Matcham v Dodge - [1987] TASSC 108

Serial No B38/1987
List "B"

COURT: SUPREME COURT OF TASMANIA

CITATION: Matcham v Dodge [1987] TASSC 108; B38/1987

PARTIES:  MATCHAM
  v
  DODGE

FILE NO/S:  192/1985
DELIVERED ON:  24 September 1987
JUDGMENT OF:  Nettlefold J

Judgment Number: B38/1987
Number of paragraphs: 182

Serial No B38/1987
List "B"
File No 192/1985

MATCHAM v DODGE

REASONS FOR JUDGMENT NETTLEFOLD J

24 September 1987

Assessment of damages for personal injuries suffered by the plaintiff in a motor vehicle collision on 27 September 1984.

The plaintiff is a station officer–administration in the Ambulance Service of Tasmania. He was born on 28 September 1945 and is now almost 42 years.

After the accident he was taken to the Royal Hobart Hospital by ambulance. It was a painful trip. He was kept under observation at the hospital for a few hours. The following injuries and complaints were noted:–

(1)       laceration distal to right patella;
(2)       abrasion and contusion to right orbital region;
(3)       abrasion to left side of face;
(4)       laceration under chin;
(5)       pain lumbar region in back radiating in a "circle" to anterior abdomen;
(6)       soreness from the back across the chest, headaches and stiffness from the waist up;
(7)       thoracic region seat belt abrasion;
(8)       abrasion to right forehead;
(9)       abrasion right clavicle.

The cut under the chin was stitched, a cervical collar was applied and, generally, he was given basic attention.

The plaintiff complains that he suffered severe and wide ranging pain while at the hospital, there were other apparent injuries not noted in the above list and he was emotionally upset and crying.

He was discharged and transported to his home by ambulance. At his home he was carried upstairs and put on the lounge and made as comfortable as possible with cushions. He was still in pain. He complains that the only way he could move about was by crawling. He spent an uncomfortable and restless night.

The following morning his doctor arranged for his admission to St Helen's Private Hospital where he remained until 13 October 1984. At this hospital the following were noted:–

(1)       extensive bruising across face and right eye;
(2)       bruises chest and left hip;
(3)       one suture had been inserted in his chin at the Royal Hobart Hospital;
(4)       cut on right knee;
(5)       very stiff and sore across pelvis, neck and lower spine.

After x–rays were taken the decision was that he had suffered a fractured sternum and a compression fracture of the 12th thoracic vertebra.

The treatment was bed rest, physiotherapy, pain control and basic nursing. His treatment was supervised by Dr O'Halloran and the orthopaedic surgeon, Mr Turner. A brace was fitted after a few days. Naturally, adjusting to living in a brace was far from easy. But, speaking generally, a perusal of the notes leaves the impression that he slept well and the pain was kept at a tolerable and moderate level. It should be mentioned that the hospital notes refer to a show of emotion. The plaintiff gave evidence that, while in hospital, he was given tablets for "nervousness" as he had been crying and upset which he attributes to frustration. It should also be noted at this stage that, when he first saw his wife in the casualty section at the Royal Hobart Hospital he burst into tears.

Mr Turner examined the plaintiff at St Helen's Hospital on 28 September 1984. The plaintiff complained to him of pain in the back, pain in the chest, tenderness in the left knee, generalised soreness and bruising.

Mr Turner gave a general description of the hospital treatment as bed rest for a week with subsequent mobilisation in a brace.

At all relevant times his wife had a full time job. There are two children of his marriage, a daughter aged 14 years at the time of the trial and a boy approaching 13 years at that time. They were attending school at the time the plaintiff was discharged from hospital. Weekends and holidays apart, he was home alone for long periods each day except, of course, when friends visited him. He said his main problem at that time was that he could not sit. He said he had to lie flat or kneel. At that stage and until his return to work he spent a long time with his hobbies tying trout flies, sketching and painting. While engaging in those activities he would kneel on cushions with his buttocks resting on a folded mattress and pillows under his legs to lift his toes off the floor. That practice was, no doubt, the genesis of a rejection of conventional seating which persists to this day. It is difficult to escape the conclusion that that rejection has been taken to lengths which appear to a layman as strongly obsessional and neurotic. He presently has the use of no less than three orthopaedic chairs, one at his work and two at home. While in court he either knelt or used his own orthopaedic chair. During adjournments if he used an ordinary chair in the precincts of the court he would sit with a buttock on an edge of the chair kneeling on one knee. A variation was to recline with his wife's handbag supporting the small of his back. These positions were assumed despite the fact that, when he returned to court, it would be necessary for him to sit again for quite a long period. He has no difficulty standing or walking.

On his return from hospital the practice developed of stacking a lounge chair with cushions so that, in effect, he could lie flat on his back, his legs being supported in other ways. That practice also still continues.

He did not return to work until March 1985 and then only on a part time basis. He resumed work on a full time basis in April 1985.

He found the brace awkward and troublesome. That is far from surprising. His wife described it, not inappropriately, as a monstrosity. He said it was frustrating and he got angry and depressed. He felt very restricted, "like being locked inside". He "couldn't go anywhere" because he "could not sit in cars". If he had to go to the city he required an ambulance, in the early stages, or a taxi with a reclining seat as he felt he needed to be virtually flat. He described being on his own at home as frustrating. During the period of incapacity at home he got depressed, lost his temper with other members of the family, to the point at times of actually threatening them, and displayed anger.

I found Mrs Matcham an impressive witness. Her evidence and the evidence of Dr O'Halloran, Mr Gillard and Mr Preshaw is of assistance in resolving the two critical issues in the case which are the plaintiff's credit, particularly in view of his unusual behaviour, and his ability to sit for long periods without a level of pain which it would not be reasonable to expect him to tolerate.

The evidence of the witnesses just mentioned above enables one to paint a reliable picture of the plaintiff's personality before the accident and after the accident. Although, in painting those pictures one should keep an eye on the helpful evidence of the late Dr Dick.

Mrs Matcham married the plaintiff on 17 May 1968 having known him about 18 months. She said that she would describe him as over active before the accident, a handyman, "Mr Fixit", who was extremely active around their home doing a lot of the housework, as she was in the work force and he was a shift worker, all the maintenance, "everything which really needed to be done", although he was not interested in gardening. He completed an upholstery course very successfully and did that work as a leisure pursuit. He enjoyed that type of work and did a "beautiful job" on their furniture. He had had experience in carpet laying and he did that work for friends. He had several hobbies and recreational pursuits, trout fishing, making moulds for fishing trophies and tying trout flies. He was active in helping the children. Before the accident the family life was very happy.

As mentioned previously when she saw him in the Royal Hobart Hospital on the day of the accident he burst into tears. When she got home that evening he was very uptight, agitated and very weepy. After his return from St Helen's Hospital he could not sit at all. "He had to kneel constantly or completely lie down". Until his return to work he could not do anything of a physical nature and kneeling was the only way of getting himself comfortable. For a period she had to shower and dress him and "virtually do everything for him".

In the early stages, during weekends he could do very little to help her. "He would help me do, perhaps, the dusting on his knees but other than that very little".

After his return from hospital there was a drastic change in his behaviour. He was very agitated, very aggressive and would "fly off the handle at every little thing". The children could not move, virtually he would be "flying down their throats" for no reason at all. He was "like a caged bear". He threw a full bottle of sauce at her and also "picked up a knife".

She described her relationship with him before the accident as excellent and "the children were included". She said the situation had slightly improved since the accident. Asked "Well, is there still a problem?" she replied "No, except that he has outbursts of temper occasionally. We all know why and just accept it."

She said his physical condition improved slowly from the time of his discharge from hospital. But his emotional condition did not seem to improve for a long time. He had fits of crying for no reason at all. He was starting "to get mobile again and do a few things" when he started to lose weight despite having a normal appetite. It was a rapid loss of weight which worried her very much.

Now, he is unable to sit for a long period. He does not sit on a conventional chair, if he does he sits, as described earlier, on the edge of the chair with one knee on the floor. She then described his use of the cushion filled lounge chair as mentioned earlier. She referred to his use of three orthopaedic chairs.

She described him as doing things at a much slower rate and not as active as he used to be. The children have been "left to their own devices" as he does not play with them or "horse around with them". Walking is not a problem for him except for the risk of jarring. He does not do much in the garden except for mowing the lawn, spraying insecticides and a little weeding. On one occasion, he manured the garden. He washes the car using a long handled broom.

Washing the windows was his job before the accident. But she has to do that now. She has to do most of the gardening including the heavy digging. By way of housework now, he makes some beds and does some dusting and sometimes helps with the vacuuming.

Now, his habit is to have a sleep when he arrives home from work, the norm being for him to get out of bed as she walks in the door from work.

Dr O'Halloran is his doctor. He is also his friend having known him for twenty years. He described him as being, before the accident, a "workaholic" sort of person, busy all the time. The accident threw his life into disarray, he could not cope with anything.

In a report of 12 December 1984 Dr O'Halloran reported that in late October 1984 the plaintiff developed symptoms of a depressive illness as a result of the accident and was treated with anti–depressant medication. Hypnotics were also prescribed to assist with insomnia.

Dr O'Halloran confirmed that the plaintiff lost nearly three stone in weight, a very large weight loss for a man of his size. Dr O'Halloran referred him to a specialist physician, Dr Nightingale, with a view to excluding a pathological cause for the weight loss. Dr Nightingale reported that the weight loss was secondary to anxiety/depression, a result of the accident and concern about his future.

Mr Noel Gillard is superintendent of ambulance services in the north west region of the State. He joined the Ambulance Service in 1967 and has known the plaintiff since that time.

He said he found the plaintiff a valued loyal and efficient employee, a consistently hard worker whose commitment has been faultless.

After the plaintiff returned to full time work there were some trials done to assess his ability to work on a full time basis as a communications officer. Mr Gillard had noticed that, when the plaintiff returned to work after the accident, he had some difficulty performing the duties of communications officer. The plaintiff showed signs of strain after doing that job for two to three hours. He developed obvious anxiety, "a very highly nervous activity mannerism about his physical performance" and a lowering of tolerance of others working with him. He was, at times, "resistive to counselling". He tended to be impatient with and curtly dismiss complaints and fail to follow them up. There were "some deficiencies in competency skills essentially demonstrated by clerical errors in the recording of information". Also omissions were occurring in the critical area of recording the times when ambulances were at various locations. Mr Gillard found that the plaintiff "was physically unable to sit in the control room operation or function as he was unable to do the full shift".

The plaintiff spoke to Mr Gillard about these problems. They ordered an orthopaedic chair for the plaintiff which appeared to assist initially. Mr Gillard reached the conclusion that, even with the chair, the plaintiff was unable to perform effectively and to Mr Gillard's satisfaction the communications officer role on a full shift basis. Mr Gillard was not satisfied because he had not improved and the criticisms mentioned above still applied. At times he noticed the plaintiff trying to do the job of communications officer standing up. At other times he noticed him operating on his knees on the floor. Mr Gillard does not accept that a person could discharge the duties of a communications officer full time efficiently while standing up all the time. And he would not regard kneeling as "a full shift situation".

As a result of the trials, in December 1985, Mr Gillard and the plaintiff agreed that the plaintiff was not able to discharge the duties of a communications officer on a full time basis. And, of course, that communications work had been the main feature of his work before the accident since May 1975.

Mr Edward Preshaw is a superintendent for the southern region in the Tasmanian Ambulance Service. He said that, in the 18 months before this hearing, he had noticed the plaintiff working in communications on a couple of occasions. He noticed that the plaintiff knelt at the control panel and, so that he could operate the normally foot operated radio switch, he had in fact taped it to the side of the panel and, he believed, used his hand or knee to operate it, rather than using the foot in the ordinary way.

In a report dated 24 September 1985 the late Dr Dick expressed the opinion that, from shortly after the accident until about the end of August 1985, the plaintiff undoubtedly suffered a severe depressive illness of a mixed type.

I find significance in the late Dr Dick's final assessment of the plaintiff's personality which emerged during cross–examination. Dr Dick said at that stage of his evidence, that he had the feeling that the plaintiff has always been a very anxious individual, an obsessional type of man, as witness the contents of the diary, afraid of losing his job, tense, apprehensive and following the injury, desperately frightened about losing his employment. His obsessional characteristics may lead to hystrionics, hystrionic overstatement but not lies.

The plaintiff's work record is very good. He was born in Melbourne and came to Tasmania with his family when he was about 11 years. He received his later education at the Robert Cosgrove High School and left school at 15 years.

He was given a position with the St John Ambulance on 9 June 1960 as a radio operator and clerk. He qualified for appointment as a field ambulance officer and was given such an appointment in 1963. In November 1964 he resigned from the service for personal reasons. He got a job then at Castles Furniture in Moonah. He worked with his father there, his father being a carpet layer. He did that work for about 18 months. He was then employed by the same firm in the role of storeman–truck driver for about 12 months. He was approached to return to the Ambulance Service and he did so on 24 February 1966. He worked as an ambulance officer in the field. He continued to discharge those duties until 2 May 1975 when he was appointed station officer headquarters. He held that position until July 1984 when he became involved in the restructuring of the ambulance service which was then taking place.

The principal physical injury was the compression fracture to the 12th thoracic vertebra. I now turn to consider that, the nature of it, the history of it and the opinions about it.

It was a crush injury in which the vertebral bodies were subjected to forced flexing so that the solid canal of bone was crushed down by about one–sixth the normal height at the front. At the back, broadly speaking, it maintained the normal height. In his report of 20 March 1985 Mr Turner spoke of a minor subluxation of the facet joints at the level of the injury. In his report of 4 April 1986 he said that a Cat Scan taken in January 1986 showed that the fracture had healed. In his proof of evidence of 14 March 1987 Mr Turner spoke of a slight residual deformity as a result of the fracture which alters the alignment of the posterior elements of the vertebra. Therefore, the mechanics of the spine are slightly out of alignment which can produce pain and discomfort, symptoms which tend to be worse when sitting because, in that position, the load on the spinal column is greater, three to four times greater than when standing or lying.

Mr Bye said that the x–rays showed a minor crush injury in good alignment. In his report of 30 May 1986 Mr Bye spoke in passing of damage to the discs above and below the site of the fracture but he agreed that there was no hard objective data to that effect. Mr Bye, speaking generally and comparatively, said that this type of spinal fracture tends to be one of the more minor ones. But it is extremely painful in the short term and, in the long term, you can get ongoing problems. Some people take longer to get better or do not get better. In one case of this type he had to do a fusion operation because of continuing symptoms due to instability. Speaking on the same subject Mr Turner said that, in 25 per cent of cases of this type, there were varying degrees of disability which may be serious and persisting or minor, it varied a lot.

Mr Morgan said that the x–rays he obtained indicated an anterior compression fracture of the 12th thoracic vertebra reducing it to a height of about 2.5 centimetres compared with its neighbour at 3 centimetres. That deformity will always be present. He would class it as a relatively minor type of fracture. The x–rays did not supply evidence of any other pathology.

Mr Morgan said that most people with this type of injury do have a tendency to variable back ache for a long time and, quite often, indefinitely.

He agreed that, because of the deformity, there has to be some alteration in the alignment of the vertebra. He also agreed that it would constitute a painful injury initially. He also agreed with cross–examining counsel that it is not unreasonable or inconsistent to have a permanent residual disability following an injury of this type. He agreed that the severity of disability depends on many factors. However, he felt obliged to emphasise that this fracture had to be regarded as fairly minor and quite a stable one.

I turn now to the history of that injury. In his report of 18 December 1984 Mr Turner stated that, at that time, the plaintiff was wearing a brace and attending physiotherapy. Mr Turner saw the plaintiff on 7 January 1985. He found that the injured back was improving. An x–ray showed that the fracture was consolidating. On that day Mr Turner recommended to the plaintiff that he increase his level of activity and gradually discard the brace.

Mr Turner saw the plaintiff on 11 March 1985. He found that the plaintiff was making a satisfactory recovery from a rather nasty accident. But there was some persisting pain. At that stage Mr Turner recommended a return to work on a part time basis until after Easter and then to return full time provided he coped adequately in the meantime.

Mr Turner saw the plaintiff again on 18 March 1986. The plaintiff complained that he got pain in the back intermittently, it was painful to sit for long and pain was aggravated by walking a long way.

Mr Turner saw him again on 19 January 1987 for the purpose of preparing a report for the plaintiff's lawyer. The plaintiff advised that he had not had any treatment since his last visit to Mr Turner. The plaintiff said he had been doing as much by way of normal activities as possible and some days he was not too bad but he had problems on other days. The plaintiff's specific complaints to Mr Turner on that occasion were that his back got stiff, clicked occasionally, he was unable to sit for more than an hour or so without becoming uncomfortable and it was easier to kneel than to bend.

In Dr O'Halloran's report of 12 December 1984 it is recorded that, on his release from hospital the plaintiff had been advised to wear a back brace during working hours.

In Dr O'Halloran's report of 19 July 1985 it is recorded that in January 1985 the plaintiff was able to manage four hours per day out of his back brace. On the day of Dr O'Halloran's examination of the plaintiff for the purpose of his report of 19 July 1985 the plaintiff advised that he had been without his brace for the previous 10 days and was coping satisfactorily but with some discomfort of an evening.

The plaintiff presented to Dr O'Halloran on 25 August 1986 complaining of backache after working for three hours in the garden the previous day. The pain settled in a few days after treatment with Voltarin.

I turn to the opinions about the back injury. In his report of 4 April 1986 Mr Turner said that the plaintiff's main complaints were of inability to sit for prolonged periods and to walk far. The fact that he was unable to sit for a long time restricted his ability to work in the communications room for the ambulance service. He was also unable to perform work involving repeated bending or heavy lifting. Mr Turner expressed the view that it was unlikely that there would be any dramatic improvement of that in the foreseeable future. The plaintiff did not require any further treatment to his back and no surgical procedure was appropriate. He would not anticipate that the plaintiff would develop major degenerative changes. On that same subject, in his letter of 2 September 1986 Mr Turner said he considered it most unlikely that the plaintiff would ever require a fusion operation at the site of this injury because of increased levels of pain due to degenerative changes. He considered it far more likely that the plaintiff will experience episodes of, perhaps, moderately severe back pain. But he does accept that there is a possibility that he will develop some degenerative changes at the site of this injury.

In his report of 20 January 1987 Mr Turner reported that the plaintiff continued to have some symptoms in his back. They were not particularly severe and did not limit his activities to a great degree. In other words, he was able to do most of the things he wanted to do but, perhaps, for a limited period.

Under cross–examination he said that it would be unwise for the plaintiff to do work involving repeated bending or heavy lifting for prolonged periods. He said that he will say to a patient with this type of injury "You can do pretty much as you like provided you do not do it for too long and provided you do not take it to extremes".

I leave on one side for later discussion Mr Turner's opinion about whether Mr Matcham should be regarded as fit for work as a communications officer in the ambulance service on a full time basis.

The defendant's specialist, Mr Dermot Morgan, accepted that the plaintiff will be left with a permanent slight weakness in the central back with a tendency to ache intermittently. But he found little residual disability. He said that there will be a somewhat increased likelihood of him developing x–ray changes of arthritis in the area but it is unlikely he will develop severe symptoms. He is confident that the plaintiff will not require surgery. The plaintiff will be slightly handicapped for physical work particularly that involving heavy lifting or frequent bending.

I also leave aside for later discussion Mr Morgan's opinion about whether the plaintiff should be able to do communications work on a full time basis.

For present purposes, a significant event in the history of this back injury was the attack of muscle spasm suffered by the plaintiff while giving evidence in this case. He had been giving evidence for some days when he reported to Dr O'Halloran during a luncheon adjournment of the case. The plaintiff complained to the doctor of increased backache after prolonged sitting. On examination Dr O'Halloran found that the plaintiff was very tender over his lower dorsal spine and he had marked muscle spasm in the right para vetebral muscles in the area from about T8 to L2. There was markedly reduced straight leg raising on both sides.

The orthopaedic specialist Mr Bye had seen the plaintiff on the same day, Friday 20 March 1987 at 8.30am at Calvary Hospital. Mr Bye examined him and found that he appeared to be holding his back stiffly both when under observation and when he would not have realised he was being observed. The way he was holding his back suggested that the back was causing him some degree of discomfort. The plaintiff indicated to Mr Bye that the site of the pain was at the thoraco–lumbar junction, that is around the site of the crush injury. Mr Bye found a lot of muscle spasm. The muscles on either side of the spine were standing out quite obviously like little hills running up and down rather than being flaccid. They were standing out as if the plaintiff was contracting them all the time as indeed he was but, in Mr Bye's view, that was involuntary behaviour. At that time Mr Bye noticed a number of things consistent with the plaintiff having back discomfort. He had about half range of forward flexion, about one third of lateral flexion, that being particularly diminished on the left. The diminished straight leg raising indicated a general muscular spasm affecting his buttock muscles. Mr Bye decided that what he was observing was a genuine case of muscle spasm. He felt the muscles were in spasm to try and protect from movement and, consequently, lessen pain. Mr Bye felt that the plaintiff was in pain because he had been sitting for a long time in court. The muscles were, in effect, reacting to the pain by trying to reduce movement at the affected site and, hence, the pain. They were seeking to do what a brace or splint does, that is, reduce movement.

Mr Bye said that what he saw in the plaintiff's back was consistent with his spine not being up to coping with the stress that it was being subjected to.

Mr Bye felt that, although there is no radiological evidence of instability at the site of this fracture, there could be some clinical evidence of instability. If the plaintiff maintains himself in a posture for a time "he starts to spasm up". Mr Bye assumes that this is because the discs are not as good shock absorbers as they should be. As more pressure is placed on them they start to roll forward and the muscles go into spasm to stop that.

Mr Morgan said that muscle spasm, or tightness, is usually related to some painful condition of the spine. It is generally indicative of some disorder in the back. He agreed that the tendency was to explain muscle spasm as nature's way of protecting the back by creating a natural splint. He agreed that pain produces muscle spasm and muscle spasm in turn produces pain. He did not feel he could be specific or confident about the cause of the plaintiff's muscle spasm. He said that, in these cases, one is relying on what the patient says and you must make a judgment as to how accurate that is and whether it is coloured by other factors.

Because of the strong and sustained attack on the credibility of the plaintiff I have given priority to a close consideration of the other evidence. But I must now return to his evidence about his injuries and their effects.

It is not necessary to say much more about the history of the case to the stage when he returned to part time work in March 1985. He was doing mainly clerical work at that stage. When he returned to work full time in April 1985 he was still doing clerical work and some store work in addition. He was wearing the brace. At that stage he says he was still having back pain and pain in the groin. He was still depressed and losing weight (see photographs marked P2). Sitting at work was a problem – he could not sit on conventional chairs. That caused problems with his work in communications. He did not have a job classification and was feeling that he did not have security in his employment.

He found the orthopaedic chair which was purchased for him very good for doing administrative work. But it did not help for communications work because of the position of the foot switches.

By letter dated 9th January 1986 he was given a job specification for his position of station–officer (administration). That was to take effect upon his return from long service leave on 4 March 1986. The hours of duty were to be on day shift Monday to Friday. His salary was adjusted to Station Officer (Day Worker).

He accepted this position on his return from long service leave because he felt that, due to his injury, there was nothing else open to him. In addition to the problems flowing from the injury received in this accident, he had suffered a serious injury to his left shoulder in 1966. He described the shoulder problem as being that the tendons were torn and could not be repaired. This left him with a disability for work involving lifting. With that disability he could not be an ambulance officer. So, in March 1986 he felt the only course open was to accept the Station Officer (Administration) position with a consequent loss of income. He sees the title Station Officer (Administration) as "a nice pretty name" but he sees himself as a storeman. Some people refer to him as a storeman and he finds that "a little bit degrading". That position does not give him the job satisfaction he had before "but if that is the only thing open I've got to do it". But he added that he had adjusted to the situation so the loss is essentially limited to a financial loss.

Mr Matcham said that now he cannot sit too long as that produces back pain and stiffness. Occasionally the pain radiates to the groin. "But it is mainly stiffness and soreness after sitting for too long". His back in the area of the injury is stiff and tender in the morning and it usually takes a couple of hours to subside. He feels he has to be careful what he does in that time. If he is not he gets a "jolting pain". He also gets that same type of "jolting pain" if he is not careful stepping off gutters. However, these two types of pain do not occur frequently. But if he overdoes it he hurts himself and has to go to the doctor.

A couple of hours of sitting makes his back feel stiff and sore. He finds it difficult to sleep at night after sitting for long periods during the day.

When he has to sit in an auditorium at a show, for example, "The Shadows" at the Casino, he takes a pillow in a bag to keep his back straight. And he gets up and goes out during the show to give his back relief.

Occasionally he gets a pain running from the buttocks into the legs which seems to depend on how he sits and what he has had to do. This does not occur when he uses an orthopaedic chair. He experienced the problem when he worked in communications after the accident. He sometimes gets that pain when relieving the communications controllers during the day if it is very busy. Sometimes when walking he experiences a clicking sensation in the back.

He spoke of the anxiety/depression illness with loss of weight. When he lost all the weight he thought there was something really wrong with him and had thoughts of suicide.

Now, he gets more anxious and frustrated than before the accident. He attributes that to not being able to do what he would like to do. He gets depressed, angry and bad tempered if he does not keep himself busy.

He tends to relive the accident at night with a consequent loss of sleep.

His self confidence had deteriorated but he is starting to get that back.

He claims that his gardening activities are limited by the injury. If anything has to be really dug or turned over he leaves it to his wife. He said he tends to garden on his knees with a little hand spade. He finds using a wheelbarrow a problem because of the size of the load, the bending involved and the risk of jarring himself.

He says he would not tackle carpet laying now as it is too heavy. He also said he did not have time to do it.

He enjoyed joining in the activities at the scout camp and playing an appropriate role as a parent. But he says he cannot keep up with the boys at the camp now.

He does not engage in vigorous activities with his son – running, jogging, wrestling, playing football etc – as much as he would like. He said he had tried at times but he knows he cannot do it.

He does quite a bit of swimming but he is sore and stiff if he is in the water too long. He does not attempt to dive into the pool but uses the ladder. He uses flippers to do full laps of the pool as "I haven't got the strength in my legs to do the full laps without them". He also said "straight overarm swimming is the only way I can really manage".

His sexual life is back to normal now. But he says that it was "out of the question" from the time he left hospital until he went back to work. But then that aspect of his life gradually got better. In any event, there was friction between him and his wife from the time of the accident until his return to work. He attributes that deterioration to his short temper and threatening attitude. He believes the relationship has now settled down and there is no lasting problem.

He explained his position as being one in which he must plan what he does. He must think before he moves. It is annoying that he cannot do what he wants to do at work but he must live within his limitations.

He found the brace terribly uncomfortable to wear.

He purchased an adjustable height walking stick in about October 1984 and used that until his return to work. He also used the expression that he used it "whilst I was getting my footing, to get used to the brace".

He has an unusual complaint about his right shoulder. He says it "locks and, as it clears it cracks". When working it will crack 10 – 12 times per day. "It is annoying. You go to do something and you have to wait for it to crack to free itself." He did not have that problem before the accident.

There is a scar from the laceration under the chin. A safety razor tends to cut it. It is just visible. There is also a scar which is just visible from a forehead laceration and also from the laceration of the knees.

He says he has spent a lot of time on his knees since the accident. Because of that he got a build up of fluid. It has gone away but he does suffer from sore knees because of the amount of kneeling he does. He feels that he has "strange looking knees". They are a different colour to the rest of his legs, chafed and hairless. He has complained to Dr O'Halloran on numerous occasions about soreness and discomfort in the knees. The doctor says that the discomfort is a pressure problem in the skin and flesh surrounding the knees which is consistent with being caused by constant kneeling. Dr O'Halloran says that, given his observations of the plaintiff, he would expect this discomfort given the arrangements the plaintiff has made to alleviate his back pain.

He claims that the brace was terribly uncomfortable. He began wearing an orthopaedic corset in September 1985. He claimed that he still wore that to do any physical work.

It is part of his present job to do relief work running communications for about half an hour per day. Sometimes it extends beyond the half hour. In January last he worked for an hour and ten minutes on one occasion in communications. It was a busy time and he had soreness and stiffness afterwards. He added "so it was brought to the notice of the officer that I won't be able to do that type of thing for him". To do the work in communications he kneels on one knee and uses the foot of the other leg for operating the switch. He writes with his left hand and supports himself with his right arm. He says that it is not a comfortable position and causes "muscle discomfort" in the back. He added that if it is a busy time you cannot move about and there is usually a heavy case load at that hour. When communications are computerised he will need to have both his hands free and he will not be able to lean on his right elbow. The foot switch will still be in the same position. The computerisation may cause problems for him and he has discussed those problems with the service.

Speaking generally he considers that he can do most things now. But he claims that there is a number of jobs he cannot do. He will have problems if he has to do painting stretching above his head. Putting scaffolding together would be difficult. He felt that any painting above his head was "ruled out". He has a two storey house. The house is on a steep block.

He feels that repairing the brick work and stone work in the terracing will be too heavy for him. The cement is heavy to carry as are the besser blocks. Before the accident he did this brick work but now he feels he would be confined to helping the bricklayer. This discussion of these alleged disabilities led to this question from his counsel: "On average, how many hours to engage tradesmen to do painting, brickwork and so on at your home in the future per year?" In effect the answer was 20 hours per annum for all tradesmen. That work would be necessary to maintain the house at a decent level.

The next alleged disability was that he felt he could not dispose of large tree clippings. And he has difficulty cutting heavy limbs from trees. Then he said there was the problem of "the garbage" disposal "and things like this". He explained that the "garbage" he was talking about was material produced by pruning and the heavy surplusage which builds up. There was also heavy digging etc which was a responsibility which was falling on his wife and which she should not be expected to discharge. He says he has tried to do this miscellaneous category of work. He has strained his back trying to get the garbage into the utility and it took a couple of days for the soreness to go with the aid of medication. On another occasion he hurt himself trying to remove a branch. On another occasion he struck trouble after four hours work in the garden.

During cross–examination he gave further detail about the old left shoulder injury. He said that the injury led to two operations. He was paid compensation on the basis of a 25 per cent disability of the left arm as a whole. He left ambulance work on the road in about 1975 because of that injury as he could no longer do the lifting of the loaded stretchers. He had had problems with the arm from the time of the original injury. He finds that his left arm is quite good today but he has to be very careful lifting very heavy things. However, since the accident he cannot remember one instance of having suffered inconvenience with his left arm.

He agreed that he is not on regular painkillers. Medication is confined to the odd occasion he has to get Dr O'Halloran to prescribe something. He accepted that in the three months before the commencement of this trial he has not taken any medication for his back.

He accepted that he has fished in Arthurs Lakes in the last 12 months. He fished from a 12 foot aluminium dinghy. He knelt while the dinghy was moving. He did not experience any problems with his back. He has had three trips to Arthurs Lakes. One of the trips was a two day trip and again he knelt while the dinghy was moving.

Since being back at work since the accident he has not lost any time from work as a result of back pain.

He agreed that he uses orthopaedic chairs on a working day, including the use of the one at home, for four and a half hours to five hours.

He said he found giving evidence stressful. It caused him to get "a bit uptight" and to be a little bit sore in the back. His back became sore the second day he was in the witness box.

He agreed that he had been involved recently in conducting fishing tourists. He was a tour guide for a tour lasting 4 – 5 days. He did a lot of walking. He stayed at night in the area and used conventional seating.

A good deal of time was spent during the trial watching film of the plaintiff at work. I found that material of some assistance but the assistance is limited. The main reason why the assistance provided is limited was given by Mr Turner. The reason is that the lack of disability the film demonstrates is a lack of disability for doing what he was in fact doing on the film. It does not prove that he is able to sit for a long period without symptoms which it would not be reasonable to expect him to tolerate. Nor does it prove that he is able to perform some heavy physical task different in the demands it makes on the body to those shown in the film.

The witnesses formed different impressions from the film. Mr Turner formed the impression that the plaintiff experiences restriction and stiffness in his back and, perhaps, even pain. Mr Turner felt that the manner of movement and exertion supported that.

As far as the plaintiff's capacity to sit for long periods without unreasonable discomfort is concerned, Mr Bye made exactly the same point as Mr Turner, namely, the film does not assist on that issue. He said that in the film the plaintiff was changing posture regularly. Mr Bye said that in the film the plaintiff put his back through a greater range of movement than he has seen. But in some of the scenes he holds the back very stiffly. And he did a lot of the shovelling kneeling down which is protecting his back. Mr Bye agreed that it was to some extent inconsistent with the plaintiff's complaints that he was shown in the film working actively for something like four hours unloading manure and depositing it on his garden. But Mr Bye thought this was consistent with an ability to keep doing things while changing posture. Mr Bye thinks that change of posture is very important for someone with this kind of problem. Mr Bye also said that, having watched the video he still felt the plaintiff had some back problem.

Mr Morgan said that the movie film did not really cause him to adjust his opinion. Mr Morgan said that perhaps the plaintiff was gardening somewhat more vigorously than he had told Mr Morgan. But Mr Morgan felt that the film was consistent with his opinion that the plaintiff had made a reasonable recovery from his injury and was capable of a fair bit of physical activity.

I reject the evidence of Dr Philip Zlatnik. I found his summary and dogmatic rejection of such a troublesome claim as this altogether unacceptable. Further I felt I discerned in his evidence a lack of understanding of relevant learning. That being the position, it is fortunate that the defendant called another expert, Mr Dermot Morgan. With respect, Mr Morgan is an experienced and very able orthopaedic surgeon whose views on this case deserve and have received long sustained and careful consideration.

I turn now to the opinions of the orthopaedic surgeons, Mr Turner, Mr Bye and Mr Morgan on the principal question in the case, namely, whether the plaintiff is able to discharge the duties of communications officer in the Ambulance Service without suffering a level of pain and discomfort which it would not be reasonable to expect him to tolerate. I also refer to Dr O'Halloran's view on that same subject.

In a letter to the plaintiff's solicitor of 2 September 1986 Mr Turner advised that he considered it unlikely that the plaintiff would be able to return to the work in the communications room (of course, he is referring to the plaintiff working there on a full time basis). He considered that disability permanent. Mr Turner stated that, as a general principle, prolonged periods of sitting are not advisable for people with a significant back problem. Mr Turner also advised that he had made an informal visit to the Ambulance Service for the purpose of forming that opinion.

In a medical report of 20th January 1987 Mr Turner said that the plaintiff's major limitation as far as his employment was concerned was his ability to sit for long periods. Mr Turner said that the plaintiff freely admitted that sitting did not pose such a problem if he were able to get up and move around. Mr Turner said he understood the job in question required the plaintiff to remain seated continuously. Mr Turner re–asserted his view that the plaintiff's complaint that he was unable to cope with this job was reasonable and consistent with the injury suffered.

Under cross–examination it was put to Mr Turner that, if the plaintiff were able to move around his operating position, he could do this job. Mr Turner's response was to say provided he was allowed to move around at will, that was what was important. He imagined there were times when it was busier than others. Mr Turner accepted that he was talking of the plaintiff being able to sit for an hour without a problem, the only proviso being that he finds it difficult to sit on anything other than the orthopaedic chair and that requires him to part kneel and part sit and the equipment includes a foot operated switch which he would not be able to reach.

The cross–examiner put Mr Dermot Morgan's opinion on the point to Mr Turner and Mr Turner responded by saying that there was simply a conflict on a matter of opinion. When Dr Zlatnik's opinion on the point was put to him (which is in fact to the same effect as Mr Morgan's opinion) Mr Turner said he did not accept that opinion. He added that the point depended on whether you accept what the plaintiff says or whether you do not.

In his report of 30 May 1986 Mr Bye expressed the view that he would have no doubt that Mr Matcham would suffer aches and pains if he was forced to maintain a single posture for many hours per day. Mr Bye said that patients like the plaintiff commonly get pain with prolonged sitting. The stress of communications work would undoubtedly add to his discomfort increasing his general muscular tone and rendering him more liable to back pain.

Therefore, Mr Bye found himself in agreement with Mr Turner stating that it is not unreasonable for Mr Matcham to experience pain whilst working as a communications officer. At that time Mr Bye said "I could expect that in the fullness of time he may be able to return to those duties, though the damage to the discs above and below the site of the fracture may preclude him from such intensive prolonged fixed posture work for ever".

In a Supplemental Proof dated 13 March 1987 Mr Bye advised that he had attended the Tasmanian Ambulance Service and was aware of the duties of a communications officer. He added "My view is that, given the nature of his disability, it is reasonable for him to be unable to do the work required of him as a Communications Officer".

During cross–examination Mr Bye said that maintaining one particular posture for any length of time is quite often the problem which destroys people with this sort of problem. He said that the plaintiff's problem was maintaining his posture at a communications desk "virtually chained to it by three of his limbs". Mr Bye thought that the desk was of inappropriate height, being far too low. As the place was designed he did not feel that it would be possible for the plaintiff to do the job.

Dr O'Halloran reported on 25 August 1986 that he had attended the plaintiff's place of work. The plaintiff subsequently complained to him that the work in the communications room exacerbated his back problem. Dr O'Halloran thought that this exacerbation was consistent with his observations. Dr O'Halloran said that he expected that the prolonged sitting involved would be unsuitable for the plaintiff.

At the time of Mr Dermot Morgan's examination of the plaintiff on 4 February 1986 the plaintiff told him that, initially, after his discharge from hospital he wore a brace and later he wore a corset but, at the time of Mr Morgan's examination, he had given up wearing supports and did not wear them at that time.

The plaintiff also told Mr Morgan, inter alia, that his back was generally reasonably comfortable but that he found it uncomfortable and there was a tendency for his back to ache if he sat in ordinary chairs. The plaintiff complained to Mr Morgan of a transient pain on any sudden jolting or jarring of the back. For that reason when trout fishing he tried to avoid going over rough or broken ground.

He also complained of a tight feeling in his back if he attempted to lift very much. After considering the history, the x–rays he obtained and other material Mr Morgan formed the opinion that the plaintiff could do this job of communications officer on a full time basis. But Mr Morgan accepts that prolonged sitting would probably cause the plaintiff to experience some variable ache from time to time, some low grade ache which would tend to become present after fairly prolonged sitting so, probably, would be worse later in the day than earlier in the day and would not normally require the taking of medication. It would often be eased relatively easily by getting up and moving around for a minute or two. But he does not believe that this would render him unfit to do that job. If he were his treating surgeon he would not be able to certify him as being unfit. Mr Morgan agreed with Dr Zlatnik's ultimate conclusions.

Mr Morgan accepted that sitting for long periods is a common complaint of people with any type of back pathology. He said that was the reason for the introduction of orthopaedic chairs which keep the spine straighter than in an ordinary chair.

Mr Morgan also accepted during cross–examination that mental stress may lead to a general tightening of the muscles, particularly with persons who are prone to mental stress.

In order to form his opinion Mr Morgan attended the Communications Room of Tasmanian Ambulance Services. He also viewed some film showing the plaintiff working. He said that in the sequences he saw it was not his impression that the plaintiff was protecting his back.

Some of Mr Gillard's statements about the nature of the work of a communications officer should be noted at this stage. He did that work from 1970 through to about 1975. He described it as the nerve centre of the ambulance operations. Doing the work he experienced a strong sense of personal responsibility to the patient in distress. There is a fairly constant work load in terms of telephone traffic and a number of emergency situations occur. He felt it was a highly responsible function carrying a degree of stress.

Mr Preshaw added some detail about the working conditions of communications officers. He said that at present they have a lunch break for 30 minutes. There is no fixed break but he believes they do have ten minutes break in the morning and sometimes ten minutes in the afternoon, although more often than not they do not get that. In quiet times they can stand up and move around the room but leaving the room is discouraged.

The defendant makes a quite basic attack on the credit of the plaintiff. It was submitted that he was deliberately falsifying the extent of his disability in order to deceive the court. I am quite satisfied that that attack should be rejected. The picture of the plaintiff which emerges from a detailed analysis of the evidence is that of a responsible person with a good work record. It is certainly not the picture of a malingerer. The proven anxiety/depression state leading to a severe weight loss supports his claim that he has suffered a genuine and significant physical injury. The episode of muscle spasm during the hearing suggests that there is an underlying genuine defect which produced pain on that occasion. The probable explanation of the pain on that occasion is sitting in court for long periods. There is evidence that he has taken a number of steps since this accident which appear to be his response to back pain rather than an attempt to give a flavour to his case. I refer to his attitude to conventional seating, his use of orthopaedic chairs and his lounge chair, the condition of his knees which is the result of attempts to protect his spine and the unusual method he adopts to wash a car.

He made statements to the defendant's medical experts which appear frank enough. For example, he told Dr Zlatnik that there was very little restriction of activity away from the work place and he told Mr Morgan that his back was, generally, reasonably comfortable.

A number of the matters in respect of which, according to defence counsel, he was making a deliberate attempt to mislead are matters of record which could be checked from the records. I am quite sure he had enough sense to realise that they were matters of record and could be checked and, consequently, he would not make a deliberate attempt to mislead on those points. Defence counsel relied on straight leg raising tests and inconsistencies in results of those tests as showing a conscious attempt to exaggerate the disability. But Mr Turner's comments on that test indicate that it is not a sound basis for a serious attack on the plaintiff's character.

The conclusion I reach on this aspect of the case is that the substance of his evidence should be accepted. But, because he has the personality described by the late Dr Dick, one must be careful to weigh with circumspection assertions which may be the product of his anxious obsessional and tense disposition and one must also be careful, as is the case with all claims for damages for personal injuries, to guard against unconscious exaggeration.

I find that it is more probable than not that he will not return to full time work as a communications officer. The finding should be that the injury suffered in this accident has left him unfit for full time work in that capacity. An acceptance of him as an honest witness has a big influence in producing that conclusion. But my conclusion in favour of the plaintiff on the credit issue and on this issue is also strongly influenced by an assessment I have made about the state of his spine based on an exhaustive review of all the evidence, the evidence of the lay witnesses as well as the evidence of the expert witnesses. An assessment of that large body of evidence, considered as a whole, leads me to the belief that two observations by Mr Bye should be regarded as of substantial significance. They are:

(1)the plaintiff "starts to spasm up" if he maintains himself in a posture for a time. There could be clinical evidence of instability. The discs are not as good shock absorbers as they should be. As more pressure is placed on them they start to roll forward and the muscles go into spasm to stop that. It will be remembered that in his report of 30 May 1986 Mr Bye spoke of damage to the discs above and below the site of the fracture. The muscle spasm itself also produces some pain.
(2)The stress of communications work would undoubtedly add to his discomfort increasing his general muscle tone and rendering him more liable to back pain. The helpful evidence of the late Dr Dick about this man's personality must be kept in mind when that point is being assessed. And most importantly Mr Gillard's actual observations of the plaintiff are very relevant.

Mr Turner spoke of a slight residual deformity as a result of the fracture which alters the alignment of the posterior elements of the vertebra. This means that the mechanics of the spine are slightly out of alignment which can produce pain and discomfort, symptoms which tend to be worse when sitting.

That analysis leads me to prefer the views of Mr Turner, Mr Bye and Dr O'Halloran to the views of Mr Morgan on the question of his capacity to function as a communications officer.

The aspect of pain, suffering and loss of amenities can now be considered. He had a fairly long period in hospital. He had difficulty adjusting to the brace and generally, initially suffered a substantial degree of pain and discomfort. It appears that he was able to discard the brace finally in early July 1985. He also suffered a significant emotional illness accompanied by severe loss of weight, and thoughts of suicide, anger and frustration. I see the sexual problem in one way and another as a manifestation of that illness although there were physical aspects to this. The injury and illness disturbed for a time the happiness of the family. He still has occasional outbursts of temper.

It is clear that the injury severely disrupted a very active life. There is still a substantial degree of disruption but the extent to which that is now justified will require some detailed consideration.

I refer again to the few very minor scars.

He was still getting some pain in the back when he returned to work. He was also feeling insecure and worried about his future. However, he took up his new job classification in March 1986 and he then had reasonable security. He has suffered a loss of status at work and reduced job satisfaction. His self confidence deteriorated but he is now getting that back.

The evidence shows that he can continue with his trout fishing. However, he will need to avoid anything which will jolt or jar his back including approaching fishing spots over rough or broken ground. He will also need to be careful to avoid jolting and jarring of, and excessive strain to, the back in a wide range of activities.

For some time after the accident he was restricted in travelling away from home because of the back injury.

This unusual condition in the right shoulder which produces "locking and, when it clears it cracks" should be accepted as a result of the accident. Although it happens quite a bit it should not be regarded as anything more than a minor annoyance. It does not produce any pain. The "clicking" sensation in the back is another minor annoyance.

It should not be overlooked that the effects of this injury are affecting a man who had an existing significant disability in his left shoulder which affected him when lifting heavy things.

He admits that he is not taking painkilling medication regularly. That is confined now to the odd prescription. In fact he admitted that he had not taken any medication for his back in the three months immediately before the trial. He also admitted that he had not lost any time from work since his return to work after the accident.

Although the sternum fracture healed leaving no residual disability it should not be ignored as it was a further invasion of his bodily integrity.

I now seek to collect here a brief reminder of the main points about his present condition. He admits that he can do most things now. He told Mr Morgan that, generally, his back was reasonably comfortable. He told Dr Zlatnik that there was very little restriction of activity away from the work place.

I have formed the view that a good insight into the present position of the plaintiff is obtained from the evidence of the orthopaedic surgeon who treated him, Mr Turner. Mr Turner said that, broadly speaking, he thought he agreed with Dr Zlatnik's opinion that there was little residual disability. In that statement, due emphasis must be given to the words "broadly speaking". Specifically speaking, of course, Mr Turner says, in effect, that the plaintiff is unfit for full time work as a communications officer because of the problem he has with sitting for prolonged periods.

Mr Turner has said that although the plaintiff continues to have some symptoms in his back they are not particularly severe and they do not limit his activities to a great degree. He was able to do most of the things he wanted to do but, perhaps for a limited period. I infer that the plaintiff is the type of patient to whom Mr Turner would say "you can do pretty much as you like provided you do not do it for too long and provided you do not take it to extremes". Mr Turner considers that he should not do work involving repeated bending or heavy lifting. Mr Turner accepts that there is a possibility that the plaintiff will develop some degenerative changes at the site of the fracture. In view of Mr Bye's views about the state of the plaintiff's back I infer that, certainly, that possibility should not be overlooked.

In view of the picture which emerges from Mr Turner's evidence, I do not find that he has established that he is unable to do upholstery work. Provided he is careful and works within the limitations expressed in Mr Turner's evidence, he should be able to do that work. That conclusion also applies to carpet laying. I do not accept that the injury will prevent him painting his house, repairing terracing, cutting large limbs or disposing of heavy garbage, clippings etc He will need to be careful but it has not been shown that he cannot do these things. No doubt, he will experience some discomfort from time to time when doing heavier work of the kinds referred to in this paragraph. He will be slower and restricted in the amount he can do without a break. Those factors should be weighed in his favour when fixing a figure under this head.

I do not find that he is unable to engage in strenuous activities with his children or unable to play an active role at scout camps. But he will need to keep Mr Turner's advice in mind and be careful of his back.

He does not do much in the garden. But I am satisfied that he was never a keen gardener. He is capable of doing that work if he wishes subject to the same proviso as with the other activities mentioned above.

I do not accept that it is necessary for him to leave the work of washing the windows to his wife. And I do not accept that he is rendered incapable of doing housework.

In view of what the plaintiff told Mr Morgan, it appears that the pain he gets on jolting or jarring his back tends to be transient. But I infer that, if the injured site was subjected to a severe jolt or jar, the pain would persist for some time and could be severe.

His principal disability is that he cannot sit for a long period without getting a stiff and sore and, occasionally, painful back. The medical evidence does not explain why it takes a couple of hours in the morning for stiffness and tenderness in his back to wear off. But I accept his assertion that that is his experience.

I accept his assertion that a couple of hours of sitting makes his back feel stiff and sore and he sometimes has difficulty sleeping at night if he has been sitting for a long time during the day. He sometimes loses sleep "reliving the accident" but that will clear up.

He suffers from sore knees because of the constant kneeling. It is difficult to understand why he avoids conventional seating to the degree to which he does. I refer back to his conduct during the trial. Despite the very real problem he has in this respect, it is difficult to see why he could not make more use of conventional seating and thus lessen the problem of knee soreness. The evidence suggests that he could make more use of conventional seating provided he was left free to change position and move about at will. I note the terms of his complaint to Mr Turner on 19 January last, "he is unable to sit for more than an hour or so without becoming uncomfortable". The appropriate figure for damages under this head is in the range $20,000 to $25,000.

I turn to the claim for future economic loss. This flows primarily from the finding that he cannot function as a communications officer on a full time basis. If he were able to do that job on a full time basis, he would receive more salary than he in fact gets now because he would be a shift worker receiving weekend penalty rates of pay, shift allowances and overtime. There is no difference in base salary between his present job and the job of communications officer. But, in his present job as a day worker he does not get penalty rates of pay for weekends and public holidays, shift allowances and penalty rates for overtime. The loss is $96.69 per week net. Although it does not affect this particular head of damage, there is another important change in his terms of employment in that, as a communications officer, he got eight weeks annual leave but now he gets only four weeks. The additional four weeks was for working on weekends and public holidays, being engaged in traumatic work and being a shift worker.

I accept the plaintiff's evidence that, at the time of the accident, he had the option of continuing as a communications officer and he intended to follow that course. Mr Gillard said "we had targeted and we were counselling him in the context that we wanted him to remain in the communications officer function because at that stage (i.e. before the accident) he was one of our highest experienced communications officers available to us at that stage. The other fact was that on our staff establishment we did not have other positions that could be given to him".

I accept Mr Gillard's evidence that it is unlikely that the plaintiff will win promotion from his present level of employment. The plaintiff is working to the limit of his capacity in his current role.

If the accident had not occurred, in the role of communications officer the plaintiff had the prospect of being promoted to a position of Senior Communications Officer. There is no category of "Senior Communications Officer" at the present time. But Mr Gillard said that it was "canvassed" with the plaintiff that the next stage of development in the ambulance communications system, both in the southern region and also, perhaps, statewide, may be the creation of such a category of appointment.

On the question of the allowance for contingencies in making an assessment under this head some of the factors deserve specific comments:

(1)In his favour, he had a very secure employment in which the risk of injury at work was low and his physical health was good. He had some prospects of promotion.
(2)On the other hand, his personality even before this accident was such that he would have felt the stress of the job. That being so, he may not have persisted to age 65 years. He may have resigned under that age or sought a transfer into less stressful work such as the work he does now.
(3)Further, the deregulation of the Australian economy, the serious reduction in international prices for Australian primary produce including minerals, adverse balance of trade figures, a recognised need to increase the competitive capacity on international markets of Australian manufactured products, the need to promote industries manufacturing goods for sale on international markets and import competing goods, all combine to exert a controlling and limiting pressure on wages and conditions of employment in all areas of employment. These notorious facts should lead to the realisation that there is no certainty that these special allowances for working outside the ordinary working day hours will survive for the next 23 years. It is notorious that such allowances are under challenge. These factors influence my choice of a discount factor.

Leaving for separate treatment the claim in respect of superannuation rights, the appropriate figure under this head, assessed from the date on which the hearing concluded, is a figure of the order of $60,000.

I turn to the claim in respect of superannuation. There is a spurious air of mathematical certainty and inevitability about this claim. In the event of death or premature retirement due to being totally and permanently incapacitated for work, his contributions would cease. Further, the calculations are based on the assumption of continued membership of the scheme until 28 September 2010 and exclude an election to retire early or, for some other reason, suffer premature termination of employment. It is also assumed that he would not arrange to transfer out of the communications area. The true nature of his loss is that he has lost the chance of receiving an additional lump sum payment on 28 September 2010 or earlier death or total and permanent disablement, the continuation of the chance depending on continuation in the same situation until the relevant termination date and continuing to discharge his obligations under the scheme. I do not overlook that on early retirement from his former position he could receive more than in the case of his present job.

It is noted that Mr Miller's calculations assume continuation with the scheme until retirement age (page 2 of proof) in either the position the plaintiff held prior to 4 March 1986 or the position he has held since that date. Any other possibility is ignored.

If Mr Matcham had won promotion his superannuation entitlement on retirement from the higher position would have been greater. But, on the other hand, some of the general contingencies referred to earlier must not be overlooked.

I suspect that, in the age bracket, say, of 60–65 years shift work may not be appealing. There is always the chance that an employee in that age bracket will be given a transfer to an ordinary hours job or elect early retirement.

In assessing a final figure a figure of the order of $12,000 will be added in for this aspect of the claim.

I turn now to the claim for economic loss to date of judgment.

The claim for $5,346.20 in respect of the period 27 September 1984 to 9 December 1984 is rejected. The relevant principle will be found in the decision in Graham v Baker (1961) 106 CLR 340. (See also Luntz: Assessment of Damages, p228). The plaintiff has not established any financial loss in respect of this period.

The claim for $209.40 in respect of the period 10 December 1984 to 14 April 1985 is allowed.

The claim for $1,704.42 in respect of the period 4 March 1986 to 7 July 1986 is allowed.

The claim for the period 8 July 1986 to 17th March 1987 for $3,480.84 is also allowed.

Future economic loss has been calculated from the date the hearing finished. There should be an allowance of $290.07 in respect of the period 18 March 1987 to 8 April 1987, three weeks at $96.69 per week.

The claims in respect of loss of four weeks additional annual leave are disallowed. They are not reasonable claims.

The claims in respect of "future gratuitous" and "future non–gratuitous" services are disallowed. This rejection is based on the finding concerning his capacity to do the work in question. He will have added difficulty in coping with the work and that has been given weight under the general heading "pain, suffering and loss of amenities".

The claim in respect of "Cost of Motor Vehicle Change–Over" is disallowed. In the circumstances it would not be reasonable, fair or just to require the defendant to satisfy such a claim.

The claim for the orthopaedic chair, $370, is allowed.

Cost of analgesics etc is an agreed item amounting to $171.55.

The claim for $34.00 for travelling is allowed.

All claims in respect of work on the swimming pool including solar heating are rejected on the simple and straightforward basis that it would not be fair or reasonable to require the defendant to pay any amount. Regard must be had to the overriding principle of reasonableness governing assessment of damages at large (see Hodges v Frost (1984) 53 ALR 373).

The following claims should be allowed:

(1)Gary Haigh – mowing lawns 13 October 1984 to 14 April 1985 = 19½ hours.
(2)Athol Matcham – collecting garbage 27 September 1984 to 14 April 1985 = 14 hours.

Hodges v Frost (supra) supplies clear and specific guidance concerning the application of the principle of Griffiths v Kerkemeyer (1977) 139 CLR 161. Applying the rules stated in that case the claim in respect of the wife's nursing and domestic help will be allowed but only to the extent of a round figure of $500.

Finally, it is necessary to carefully consider the provisional figures to ensure that the final figure is fair and just.

The plaintiff's general damages are assessed in the sum of $97,000 made up as follows:–

(1)Pain, suffering and loss of amenities $25,000.00
(2)Future economic loss, including the

claim in respect of superannuation 72,000.00
$97,000.00

To that sum the following specific items must be added:–

Loss of salary for period 101284 to 14/4/85      $209.40
Loss of salary 4/3/86 to 7/7/86  1,704.42
Loss of salary 8/7/86 to 17/3/87  3,480.84
Loss of salary 18/3/87 to end of trial                  290.07
Cost of chair  370.00
Cost of analgesics etc  171.55
Travelling  34.00
Griffiths v Kerkemeyer claim  701.00                  6,961.28
$103,961.28

Therefore the damages are assessed in the sum of $103,961.28.