McIlwraith v State of New South Wales

[2000] NSWSC 533

CITATION:	McIlwraith v State of New South Wales [2000] NSWSC 533
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 12089 of 1989
HEARING DATE(S):	22-26 May 2000
JUDGMENT DATE:	15 June 2000
PARTIES :	Paul McIlwraith (Plaintiff) v State of New South Wales (Defendant)
JUDGMENT OF:	Master Malpass

COUNSEL :	A Katzmann SC/W Moen (Plaintiff) Mr C O’Connor QC/Mr M Gilbert
SOLICITORS:	Geoffrey Edwards & Co (Plaintiff) Moray & Agnew (Defendant)
CATCHWORDS:	Assessment of damages - no question of principle
LEGISLATION CITED:	Supreme Court Rules 1970, Part 33 rule 8A.
CASES CITED:	Circosta v Falzon (1999) NSW CA 308. Sharman v Evans (1977) 138 CLR 563.
DECISION:	See paragraphs 52, 82-104.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 15 JUNE 2000

12089 OF 1989 PAUL McILWRAITH v STATE OF NEW SOUTH WALES

JUDGMENT


1   The plaintiff claims damages arising out of personal injury suffered in an accident on 7 November 1986 (when he was 39 years of age). The question of liability has already been determined in favour of the plaintiff. The court is now required to assess the damages.

2   The plaintiff has given lengthy oral evidence. He was subjected to a long cross-examination. During that cross-examination he was shown film taken on three occasions (24 July 1993, 10 January 1998 and 1 April 2000). He has called Robert Mackie (Assistant Dean, School of Humanities, Newcastle University), Peter Korsche and Kathleen Butler (the plaintiff’s present wife).

3   The parties have tendered considerable documentation (including reports from experts). The plaintiff has seen many doctors. Largely, there are no significant medical issues. The defendant has tendered videos of the film. It has not adduced any oral evidence. The plaintiff has tendered Exhibit Q (which deals with the extent of the video surveillance).

4   I have closely observed the demeanour of the witnesses during the giving of evidence. In assessing credibility, I have had regard both to demeanour and evidence.

5   The plaintiff was born on 18 August 1947 (now 52 years of age). He completed his Intermediate Certificate. He left school before doing the Leaving.

6   The plaintiff commenced with the Department of Youth and Community Services (the Department) as a permanent/casual in 1985. On 28 July 1986, the position became permanent. He was working at the Mt Penang Detention Centre as a youth worker.

7   The plaintiff’s oral evidence provided a pre-accident work history. The information provided tended to be general in nature and in some instances little information was provided.

8   He first gained employment in about 1962. Initially, (until about 1965) he had worked in the accountancy field. He acquired certain qualifications. Later, he had other employment (including production costing and managerial work). It was largely of an administrative or clerical nature. He had progressed to a level of executive manager. He left that job in about 1977.

9   During this period between about 1962 and 1977, there were a number of jobs. Generally speaking, they were not of lengthy tenure (usually in the order of two or three years).

10   Lastly, there was a period between about 1977 and 1985. During this period he presented himself as being self employed (this may not accurately describe his situation). He gave evidence of self employment between 1977 and 1979. No other details were given. In 1979, there was an attempted reconciliation. They moved to the Central Coast and he did some work as a truck driver. In about August 1980, one of his children (Keedan) was found to have cerebral palsy. His wife was then working (probably with the Department). He said that she would not look after Keedan. There was a further separation. He said that he became a single parent looking after the children. He was unemployed. He said that he would do whatever work he could from home (what was in fact done remained largely unclear). The expression “odd jobs” appeared in the evidence. He received a sole supporting parents pension. In 1985, Keedan was admitted for residential care at the North Rocks School.

11   He has been married twice. He was first married in 1968. There were six daughters of that marriage. It seems to have been a troubled relationship. There were a number of separations. In 1994, this marriage was dissolved.

12   He married his present wife on 20 November 1998 (they had met in 1993). The wedding had been postponed on a couple of occasions because of his condition. She is now 27 years of age. She is a lecturer at University of Newcastle (in sociology and anthropology) on a nett salary of $27,000. On 12 December 1999, a daughter was born of that marriage.

13   At the time of the accident, he said that he intended to remain with the Department. He said that he enjoyed his work. He said that he looked forward to a promising career. He had in mind being put through university training and becoming a staff psychologist.

14   A description of the accident was given in the hearing before Allen J. The plaintiff fell through a storm drain opening. He was trapped by a concrete slab. He suffered injury to his left knee. After receiving first aid treatment, he remained on duty for the remainder of his shift. He continued working until 30 December 1986. Following the accident, he was assisted by a second officer. He said that he stopped working because of increasing problems. He had been suffering from inter alia instability, swelling and locking of the knee.

15   Prior to stopping work, he had been involved in an incident on 28 December 1986. He had been supervising a touch football game. A boy ran into him. He said that it made his knee pain worse. The problems from this impact later settled down.

16   Since 30 December 1986, he has not had other remunerative employment. In effect, apart from his 18 months with the Department, he has not had employment for any significant period since about 1977.

17   On 31 December 1986, he sought medical treatment (Dr Meulet). He was referred to an orthopaedic surgeon (Dr O’Malley). He was certified as unfit for work. An Arthroscopy was arranged by Dr O’Malley. This was performed on 13 March 1987. It revealed a torn medial meniscus on the left side. A left medial menisectomy was performed.

18   He developed a haemorthrosis. On 5 May 1987, fluid was drained from his left knee by Dr O’Malley. Wasting of the left quadriceps muscle was revealed on examination. He was prescribed exercises and physiotherapy.

19   He had been on voluntary workers compensation. The payments discontinued on 15 August 1987. In October 1989, he made application in the Compensation Court. On 6 March 1991, an award was entered in his favour. He has continued to receive compensation.

20   He was medically examined on behalf of the Department. By December 1989, he had been notified that it had been determined that he was not fit to discharge the duties of his position (Exhibit B). The plaintiff decided not to appeal against the determination. The December communication advised that, if there was no appeal, action for medical termination could proceed without delay.

21   He said that he had hoped to return to work on light duties. It is his evidence that he had been told by Dr Meulet, in mid 1988, that he could do light work. He was not successful in obtaining light work with the Department. It seems that at least by 1988 he may have been aware that the department would not have him back until he had “a 100% fitness certificate” (or was “totally fit”). He said that it was not until about 1991 that he became aware that he was no longer employed by the Department. There seems not to have been any formal notification of termination. He did not receive any pay after 30 December 1986. He said that he was of the understanding (which he later described as a misunderstanding) that he still had a future with the Department “through to 1993, 1994”.

22   By 1994, his only attempts to obtain work were with the Department. He wanted to go to university. He said that in 1994 he determined that the best course was to obtain academic qualifications. In 1992, he had sought financial assistance in retraining from the defendant’s insurer (in particular undertaking a course in applied psychology at university). These attempts were not successful. His wife encouraged him to pursue an open foundation course and he decided to enrol in a social studies course at the University of Newcastle. He presents this decision as an endeavour to create further qualifications and to find a position for himself. There was an unsuccessful attempt at work during last year. Largely, he has done little else to obtain employment.

23   The unsuccessful attempt took place in about October 1999. A friend (Mr Korshe of V W Performance Centre gave him a trial run. It was abandoned on the third day). Mr Korshe said that he was paid in cash (about $400) and that later, this money was returned by the plaintiff. This evidence had some curious features.

24   The job involved heavy work lifting spare parts (some were 10 - 15 kilograms) and being on his feet for long periods. It has been described as a demanding physical job. In the light of his complaints, it would seem to have been unsuitable employment which would not have been recommended by his medical advisers.

25   He has proffered explanations for his failure to seek work. I shall refer to some of them. There were reasons related to his having a future with the Department (see inter alia Transcript p.60 (40) ). He has said that the Department either told him or regarded him as unemployable (the other evidence merely suggests that it had no place for a worker who was only capable of performing light duties). Contrary to the medical evidence, there were periods when he regarded himself as unfit for work or incapable of seeking it (inter alia in 1993 and 1994). There was a period when he was the secretary of the local RSL Club (said to be on a voluntary basis). During this period he played snooker for the club and he accepted that he could be regarded as what was described as having a high profile within the club. He said that he discussed his situation with various members of the club and came to the view that he was unemployable. He has said that after making informal inquiries, he determined that the best course was to obtain academic qualifications with the end of making himself saleable.

26   In a report dated 18 February 1991, Dr Millons has recorded the following:-
“He has not worked for four years. He has not yet made up his mind in which direction he will go. He will just take things as they come”.

27   There was no specialist treatment or surgery after May 1987 until 1994. However, he did see many specialists (including Drs. O’Malley, Pillemer, Claxton, Middleton and Smyth). It appears that during 1990, he was referred inter alia to Drs. Claxton and Pillemer and ceased seeing Dr O’Malley.

28   He gave this evidence:-
“Q. Well, what was your expectation after you’d had the meniscectomy back in 1987?
A. That within a few weeks I’d be 100 percent.
Q. And what, in fact, transpired?
A. I had nothing but problems after that, the - it never got better. It continually had periods of when it was very bad, periods of when it was simply bad but nothing towards a cure had been achieved by the surgical procedure and the information I kept getting was that there was nothing more to be done, this is from Dr O’Malley, I had to bear it but it was becoming increasingly unmanageable and I wanted another opinion.
Q. During the period from 1987 until 1994 when you came to see Dr Cross what problems were you having with your knee?
A. Instability, varying levels of use from really uncomfortable to immoveable chronic knee locking, of crunching when you moved it, great feeling of instability when one tried to walk on it, especially over sloping or broken ground, great deal of difficulty going down stairs and tedious going up stairs; I had to take my time.”

29   Apart from what he had been told in mid 1988, at least by 1990, his assessment of his capacity for employment was not consistent with the medical advice he was receiving inter alia from his own experts. The view of the doctors was that he was fit for light work (including work of an administrative or clerical nature). It was said that he could do a clerk’s job without any difficulty. The restriction lay inter alia in the areas of heavy lifting and labour activities (mention has also been made of a lot of driving, walking or climbing).

30   On 28 August 1993, he said that he had a bad tumble. His knee suddenly gave away and he fell down stairs on to his back and left shoulder. He suffered other injuries in this incident. It appears that largely these injuries have recovered.

31   In 1994, he enrolled in a Bachelor of Social Sciences course at Newcastle University. It is a three year course. At the present time, he is part way through it. Exhibit E is a Student Online Transcript. As I understand the position, it sets out his progress up to the middle of 1999. If this is the case, it would seem that little was attempted in 1999. His evidence is that he is still doing the course. There is no further information as to what is being attempted this year. He has said that because of problems arising from his injuries, he has withdrawn from courses. He anticipates completion of the course towards the end of 2001. He said that he wants to work as a researcher and use his qualifications of anthropology and social sciences in relation to indigenous affairs in this country. He has in mind a Master’s Degree and a PhD. He has aspirations to do some lecturing but realises this may be difficult because of his age.

32   In January 1994, because of lack of improvement in his knee, he was referred to Dr Cross. He said that he continued to have instability and locking problems. He described the pain as the worst that it had been. He underwent a further arthroscopy. It showed significant arthritis in the medial compartment and a tear of the medial meniscus. A partial medial menisectomy was performed. He was noted to have marked notch osteophytes and a notchplasty was performed in an attempt to regain a range of motion. Following these procedures, he said that there was initial improvement. He felt much better and enjoyed a vast reduction in pain and some increase in mobility. He was treated with physiotherapy and medication.

33   The plaintiff said that the condition of his knee deteriorated with time and the pain became unbearable. In April 1997, he was referred to Dr Caldwell. In February 1998, there was a further arthroscopy. He underwent a high tibial osteotomy. Following these procedures, there were complications (including a thrombosis).

34   Thereafter he was bedridden for about six weeks until the thrombosis had been resolved.

35   He said that he was delighted with his condition in May or early June 1998. Subsequently he had a fall. Dr Caldwell arranged for him to be seen by Dr Dalton. Dr Dalton referred the plaintiff to a physiotherapist and recommended lumbar stabilisation exercises. He regarded the plaintiff as making reasonable progress with treatment.

36   Since then, he has had physiotherapy on and off (for his back problems). He wears a wedge in his left shoe.

37   In September 1998, because of swelling and locking he once again saw Dr Caldwell. Dr Caldwell performed a further arthroscopy and removed loose bodies in October 1998.

38   He describes the present position of his knee as very painful. The pain is increasing. He said that it is progressing towards the end of the useful life of the osteotomy. His back is said to be a lot better (there has been improvement since the middle of 1998). He expects further improvement after the knee replacement.

39   The only contemporary reports are from Drs Dalton and Millons. There are reports prepared during the earlier part of 1999 (including reports from Drs Pillemer, Cross, Caldwell and Claxton).

40   He was seen by Dr Dalton on 17 May 2000. Dr Dalton expressed the opinion that the plaintiff’s gait and the condition of inter alia his left knee had improved since May 1999. He was observed to have a mild limp. Apart from continuing with his exercise programme, he had received little in the way of treatment since May 1999. The history given to Dr Dalton was of episodic back pain. Apart from continuing with the exercise programme, little else was thought to be required by way of treatment for it.

41   He was seen by Dr Millons in April 2000 (and prior to that in May 1999). Dr Millons was qualified by the defendant, but the plaintiff tendered his reports.

42   In his report dated 7 April 2000, he said:-
“There does not appear to have been a great deal of change in Mr McIlwraith’s presentation since I saw him last. His left knee has perhaps deteriorated a little since then with some increasing stiffness. He is complaining of increasing pain through the knee and when pain becomes intolerable to him then he will have to contemplate undergoing a total knee replacement. From his statements that does not appear to be far away.
Mr McIlwraith is known to have some constitutionally based attritional changes in the lower lumbar region which are being aggravated by his altered gait pattern. He claims his back pain is getting worse yet his back seems to exhibit a good range of movements and I would doubt whether there is much untoward going on there.
He should keep up with a gentle regular exercise program. Swimming would be good for him. Clearly with some limited mobility and agility as a result of his left knee problems he would certainly have difficulty performing the home duties and his gardening and would need help with those. I noted before that perhaps two hours a week should cover that. That figure still seems appropriate.”
43   It has been said that a full knee replacement will take place “sooner rather than later” (the plaintiff is anxious to have it as soon as possible, possibly next year). The plaintiff has given evidence as to his “expectation and hope” (Transcript p.39) in the following terms:-
“Q. Do you have any hopes or expectations once the total knee replacement is effected?
A. Yes, I do.
Q. What are they?
A. I hope for a vast easing of the back pain problem because my gait will never be perfect. I will have greater strength of the leg. I am advised a replacement knee will function as good as my remaining knee and therefore I will have straight legs and straight legs will eliminate some of my discomfort and pain and I will be able to move around. That is my expectation and hope.”

This surgery is expected to improve the position for at least perhaps about 10-15 years (which will approximate his remaining working life). Dr Cross accepted the view that it would largely resolve his problems and allow him to function more normally. He will still be left with restrictions. He faces the possibility of further surgical intervention thereafter.


44   Prior to the accident he had been an active sportsman. He had played A grade and first grade rugby league and cricket. He had been a representative snooker player. He had participated in a number of other sports. He had engaged in camping activities. He said that he was a proud Scot and enjoyed wearing the kilt. He participated in highland games. He has lost the enjoyment had in such participation. He said that he is embarrassed about wearing a kilt because of the discolouration and swelling of his knee. He gave the impression that largely, his sporting activities came to an end after the accident. Despite this, it appears that he played golf after the accident. He engaged in snorkelling and spear fishing. He has a boat which he has used for fishing. He has also played representative snooker.

45   He said that his injuries gave rise to other problems. I will mention some of them. This reference is not intended to be exhaustive (there are restrictions on various activities). He has had problems with the driving of a motor vehicle. There are difficulties with sexual intercourse. There are difficulties with sleeping. If he goes on holidays, his sightseeing is reduced. He has become very emotional and suffers depression. He lacks self worth. He feels frustrated and diminished. His capacity to care for his child has been reduced. So has his capacity to indulge in the participation he had in mind for the birth of children.

46   He said that he had a need for services (including domestic services and other services around the house). The domestic services were said to have been provided by his mother, his present wife and her mother. Other services were said to have been provided by friends and relatives (including lawn mowing). Without intending to be exhaustive, certain observations may be made in relation to this evidence. In cross-examination, it emerged that, save for post operative periods, he has significantly received services (including domestic services) which he could have provided himself but others were prepared to do for him. A body of evidence has been given which presents him as being provided with driving services. He does have a capacity to drive himself. Both his wife and mother in law attend the same university where he does his course. The evidence revealed instances of him being driven to the university by way of being given a lift by a person, who was driving to the university for her own purposes. He now pays for lawn mowing (about $50 per fortnight). An occupational therapist (Victoria Klymenko) has assessed him and made certain recommendations. He says that he intends to comply with these recommendations.

47   The house is rented from a family company (in which the plaintiff has no interest). There is a lack of evidence as to the rental arrangements. The house had been owned by the plaintiff and his first wife. It was acquired by the company at auction following the dissolution of the first marriage. It is in need of extensive renovation. The plaintiff has described it as basically external walls and plumbing.

48   He continues to take medication. He intends to undergo further physiotherapy and take medications. Counselling has been recommended and he intends to comply with that recommendation.

49   In assessing damages in this case, the court is not presented with an easy task. Largely, there is a lack of consensus between the parties. The date of the accident took place over 13 years ago. The plaintiff’s work history is relevant to a period between about 1962 and 1986. It is difficult for a fair trial to take place when relevant circumstances are of such antiquity. His credibility is a matter of significance. Not surprisingly, in a number of respects, the evidence is sparse, confusing and/or unhelpful.

50   There was contest as to what could be drawn from the film. On behalf of the plaintiff, it was said that it was both consistent with and corroborated his evidence. As could be expected, the defendant adopts a contrary stance. On its behalf, it is said that it shows the plaintiff moving freely and without the restrictions from which he claims to suffer.

51   In many cases, film is largely not particularly helpful. It can be capable of ambiguity in interpretation. More or less, this is the position in this case. The actual extent to which the plaintiff was under observation in situations helpful to this case is unclear. In what it does show, there is some force in what is said on behalf of the defendant.

52   There are a number of heads of damage. The only consensus relates to the amount to be allowed for out-of-pocket expenses (these expenses are agreed in the sum of $20,039.96) and the amount to be allowed for the Fox v Wood component (this is agreed in the sum of $50,011.97).

53   The damages are to be assessed by the application of common law principles. The other heads of damage are general damages, past and future loss of earning capacity, past and future domestic assistance, extra assistance with birth of child, past paid lawn mowing, future surgery, future counselling, future treatment, future medication, home alterations, loss of superannuation, loss of holiday loading and loss of long service leave. In addition thereto, there is a claim for interest on certain of these heads of damage.

54   The defendant takes the stance that the plaintiff has presented an over-inflated claim. It makes the point that the plaintiff is not a paraplegic or the like, but a sufferer from a knee problem.

55   There has been a strong attack on the plaintiff’s credibility. He is an intelligent man (this is common ground). The defendant says that he is not inarticulate. He took great care with the evidence given by him. Often, answers were of considerable length. He was at pains to ensure that the answers were phrased in terms with which he was happy. At times, he seemed to be engaged in semantic exercises. He gave the impression of a plaintiff who felt that he had the advocacy skills to sell his case and explain away any perceived problems. There are unusual features about the case and the evidence given by him. His evidence throws up inconsistencies and confusion. Some of it was not plausible. There are inconsistencies between his evidence and the history given to doctors. There is conflicting history. His complaints and assessment of problems is not consistent with the opinions expressed by the doctors (including his own medical advisers). Generally speaking, where there is inconsistency, I prefer what has been said by the medical experts. It has been said that some of his evidence has been less than frank. In my view, there is substance in that contention. I do not accept part of his evidence.

56   I first turn to the claim for loss of earning capacity. A claim is made for past wage loss in the sum of $363,205.59. Initially there was a claim for interest at the rate of 7.275% for a period of 13.50 years. The defendant is entitled to a deduction for worker’s compensation payments. The total sum that has been paid is $183,434.09. The claim for the future is in the order of $250,000. It is calculated on the basis that the plaintiff would work until the age of 65. It assumes a working capacity to earn $350 net per week during the period from 1 July 2000 to the age of 65. It takes into account a deduction of 15% for vicissitudes.

57   The defendant contends that the plaintiff has failed to mitigate loss. The plaintiff stresses the onus borne by the defendant on such a consideration.

58   At the outset, in dealing with this head of damage (as well as other heads of damage) the court must consider the question of whether or not the accident led to the plaintiff suffering back injury (the plaintiff’s claim particularises an “injury to the low back” ). It is contended by the defendant that it did not.

59   The starting point is the case propounded by the plaintiff during this hearing. It is put that after the accident he developed a limp. He said that “From exertion I would start suffering some back cramps and back pain in the lower back”. He distinguished that lower back pain from his upper back problems. He said that he hurt his upper back “in the fall”. In evidence in chief, at p.26 of the Transcript, he identified that as the fall in August 1993. His evidence is to the effect that he has largely recovered from the shoulder and back problems suffered in that fall. It was made plain by his counsel that, no back problem was said to result from that fall.

60   It is not put that the low back problem was experienced at the time of the accident. It is put that it developed some time thereafter from his altered gait. His evidence was that he was not aware of it as a problem in the first years after the accident.

61   The plaintiff’s documentation included an initial tender of a bundle of medical reports (Exhibit A). The bundle did not contain reports from Dr Evans. They were the subject of a later tender (after he had been cross-examined on them). Dr Evans gave a report dated 21 January 1999. It recorded a history of the 1986 accident which differed from that appearing in earlier reports. The recorded history is that the plaintiff fell twisting his knee and back. It records the suffering of low back pain from the day of the accident. He has given evidence that this was in fact what he told Dr Evans and that it was the truth. Later, he engaged in a semantic exercise in relation to the word “From”. Yet later, during that evidence the plaintiff said that what he was recounting to Dr Evans was an impact pain. He took the view that Dr Evans must have got it wrong in the way that he had “phrased it” in the report. He then said that it would be incorrect to describe his lower back pain as starting in 1986 and being present since that time.

62   An examination of the medical reports reveals that there is no history of low backache in any of the reports prior to July 1998. A back problem is first recorded in a report from Dr Claxton following the fall had in 1998. He was first seen by Dr Claxton in July 1990. Since that time, Dr Claxton has seen him on a number of occasions and has prepared a number of reports. In the report dated 8 July 1998, the doctor records:-
“Of more particular concern is the increasing pain and discomfort in his back which he attributes to his limp as a result of the accident. He first experienced back pain on the day of the accident in 1986 and it has varied over the years but has only begun to trouble him unduly over the last few months when it has at times been quite crippling.
…..
Three weeks ago the back pain was so severe he could not walk at all for two days. He saw a general practitioner who recommended that he rest in bed for one week. He subsequently saw Dr Caldwell who has recommended him to see Dr Dalton about his back. Dr Dalton has recommended an intensive course of physiotherapy for his back which he is about to commence.”

The report does not mention the 1998 fall.


63   He was first seen by Dr Pillemer in September 1990. Thereafter Dr Pillemer saw him on a number of occasions and has prepared a number of reports. In his report dated 15 February 1999, he records a complaint of low back pain “which he feels he first noticed in about 1988 or 1989. The back pain has become ‘critical’ and he gets a lot of pain at the present time”. The report does not mention the 1998 fall.

64   In cross-examination, the plaintiff gave the impression that Dr Pillemer had made an error. A history was also recorded by Dr Dalton. He recorded a history of back problems over the last ten years. He recorded also that the plaintiff developed acute lumbar pain radiating through into the groin when his legs gave way getting out of a car two or three weeks ago.

65   Dr Dalton said that the main complaint was right lumbosacral pain with occasional posterior thigh discomfort. X-rays of the lumbar spine showed degenerative changes in the facet joints. It was his opinion that the back pain was largely attributable to facet joint arthropathy which he said was no doubt exacerbated by the plaintiff’s altered gait.

66   The history given to Dr Evans did not mention the 1998 fall (the back pain was attributed to his abnormal gait). It did mention that his back became a good deal worse in mid 1998 over a short period when his knee was particularly troublesome and had been intermittently present over the years and would tend to get worse when the knee was bad. It was identified as a pain felt in the low back (Exhibit L)

67 The complaint of a low back problem was not raised in this case until 1999 (when the Amended Statement Pursuant to Part 33 rule 8A was filed on 21 May 1999). Earlier statements had been filed in 1993 and 1996. It was not ventilated in the compensation proceedings.

68   By way of explanation the plaintiff did say in evidence that the back only provided a nuisance pain problem prior to 1998. It was intermittent and he did not think it was important to tell the doctors about it.

69   He gave evidence that his back was disabling for a brief period in 1998. This was the pain experienced following the fall in that year. At that time, it affected his ability to drive, his performance of domestic activities and the conduct of sexual intercourse. It was a different pain which he had not experienced in the past. It was in a different region (lower leg and back region). It was more specific. He referred to it as being a horse of a completely different colour (Transcript p.114).

70   What emerges from the plaintiff’s oral evidence and the reports is much conflict and confusion. In the circumstances, largely, I do not feel that I can rely on the plaintiff’s evidence in relation to his back problems. His task is further handicapped by what he did in the compensation proceedings and the manner in which these proceedings have been conducted. It may be that his altered gait has led to some back difficulties over the years. However, I am not satisfied that the accident is responsible for any significant low back problem.

71   For completeness, I should mention that the plaintiff’s medical evidence suggests that he had osteoarthritis in the left knee prior to the accident (Dr Claxton has expressed the view that the accident would have caused considerable exacerbation of this osteoarthritis).

72   It is not possible to identify any specific time at which it is expected that the knee surgery will take place, however, it can be expected to take place at least within about five years. It seems likely that it will largely resolve his problems and leave him with limited restrictions on his capacity (the major restrictions would be carrying heavy weights and excessive stair walking). Dr Cross thought that the replacement should last for up to twenty years. He did not think that there was a likelihood of multiple procedures of that kind having to be performed during the plaintiff’s lifetime. He expected that it would last longer by reason of the plaintiff’s age. The plaintiff will be incapacitated for a period following the surgery and during that time there will be a need for services. It may have some effect on his earning capacity during that time.

73   The defendant says that the plaintiff has in fact worked for a period of about 18 months during some twenty three years. Apart from some odd jobs, he did not work during a period of about six years prior to his job with the Department. In effect, there has been no paid employment since 31 December 1986.

74   Since 31 December 1986, over thirteen years have passed by. He has lost the capacity to perform his old job (the earnings of comparables may be found in the Schedule to annexure H). This was a job which required physical attributes. It was his pre-accident intention to move towards obtaining university qualifications. He was not looking forward to a future doing labouring work. During much of those thirteen years, at least since 1990, he had a significant residual earning capacity. He had a wide range of skills. These included administrative and clerical skills (in addition to his accounting qualification) at a level of executive management. He has other skills which include working on motor vehicles. General knowledge and experience would indicate that suitable employment, at least for a substantial part of the period during which he has not worked, would have been available if he had wanted it. There are physical restrictions. They do place him at a disadvantage in the labour market. But this must be seen in the context of an intelligent man with a wide range of skills (including office skills), who has had in mind the having of an academic future and whose physical problems may be significantly alleviated in the near future.

75   In his report dated 18 May 2000, Dr Dalton said:-
“In my opinion Mr McIlwraith is fit for sedentary work but will probably require some vocational retraining. The condition of his knee and back prevents him from returning to work which involves prolonged weight-bearing, climbing, squatting, kneeling or heavy lifting. His fitness for work has not changed greatly since I last examined him although I believe his tolerance of semi-sedentary and sedentary work has probably improved and will continue to do so if he undertakes the necessary exercise programme.”

76   He has done little to obtain remunerative employment. He has advanced explanations for why he did not seek employment. In my view, they are largely lacking in plausibility. In 1994, he chose to embark on an academic future. If he proceeds according to his stated intentions, he will not attain his qualifications until he is aged over sixty years (when not much working time will remain). Even after taking his problems into account, the evidence still throws up the possibility that, at least in recent times, he may not have been diligently pursuing his studies. The material suggests that there may not be much available to him if he does attain his qualifications and that it may not be easy for him to get work with those qualifications.

77   There seems to be force in the contention that, at least for a significant period in the past, he had lost interest in exercising his residual earning capacity and was pursuing his preference to go to university. This seems to be what is ahead for the future. This is an approach which is unlikely to lead him to much opportunity for financial reward. He will be 65 in about thirteen years time.

78   The evidence as such is not particularly helpful as to what he could be expected to earn from an exercise of his residual capacity. However, general knowledge and experience would indicate that his skills have the potential to earn remuneration at least comparable with what he would have earned, but for the accident, with the Department.

79   The defendant is only prepared to allow a sum of $70,200 for past economic loss and a sum of $33,600 for future economic loss. The claim for interest is disputed.

80   The plaintiff has received worker’s compensation payments. As the law presently stands, it seems to be common ground that, in the circumstances of this case, there should not be an award of interest on past economic loss.

81   The plaintiff’s claim is of an ambit nature. He has not demonstrated an entitlement to the sum claimed. In my view, the defendant has demonstrated that the plaintiff has failed to mitigate his loss. The difficult task is to decide what should be allowed. There are many considerations. There are many imponderables and a great deal of estimation is involved ( Circosta v Falzon (1999) NSW CA 308).

82   It seems to me that the assessment of loss of earning capacity is not something that can be done with mathematical precision. In my view, it is best done by general assessment. Doing the best that I can in the circumstances, I allow a global sum of $120,000 for the past and a global sum of $70,000 for the future.

83   The plaintiff makes a large claim for past and future domestic assistance (interest is also sought on the amount allowed for the past). In total, the claim for assistance exceeds $300,000. There is also a claim for “extra assistance with birth of child” in the sum of $4,056. In contrast, the defendant is prepared to only allow modest sums in respect of the claims for domestic assistance. As I understand it, it opposes the claim for extra assistance.

84 A claim for domestic assistance was first advanced in the Amended Statement pursuant to Part 33 rule 8A filed on 21 May 1999. The present claim is considerably larger than that which was made in the filed document. There was a substantial difference between what was said by the plaintiff in his evidence in chief and what was claimed in that document. The explanation of it was that his evidence reflected the services that were actually provided and the particulars reflected a decision as to what was recoverable as a matter of law.

85   The medical evidence falls well short of justifying the claim that is made. In May 1999, Dr Dalton considered that the plaintiff would require assistance with gardening. He was then unaware of any need for domestic assistance. In his report dated 18 May 2000, he said:-
“At the moment Mr McIlwraith is unable to do any home maintenance which involves climbing ladders, repetitive bending, trunk rotation or heavy lifting. As a result he needs assistance with lawnmowing, gardening and certain home maintenance tasks. Although some restrictions are permanent there is some potential for improved tolerance of certain activities with an ongoing lumbar stabilisation exercise programme.”

86   Dr Claxton thought that he should be able to carry out simple household chores. He thought that the plaintiff would probably find it difficult to hang clothes on a line (he suggested a dryer as an alternative). He said that it would not be unreasonable for him to have some measure of domestic assistance for cleaning the house and mowing the lawns. I have earlier referred to the opinion had by Dr Millons.

87   The evidence establishes that the plaintiff can himself perform many of the services (some of them may involve discomfort) in respect of which the claim is advanced. It was conceded that it was convenient for him to allow others to provide services. His capacity can be expected to improve after his knee replacement.

88   This is another area which cannot be assessed with mathematical precision. The calculation of the claims made on behalf of the plaintiff do not take into account inter alia concessions that emerged during evidence. It remains an ambit claim. Necessarily, the assessment must be somewhat arbitrary. Doing the best that can be done in the circumstances, I allow the global sum of $35,000 for past care and the global sum of $15,000 for future care. Interest in the sum of $34,374 (calculated at the rate of 7.275% for 13.5 years) is allowed on the sum assessed for past care.

89   The claim for extra assistance was not the subject of submissions and I am not satisfied that it should be allowed.

90   The plaintiff claims the sum of $5,700 for past lawn mowing and interest thereon in the sum of $1,824.57. There is evidence to support a claim for the cost of lawn mowing. The defendant has not made any submission in opposition to these heads of damage. Accordingly, they are allowed.

91   A claim for future surgery is made in the sum of $30,023.25. The defendant’s schedule of damages indicated that it was prepared to allow a sum of $25,000 for this head of damage. It was said that this calculation did not allow for any deferral (a figure of $20,000 was then put forward). The plaintiff’s claim is calculated on the basis of two replacements, both being deferred.

92   It seems likely that there may be only one knee replacement. However, the assessment should take into account the possibility (of a low order) of further surgery. Doing the best that I can in the circumstances, I allow the global sum of $22,000.

93   There was a claim for future counselling in the sum of $3,100. Such counselling has been recommended and the plaintiff has indicated that he is prepared undergo it. The defendant has not made any submission in opposition to this head of damage. Accordingly, I allow the sum claimed.

94   The plaintiff makes a global claim in the sum of $10,000 for future general treatment, physiotherapy treatment etc. There is a claim for future medication in the sum of $19,135.05. The defendant is prepared to allow a sum of $5,000 for both of the claims.

95   The evidence adduced in support of this head of damage is sparse. At least part of this claim relates to his back problems. It is reasonable to anticipate that there may be some need for medical attendances and treatment. Also, it would be reasonable to expect that there would be some need for medication in the future. Any need may diminish or disappear for some time after the knee replacement. Doing the best that I can in the circumstances I allow the global sum of $10,000.

96   There is a claim for loss of superannuation entitlements ($142,998.05), loss of holiday loading ($1,567.45) and loss of long service leave ($5,209.92). It is another ambit claim. The defendant opposes the making of any allowances for these matters.

97   In my view, some allowance should be made. In the circumstances of this case, like certain of the other claims, the amount has to be somewhat arbitrary. Doing the best I can, I allow the global sum of $50,000.

98   A large claim is made in respect of “Home alterations and recommendations” made by the occupational therapist. It is in the sum of $109,788.37. It could be described as both optimistic and unreasonable. The defendant opposes the making of any allowance for this head of damage.

99   The claim has had a global presentation. A lengthy assessment report has been prepared. It deals with a variety of matters. I have had regard to its contents and such evidence as has been adduced in relation to it. Apart from dealing with alterations to the home, inter alia there are recommendations as to special equipment (including items such as a long handled bath brush and a long handled toe worker). The plaintiff has acquired an aged large dog. The recommendation included the cost of a nail clipping service to clip the dog’s nails every three months.

100   A significant component of the claim relates to the house itself. The house needs extensive renovations in any event. It was acquired in a bad state of repair and it was intended to renovate it in the future. This has not yet taken place. There are some unusual circumstances (including the company ownership and the uncertainty as to the rental arrangements). Curiously, he holds no interest in the company. He says that it is his intention to reside there in the long term. He disputes that he made a statement to the contrary to one of the defendant’s experts.

101   The plaintiff is required to demonstrate a need for the matters claimed and show that it is reasonable to impose the cost of them on the defendant (see inter alia Sharman v Evans (1977) 138 CLR 563). The claim has in fact excited little argument. For the plaintiff’s part, little was done to address the problems confronting the claim. It can be dealt with without specifically analysing each aspect and item of it. There are aspects of the claim that border on the ridiculous. In my view, largely, the plaintiff has failed to discharge the onus borne by him in respect of this claim. It would, in my view, be reasonable to make a modest allowance. This is best assessed by a global approach. Accordingly, I allow the sum of $10,000 for this head of damage.

102   There remains the question of general damages. The plaintiff claims $135,000 (together with interest on half thereof for 13.5 years at the rate of 2%). The defendant is prepared to allow $90,000 (together with interest). In the circumstances of this case, I consider that, the proper figure is $120,000. I allow interest in the sum of $16,200.

103   The total of the amounts allowed is $583,250.50 (from this total is to be deducted the compensation payments which are in the sum of $183,434.09).

104   There will be judgment for the plaintiff in the rounded sum of $400,000. The defendant is to pay the costs of the proceedings. The exhibits may be returned.
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Last Modified: 09/26/2000