1987 produced only a temporary exacerbation of a condition in the plaintiff’s left knee which found its origin in his 1980 accident. It is submitted that he, in fact, fully recovered from the effects of his 1987 accident and that the problems which he has experienced after leaving the Army, to which reference will be made hereafter, are to be laid at the door of the boyhood twisting injury, which, is said to have initiated progressive changes in the knee of an arthritic kind and which account for his on-going problems.

47 Support for the defendant’s position was sought to be gained from the findings of the Army doctor at his medical examination, which findings were said to be consistent with the early development of arthritic changes in the patello-femoral joint and in the knee cap, I am satisfied, however, that these matters were fully investigated by Dr Carter, who found no signs of any such problems and, indeed, as already indicated, found no reason for concern about the plaintiff’s left knee.

48 Moreover, the evidence of the plaintiff and his mother clearly indicates that after recovery from the previous injury he was able to undertake all manner of sporting activities without significant problems in the knee. In contradistinction, the plaintiff’s slipping injury in 1987 clearly traumatised his knee joint to a significant extent. The complaints of pain were severe and covered, apparently, all aspects of the knee. Indeed, the effects were so severe that he was never able to resume training despite his strong desire for an Army career. He spent a considerable period of time in hospital and, before discharge from the Army, he submitted to arthroscopic examinations of the knee which, clearly, would not have been undertaken in the absence of his continual severe pain and disability. Common sense would appear to indicate that the Army injury was no mere exacerbation of an earlier condition but was a new and significant injury.

49 The defendant, however, relies on other medical evidence in the case in support of its claim that the true source of the plaintiff’s left knee problem is to be found in the 1980 accident. This claim is bound up with the on-going enquiry, in the unfolding medical evidence in the case, as to what was the exact basis of the plaintiff’s knee problems. I will refer to this evidence in some detail later in these reasons. However, for present purposes it is sufficient to indicate that the main areas of investigation have been, (a) possible damage to the medial meniscus; (b) damage to the anterior cruciate ligament leading to laxity and/or detachment and (c) chondromalacia of the patella, connected with sub-luxation of the patella. The various diagnoses related to these areas have led to operative interventions by various surgeons. The present question, however, is whether any of these problems can be regarded as properly attributable to the 1980 twisting accident.

50 As I understand the evidence, it has not been seriously suggested that there was, in that incident, any damage to the medial meniscus. However, Dr Brink, to whose evidence I shall refer later, considered that damage to the anterior cruciate ligament could have been occasioned in the 1980 accident. I am satisfied, however, that the evidence of Dr Coolican, called on behalf of the defendant, in relation to other aspects of the claim, rules out the 1980 accident as having caused anterior cruciate ligament damage. He said that it was a most unlikely occurrence in an accident occurring to a boy of eleven years of age. This view was supported by other evidence in the case to which it is unnecessary to refer. I am satisfied that the weight of medical evidence is against this proposition.

51 The third possibility, of chondromalacia patellae having developed as a result of the 1980 incident and having progressed to the point of occasioning serious disability to the plaintiff was espoused by Dr Coolican. Dr Coolican was qualified on behalf of the defendant and had not conducted any treatment or performed any operations in relation to the plaintiff’s knee. I think that, in approaching his opinion, he has given too little weight to the apparent severity of the 1987 injury. I prefer the evidence of Dr Khan who operated upon the plaintiff’s knee in 1993 and found that the condition of chondromalacia behind the left patella was very severe and, in his view, was a major contributor to the plaintiff’s problems. He gave consideration to the 1980 incident and the other occasions, to which I have referred, when the plaintiff’s left knee apparently troubled him before the accident in the Army. He also considered the reports of Drs Beetham and Carter. He gave oral evidence in the case and I formed the view that he was a reliable witness. His opinion was that, on the probabilities, the plaintiff had fully recovered from the 1980 accident before 1987 and that the chondromalacia was attributable to the Army accident alone. This was also the opinion of Dr Beetham in a report given in April 1992. Quite apart from common sense considerations to which I have referred above, I consider that the weight of medical evidence favours the view that the plaintiff’s problems stem from his accident in the Army and not from any pervious injuries or incidents.

The Plaintiff’s Increasing Problems in the Left Knee

52 As it is part of the defendant’s case that supervening events have caused the plaintiff’s continuing problems in his knee, with the result that the area of the Army’s liability is limited, it is necessary to have regard to the plaintiff’s medical, working, and domestic history since his discharge from the Army. It is the plaintiff’s case that he has never been free from problems in the left knee, that they have progressively worsened and will continue to do so. It may be noted, at this stage, that notwithstanding his complaints of pain and disability, the plaintiff has continually sought employment. His employment history will appear later in these reasons. The plaintiff was married on 9 April 1988. There has been five children of the marriage.

53 The plaintiff was in receipt of sickness benefits until he obtained employment as a delivery driver for a firm in Ballarat, on 17 January 1988. The work involved delivering parcels from the railway to the premises of the addressees. He was able to perform this work as long as he “was not bearing weight”. However, increasing pain led him to consult his general practitioner on 5 February 1988, who referred him to Mr Nelson, an orthopaedic surgeon. By the time he saw Mr Nelson in March 1988, he had obtained a second job working as a security guard, but had left it because he had suffered an assault whilst working. Also, he had developed an additional problem in the left leg. He described it in the following terms: “The leg was always a purple blue colour, very cold and tingling in the feet.” This was obviously the onset of a serious condition known as reflex sympathetic dystrophy, to which he became regularly subject, as a result of the injuries to his knee and their treatment. I shall make further reference to this problem later.

54 Mr Nelson provided a report of 29 July 1988. Even at that early stage, he described Mr Elliott as having “a rather long and complex case, with many factors involving continuing symptoms.” On clinical examination he found signs of reflex sympathetic dystrophy and a “rather irritable patello-femoral joint”. He undertook a further arthroscopy “for diagnostic and hopefully therapeutic reasons”, accompanied by a guanethidine block, administered by an anaesthetist, to help in coping with the reflex dystrophy problem. No significant abnormality was found. The block produced an improvement in the symptoms in his knee, which was only temporary. The doctor noted that Mr Elliott had embarked on an intensive rehabilitation program and expressed the optimistic view that if he continued with it, he should have no significant long term disability. The doctor had found no signs of meniscal injury. He had, however, noted minor ligamentous laxity, which he thought was probably associated with the original injury. He also felt that the twisting injury in the Army had aggravated some earlier patello-femoral symptoms and “because of a pain problem, he developed a mild degree of reflex sympathetic dystrophy”. Unfortunately, this early optimism has not been borne out by Mr Elliott’s subsequent medical history.

55 Dr Nelson saw the plaintiff again on 24 July 1990 when he was complaining of some recurrence of knee pain and “some symptoms suggesting recurrent reflex sympathetic dystrophy”. A repeat guanethidine block was administered on 7 September 1990 which “improved his circulation and he lost the coldness and blueness around the knee”. On 25 October 1990, on further examination, Mr Elliott was “having some low grade anterior knee pain with repetitive activity and squatting and kneeling”. A further arthroscopy, in the doctor’s opinion, was not warranted. Dr Nelson considered that Mr Elliott was having recurrent symptoms related to his patello-femoral degenerative disease, with recurrence of sympathetic dystrophy. He was hopeful that the problem would not recur, however, he commented that “once the articular cartilage of any joint has been damaged, there is a fairly high likelihood that low-grade symptoms will persist in the future”.

56 During this period Mr Elliott had commenced employment with the Australian Protection Service (“APS”) on 15 July 1988, as a protection service officer grade 1. He started work at the Government Aircraft Factory in Port Melbourne, primarily performing watchman duties. These involved walking, patrolling and checking doors and gates. He followed this occupation for about four months. He was able to do the work and liked it. By the time he returned to see Dr Nelson in March 1990 he was working for APS at a Detention Centre at Marabarong, Victoria. The Centre was used for the housing of alleged illegal immigrants. The plaintiff had custodial duties, which involved escort work, picking up the detainees and taking them to Court.

57 He was next assigned to Melbourne Airport to work in a counter-terrorist unit. He returned to see Dr Nelson because of “general knee pain and also pain up the kneecap.” The work at Melbourne Airport involved an increased requirement to walk, the plaintiff spending the majority of the day on his feet. The physiotherapy treatment ordered by Dr Nelson and the sympathetic lumbar blocks were of some assistance, but he was still experiencing pain and instability in the knee. Indeed, on 1 May 1992, whilst he was walking down a non-operational escalator at Melbourne Airport, his left knee gave way, causing him to fall.

58 It appears that in mid 1992, the plaintiff developed some emotional problems as a result of conflict with a supervisor at his work, who, apparently, took a very unsympathetic attitude towards the plaintiff’s problems with walking and negotiating stairs. He was also experiencing significant problems in relation to coldness and blueness of the knee. He had “a big argument” with the supervisor, as a result of which he was absent from work for a period, on stress leave. He consulted a psychiatrist because of his emotional concerns. The psychiatrist recommended that the plaintiff be given leave.

59 By the time of the occurrence of these problems, the plaintiff had obtained specialised training with APS in relation to bomb appraisal. This involved taking appropriate measures to determine whether articles left at the Airport contained explosive devices. The work required that the plaintiff be able to identify explosives and use x-ray equipment. He said “he pushed himself” and was able to perform the work. However, discomfort in the knee continued.

60 In December 1992, because of on-going problems with the knee, Mr Elliott’s local practitioner referred him to Mr M. A. Khan, an orthopaedic surgeon, to whom I have already made reference, and who practised in Melbourne. At that time the plaintiff was complaining of pain in the left knee and intermittent locking of the knee. He was able to get the knee moving by self-manipulation. The pain was described by the plaintiff as being “such that he felt as if there was a golf ball stuck under the articular surface of the patella.” An arthrogram had been performed on 25 November 1992 which showed “significant widening of the inferior recess of the medial meniscus in its posterior one-third, with appearance indicating old partial peripheral detachment of the meniscus”. Mr Khan arranged for Dr Rosengarten, a specialist in reflex sympathetic dystrophy to place the plaintiff on some medication. He also received a phentolamine fusion from Dr Rosengarten, which was of assistance in relation to the performance of his work. A CT scan, performed on 22 December 1992 had shown “mild lateral sub-luxation of the left patella, with the knee extended.”

61 It appears that Mr Khan was satisfied to keep the plaintiff under observation, without, at that stage, contemplating operative intervention.

62 Unfortunately, on 9 August 1993, the plaintiff suffered an accident at work. He was descending what he described as a disused stairwell at Melbourne Airport and caught the back of his left heel on the steps. Because he had difficulty bending the knee, he fell down the stairs. The problem in bending the knee had been gradually increasing since the 1987 accident. This had caused him to negotiate the stairs, in a somewhat awkward fashion.

63 This incident achieved some prominence in the case, because it later became the basis for claims by the plaintiff for Workers’ Compensation payments in respect of his absence from work and medical expenses because of left knee problems. These payments were made by ComCare, which insurance organisation also financed treatment by Mr Khan, which was provided to the plaintiff in 1994. Before coming to that, I should indicate that the plaintiff’s evidence satisfies me that, at least in 1993, the condition of his knee was requiring that he took considerable periods of time off work on sick leave, with the result that he, in fact, exhausted his ordinary sick leave entitlement. The amount of time he was taking off was producing difficulties with the management of APS, especially in relation to the continuance of his work as a bomb appraisal officer. After a period off work and return on restricted duties his licence to carry out this work was suspended. This involved a drop in pay, which forms part of his claim for economic loss.

64 The fall on 9 August 1993 actually occurred on a day when he had appointments to see Mr Khan for a check-up and also Dr Rosengarten. When he saw Mr Khan the knee had started to hurt, it was aching in the front and clicked at times. On 1 October 1993, he saw Dr Khan again, who reported that he still had some pain along the antero-lateral aspect of the knee and some pain along the medial border of the left patella, with a mild ache in front of the knee joint when it was flexed. Clicking was still occurring, together with a tendency of the knee to laterally sub-luxate. Mr. Khan advised him that he might require an operation for realignment of the patella, which could cause a flare-up of “the pre-existing reflex sympathetic dystrophy, which would be controlled by Dr Rosengarten.” In his report of 15 October 1993 to ComCare Australia, the doctor advised that the plaintiff required an arthroscopy to the left knee to be followed by a patella tendon realignment procedure to prevent the patella laterally sub-luxating. This had become a problem since the accident on 9 August 1993. He said, “The injury on 9 August 1993 has considerably further aggravated the pre-existing relatively quiescent condition of laterally sub-luxating patella in his left knee.” The doctor noted that the plaintiff was “unable to perform activities requiring excessive kneeling, bending, climbing stairs, keeping his knee flexed for long periods, or lifting unduly heavy weights.”

65 As an issue has been raised in the case as to whether the problems following upon the accident of 9 August 1993 should be related to that accident and to no other, it is convenient that I now make the following finding. This accident was, in my opinion, caused by the plaintiff’s pre-existing condition of instability in the knee, occasioning awkwardness in negotiating the stairs, and, as such, was clearly causally related to the injury sustained in the 1987 training accident.

66 It appears that authorisation for the operation was provided by ComCare. It was carried out on 4 November 1993, when, with use of the arthroscope, Mr Khan found “fairly advanced changes of chondromalacia behind the plaintiff’s knee cap which required chondroplasty and shaving of the affected segment of the patella”. There was a recent flap tear of the articular surface of the patella in the superior aspect, lying transversely. This appeared to be due to the fall in August. He reported that “the rest of the patella revealed fairly extensive but early changes of chondromalacia, with Grade 1 softening of the articular cartilage which was oedematous and in places about to break down.” As the patella had only a mild tendency to sub-luxate, the re-alignment procedure was not, in fact, carried out.

67 Mr Khan’s advice to ComCare was that, with prescribed exercises and, perhaps, some pool therapy, without undue strain on the knee, there was no reason why the knee should not get stronger. However, he said that the plaintiff was “likely to have some pain in the knee, due to the chronic and extensive nature of the pathology.” Mr Khan provides a post-operative history of the plaintiff being followed-up in his rooms on eleven occasions from 16 November 1993 to 21 October 1994. The plaintiff used a walking stick for the first period of two months and was considered fit for light duties working four hours per day from 22 February 1994. The plaintiff was advised to avoid kneeling, bending, climbing stairs up and down and performing strenuous activities involving his left knee. After some initial improvement, the plaintiff had a flare-up of pain involving him ceasing work after 4 August 1994, when he had a further fall at work. When the doctor saw him on 9 August 1994 he was using crutches and the left knee was bandaged.

68 In a long report of 30 December 1994 to ComCare, Mr Khan advised that no further surgery was then required and that the plaintiff’s condition was likely to improve if he were given suitable alternative duties of a sedentary kind. Even in those duties he should be given “some facility to stretch-out and rest the knee every hour for five months or so in the early stages.” He was not fit for his normal duties as a Patrol Officer for the APS, although he could work in the control room performing sedentary duties. Such duties should be allocated on a permanent basis. He had become, because of his long history of suffering, a very sensitive person requiring consideration by his employers and “proper understanding of his condition to enable him to work in a healthy environment.”

69 I note that these views were, in general, supported by Dr Hart, an orthopaedic specialist, to whom Mr Khan had referred the plaintiff and who also reported to ComCare.

70 When the plaintiff returned to work, he was transferred from duties at Melbourne Airport to a Diplomatic Consulate Patrol, in a Melbourne suburb. He was able to do that work which was “primarily static duties outside the Consulates.” After a couple of months he was transferred to Gate House duties at an Immigration Detention Centre. It was light work but had a particular problem in that, in order for it to qualify as light duties, the plaintiff was required to have a companion working with him. During this period, the plaintiff, for one reason or another, saw a number of medical practitioners, on referral from Mr Khan, his general practitioner, and physiotherapists who were treating him. One such doctor was Mr Kim Boyden, a rheumatologist, who changed the medication that he was on and gave him cortisone injections.

71 The plaintiff resigned from APS on 6 April 1995 because, in his view, he was receiving unfair treatment from the management. There was some objection being taken to the restrictions placed upon the plaintiff’s work. These involved a requirement that he have a companion. This arose from the fact that there was a need to control the boom gate associated with the Gate House and also to answer telephones. This created a problem for the plaintiff in relation to moving and stretching in order to perform the jobs at the same time. This led to the requirement that he be assisted by another employee in the performance of these duties.

72 Apparently, the supervisor approached him and queried this requirement in the medical certificate. He was visited several times during the day by Chief Inspector Delmonte, who did not approve of the requirement that the plaintiff should not work by himself. The plaintiff, obviously, took great exception to the tone of the inquiry, which he described as “sarcastic”. He had a genuine problem in carrying out the work alone. He could not work alone in the gate house with the phones ringing. Apart from over-balancing if he had to stretch out, apparently to reach the phones, he was required to leave the gate house to search vehicles when they came to the boom gates after leaving the premises. In these circumstances, he was not able to run back in to answer the phones as well. He could search the vehicles providing someone was in the office to answer the phone and vice versa.

73 Obviously, the plaintiff felt insulted by Mr Delmonte’s queries and by his attitude to his disability. At the end of his shift, he was in an emotional state. He returned home, wrote out a resignation and left his employment with APS.

74 At this time the plaintiff, according to his evidence which I accept, had very definite restrictions on his capacity to work. He could not run. He could not stand without difficulty for more than half an hour because of pain in the leg and low back, notwithstanding his regime of pain killing drugs. The pain could be relieved if he was able to sit as well as stand. He had problems negotiating stairs, particularly going down, because of the awkwardness of his gait. He experienced instability. He felt, correctly in my view, that he would not be able safely to carry out the range of duties involved in being a bomb appraisal officer. It appeared that the only work that could be made available to him at APS was the work he was doing and this could only be available if he had the level of assistance to which I have made reference. It was clear to him that APS did not wish to provide this level of assistance.

75 There is an issue in the case as to whether his cessation of work with APS, and any consequent loss, was occasioned simply by his own decision to resign. I have come to the conclusion, that he was justified, having regard to all the circumstances, in tendering his resignation and seeking more congenial employment, that he could cope with. I should add that he had commenced to suffer pain in his low back, as a result of his difficulties with posture. In one instance he had suffered back strain when removing a brief case from a car in January 1995, the strain being occasioned by the awkwardness of his movements resulting from the instability of his knee.

76 Furthermore, it was brought out in cross-examination and re-examination of the plaintiff that, from about June 1992, there was animosity displayed towards Mr Elliott by his immediate supervisor, Mr Blackwell and the officer in charge of him, Mr Porter. This appears to have related to some disbelief, or at least scepticism, on their part that Mr Elliott’s injuries were in fact as disabling as they appeared. As indicated, Mr Elliott had claimed against ComCare in respect of time off work and medical expenses occasioned by his fall on 9 August 1993. It appears that the two men sought to cast doubt on the genuineness of this claim. This led to an unpleasant exchange of correspondence between ComCare and Mr Elliott. It appears that the two men were later disciplined as a result of a complaint made by someone other than Mr Elliott. This led to a hearing in which Mr Elliott gave evidence. Some time was spent in dealing with this issue in evidence. In my view, its only real significance is that it provides a further indication of why Mr Elliott reasonably sought to resign from the organisation when he did and seek employment elsewhere. However, I am quite satisfied that he could not, having regard to his disability, have continued any longer in the employ of APS. The gate-house job could only have been very temporary.

77 With the assistance of a friend who worked in the organisation, the plaintiff obtained work on 9 April 1995 with an organisation called National Fire and Security. At the commencement of this employment he learnt to service equipment such as fire extinguishers and fire hoses, and was then employed in the selling side of the organisation. This involved him in going to various locations, conveying equipment in a vehicle with manually operated gears. He was able to do the work with some difficulty. He had problems in carrying the equipment and in coping with ascending and descending ladders when installing smoke detectors. He worked with the organisation for five weeks when he left, having received an offer of a position with another company operating in the same field. This was Fire Power Australia. He worked with the company from 1 July 1995 to late November 1995. However, during this period he underwent further surgery. Fire Power Australia was clearly only a two person organisation, consisting of the owner and Mr Elliott, as the sole employee. At first Mr Elliott was able to cope with the work, because the owner was able to assist in some of the heavier tasks. Notwithstanding this, I accept that Mr Elliott suffered an increase in pain in the kneecap region when the work required walking, standing and driving the vans. The level of activity was greater than required at APS. It is clear that, on a fairly regular basis, Mr Elliott was seeking the assistance of physiotherapists. The physiotherapist who was treating his knee at this period was a Mr Horvath. Mr Horvath recommended that Mr Elliott seek assistance from an orthopaedic surgeon, in whom he had faith, Mr Craig Mills. It would seem, also, from Mr Mills’ reports, in Exhibit B, that referral had also occurred through Dr Boydon, the rheumatologist that the plaintiff had earlier consulted.

78 From his report of that date, it appears that Mr Mills discussed with Mr Elliott the state of his knee, on 20 October 1995. He had a CT arthrogram available which demonstrated “the same curvi-linear tear in the posterior horn of the medial meniscus” as shown on previous arthrograms. Mr Mills suggested a further arthroscope. It is some indication of the plaintiff’s level of disability and concern that he was prepared to undergo yet another arthroscopic invasion of his knee. Mr Mills regarded it as reasonable for diagnostic purposes but, apparently, did not hold out much hope of offering any significant improvement in Mr Elliott’s symptoms. ComCare agreed to the proposal and it appears that the operation took place on 3 November 1995. As previously, the arthroscopic examination did not confirm the medial meniscus damage which had appeared in the arthrogram. However, Mr Mills observed “significant lateral facet patella ulceration and thinning of the articular cartilage, together with signs of Mr Khan’s previous surgery. The patella was “eccentrically located at about 20-40 degrees of knee flexion.” Mr Mills performed a partial lateral release. There were no post-operative problems and Mr Elliott was returned to Mr Horvath for further physiotherapy.

79 Mr Elliott states in his evidence that there was a little bit of improvement after this surgery in the patella pain but that he still had instability in the knee. The plaintiff actually returned to work briefly with Fire Power Australia in late November 1995 but left shortly thereafter. He was still concerned about instability in relation to carrying out work on ladders, he continued to suffer some pain, and, as well, he was not being paid properly for his work.

80 Thereafter between January and February 1996 he was employed in a labouring position by an organisation, Gust Trade Services. His work appears to have consisted, mainly, in removing aluminium panels during the refitting of service stations and taking them to a dump site. He was assisted in this work and, generally speaking, could avoid putting strain on his left knee. The job was only temporary. It did not require him to use ladders.

81 On 22 April 1996, having successfully applied for a job that was advertised, he commenced work as a prison officer with the Victorian Department of Justice. His previous experience with APS, apparently, assisted him in obtaining the job. He commenced work at Pentridge Prison in Coburg, Melbourne, starting off on gate house duties. He was also employed on tower duty, which involved him climbing and descending a stairway. He was able to cope with this by evolving a method, with the help of his physiotherapist, which he described as “my good leg up bad leg down”.

82 Shortly afterwards he was moved to another area, the Pentridge Management Unit, which was a more secure area of the jail, used as a discipline section for prisoners who had misbehaved. His duties included searching of prisoners, escort duties, mustering of prisoners, providing meals for prisoners and escorting them to the showers. He continued to have knee symptoms but was able to “push” himself to get the work done. He managed in this way until 4 September 1996 when he suffered a further accident. He was on patrol during nightshift in a part of the prison where there was some muddy ground. His left knee gave way. He observed that his kneecap was in a dislocated position. It was painful and there was swelling around it. It had moved towards the inside of the leg and he was experiencing, in the area, a very sharp pain and a burning feeling. He contacted the medical staff. Ice was placed on the knee and he ceased duty. He immediately went to see his local doctor, who referred him to Mr Mills. Mr Mills reported, on 3 October 1996, that he had sustained a probable sub-luxation of his left patella and had had significant dysaesthesia distally laterally and also had had some significant pain. Physiotherapy was prescribed, there being no indication at that stage for major surgery.

83 Mr Mills also organised an MRI scan of the knee on 25 November 1996. In January 1997 he saw Dr Vote in Sydney. This was, apparently, a medico-legal appointment. There is no need to refer to Dr Vote’s report. It seems that the plaintiff was by then back at work but was still suffering instability in his knee which he rated as being the same as previously.

84 It is clear that Mr Elliott was still hopeful for a cure through surgery. His general practitioner Dr Dowd referred him, on 28 January 1997 to Mr Rodney Brink, an orthopaedic surgeon, in Geelong, apparently, on the basis that he had a reputation for achieving success in knee surgery. At this time Mr Elliott was working in the records section of the prison. Since the dislocation of his kneecap on 4 September 1996 he had not been permitted to have any prisoner contact. However, it is clear that the knee was sufficiently troublesome for him to contemplate the possibility of further surgery.

85 In his report to Dr Dowd, Mr Brink noted that the plaintiff was working on sedentary duties four hours per day at the Coburg prison and that his present specific symptoms were antero-medial, antero-lateral soreness in the knee, aggravated by squatting and stairs and kneeling, with the knee tending to give way typically when he was walking about the supermarket or in the shower. Mr Brink referred to the plaintiff’s history and expressed the view that he had “a significant incompetence of the anterior cruciate ligament.” He based that view upon the Lachmann test, a diagnostic procedure, the nature of which need not be set out. He further said:-

“Quite commonly, I find that such ligaments look normal on inspection, but with careful probing one can see a very stretched ligament. If it is detached and of very poor bulk, it can sometimes still be re-attached and if it is “stretched but intact”, I find that such ligaments can be tightened by placement of slowly dissolving sutures arthroscopically, brought out through two small drill holes in the lateral femoral condyle and if one can stabilise these knees their irritation often diminishes. I don’t think his knee is ever going to be cured and back to normal,, particularly in view of the visible chondromalacia on the patella, but I believe that if there is significant chondromalacia, then if the patella is rendered dead central in the groove and all tilting and tracking eliminated, then almost universally discomfort in the knee diminishes.”

86 Mr Brink said that, if this surgery were undertaken, it might be possible at the same time to do something to the medial meniscus “which appears radiologically suspect and commonly develops progressive pathology in the face of cruciate insufficiency.” It may be noted that although earlier reports had spoken of possible laxity in the anterior cruciate ligament, this was the first time that it had been suggested that the instability and pain in Mr Elliott’s knee could be directly related to that cause. Of course, Mr Brink did not rule out pain arising from the established chondromalacia.

87 It appears that ComCare authorised the undertaking of this operation. It was performed on 6 February 1997.

88 On arthroscopic examination Mr Brink formed the impression that there was a partial peripheral tear of the medial meniscus that had partially or completely healed, this being consistent with the arthrogram appearance. The anterior cruciate ligament looked normal although there was a small nodular area in its mid portion which was consistent with a small partial thickness in situ tear. On probing he found that this ligament was “clearly lax and could be stretched to an abnormal degree across and in front of the posterior cruciate ligament”. He formed the view that it was a “stretched but intact ligament”. He determined to tighten it by appropriate placement of sutures. As I did not have the benefit of Mr Brink’s oral evidence but had to rely entirely upon his report and operation notes, I can only assume that the operation carried out was intended to take up the slack in the ligament by placing sutures and attaching them through drill holes in the femoral condile so that the sutures could be drawn through them on either side of the ligament, gathering it up and thereby tightening it. The doctor said that:-

“This restored visible and palpable normal tension to the ACL whilst not apparently diminishing its bulk.”

He also did some work on the medial meniscus, which I interpret as puncturing it with a suture needle “to encourage insubstance neo vascularisation and further stabilisation of the presumed partial thickness tear.” He also did some smoothing of the unstable articular cartilage on the patella, by shaving it.

89 After the operation there was some recurrence of “sympathetic dystrophy features” which was shortly thereafter treated by Dr Peter Blombery a physician who specialised in the treatment of that complaint. It was characterised as usual by colour change and coldness in Mr Elliott’s leg. It had appeared immediately after the surgery. Dr Rosengarten who had treated the plaintiff previously for this post-operative complication had died. On 24 February 1997, this complication was further treated by the administration of sympathetic lumbar blocks.

90 It appears that, after the effects of the operation had settled down, the plaintiff returned to work in the prison system. On 14 August 1997, after he had been working at Bendigo prison for six or seven weeks, he suffered a further incident. He says that he was walking from the main building out into the courtyard. He was going down a step when the left knee gave way causing him to fall to the ground. It was such a quick event that he couldn’t describe it but it was accompanied by a lot of pain and swelling to the knee. It happened when he put weight on his left leg. The pain was right inside the knee itself.

91 Before this incident he had been working “just basically supervising prisoners”. So far as the knee was concerned some days would be better than others. He was, however, as usual, taking painkilling and anti inflammatory medication during the day and at night time. I should add that the taking of medication had, in 1996, produced a gastric ulcer that required treatment. This is an on-going problem.

92 He does not appear to have had any specific treatment for the August 1997 injury but, in early December 1997 he was admitted to hospital in order to receive a Clonodine Epidural Infusion to cope with a recurrence of reflex sympathetic dystrophy producing the usual symptoms of blueness of colour and coldness of the leg, together with generalised aching. The infusion produced improvement for a couple of months. The medical evidence establishes that this condition is both chronic and disabling in itself, besides exacerbating the other problems with the plaintiff’s knee.

93 The plaintiff’s knee continued to trouble him. He had pain, instability and locking. His local practitioner, Dr Dowd sent him back to Mr Brink who advised a further arthroscopic examination. This was conducted on 6 January 1998. No abnormality was found in the meniscus but, Mr Brink reported that: “The ACL previously repaired was not impressive. It had good external appearance but it really hasn’t tightened up very well.” However, he said that he was “not at all convinced that I should remove the ACL and replace it with a graft.” There was some mal-tracking of the patella which had developed since the previous surgery. He corrected this with a “lateral release” and a very small medial retinecular plication. There was a redevelopment of “dystrophy features, for which he was referred to Dr Blomberry”. Suggestions were made for further specialised physiotherapy.

94 The plaintiff was disappointed with the result of this operation. He says that the instability got worse than it had been previously. He undertook the physiotherapy that had been suggested. After one of the floor exercises had been completed and he was getting up, he heard a loud crack from his knee, after which the instability in his knee became a lot worse.

95 The plaintiff did not return to work at the prison complex at Bendigo because by the time he had recovered from the surgery his contract had expired. Because of the condition of his knee he could not be accepted for re-employment. He said that he was basically informed that it would be a waste of time to apply.

96 It is clear that the plaintiff was still hoping that the medical profession could effect some worthwhile cure of his knee problems. In June 1998, his then general practitioner, Dr Hassett of Ballarat, referred him to another specialist orthopaedic surgeon, Mr Andrew Byrne, who saw him on 29 June 1998. Mr Byrne reviewed the procedures performed by Mr Brink together with photographs of the procedure which he said confirmed: “An abnormality with marked attenuation of the anterior cruciate ligament. The ligament on several views has been completely detached and tightened with sutures. He noted the reflex sympathetic dystrophy problem and the previous efforts to correct it and that Mr Elliott’s chief concern, at that point, was instability affecting the knee with trouble walking and changing directions. There was also difficulty bending the knee with pain over the entire knee. There was 50% quadriceps wasting, the Lachmann test being consistent with anterior cruciate deficiency. It appears that Mr Elliott had had an MRI scan which had been administered between the time of Dr Brinks’ first and second operations. Mr Byrne considered that the report of the scan was not entirely accurate and that the anterior cruciate ligament was at that time “bow stringing through the knee joint rather than being tight.” Also, in his view, there was evidence of an “insubstance tear and marked attenuation of the ligament”. There was also something abnormal at the femoral attachment of the ligament.

97 Dr Byrne regarded the problem as being extremely complex and was cautious about recommending any interventional therapy. He suggested that stabilisation surgery together with reassessing the medial meniscus should be considered only after Mr Elliott had regained quadriceps strength and movement of his knee.

98 In October 1998 the plaintiff was seen by Dr Neil Shorney a pain management specialist who readjusted his pain medication. It is not clear to me why the plaintiff saw Dr Shorney, but it may have something to do with the fact that Mr Byrne was to operate the following month. The operation occurred on 4 November 1998. Arthroscopic examination of the patello-femoral joint showed normal tracking of the patella with minor articular damage only. I do not know how this finding squares with previous findings of chondromalacia patellae and damage to the articular surface of the patello-femoral joint. It seems to be one of the many mysteries of this case.

99 There was a small marginal tear of the medial meniscus in its mid portion and a small radial tear of the margin of the lateral meniscus. There was a complete rupture of the anterior cruciate ligament from its femoral attachment. The ligament was quite lax and non-functional. A very tight 9mm graft was created and inserted into the femur and tibia and screwed into position. Again, in the absence of any explanation from the surgeon, I assume that this graft was intended to take place of the now useless anterior cruciate ligament. After the operation Dr Shorney undertook treatment for sympathetic dystrophy.

100 Mr Elliott’s misfortunes continued. There were complications after the surgery. In particular, he developed a deep venous thrombosis requiring hospitalisation and treatment with Heparin and Wafarin. This, apparently, produced gastro-intestinal difficulties requiring gastroscopy. It was thought that the deep venous thrombosis was related to some blood abnormality and this was also investigated.

101 Apart from these complications, the anterior cruciate stabilisation was successful in enabling Mr Elliott to regain quadriceps strength and improve the function of his left leg. However, Dr Byrne was not hopeful about the future. In his report dated 31 May 1999 to the plaintiff’s solicitors he said:-

“Mr Elliott does have full thickness articular loss involving the medial aspect of his knee which will lead to further problems for him in the future of a degenerative nature. He may require further arthroscopies in the future to debride the joint and ultimately will undergo further failure of the bearings in his knee leading to the need of a total knee replacement at a young age.”

The doctor also referred to the sympathetic dystrophy problem and to the fact that the deep venous thrombosis had been quite resistant to medical therapy. Dr Byrne in that report and the subsequent one provided information as to the on-going cost of treatment and medication.

102 In relation to his finding that the anterior cruciate ligament was completely ruptured, he expressed the view that this may have occurred during the rehabilitation exercises, referred to above, in which Mr Elliott heard a loud crack in the knee joint. I think that this is likely and answers the criticism, apparently made by Dr Coolican of Dr Brink’s operation, suggesting that this might have been the occasion of the complete femoral detachment of the anterior cruciate ligament. I think the probabilities favour the view that it was detached as a result of this further accident during the course of exercises.

103 Unfortunately, the beneficial effects of Mr Byrne’s operation did not persist. On 12 May 2000 the plaintiff experienced another incident whilst crossing a road. He was moving somewhat more quickly than usual because it had just started to rain. Whilst doing so he felt a very sharp pain inside the knee. Also, he experienced some recurrence of sympathetic dystrophy, requiring the administration of a block by Dr Neil Shorney in August 2000. During this period the plaintiff was working at various occupations, to which it is more convenient to refer later. Various aspects of this work involved walking, which the plaintiff did with some difficulty.

104 On 30 September 2000 his work came to an end because he had another incident where the leg completely gave way whilst he was putting on his trousers. He fell to the floor. He returned to Mr Byrne who examined him and recommended further surgery. This was carried out on 13 December 2000 and is the subject of a full report to the plaintiff’s solicitors by Mr Byrne, dated 27 February 2001. The report indicates that there had been ongoing treatment by the doctor throughout 1999 after the previous operation. The doctor refers to the August 1999 incident, after which there had been some swelling for which the doctor had recommended conservative treatment and physiotherapy. Some Synvisc injections were administered in November 1999 to assist in the alleviation of knee pain. Physiotherapy was assisting Mr Elliott and he was just taking a pain killing drug, apparently on a daily basis.

105 On 16 May 2000 Mr Elliott reported a further incident when he had suffered pain in the knee. The doctor considered this was due to quadriceps wasting which required treatment by the physiotherapist. By 10 July 2000 Mr Elliott was reporting “extensive intermittent problems regarding his left knee and also symptoms of sympathetic dystrophy to be attended to by Mr Shorney”. The incident when the knee gave way whilst Mr Elliott was putting on his trousers was reported to the doctor on 3 October 2000. He was experiencing significant symptoms which led the doctor to recommend a diagnostic arthroscopy. This was performed on 13 December 2000.

106 In this operation Mr Byrne found a radial tear of the mid zone of the lateral meniscus, which was a new tear requiring a one-third lateral meniscectomy. Articular damage was evident in the lateral and medial compartments of the knee which required debridement. There was a marginal tear to the medial meniscus which was treated. The anterior cruciate graft was intact as was the posterior cruciate ligament. There was articular damage to the patello-femoral joint involving the trochlea with significant articular change over the lateral facet of the patella. This was also debrided. Dr Byrne gave the following opinion:-

“Mr Elliott’s knee complaint has progressed. I believe that Mr Elliott’s multiple injuries over many years have led to the articular damage in the patello-femoral region and now over the medial compartment of his knee joint. This has also led to meniscal tears which have required multiple surgical procedures to treat.
Mr Elliott’s knee will deteriorate with time to a point where articular damage will reach the stage where no further arthroscopic intervention is possible. Ultimately, a new knee may be required should symptoms warrant in the future.”

107 This appears to be the current medical position in relation to Mr Elliott’s left knee. In this review, I have not mentioned his regular treatment by physiotherapists and local practitioners. This appears to have been almost continuous. Also, as might reasonably be expected, Mr Elliott suffered from reactive depression from time to time for which he has received psychiatric assistance and has taken anti-depressive medication. It is reasonable to assume that these problems will occur from time to time in the future.

108 It is necessary to make some reference to the plaintiff’s employment history since the failure to have his contract renewed with the Victorian Department of Justice.

109 It appears that the plaintiff’s position with the Department of Justice was not formally terminated until 29 July 1999 but that from 23 August 1998 he was, in effect, on leave without pay from that department In the meantime, he was provided with rehabilitation training through ComCare. This was in the field of private investigation work. The training was given to him in Sydney. According to his evidence, it involved training in surveillance techniques, photography, dealing with written instructions and producing written statements. At the conclusion of this training he found himself a job with a firm Trevor Anthony Investigations. His work was “primarily WorkCover investigations” which were conducted “anywhere in Victoria.” He was required to drive a car but was provided with an automatic vehicle. The best week’s work in this job was one of fifty hours, but the work was performed on sub-contract and depended upon its availability.

110 He left this job because he was not making sufficient money, it being suggested that his employer was slow in paying his accounts. He says that ComCare was providing some amounts in addition to his earnings.

111 In June or July 2000 he obtained some private investigation work with a firm called Hughes Investigations, as a result of answering an advertisement in a newspaper. He had difficulty in doing the work, particularly that part of it which had to be performed on foot, such as following a surveillance target in a supermarket or shopping centre. He only received individual days of work. As a result of his need to attend a medical appointment, his particular job was given to another person, with the result that this employment disappeared.

112 On 7 August 2000 he obtained further work as a security officer for a firm Loss Prevention Risk Management which involved him working at a department store in Melbourne called Daimaru. He was employed as a loss prevention officer, grade 2. The work included monitoring cameras, apprehension of suspected shop thieves and also some auditing work “within the different departments”. His previous experience in prisons and investigation work enabled him to obtain this job at grade 2 level. His leg presented difficulties, particularly when there was a necessity to apprehend a possible offender. He says that towards the end of a shift it would be “pretty sore”, as a shift would involve walking around the store three or four times a day. At times he was able to rest in the control room, monitoring cameras.

113 This work came to an end as a result of the incident where his leg gave way completely leading to the surgery performed by Mr Byrne.

114 It appears that he has not been gainfully employed since that operation. It is clear that he became considerably depressed to the point where in August 2001 he sought psychiatric help from Dr Rajagopalan, a psychiatrist. At this time his sleep was significantly disturbed and his relations with his family were seriously impaired. He has had psycho-therapy and carefully prescribed medication, which have combined to produce a beneficial effect.

115 He wishes to obtain employment. At the time of trial he was in the process of completing training in the area of debt collecting and hoped to obtain full-time employment after the completion of the course. This attitude on his part is, in my opinion, consistent with his approach from the time that he lost his vocation in the Army. I am satisfied that an earlier difficulty with a work trial, which received some exploration in the evidence, did not indicate a lack of motivation towards the obtaining of work. He genuinely held the view that there would be no significant employment opportunity at the end of the training, on that occasion. I am satisfied that, as he says, whenever he has not been disabled by the need for surgical intervention and recovery from it, he has been actively seeking gainful employment.

116 Although his current general practitioner holds a very pessimistic view, expressed in his reports, as to the plaintiff’s employability, this view is not shared by the plaintiff himself. I feel that he is strongly motivated to seek work and, if suitable employment is available to him, to retain it. Although he is severely limited physically by problems with his left knee, he is an intelligent person with a good personality and, in my view, should be able to hold down suitable employment of a sedentary nature if such can be found for him. In the past, he has maintained a spirited correspondence with ComCare. The letters are in evidence before me and show a capacity for orderly and well expressed argument. He has, also, developed computer skills. These attributes, of course, do not in themselves, guarantee employment in the open market, but they will be of assistance.

117 There have been significant periods since the accident in 1987 when he has been dependent upon others for assistance rendered voluntarily in his domestic circumstances, and also in performing tasks that he would otherwise have performed himself, such as mowing the lawn. The evidence satisfied me that these various needs were genuine. I shall return to them later in a different context.

118 After the fall in August 1993, as I have already indicated, the plaintiff received payment of medical expenses through ComCare and, also, from time to time when unemployed, received weekly compensation payments. Some time in 2001, those payments ceased, but the plaintiff was able to obtain payments thereafter, on the basis of his 1987 accident under what has been referred to in this case as the Military Compensation Scheme. It appears that those payments were paid in lieu of a military pension, to which he was entitled as they were larger in amount. Again, I shall consider these matters in a different context in these reasons.

Questions of Causation

119 The medical evidence is complex and has led to counsel making elaborate submissions. It is clear that by the time Mr Byrne became involved in Mr Elliott’s treatment, his knee was in a significantly impaired state. There was advanced chondromalacia patellae associated with a tendency to subluxation of the patella. There were tears to the medial meniscus and there was a detached anterior cruciate ligament. Various theories were addressed as to when and why these defects occurred, in circumstances when there were differences in the results of arthroscopic examinations and findings in operations over the years.

120 I have already found that there was some injury to the medial meniscus in the 1987 accident. It did not amount to an observable tear but some weakness was occasioned to it which later, after it had been subjected to further traumas, produced the situation observed by Mr Byrne. Some medical opinion (e.g. Drs Grant and Roebuck) favoured the view that the anterior cruciate ligament was damaged in the accident but was undetected, the relevant signs and symptoms being masked by the pain occasioned by damage to the articular surfaces of the joint. These may be contrasted with opinions that the damage was occasioned in the subsequent accidental falls of the plaintiff.

121 I do not find it necessary to reach any concluded view in relation to the precise cause of the problem with the plaintiff’s anterior cruciate ligament as I am satisfied, on the basis of the plaintiff’s evidence and of the objective history of his continuous need for medical and physiotherapeutic treatment from the 1987 accident that he had an unstable, vulnerable and generally painful knee from that time onwards and that this condition was caused in large part by the development of chondromalacia patella which was directly related to that accident. The effect of the condition was compounded by the repeated occurrence of reflex sympathetic dystrophy which occurred after the commencement of arthroscopy.

122 The respondent’s counsel accepted that the existence of chondromalacia in the knee was causally connected with its instability which was the cause of the falls to which reference has been made in these reasons. Those falls which occasioned pain, swelling and disability, in my view, sufficiently account for the damage to the anterior crucial ligament and the medial meniscus, which were subsequently observed by Mr Byrne.

123 It was the respondent’s case that the chondromalacia was attributable to the 1980 incident. However, there was no sign of it in the arthroscopic examinations in 1987 and 1988. I am satisfied that its origin was in the trauma of the 1987 accident. As I have already found, I am satisfied that that accident was the effective cause of the plaintiff’s problems.

124 In so far as damage to the plaintiff’s knee was occasioned by the various later falls, I am satisfied that the damage was causally related to injury inflicted by the Army accident.

125 In these circumstances, I find that there has been no break in the chain of causation between the 1987 injury and the disabilities, losses and expenses incurred by the plaintiff since that occasion. I turn then to the calculation of the quantum of the plaintiff’s damages.

Quantum of Damages

126 I am not, at this point of time, able to finalise this aspect of the case. There are certain issues, in respect of which final submissions have not been made by counsel. In my view, those submissions are necessary for the proper determination of the amount of damages to be awarded to the plaintiff. As has been noted, there have been a number of periods, during which the plaintiff has been out of work or has been employed at lower wages. He has also incurred very considerable medical expenses. He has received payments in the nature of Workers’ Compensation at different times from ComCare and also from the Department of Defence, these latter payments having been referred to during the course of the case as “military compensation”. The payments from ComCare were made in relation to the plaintiff’s accident of 9 August 1993, whilst in the employ of Australian Protective Services. As I have already indicated, when these payments ceased in the year 2000, on the basis that they related to aggravation or exacerbation which was then spent, the plaintiff claimed similar payments from the Department of Defence based upon the 1987 accident. It seems that there is no issue as to the refundability of the payments made by way of military compensation. However, it is necessary that this be confirmed, with appropriate reference to relevant statutory material. It appears that there is an issue as to the refund of payments made by ComCare. Obviously, if I were to award the plaintiff the amount of the medical expenses paid by ComCare and also his full wage loss for the relevant period, in circumstances where he was not obliged to refund to ComCare the amounts paid to him or on his behalf, then he would be overcompensated to that extent.

127 At the end of the hearing the question of the deductibility for refund of the ComCare payments was left on the basis that the defendant would provide a firm written indication as to whether or not a deduction of these amounts would be sought from the amount of any verdict given in favour of the plaintiff. This has not occurred. The defendant has indicated that it cannot reach a final decision on this question until my findings on liability and causation are known. I have now made these findings, with the result that this impediment no longer exists.

128 It also appears, from material supplied after the end of the hearing that the plaintiff is in receipt of a pension from the Department of Veteran Affairs, which may cover future medical expenses relating to his 1987 accident. This is a matter that, also, needs clarification as, obviously, it bears on the question of what award, if any, should be made in the plaintiff’s favour in relation to future medical expenses resulting from the accident.

129 Moreover, I find that the plaintiff’s submissions on damages were not completed at the hearing and do not appear to have been completed since. I find myself uncertain as to the way in which the plaintiff puts his claim for past wage loss and also the mode of its calculation. Neither the written outline provided nor the transcript of the discussion in Court sufficiently clarifies this matter for my purposes. Also, the way in which the claim for interest on past wage loss is claimed, is not clear to me. Reference is made to the amount received by way of compensation payments, but I am unable to find the basis for this amount in the reports of the experts which have been tendered by each side. Presumably, the amount of the compensation payments received by the plaintiff and also their refundability will have a bearing upon the interest which should be awarded for past wage loss.

130 Additionally, I have received no submissions in respect of the Fox v Wood component of damages.

131 Moreover, it is not clear to me whether either side have completed their submissions as to the plaintiff’s loss of earning capacity for the future.

132 In these circumstances, I propose to make such findings as I can on the question of quantum. These findings should assist in the finalising of counsels’ submissions.

133 The plaintiff has sought in his submissions an award of $150,000.00 for general damages for pain, suffering and loss of amenities of life. I think that this is a suitably moderate claim and I allow it in full. The plaintiff also seeks the allocation of one-half of that amount to past pain and suffering and seeks interest on that sum at the rate of 2%, amounting to $22,500.00. Again, I think that this is a reasonable claim and have decided to allow it in full. Consequently, I award general damages in the amount of $172,500.00.

134 In relation to past wage loss, I find, on the balance of probability, that the plaintiff would have completed his six year contract of service in the Army and would, thereafter, have returned to civilian life. He would have sought and obtained employment in the Australian Protective Services or in some similar job. I am satisfied that he would have earned thereafter and would still be earning rates of pay appropriate for work in the Australian Protective Services of the kind that he in fact undertook on 15 July 1988. It appears that the experts in the case have approached the quantification of past wage loss on the basis that the plaintiff would have continued in the Army service, progressively achieving higher rank. As I have said, I regard it as more likely that he would have sought higher paid work in civilian life. There is currently nothing before me to indicate wage levels in the Australian Protective Services applicable after the date of the plaintiff’s resignation on 6 April 1995. As I understand it, the plaintiff has sought to deal with this problem by applying to the 1995 Australian Protective Service wage levels a multiplier based upon increases in average weekly earnings. This needs to be clarified. Also, having regard to the length of the period for past wage loss, it may be appropriate to make a deduction from the total figure to allow for contingencies. Counsel may wish to made submissions on this question.

135 As to future loss of earning capacity, I find that the level of nett earnings of an employee in the Australian Protective Services, at the level of the plaintiff, provides a suitable basis for the calculation of future loss of earning capacity, in respect of which allowances for contingencies and residual earning capacity must be made.

136 A large amount of evidence was introduced into this case through the tendering of subpoenaed documents from various sources. It may be that, in the formulation of submissions, counsel may wish to refer to these documents. If so, they may be uplifted from my Associate on the usual undertakings being given.

137 I consider it desirable that further directions be given for the finalisation of this matter. I will hold a brief directions hearing at 9.30am on Tuesday, 5 August.

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Last Modified: 11/25/2003