Reed v Jandakot Pastoral Pty Ltd - [2003] WADC 103

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: REED -v- JANDAKOT PASTORAL PTY LTD [2003] WADC 103

CORAM: YEATS DCJ

HEARD: 10-12, 17-18 & 24 FEBRUARY 2003

DELIVERED : 9 MAY 2003

FILE NO/S: CIV 384 of 1999

BETWEEN: LEON ERNEST REED
Plaintiff
AND
JANDAKOT PASTORAL PTY LTD
Defendant

Catchwords:

Negligence - Damages - Causation - Whether any breach of duty of care caused the plaintiff's injuries - Whether any breach of duty of care caused drug use in RAN - Plaintiff fails to reach s 93D threshold - Prior payment of Criminal Injuries Compensation - Provisional assessment of damages $36,650

Legislation:

Occupiers' Liability Act 1985

Workers' Compensation and Rehabilitation Act 1981

Result:

Plaintiff awarded provisional damages in the sum of $36,650

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr M W Odes

Solicitors:

Plaintiff: In person
Defendant: Pynt & Partners

Case(s) referred to in judgment(s):

Baker v Shire of Albany (1994) 14 WAR 46
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Campbell v RGC Mineral Sands Ltd (2001) 25 WAR 322
Graham v Baker (1961) 106 CLR 340
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Jones v Bartlett & Anor (2000) 176 ALR 137
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Modbury Triangle Shopping Centre Pty Ltd v Anzil & Anor (2000) 176 ALR 411
Prast v Town of Cottesloe (2000) 22 WAR 474
Reed v The Assessor of Criminal Injuries Compensation, unreported; DCt of WA; Library No D970170; 5 June 1997
Tonich v Macaw Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 940119; 11 March 1994
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Brambles v Brambles Australia Ltd t/as Grace Removals, unreported; DCt of WA; Library No 5164; 29 November 1996
H B Brady Co Pty Ltd v Wachtel [2000] WADC 153

Phillis v Daly (1988) 15 NSWLR 65
Pollitt v Midland Brick Co (1995) 14 SR (WA) 251
Vozza v Tooth & Co Ltd (1964) 112 CLR 316

YEATS DCJ: The plaintiff claims damages for injuries resulting from an incident in 1992 which occurred in the course of his employment with the defendant. On 25 February 1992 the plaintiff was assaulted by one or two armed offenders in the defendant's car park where he worked as a windscreen washer. Both liability and quantum are in issue. The major issues concerning negligence relate to questions of causation: —
1.If the defendant breached its duty of care to the plaintiff, did that breach cause the plaintiff's injuries?
2.Did the 1992 incident cause the plaintiff any quantifiable damage?
There is a s 93D Workers' Compensation and Rehabilitation Act 1981 threshold that must be met. The plaintiff must establish that at the time of trial his future pecuniary loss exceeds $130,690.
The plaintiff presented his case in person. It was originally set down for a three week hearing. With the cooperation of senior counsel for the defendant the witnesses were arranged so as to avoid wasting too much of the court's time. The plaintiff did a creditable job of presenting his case but his lack of understanding of the rules of evidence undoubtedly hampered the proper presentation of his evidence and led him to tender documents which did not always support his case. The court is, of course, unable to provide legal advice to an unrepresented litigant and necessarily struggles to ensure a fair hearing for an unrepresented litigant's case. Nonetheless, the court can only reach its decision based on the evidence before it. It was apparent in the plaintiff's closing submissions that he wants now to rely on matters not in evidence before me. I am a court of law bound by the rules of evidence. Those rules cannot be abandoned in a case where a litigant appears in person. Justice must be even‑handed and fair to both parties.

History

The plaintiff was born on 2 February 1975 and is now 28 years of age. He was 17 years old at the time of the incident on 25 February 1992.
The plaintiff attended Swanview Senior High School and completed school in Year 10 in November 1991 a few months before the accident. He had worked while still at school at Hungry Jacks and during 1991 had been involved in examinations in order to join the Royal Australian Navy (RAN). In preparation for joining the RAN he had sat psychological tests, had to pick up his maths levels and even had to gain five kilograms because he was underweight. The plaintiff had a background of being

involved in cadets during high school. He joined in Year 8. He never missed a meeting, never missed a parade and felt that the cadets taught him discipline, taught him to march and gave him pride. He was involved in the Anzac Day memorials and RSL events at many locations including the Vietnam Veterans Memorial in Kings Park. His cadets experience was with the Army but at the start of Year 10 he researched all branches of the armed services and decided that the Navy was the best branch for him.

After completing those tests and examinations the plaintiff had to wait until he received a letter of acceptance into the RAN. In the meantime he continued working at Hungry Jacks but also took on a job with the defendant at the Queens Car Park in Queen Street in Perth. He commenced that job late in December 1991 and was employed as a car park attendant to wash windows of the cars. He worked from approximately 9.00 in the morning until 4.30 pm every day, five days a week. When drivers came to the booth to get their ticket to park in the car park the plaintiff's job was to ask them whether they wanted their windscreen washed and, if they said "yes", he would place a ticket on their windscreen wiper. After he had eight or 10 tickets he would go up into the car park, wash the windscreens and then come back down to the booth.

The incident

The plaintiff recalls that it was about 1.00 pm just before lunchtime on 25 February 1992 and it was time for him to go up and wash windscreens before he went to lunch. He walked up to the fifth floor and commenced and worked his way down. When he reached the third level of the car park he walked around the top corner near the stairwell and down the outside edge so that he could see the windscreens. He walked in front of the cars looking at the windscreens and when he reached about the third car he looked back and saw someone lying on the ground looking straight back up at him staring at him with wide eyes. The plaintiff realised he could be in a bit of trouble and turned to run but, he did not get a chance to run; he was grabbed almost instantly.
He said the man lying down was four or five metres from him when he saw the man and he was surprised that he was grabbed so fast and always thought there may have been a second person there because he never saw who grabbed him. He was grabbed from behind over his right shoulder and pulled into the body and he grabbed hold of the arm that had gripped his shoulder. The plaintiff struggled, trying to push the assailant's

hand away. Meanwhile, according to the plaintiff, his assailant was holding a knife in his clenched fist and moving it back and forth across the plaintiff's neck. Then the plaintiff said he felt a further big pull across his neck, a big slice across and he was tossed away and felt a big crack to the back of his head and his head hit the ground. The plaintiff said the knife was in his hand. Somehow he had ended up with it.

The plaintiff said that he had a cut across his throat and four or five slices up on the edge of his neck on the right side. The plaintiff said there was a 13 centimetre slice coming all the way across his throat and up to the left of the centre under his right ear. He then lost consciousness.
The evidence shows that the plaintiff was on the ground unconscious for approximately an hour when he began to hear people calling his name and tried to wake up. A policeman was there. The policeman picked him up off the ground and for some reason the plaintiff attacked him, lashed at him. The plaintiff said that he still thought he was getting his throat cut. The plaintiff was then taken to hospital.
The plaintiff said he went home after two days and tried not to think about what had happened to him. He said he was in shock. He went straight back into the cadets and for some reason decided that he did not want the Navy to know that this happened to him. The plaintiff saw his general practitioner, Dr Stanley‑Carey and was referred to a psychologist Mr George Burns.
The police offence report Exhibit 7 and the Royal Perth Hospital report Exhibit 8 indicated that the plaintiff's injuries were not considered very serious. The police reported that he received several scratches to his throat and bruising to the rear of his head. The Royal Perth Hospital reported that there was a superficial laceration on his neck some 15 centimetres long and a tender 5 centimetre swelling at the back of the scalp. Royal Perth Hospital reported there was no focal neurological deficit. Skull x‑rays were taken and no fractures were seen. He was assessed as having suffered concussion and soft tissue injuries and was admitted overnight for bed rest and observation. He was discharged the following morning.
The first medical certificate Exhibit 9 is an interesting document which was initially prepared by a doctor at Royal Perth Hospital who filled in a bare minimum of details. The plaintiff saw his general practitioner, Dr Stanley‑Carey, two days later and Dr Stanley‑Carey filled in further information on the form as he believed further information was

necessary for workers' compensation to commence. On 6 May 1992 Dr Stanley‑Carey issued a final medical certificate indicating that the plaintiff was wholly recovered from the effects of the incident and could go back to work but he needed ongoing psychological assessment and therapy.

Dr Stanley‑Carey referred the plaintiff to Mr George Burns, a registered clinical psychologist. His first appointment was on 11 March 1992 at which time the plaintiff was having insomnia and nightmares and symptoms of depression, including anxiety, phobic‑like symptoms about returning to work, headaches in the frontal occipital regions and general avoidance about going back to work as well as hypervigilance. Mr Burns assessed that these were common symptoms of post‑traumatic stress disorder (PTSD). Mr Burns began treating the plaintiff for his symptoms.
On 20 April 1992 the plaintiff received a letter accepting him into the Navy and requiring him to report in three months time for training. He was to report on 20 July 1992. The plaintiff at this stage decided that he did not want to let the Navy find out what had happened to him. He was in damage control so he stopped his therapy. The plaintiff had the view that the Navy would not allow that sort of interference in the system. He was having migraine headaches and he thought that he would not be accepted if the Navy found out. On 20 July he joined the Navy by going into Perth, getting on a bus, going to the airport, flying to Victoria and he was taken to Crib Point in Cerberus Naval Base. He then spent a month without being able to leave or go anywhere and his time was filled completely but he had trouble sleeping. He also had a couple of migraines intermittently but he hid them. He also claimed he was throwing up a bit and that was hard to hide. He also reported that his eating habits started to deteriorate and he was getting angry, got in one or two fights. He said this arose from his lack of sleep. He would go three or four days with very limited sleep and then he would find he could not control himself and he'd be in a fight.
The plaintiff spent 12 months at HMAS Cerberus Naval Base; three months was recruit school and after that 8 months category training and then he had a month off for Christmas. During that time he returned to Perth.
The plaintiff began using illicit drugs midway through category training, that is, in approximately November or December of 1992. He went to Sydney and got heroin. He claimed that he had been shown a training video in the navy, education on drugs and from that he perceived

that heroin could be used to knock him out. He began injecting heroin daily. He bought a rock of it and just shaved off bits of the rock and used it a bit at a time for a couple of months. According to the plaintiff it was very pure and he was able to control it. He would come home about 7.00 or 8.00 at night and he would use drugs and be asleep within half an hour and wake up in the morning bright‑eyed and able to go on with his work.

Eventually he ran out of heroin, came back to Perth, couldn't find any heroin and began smoking pot and used speed. He claimed the signs were going off in his head saying this is not right. While he was at HMAS Stirling in Perth he was smoking a bit of pot but that wasn't so easy to hide as the heroin. He was at HMAS Stirling for a month or so and then decided he wanted to get aboard HMAS Torrens. He was in category training and did an extra part of his training that was steam training because he knew these boats were going to vanish and he wanted to serve on one of the boats before they were gone. He was successful in this and got aboard HMAS Torrens in Tasmania. While in the eastern states he was able to score some more heroin. He said he sailed on HMAS Torrens in October 1993. Unfortunately the heroin he purchased was not pure and he had a rash on his body because he considered it a "bad hit of heroin". He was taken off HMAS Torrens on 23 December 1993 and not ever allowed back.
According to the plaintiff at this stage the Navy caught on to the fact that he was having headaches and was not sleeping and that he had a psychological "drama" as he described it and he eventually went absent without leave because he felt he was going to be discharged. He went to his mum and dad and asked for help but they turned him in. They rang the Defence Force and put him straight in for drugs self‑referral. He had been working at an office he described as the FIMA Regulating Office but he was taken out of there because his security clearance was removed. He was then put in a chaplain's office to work. Meanwhile he wanted to go back to sea but he was not going to be allowed to and he turned around and decided he hated the Navy and wanted to get out. He wanted a discharge at his own request and not a "Retention not in the interest of the Navy" (RNIN) because it was a dishonourable discharge. On 10 June 1994 however he received an RNIN discharge, came back to Perth and moved in to live with his brother who is two years older than the plaintiff.

Other head injuries

Under cross‑examination the plaintiff admitted that in 1990 while he was at school in Year 9 he was involved in a fight where he was kneed and kicked to the right-hand side of his head. As a result of that fight he suffered headaches, nausea, blurry vision and required medical attention including x‑rays because there was a suspected fracture of the skull. In the event there was no skull fracture.
On 16 November 1993 while in the Navy the plaintiff was involved in a fight while ashore in which he was punched in the face and reported to have suffered a loss of consciousness. The out-patient clinical record, Exhibit 11, indicated that he had pain to the left side of his face and cheek and a headache and bruising. At that time his face was x‑rayed and he was given Panadeine but still complained of headaches in the frontal and occipital region.
On 8 February 1997 the plaintiff had a motorbike crash in his back yard. He came off the bike and the bike cracked him in the back of the head and knocked him out. He was treated at Swan Districts Hospital and given drugs and then taken by ambulance to Royal Perth Hospital where he had CT scans done and suffered a small bleed on the top of his head inside his skull. It took him several months to recover from these injuries. He was sent to Shenton Park Rehabilitation Centre where he had tests as to how slow or fast his brain was working and they gave him therapy for his broken bones. He was in Shenton Park for three months or so but he was annoyed at everything that went on there.
A further incident happened on 12 January 1999 when the plaintiff was assaulted by a group of men at the front door of his house when they smacked him in the head with a rifle butt. He was also thrown around the room and beaten up. As a result of being hit with the rifle butt he was knocked out and had big black eyes and was left lying on the floor where he remained until his brother came around two days later, found him lying there and took him off to hospital. On this occasion he spent a week or so in Royal Perth Hospital. They had him strapped to his bed and eventually he discharged himself out of there.
On 26 August 1999 the plaintiff had a further head injury in a car crash when he was driving a Land Cruiser that rolled over when a tyre blew when he was going about 90 kilometres an hour on the Roe Highway. The plaintiff broke his collarbone, his clavicle and his shoulder as well as his jaw on both sides. He was again hospitalised, on this occasion, for about a fortnight.

Plaintiff's work history

After his discharge from the Navy the plaintiff immediately went to work. He had a position at Sunshine General for about two months commencing in July 1994. Then around September 1994 he began working for Swanview Plant Farm as a nursery hand and held that job for seven months until March 1995. Both of these jobs were full‑time 40 hour a week jobs.
The plaintiff commenced his own brick paving and landscaping business in about 1995 and ran that on and off until about 1998. In the course of his business the plaintiff gave quotes to clients. An example is Exhibit 12. He was involved in negotiating prices and ran a bank account and sent out invoices and arranged advertising. While he ran his business he also held some other jobs. In 1996 he started working at Barclay Mowlem Construction as a railway maintenance worker. It was a hard physical labouring job. In the course of that work he suffered his shoulder injury on 14 November 1996 while swinging a sledgehammer which incapacitated him and for which he received some workers' compensation. He also did some farming for a man named Evan Lester, fencing and driving his headers and machinery. The plaintiff agreed that up to the date on which he strained his shoulder while in the employment of Barclay Mowlem he was capable of working at a full‑time physically demanding job and he admitted in cross‑examination that he is presently fit to carry out those duties.
The plaintiff also worked at Railskills from September 1998 to April 2000, a period of approximately 18 months where he took whatever work came his way, whatever work was offered. He worked excessive hours if he was offered them; one week he worked 105 hours. He often did what he described as massive overtime. The payroll journal from Railskills showed that in the various fortnights when the plaintiff worked at Railskills he worked 104 hours on one occasion, 105 on another, 132 on another.
The plaintiff also worked at Skilled Engineering commencing on 25 August 2002 and records show he worked through 4 January 2003 (Exhibit 18). That record shows that he worked 45 hours in one week, 54 hours in another week. In November 2002 he was working 42‑1/2 hours a week and getting paid in addition for travel time.
The only other job the plaintiff had (and it is unclear when he held it and for how long but he claimed it was for a very short period of time)

was working for Trafcom Pty Ltd standing on the side of the road with a lollipop sign.

Credibility

The plaintiff impressed me as a very sincere young man who was committed to his purpose of obtaining damages for the 1992 incident. Unfortunately he did not impress me as being a very truthful person. It was not only that he tended to exaggerate the incident itself. His account of having his throat "sliced" all across and up under his right ear was out of all proportion to what the hospital report indicated was a superficial laceration on his throat. I accept that the attack from behind on him and the use of a knife would have been extremely distressing for him but his injuries were not so serious as he has suggested.

I lost confidence in the plaintiff during his cross‑examination concerning illicit drug use prior to joining the Navy. This is an extremely important issue in his case. He maintained that he never used illicit drugs until after the 1992 incident when post‑traumatic stress symptoms prevented him sleeping and he began to use heroin in order to get a good night's sleep. Both Dr Skerritt and Dr Terace said that if there had been drug use prior to the 1992 incident then that would negate any causative theory between the 1992 incident and the plaintiff's subsequent use of drugs while he was in the RAN.
On 2 May 1994 the plaintiff had been interviewed by his commanding officer. A transcript was made of the proceedings. The transcript shows the following questions and answers (Ex 31 p 4).
"Q.Prior to joining the navy had you used any drugs?
A.Yea; I had used drugs.
Q.What sort of drugs?
A.I had used pot and acid."
Under cross‑examination the plaintiff admitted that he had made both answers. Initially he claimed, "That question just slipped past me." (T318). He said he misunderstood the question and that he thought he was being asked about drug use after he joined the Navy (T319).
Then the plaintiff was confronted with further questions and answers from the May 1994 interview (Ex 31 p 5).

"Q.When did you use these drugs prior to joining the RAN?
A.Just ‑ ‑ Marijuana was on a casual basis and acid was just every now and again.
Q.So was this in 1992 or 1991?
A.From about four or five years before was marijuana and acid was about sort of 10 to 12 months before I joined up."

On his oath at trial, when confronted with these further answers, the plaintiff claimed he had been lying during the 1994 interview. He said he was telling lies at the time because he was "trying to avoid a discharge medically because of the symptoms that I could clearly see relating to an incident that I was hiding from the Defence Force that occurred in 1992 and the problems that it had caused me since".
Unfortunately, what was apparent to me was that the plaintiff was lying on his oath in his evidence and giving inconsistent evidence to try to explain away what was not explainable. There is no reason I could imagine for the plaintiff to have lied to his commanding officer and dobbed himself in for illicit drug use over four or five years prior to joining the RAN if that were not true.
The plaintiff was well aware of the importance of this issue in his case. He had assured his medical advisers that he had never used drugs prior to joining the RAN. They believed him and in the case of Dr Skerritt that belief formed the basis for his opinion that the 1992 incident caused the plaintiff's later drug use when he was in the RAN. The plaintiff's answers during the 1994 interview demonstrate that premise was false and, as Dr Skerritt conceded, his medical opinion fell away.
By the conclusion of the trial I had formed the view that the plaintiff's evidence was completely unreliable. He is truthful only if it serves his purposes. Otherwise he lies if he believes it is in his interests to do so. Whenever he was faced with evidence of having told another person something contrary to what he now said in his court case, the plaintiff would claim that he had been lying to those around him on earlier occasions and trying to cover up and to hide the 1992 incident from the RAN. I never could fully understand why he wanted to hide the 1992 incident from the Navy in the first place. But that was the basis of much of the plaintiff's case and his explanation for his contradictory statements.

By the end of the trial I came to accept Dr Terace's opinion that the plaintiff suffers from an anti‑social personality disorder associated with a history of drug abuse and a failure to accept responsibility for his own behaviour. These factors all indicate that the plaintiff in presenting his case was a very troubled young man who had misguidedly decided to attribute all of his problems to an incident in 1992 where he hoped to be able to gain compensation. I have found myself unable to accept the plaintiff's evidence unless it is supported by other independent evidence.

Duty of care

The plaintiff pleads his case both in negligence and under the Occupiers' Liability Act 1985 ("the Act"). The defendant was the plaintiff's employer. That special relationship gave rise to a greater duty of care on the part of the defendant as an employer than as the mere occupier of the premises where the incident took place. In any event in cases of occupier's liability the existence of the duty of care, the standard of care and breach are determined by applying ordinary principles of negligence. Those principles apply to actions under the Act. While the duty of care is imposed by statute its content is determined by reference to the common law. All causes of action including actions under the Act need to be resolved by determining whether the defendant was tortiously negligent at common law (Prast v Town of Cottesloe (2000) 22 WAR 474 per Ipp J at [5]; Tonich v Macaw Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 940119; 11 March 1994 per Anderson J at 13).
The plaintiff has pleaded his case under the Act as a breach of statutory duty. That is clearly an error. An action relying on the Act remains an action in tort (Baker v Shire of Albany (1994) 14 WAR 46 at 49). The court must apply common law principles.
In this case the defendant was under a duty to take reasonable care to avoid exposing the plaintiff to unnecessary risks of injury (Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 307 – 308; Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25). The duty extends to providing a safe system of work, safe plant and safe premises. The employer's obligation was to exercise reasonable care to prevent foreseeable risks of injury to the plaintiff.

Standard of care and breach

Although the standard of care of an employer is a high standard it remains a duty to take reasonable care. The duty is not absolute. An

employer is not an insurer (Bankstown at 307; Jones v Bartlett & Anor (2000) 176 ALR 137 at [23] and [24]. The defendant owed the plaintiff a duty to take reasonable care to avoid foreseeable risks of injury to the plaintiff.
"A risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far‑fetched or fanciful is real and therefore foreseeable. (Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48.)

The plaintiff tendered a bundle of newspaper clippings (Exhibit 41) for the purpose of proving that in 1992 there was a well known and particular danger of persons being attacked in the daytime in multi‑storey car parks in the city. The clippings were not admissible in this form but I accepted them in order to ensure that I did not do injustice to an unrepresented plaintiff. Only one of the clippings was of any particular relevance. It is a photocopy of a newspaper article "Police Warn of Carpark Dangers". Someone had written the date "29–10–91" on the photocopy. There is no indication of what newspaper the article came from but from the style, format and content I can properly infer that the article was from the West Australian. The article contained a police warning to anyone using multi‑storey car parks to take extra care day and night after a 27‑year‑old woman was attacked on the third level of the Kings Ambassador car park at 9.30 am on the previous Saturday. The plaintiff was employed at a different multi‑storey car park. He asserted from the bar table that the defendant owned the Kings Ambassador car park but there was no evidence to support that assertion. The other photocopies of newspaper articles in the bundle Exhibit 41 are undated and therefore unhelpful. Some are on unrelated issues.
The defendant properly submits that Exhibit 41 is not in admissible form and that there is no evidence any of this information came to the attention of the defendant. I accept the defendant's submissions. I do not rely on any of the documents in Exhibit 41. Nonetheless I consider that the risk of an attack by a criminal on men or women using multi‑storey car parks in the city was a foreseeable risk in the sense that it was not far‑fetched or fanciful. The real issue is what a reasonable employer in the position of the defendant should have done in these circumstances to avoid such foreseeable risk of injury to the plaintiff.
"If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of

response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." (Wyong's case at 47 – 48.)

In this case I do not consider the magnitude of the risk was particularly great. Crime is not a predictable event. There is no evidence of any person or employee having been attacked by a criminal in this multi‑storey car park. It appears from the plaintiff's description of his duties that an employee regularly moved through the car park to check for windscreen washings. Obviously members of the public using the car park came and went through the car park regularly throughout the day. There is only one clipping referring to a daylight attack in a multi‑storey car park and that had been in late October 1991 some four months prior to this attack. In all the circumstances, while such an attack was foreseeable, the risk of such an attack would not be great. On the evidence before me I am satisfied such an attack would be unlikely to occur.
Against that background I need to consider the particulars of negligence alleged by the plaintiff.

Failed to provide the plaintiff with any assistance in regards to ensuring the safety of the plaintiff whilst on the premises

There was no evidence called to support this contention. The only evidence of the work system of the defendant is found in Exhibit 21, the defendant's answers to the plaintiff's interrogatories which was tendered by the plaintiff. To question 10 the defendant said there were two employees on duty at the car park on the day of the incident. Assuming one of those to be the plaintiff, and the other a person on duty at the car park entrance, it would not seem to be reasonable to expect the defendant to hire another employee to accompany and protect the plaintiff when he visited other floors of the car park. I do not believe the risk of attack was such as to require a guard for the plaintiff. Therefore this particular of negligence is not established.

Failed to ensure that the plaintiff was provided with a walkie‑talkie to allow the plaintiff to summon help immediately when attacked

The plaintiff gave evidence that he was not provided with a walkie‑talkie. He also tendered a bundle of documents, Exhibit 22, which he relied on to prove that he did not have a walkie‑talkie on 25 February 1992 the date of the incident. The documents in Exhibit 22 are photocopies of facsimile documents which include an invoice dated 26‑2‑92 for two "2‑way radios" purchased by the defendant for a total of $950 and an account for $950 showing the defendant paid for the 2‑way radios on 26 March 1992. In his evidence the plaintiff asserted that the $950 was payment for walkie‑talkies. I will assume a walkie‑talkie is a 2‑way radio.
In Exhibit 21, Question 11.3 the defendant was asked: "Did the defendant subsequent to the material date … provide employees with CB hand radios?" The defendant answered: "To the best of the defendant's knowledge and belief CB radios were already being used by the defendant prior to the material date."
If I assume a CB radio is the same as a walkie‑talkie and the same as a 2‑way radio (an assumption without evidential basis) then I face a conflict in the evidence between the plaintiff and the defendant. The documents in Exhibit 22 do not assist the plaintiff. Purchasing 2‑way radios on the day after the attack does not mean those were the first ever purchased. Nonetheless, on this issue I do accept the plaintiff's evidence that his employer did not provide him with a walkie‑talkie to allow him to summon help immediately when attacked. There was no evidence of any such walkie‑talkie being in use that day. The defendant could have called such evidence if it had cared to. A walkie-talkie or 2‑way radio is relatively inexpensive and I accept that a reasonable employer in the position of this defendant should have provided a walkie‑talkie to his employee for security reasons. Therefore this particular of negligence is established.

Failed to ensure that proper security cameras were in place to ensure that the car park was monitored at all times

The evidence before me established that there were no security cameras in place in the car park. As I consider it unlikely that the plaintiff would be attacked and that the risk of such attack was not great I am not satisfied that a reasonable employer in the position of the defendant was under a duty to provide such security cameras.

Failed to take any safety precautions particularly following several incidents in the car park where patrons were attacked by unknown assailants

There was no evidence of any patrons being attacked in this car park. The plaintiff has failed to establish this particular of negligence.

Failed to install proper lighting in the car park to ensure that assailants were unable to attack the plaintiff or other patrons

There is no evidence about any security lighting being installed. There was no evidence at all about the lighting. The incident took place in broad daylight. The plaintiff has failed to establish this as a particular of negligence.

Failed to ensure security patrols were put in place particularly after the supervisor had requested more patrols

There was no evidence of any supervisor requesting more security patrols. The terms of this particular of negligence imply that there were security patrols at the time of the incident. That is consistent with the defendant's reply to question 14 in Exhibit 21 when he said: "Security patrols were already in place prior to the material date."
The plaintiff tendered Exhibit 22, two photocopy accounts from Wormald Security to the defendant for patrol services for April and for May 1992. Standing alone those documents prove nothing about security patrols at the time of the incident. This particular of negligence has not been established.

Causation

In the realm of negligence, causation is essentially a question of fact to be resolved as a matter of common sense (Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 412 – 413). This case is not unlike the case of Modbury Triangle Shopping Centre Pty Ltd v Anzil & Anor (2000) 176 ALR 411. In Modbury the plaintiff sued the owner of a shopping centre in negligence for failing to light an outdoor parking area where the plaintiff was attacked and badly injured by three assailants as he walked to his car through the darkened car park at night. Gleeson CJ considered the issue of causation at [37] to [40]:

"[37]The case provides an illustration of the interrelationship that sometimes exists between questions of legal responsibility and causation.
[38]In the Full Court, it was said that common sense indicated that causation was established. However, that was against the background of a previously expressed conclusion that the appellant had a legal responsibility for the security of the first respondent.
[39]The issue of causation in the present case arises in circumstances where the objective facts are not disputed, and there is no question about physical cause and effect. The direct and immediate cause of the injuries was the conduct of the three attackers, who were acting independently of the appellant. The conclusion that, if the car park lights had been on, the three men would not have attacked the first respondent, may or may not be dictated by common sense. Let it be supposed that it is correct, or at least not such as to warrant interference by this court. In a case such as the present, it is difficult to see what further role common sense can play. The answer to the question whether, upon that hypothesis, the appellant's omission was a cause of the first respondent's injuries depends upon the view that is taken of the appellant's responsibilities. On the view adopted at first instance, and in the Full Court, the answer may be in the affirmative. But on the opposite view, a different result follows.
[40]In Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 at 29‑31, Lord Hoffmann discussed the problem of applying common sense notions of causation in cases involving the intervention of third parties or natural forces. He gave an example of a theft of a car radio, and pointed out that the question whether conduct of the car owner was in some way a cause of the loss might depend upon the view that was taken as to the extent of his responsibility to take care of his property. So it is in the present case. The finding on causation adverse to the appellant can only be justified on the basis of an erroneous view of the nature of the appellant's duties as

occupier. On an accurate legal appreciation of those duties, the appellant's omission to leave the lights on might have facilitated the crime, as did its decision to provide a car park, and the first respondent's decision to park there. But it was not a cause of the first respondent's injuries."

So it is in this case. The direct and immediate cause of the injuries suffered by the plaintiff was the conduct of his assailant or assailants. If the plaintiff had a walkie‑talkie or if there were security cameras it would not have prevented the attack. The plaintiff's evidence was that he was attacked so quickly that he thought there must have been two assailants. No walkie‑talkie or security camera could have prevented that.
I accept that this case is different from that of Modbury Triangle Shopping Centre. In this case not only is the defendant the occupier of the premises but he also has a special relationship with the plaintiff as the plaintiff's employer. However, in the particular circumstances of this case and the particular circumstances of this attack, I am satisfied that the failure to provide the plaintiff with a walkie‑talkie and the failure to provide security cameras did not cause the plaintiff's injuries. For these reasons the plaintiff has failed to satisfy me that any breach of the duty of care alleged in the statement of claim caused his injuries. For these reasons the plaintiff's claim in negligence fails.

Provisional assessment of damages

Medical evidence

A number of psychiatrists and psychologists were called to give evidence concerning any ongoing incapacity arising from the post‑traumatic stress disorder diagnosed following the 1992 incident. The plaintiff called both of his treating psychologists. Mr George Burns, a clinical psychologist, first saw the plaintiff on 11 March 1992 and diagnosed him as suffering from a number of symptoms including insomnia, nightmares, depression, anxiety, headaches, general avoidance about going back to work as well as hypervigilance. Mr Burns treated the plaintiff on six occasions ending on 15 April 1992. Mr Burns felt his condition had considerably improved and that his prognosis was good. By the end of that treatment Mr Burns said he did not suffer any serious headaches and except for a few days had returned to a good sleep pattern.

There was no suggestion of any aggression or violence during those sessions.

Mr Burns again saw the plaintiff some three and a half years later and treated him intermittently until 2001 when he referred the plaintiff to another psychologist Mr Graham Taylor. Mr Burns' professionalism was somewhat compromised by two reports, one on 6 March 1997 addressed to Dr Stanley‑Carey and another on 19 November 1998 some 18 months later addressed to D'Angelo & Partners. Mr Burns' reports summarise his symptoms and are identical in the March 1997 report and again in November 1998 despite the later report indicating five consultations commencing on 3 June 1997 and two further ones in October 1998. The second report would be grossly misleading to a person who was to rely on it.
Mr Burns attributed all symptoms reported by the plaintiff to the effects of PTSD arising from the 1992 incident. Mr Burns said he saw the plaintiff for treatment purposes and medical legal issues came up later and he did not take other matters into account. He conceded that he relied entirely on what the plaintiff told him. He conceded that PTSD is not usually expressly associated with drug abuse but he maintained that, although the plaintiff's boredom and frustration in the Navy could be a trigger for his drug abuse, that unhappiness in the Navy could have been caused by the difficulties he had coping with his PTSD. Mr Burns maintains his opinion that the plaintiff is unable to work because of his past performance and aggression in the workplace and his anxiety. He had not seen the plaintiff for two years.
Mr Burns gave his opinion that drug use can be part of the avoidance behaviour where a person wants to escape feelings of anxiety. They may resort to ways of gaining relief from that and alcohol and drug use can be common. Although Mr Burns admitted there could be a variety of factors which led to his drug use ‑ such as being in the Navy, or being in different situations, or having the availability of drugs, or some combination of factors – nonetheless, in his assessment he thought the plaintiff's PTSD was a major contributory factor to his drug use.
The plaintiff also called as a witness Mr Graham Taylor, a clinical psychologist with a master's degree in clinical psychology. Mr Taylor has specialised in the area of post‑traumatic stress disorder for the last several years and is one of two people in Australia who is accredited by the EMDR International Association. EMDR is an acronym for Eye Movement De‑sensitisation and Reprocessing. The plaintiff was referred

to Mr Taylor on the recommendation of Mr Burns. Mr Taylor first saw the plaintiff on 19 February 2001 on referral from Dr Stanley‑Carey. Mr Taylor described a number of symptoms of the plaintiff including extreme sleep disturbance, nightmares, avoidance of socially normal activities, attempts to block the experience of the assault, attempts to not trigger off emotions associated with the assault, difficulties of concentration, hypervigilance, exaggerated startled response and increased irritability and anger. The symptoms were all attributed to the 1992 incident by Mr Taylor because the plaintiff attributed these symptoms to that incident. In addition Mr Taylor said many of them are chronic PTSD symptoms and were a consequence of the plaintiff's attempt to deal with his difficulties. Mr Taylor said that by trying to avoid others knowing of the problem he entrenched his difficulties and made his problems more generalised.

Mr Taylor's evidence explained all the plaintiff's behaviour over the years as resulting from the 1992 incident. Because the plaintiff told Mr Taylor he had no record of experimentation or use of drugs prior to the accident Mr Taylor was of the opinion the plaintiff had used drugs to suppress distressing aspects of his PTSD symptoms. Mr Taylor was asked whether the plaintiff suffered from a personality disorder and he referred to the diagnostic and statistical manual of mental disorders which he believed was a diagnostic bible and provided the symptoms that lead to this diagnosis. Mr Taylor's opinion was that as he had had a happy and uneventful childhood there was nowhere in his pre‑assault history evidence that would lead him to conclude that the plaintiff has an anti‑social personality disorder.
Under cross‑examination Mr Taylor admitted that he had written to a Magistrate to try to help the plaintiff who was appearing before a Magistrate on charges related to obtaining payments wrongly from Newstart. In that report on 8 March 2002 Mr Taylor stated: "He has suffered a significant closed head injury as a result of a motorcycle accident in December 1997. This has added to his difficulties in retaining information, and thinking clearly and logically when in stressful settings." Under cross‑examination Mr Taylor admitted that the statement was misleading and that he should not have made it. He was trying to help the plaintiff at the time. It is surprising in the light of the comment to the Magistrate that none of Mr Taylor's reports indicate any causal connection between any symptoms and any incident other than the 1992 incident. He has approached the problem as if the other events have not occurred. Under cross‑examination Mr Taylor admitted that deceitfulness is a characteristic of a personality disorder but maintained that deceitfulness

was totally absent in the case of this plaintiff. He was not prepared to admit that where the plaintiff had deliberately lied to the naval psychologist for his own purposes that that would amount to deceit.

On the totality of the evidence I do not find that Mr Taylor is an independent and impartial witness. Although he has expert qualifications I was deeply concerned that he carefully stated his evidence in a way that would support the plaintiff's case and did not face issues that would detract from the case. As a treating clinical psychologist I do not believe that his opinions are helpful to me as I cannot rely on them for independent assessment. I do note, however, that he believes that the plaintiff was capable of full‑time employment.
Besides the two clinical psychologists the plaintiff also called Dr Paul Skerritt, a well-qualified and experienced psychiatrist. Dr Skerritt had been seeing people with PTSD symptoms for perhaps 25 years. Dr Skerritt saw the plaintiff and conducted a psychiatric assessment on three occasions in June and July 2002. From what he was told by the plaintiff Dr Skerritt's opinion was that among the various traumas experienced by the plaintiff the assault in the course of his work in February 1992 was responsible for a major change in his behaviour. It provoked quite a reaction which could be classified in the general direction of PTSD or, alternatively, as a common mixture of anxiety and depressive symptoms (major depressive disorder and panic disorder) which can also be provoked by severe and life-threatening stress. The symptoms noted by Dr Skerritt were quite active anxiety and depressive symptoms, difficulty ordering his thoughts and giving his history.
When asked about the relationship between drug use and psychological problems relating to the 1992 incident Dr Skerritt said it is always a very complicated matter to see where drug use fits with psychiatric symptoms. Based on the temporal sequence of events related to him by the plaintiff Dr Skerritt came to the conclusion that the drug abuse was likely to have been related to the 1992 assault. He admitted, however, that if there was evidence of drug abuse before the plaintiff joined the Navy his theory would fall apart. He agreed that in general both aggression and drug abuse were non‑specific symptoms which could have a number of different causes. Dr Skerritt believed it was more likely than not that the plaintiff would get back to full‑time work particularly if his treatment was intensified a bit. It came as no surprise to Dr Skerritt that the plaintiff was working well over 40 hours per week on occasions when work was available.

The plaintiff also tendered into evidence the reports of Dr Robert Finlay‑Jones, a consultant psychiatrist. Dr Finlay‑Jones examined the plaintiff on two occasions, once on 25 March 1999 and again on 14 December 2000. On both occasions when Dr Finlay‑Jones saw the plaintiff he found no evidence of either anxiety or depression. So far as drug use was concerned he said that drug use is not uncommon amongst members of the Navy where it usually has more to do with boredom than rigours. He said it is common for sufferers of PTSD to use cannabis to treat the insomnia. In his opinion both the Navy and the PTSD were possible explanations for the plaintiff's drug use.
Dr Finlay‑Jones gave his opinion that the natural history of untreated PTSD is to improve with the passing of time or to remain unchanged. He believed it would be extremely unlikely that it would get worse unless there were intervening factors such as street drug use. His prognosis was good according to Dr Finlay‑Jones who went on to say that if the plaintiff had been suffering from PTSD at the time of the 1999 examination he would have expected to see some objective evidence of anxiety or depression but he did not see any. To him this suggested that the PTSD had remitted and remained in remission when he again saw the plaintiff in 2000. Dr Finlay‑Jones believed that the plaintiff's PTSD symptoms were mild at most and that his impulsive aggression was more likely to be the result of his head injuries in 1997 and 1999 than to any PTSD symptoms. Dr Finlay‑Jones did not consider the plaintiff was incapacitated for work as a result of any work related psychological condition and believed that the head injuries subsequent to the 1992 assault are the main contributories (probably greater than 90 per cent) to any incapacity now. Likewise with the symptom of failure to attend regularly for therapy sessions Dr Finlay‑Jones gave his opinion that his failure to attend is a symptom of impulsivity secondary to head injury rather than due to PTSD. So far as difficulties ordering his thoughts or giving his history coherently Dr Finlay‑Jones said those would be more likely attributable to his subsequent head injuries or drug use and not to anxiety or depression.
Dr Lawrence Terace, a consultant psychiatrist, was called to give evidence on behalf of the defendant. This is Dr Terace's tenth year of clinical practice. Dr Terace made three reports. He examined the plaintiff on one occasion for a period of one and a half hours in December 2002. In the course of the interview the plaintiff indicated a number of psychological symptoms including mood impairment, anxiety including hypervigilance, daytime ruminations, nightmares, sleep impairment, poor appetite, weight loss.

Dr Terace's opinion was that there was not sufficient evidence to support the contention that the plaintiff's substance abuse and subsequent problems in the Navy were all the result of his PTSD arising from the 1992 incident. So far as his capacity for work was concerned, Dr Terace noted that the plaintiff's employment had been terminated on the basis of criminal behaviours including assaults and his hypervigilance which he considered probably is a post‑traumatic symptom would partially disable him. So far as the plaintiff's history of violence was concerned, Dr Terace's opinion was that it was a product of constitutional factors supporting the presence of a personality disorder. He noted the erratic employment history, the pattern of violence and the history of substance abuse as indices of the presence of an anti‑social personality disorder.
Dr Terace particularly noted the plaintiff's tendency to misattribute his behaviour and a lack of acceptance of personal responsibility, particularly for his criminal acts. The only symptoms of PTSD which Dr Terace considered arose from the 1992 incident were post‑traumatic memories, post‑traumatic nightmares and hypervigilance. The other symptoms in Dr Terace's view are non‑specific and could more likely be explained by personality disturbance, alcohol and substance abuse and other stressors in his life.
Dr Terace could not support the plaintiff's contention that he was discharged from the Navy as a result of the PTSD arising from the 1992 incident. Dr Terace noted that there was a family history of criminal charges in that his brother has been subject to criminal charges and that is a better explanation of the plaintiff's criminal activities than the incident in 1992. Dr Terace was also of the opinion that any head injury may have aggravated his psychological problems specifically as tendency to violence. Dr Terace stated his overall opinion in summary:
"The overwhelming and predominant evidence supports on the balance of probabilities that the cause of most of Mr Reed's psychological and psychiatric problems are the product of other factors outside of the assault at work of the date of disability 25th February 1992 with the exception of specific post‑traumatic phenomena of post‑traumatic memories, post‑traumatic nightmares and hypervigilance for which I think there is a stronger causal link although I think it needs to be understood that these are the minor proportion of Mr Reed's problems."

Dr Terace relied on the veracity or truth of the plaintiff's account in showing the presence of the three index systems. It was on the basis of the plaintiff's account that Dr Terace concluded there was some kind of post‑traumatic disturbance. Dr Terace gave evidence that if there was substance abuse prior to 1992 that fact would completely exclude the possibilities of the subsequent drug abuse being a product of the 1992 incident.
Dr Terace conceded that this case is complex in psychiatric terms. Although he noted an anxiety disorder unspecified including his post‑traumatic symptoms he was unable to describe the rest of his behavioural disorganisation as a consequence of any specific psychiatric condition. He attributes it instead to what is typically seen in anti‑social personality disorders ‑ an individual who cannot maintain social order or relationships for long-term, who cannot maintain a clear and continuous pattern of employment, who cannot maintain freedom from violence or offensive acts and who cannot be free of polysubstance abuse. Furthermore Dr Terace said that individuals who do not accept responsibility for behaviours and tend to blame them on other factors tend to be persons with personality disorders. The plaintiff, according to Dr Terace, gave him many examples of that.
Dr Terace also thought that a clear and direct intent to deceive based on the need for financial compensation would be entirely consistent with an anti‑social personality disorder that has no regard for the truth. When Dr Terace considered the plaintiff's behaviour after his shoulder injury in 1996 followed by his motorcycle accident in 1997 and his attempts to attribute the cause of the motorcycle accident to the shoulder injury as either unconscious exaggeration as a product of misattribution or a conscious exaggeration expressing an intent to deceive as part of the characteristic ability to distort the truth as seen in anti‑social disorder. It was Dr Terace's opinion that the attribution of all his problems to the 1992 trauma is an example of misattribution. Dr Terace said misattribution of behaviour occurs in all people, it's a fundamental human phenomenon and satisfies either an emotional or a financial need or something of that nature. The lack of acceptance of personal responsibility for criminal acts is fairly characteristic of an anti‑social personality disorder.
Again Dr Terace stressed that he had no evidence on which to draw a conclusion that there was any causal connection between any post‑traumatic stress symptoms and the plaintiff's discharge from the Navy.

Dr Terace reiterated that the true post‑traumatic symptoms in the plaintiff's case are the lesser proportion of the disturbance and relatively mild at present. While that does not mean that he did not have a more significant disturbance in the past which might have amounted to an acute stress reaction yet if one looks at the present difficulties they are not that frequent and are aroused by a specific cue. Dr Terace said this is a mild case of post‑traumatic stress disturbance. He went on to say that post‑traumatic stress disorders do usually improve even without treatment and that the natural history of most psychiatric conditions are that they tend to improve over time.
Dr Terace went on to notice that the person in court who he had been observing while in the courtroom was not someone with a severe or overwhelming psychiatric condition or post‑traumatic stress disturbance. Such a person would not be able to discuss and dissect the trauma of the particular experience. It would all be too overwhelming and distressing.
Under cross‑examination Dr Terace admitted that he has not published in peer‑reviewed psychiatric or psychological journals nor had he written any books on psychiatric or psychological topics although he had one that would be published shortly. He admitted he was not qualified in psychology. His medical degrees were conferred by the University of Western Australia. Dr Terace said he was a consultant psychiatrist that fellowship having been awarded by the Royal Australia and New Zealand College of Psychiatrists.
Under cross‑examination the plaintiff put to Dr Terace the essence of Mr Taylor's opinion that the plaintiff did not suffer from anti‑social personality disorder because he did not fit the criteria in DSM‑IV. Dr Terace said that the manual was not a tool ever intended to be bandied about enabling the confirmation of or exclusion of psychiatric disturbance in an individual. Dr Terace said DSM‑IV raised a set of criteria for the purposes of identifying an individual with a condition for the purposes of research. In his opinion the use of DSM‑IV should be restricted entirely to research and it should not limit or restrict the diagnosis of a psychiatric condition or a personality disturbance. It was never intended to do that.
The plaintiff cross‑examined Dr Terace at great length and Dr Terace did his best to explain simple propositions related to causation such as the simple fact that just because two things are associated does not mean that one causes the other. Dr Terace admitted that if the sleep disorder and migraine headaches appeared after the 1992 incident he would have to consider whether they were caused by it that that was possible but it

would be a matter of the evidence. Dr Terace noted he had to look at a large number of factors; particularly with substance abuse and sleep disorders there were a number of factors that could cause it.

Finally Dr Terace noted that when he saw the plaintiff for his assessment he was behaviourally dishevelled and having tremendous difficulty coping with the interview and with Dr Terace's attempts to engage him and develop a rapport. Dr Terace said that that was the case even after having an opportunity to sit and adapt to the rooms. Dr Terace expressed surprise to see the plaintiff here today appearing very well organised in terms of note taking and representing himself and as a lay person Dr Terace thought he had probably done a better job than he could have done. Dr Terace said this was a different person from the person he interviewed and perhaps the reason is that there has been an abrupt and dramatic improvement in his level of symptoms but, if that is not the case, Dr Terace would have some concern that the plaintiff had been intentionally attempting to deceive the doctor at interview. Dr Terace said a person who describes significant hypervigilance preventing him from entering shopping centres would have tremendous difficulty forming a line of thought in the complexities of litigation such as he witnessed the plaintiff doing today.

In July 1997 Dr Michael Hunt, a qualified specialist neuropsychologist was asked to do a neuropsychological assessment of the plaintiff following his recovery from the 1997 motor bike accident. In that report Dr Hunt indicated that the plaintiff had made a satisfactory cognitive recovery from his head injury and on the basis of his test results found that he would not be excluded from either a return to work or driving at that stage.
A further neuropsychological assessment was done by Dr Hunt in December of 2000. He was referred by solicitors and Dr Hunt was asked to assess any neuropsychological dysfunction arising from his 1992 assault or any other accident. In his report Dr Hunt said that the previous indication of some slowness in his information processing speed which Dr Hunt had noted in 1997 had now resolved and was therefore probably related to that 1997 head injury. On further testing Dr Hunt said there was no indication of any memorial dysfunction arising from either his 1997 accident or from his 1992 assault. Dr Hunt found that his conversational language appeared to be normal in terms of content, structure, and quality although his dialogue did become rather emotionally charged when he talked about his general and more specific life problems. There was no indication of any naming or word finding difficulty. On the basis of his

examinations Dr Hunt found in 2000 that it was difficult to discern any ongoing indication of cognitive dysfunction suggestive of persisting brain impairment. Specifically he said there did not appear to be any neuropsychological impairment which could be seen as arising from his 1992 assault. Dr Hunt said that the plaintiff was not incapacitated in terms of his work by problems associated with any cognitive dysfunction.

The defendant called Dr Kim Fong, a specialist in rehabilitation medicine to give evidence concerning the 1997 motor vehicle accident. Dr Fong indicated that the reason he reported in his initial report on 5 March 1997 was that the plaintiff had sustained an episode of head injury and had self‑discharged from hospital and needed to be assessed in order to set up a programme for him. Dr Fong had been contacted by a social worker. In his report Dr Fong indicated that the plaintiff suffered a closed head injury in addition to right‑sided fractures of his scapula, clavicle and ribs as a result of the motorbike accident on 8 February 1997. He self‑discharged himself against advice on 14 February and according to Dr Fong was still in post‑traumatic amnesia at that time. Dr Fong also noted that his behavioural disinhibition caused problems so that his de facto wife left home upon his return.
When Dr Fong saw the plaintiff on 5 March 1997 some four weeks after the motorbike accident he considered that the plaintiff still had significant residual cognitive and behavioural effects from his recent head injury. He acknowledged poor short term memory but there were also indications of reduced attention span, poor insight, rapid speech with poor monitoring and behavioural irritability. Dr Fong considered that the plaintiff would remain medically unfit for employment for some time due to his head injury. When Dr Fong reviewed the plaintiff again in April he noted that the problem with his management was that the plaintiff did not acknowledge any significant disabilities from his February 1997 accident and hoped to make an early return to work which Dr Fong considered to be entirely unrealistic. By 14 May 1997 however Dr Fong found that the plaintiff had recovered sufficiently to be considered once again fit for the light duties he had been performing prior to the motor vehicle accident on 8 February 1997. On review in July Dr Fong expected that the plaintiff would be able to return to unrestricted employment in the next three to six months.
In December 2000 Dr Fong was asked to review the plaintiff again and to take account of the 1992 incident as well. Dr Fong indicated his opinion that the plaintiff was able to make a fairly satisfactory recovery from his 1992 injuries as indicated by his return to manual employment

and entering the Royal Australian Navy. However he found it to be likely he did continue to experience ongoing emotional problems, problems with the nightmares and changes in his behaviour and mentioned the continuing counselling and support. Dr Fong noted that the medical records at Royal Perth Hospital do not contain any reference during the 1997 period of Mr Reed complaining of suffering or appearing to suffer from any psychological trauma associated with his 1992 episode. It was Dr Fong's opinion that the episodes of injury in 1996 and 1997 are more likely to influence his long‑term employment capacity than would his earlier episode of assault in 1992.

The defendant also called Dr Andrew Marsden, a specialist in occupational medicine. His evidence was particularly of interest because he was in the Navy from 1966 as a sailor and eventually undertook the study of medicine and qualified in 1973 working as a naval medical practitioner from 1973 to 1982. From 1982 to 1986 he was in the Royal Australian Navy and then from 1987 to 1999 was a Senior Medical Officer Reserve for Western Australia part‑time. He was also the Assistant Director of Medical Services for the Navy.
Dr Marsden was asked to review the plaintiff in 1997 immediately after his motorbike accident. Dr Marsden was asked to provide a report by the insurer. This was during the time when the plaintiff was asserting that the motorbike accident was caused by his 1996 work related shoulder injury. On examination at that time Dr Marsden found the plaintiff to look fit and well and to provide a straightforward history with no apparent problems with cognitive function or short-term memory. After reviewing the plaintiff and all the factors involved Dr Marsden was of the opinion that it was not necessarily reasonable to attribute his problems and the motorbike accident as direct effects from his shoulder injury in 1996. Dr Marsden believed that but for the motorcycle accident in 1997 the plaintiff would have been capable of returning to his pre‑accident duties as a construction labourer.
Dr Marsden was asked in February 2002 to review the plaintiff on behalf of the defendant's insurers. During that review Dr Marsden considered the 1992 incident. In his opinion the plaintiff had made a complete and whole recovery from the 1997 accident. Dr Marsden noted that the 1992 incident was a frightening episode but he did not consider it to be PTSD material. He referred to the long history of illicit drug abuse including a period of using heroin for some six months while he was in the Royal Australian Navy. At the time of interview with Dr Marsden in late February 2002 the plaintiff reported current daily use of four or five

cones of marijuana regularly. Dr Marsden was not convinced that the plaintiff had any problem directly associated with the assault in 1992. He noted the plaintiff's long‑term problems associated with drug abuse and a number of other issues including assaults and fraud and suggested his history is one of an aggressive personality from time to time which may well be a side effect of chronic marijuana use. Dr Marsden went on to provide evidence about the effect of marijuana and he said this:
"Marijuana is a sedative and sedatives can affect what's called the social graces, that's the fine veneer which we have that tells us to drive on the left and stop for red traffic lights and behave generally, socially, and if you start to strip that veneer by sedating the brain slightly, and you can do it with alcohol or with drugs or with marijuana, then sometimes people's underlying personality or tendency comes out. People talk about being aggressive drunks when they are normally perfectly normal people and perhaps underneath he is a person who tends to use aggression or has an aggressive personality which is not normally present but marijuana may well strip it off."

Dr Marsden has some expertise in the area of marijuana as he has been involved in the development and installation of drug and alcohol programmes in a number of major companies in Western Australia. He has looked at the relative risks and rules and what happens to people when they take drugs when he is considering with the companies whether it is necessary to introduce random drug testing programmes and the effects of drugs on people and the interface with the workplace where of course it is very relevant and important from an occupation point of view for safety.
From a physical point of view and from a general mental point of view, notwithstanding the drug abuse, Dr Marsden agreed that the plaintiff would be fit for normal duties for which he has background training and experience on a full-time basis.
Ms Helen Gavriel, a clinical psychologist with a Masters Degree in clinical health psychology, whose Masters thesis was on post‑traumatic stress disorder was in 1994 the clinical psychologist on Garden Island, a civilian employed with the Department of Defence. Ms Gavriel interviewed the plaintiff on three occasions on 8 February 1994, 15 February 1994 and again on 16 March 1994. The plaintiff first attended because the divisional officer referred him as being unstable. According to Ms Gavriel he was initially very tense and close to tears when he arrived and spoke about his previous drug taking, daily heroin,

speed usually at the same time as heroin, alcohol about once a week, daily marijuana and acid including LSD. At that time he expressed the concern that he was losing control. He felt tense and little things made him snap. He was going through a psychological adjustment, the frustration of not being occupied, dealing with hassles with no help from drugs.

When the plaintiff returned a week later on 15 February 1994 he told Ms Gavriel that he had been quite agitated in the last few days and had been thinking of re-using. He had been referred to Cyrenian House for a six week in‑patient programme.
It was not until the third visit with Ms Gavriel that the plaintiff mentioned the 1992 incident. It arose because of an incident on the bus at Cyrenian House when another resident grabbed him around the neck and he reacted very violently. He explained the 1992 incident to Ms Gavriel and the fact that he had had counselling. At that time in 1994 he told Ms Gavriel that he rarely thinks about the 1992 incident. He said he did avoid car parks at night but he hated it when somebody grabbed his neck from behind even in play. He said he had initially had nightmares but not recently. Ms Gavriel, having learned of this 1992 incident, tested the plaintiff with an RIES assessment which is an impact of events. It is a test to measure particular symptoms of post‑traumatic stress including intrusive symptoms and avoidance symptoms. As a result of that test Ms Gavriel found that the intrusive symptoms were relatively low but the avoidance symptoms were high. According to Ms Gavriel that indicates the plaintiff was not thinking about the 1992 incident all the time and that he avoided thinking about it.
Ms Gavriel did not see the plaintiff again. On 27 April 1994 he was seen by another psychologist, Marie Bettridge. Her notes were tendered as part of Exhibit 14. She saw the plaintiff on 27 April 1994. She noted that he disliked being told what to do all the time, was bored and had no interest in the job or any job. He purportedly told Ms Bettridge that he "had applied for a discharge at his own request but that had not been processed". He said "he wanted a discharge but no‑one was listening". He indicated "he wanted to do it the right way but doesn't care if it is an RNIN". The records show that at that stage the plaintiff was very negative towards the RAN, was saying he would not work and discussed procedure for discharge.
There was a further entry on 3 May 1994 when the plaintiff again saw Ms Bettridge. On that occasion she noted that he presented in a very positive mood and was working at the Fire Station. He was still free of

drugs and the plaintiff was told he would be going "to the table" (which is Navy jargon for going up in front of the commanding officer) and he would be put up for RNIN with drug use as the basis. His presentation was described as relaxed and relieved that things were happening to get to this point. As far as Navy service goes it was noted that the plaintiff said he "hates it and is happy with RNIN. Doesn't want to wait. Feels bored, frustrated and uninterested in the work". He went on to say he "doesn't like the idea of going to sea. That he was on Torrens for three months and didn't enjoy it". The report indicates that the plaintiff stated "he wouldn't stay if retained, would lose it". The report notes that he worried he would use drugs again if he stayed and just wanted to get out. Ms Bettridge assessed him on that occasion; he appeared to have made his mind up to go and perceived the Royal Australian Navy to be his major problem.

Under cross‑examination Ms Gavriel said that in diagnosing post‑traumatic stress disorder it is not the nature of the event itself but the person's perception of threat that determines its significance. She went on to say that persons suffering from PTSD can present without obvious physical signs of anxiety. Ms Gavriel agreed that becoming physically ill on the way to the scene of the incident is consistent with PTSD and that nightmares are one of the symptoms. Ms Gavriel said it is not inconsistent with PTSD that the plaintiff did not disclose spontaneously on the first session or even the second session and that that was not deceitful. Ms Gavriel also noted that the plaintiff's failure to appear at a further assessment could be avoidance behaviour.

Loss of earning capacity

The evidence has established that the plaintiff while aged 17 suffered a terrifying incident when he was attacked from behind by an assailant (or assailants) armed with a knife. He suffered scratches and superficial lacerations to his throat, a concussion and soft tissue injuries. He was released from hospital the following day. Although his physical injuries were not serious, he suffered post‑traumatic stress symptoms including headaches, nightmares, insomnia and anxiety symptoms. He was incapable of returning to work and received psychological counselling from Mr Burns. When seen on 15 April 1992 (the last time Mr Burns saw the plaintiff in 1992) the plaintiff was making good progress, had not suffered from serious headaches for a fortnight, and had returned to a good sleep pattern. By 6 May 1992 his general practitioner, Dr Stanley‑Carey issued a Final Medical Certificate indicating he was

wholly recovered and able to return to work but needed ongoing psychological therapy.

On 20 July 1992 the plaintiff joined the Navy and successfully completed recruit school and category training. Exhibit 3 includes records of the plaintiff's RAN service, his promotions and courses completed. He was successful until his drug use came to the notice of the RAN and on 10 June 1994 he received an RNIN discharge.
The plaintiff's claim for damages for loss of earning capacity depends upon his making good his contention that it was the post‑traumatic stress symptoms following the 1992 incident that caused him to use drugs while he was in the RAN. It will be apparent from my earlier comments in these reasons that the plaintiff has failed to satisfy me of that. He has convinced his two treating psychologists of that connection but I do not have confidence in their independence or impartiality. Each seemed committed to "helping" the plaintiff and for that reason their opinions lacked any independence. I do rely on the opinions of Dr Skerritt and of Dr Terace. I do not accept the plaintiff's evidence that he never used drugs before entering the RAN. I rely on his answers to his commanding officer in 1994. He had used marijuana for four to five years and acid for one year prior to his RAN service. I rely on Dr Skerritt's opinion that that drug use prior to RAN service negates any likelihood of a causal connection between the plaintiff's drug use and the RAN and the 1992 incident. Dr Terace formed a similar opinion.
The plaintiff was very young when he joined the RAN. I accept Mr Finlay‑Jones opinion that drug use is not uncommon among the RAN due to boredom. I also rely on Dr Marsden's opinion that the plaintiff had no problems directly associated with the 1992 assault. His problems arose from long term drug abuse commencing prior to RAN service. When Dr Marsden reviewed him in 2002 the plaintiff reported daily use of four or five cones of marijuana. I accept Dr Marsden's opinion about the effects of marijuana use and that it can "strip away the veneer" and expose underlying personality problems. I accept Dr Terace's opinion that the plaintiff does suffer from a personality disorder associated with long term drug abuse.
There is nothing in the plaintiff's history and in these findings that satisfies me that there is any causal connection between the 1992 incident and the plaintiff's use of heroin and other drugs while he was in the RAN.

In Australia a plaintiff is compensated for loss of earning capacity and not for loss of earnings (Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 4). Nonetheless no damages can be recovered for loss of earning capacity unless that loss is productive of financial loss (Graham v Baker (1961) 106 CLR 340 at 347).
I assess the plaintiff's loss of earning capacity based on the period from 25 February 1992, the date of the incident, until he entered the RAN on 20 July 1992. Immediately prior to the incident the plaintiff had been working at two jobs – at Hungry Jacks and at the defendant's Queens Park car park. The plaintiff failed to supply any details of his wages. Doing the best I can I am prepared to award him $1,000 per month for the five months' period = $5,000 as compensation for loss of earning capacity during that period.
The plaintiff chose to leave the RAN in 1994. The RAN records show that he indicated relief that he was leaving the Navy which he did not enjoy. He immediately commenced employment and was employed continually until his shoulder injury on 14 November 1996 and his subsequent motorcycle accident on 8 February 1997. Those are clearly not associated in any way with the 1992 incident. I accept Dr Fong's evidence that the plaintiff suffered a very serious closed head injury in the motorcycle accident. The residual cognitive and behavioural effects were extremely serious. I accept Dr Fong's evidence that the injury in 1997 was more likely to influence the plaintiff's long term employment capacity than the 1992 incident. I also accept the opinion of Dr Hunt whose neuropsychological assessments were conducted in 1997 and 2000, that there was no indication of any memorial dysfunction arising from either his 1997 accident or from the 1992 incident.
At the end of the plaintiff's cross‑examination (T95 – 96) he admitted he was able to work full‑time on a permanent basis as long as he could be insured. That final condition was not further explained. During trial the plaintiff certainly displayed a capacity to present his case, to deal with a multitude of factual issues, to call evidence and to cross‑examine appropriately for a lay person. It is difficult to see how, if at all, he is incapacitated from any full‑time employment. He is clearly a willing worker. The plaintiff called Mr Mark Taylor, the managing director of Infinite Solutions, an IT company, to give evidence on his behalf. Mr Taylor had worked at Railskills and had placed the plaintiff in employment. Mr Taylor said that the plaintiff was a very hard worker but he was difficult to place because of his aggression. Other workers did not want to work with him. There were complaints of his conduct on

worksites. Nonetheless Mr Taylor considered him to be a very hard, diligent worker. Mr Taylor arranged for the plaintiff to be retrained as a safe working supervisor, a job he was able to do.

I have earlier recounted the other head injuries suffered by the plaintiff both prior to and subsequent to the 1992 incident. His aggression could well be a symptom of his closed head injury in 1997. I am not satisfied that any of his present problems mentioned by Mr Taylor were caused by the 1992 incident. Professor Charles Mulvey, the managing director of Labournet prepared a labour market analysis detailing award rates of pay, average weekly earnings, Enterprise Bargaining Rates of pay, and job availability of a number of occupations. Professor Mulvey noted that job availability was good for landscape gardeners. In his opinion an experienced worker would be able to find employment within a reasonable period of time. Garden labourers' job availability was average but Professor Mulvey noted that a suitable worker could expect to find work in this occupation within a reasonable period of time, especially if he had previous experience. I note that the plaintiff does have previous experience in this area.
The plaintiff has a further handicap in gaining employment. That arises from his relatively recent criminal record including convictions for possession of a pocket‑knife and cannabis, two convictions in 1998 and 1999 for social security fraud for wrongly obtaining Newstart allowance while employed, and a further conviction in 2001 for cultivating cannabis. He has also recently been dealt with and convicted of one count of assault occasioning grievous bodily harm for hitting a man with a glass in a pub. A few months later I am told he was acquitted of a second charge of assault occasioning bodily harm for his attack on a man outside the pub when he raised the defence of self‑defence.
Given my finding of no causal connection between the 1992 incident and the plaintiff's drug usage and given his capacity to work full‑time when his other problems not associated with the 1992 incident do not get in his way, I am unable to make any further award for loss of earning capacity. I award $5,000 for past loss of earning capacity plus interest of 3 per cent for 11 years of $1,650 = $6,650.

Pain, suffering and loss of amenity

The attack on the plaintiff was a serious one. Although he was not seriously injured physically he certainly suffered shock and post‑traumatic stress symptoms. On the evidence of Ms Gavriel I am satisfied those

symptoms no longer troubled him in February 1994. By that time I am satisfied his intrusive symptoms were relatively low and his avoidance symptoms were high. During those two years I do accept that the plaintiff suffered from his symptoms most severely during the first few months prior to entering the RAN. The plaintiff was a very vulnerable young man at the time of the incident and I accept that the aftermath of the incident was very difficult for him, particularly as he was preparing to enter the RAN. For these reasons I award $30,000 for pain, suffering and loss of amenity.

Section 93D Workers' Compensation and Rehabilitation Act 1981

This action is governed by the pre‑1999 regime under the Workers' Compensation and Rehabilitation Act 1981 and, in order to enable the plaintiff to sue for common law damages, he must demonstrate that the extent of his future pecuniary loss exceeded $130,690, or that his disability was in excess of 30 per cent of his whole body. The appropriate date to determine whether the threshold has been reached in the date of the trial and no earlier period (Campbell v RGC Mineral Sands Ltd (2001) 25 WAR 322 per Templeman J at [23]).
This is not a case where there is any basis on which I am able to assess and award any damages for future loss of earning capacity or any future pecuniary loss associated with the 1992 incident. The plaintiff has therefore failed to meet the threshold set by the legislature. As I understand the effect of this legislation I am now unable to make any award of damages.

Criminal injuries compensation

In 1997 the plaintiff sought compensation under the Criminal Injuries Compensation Act 1985. On 5 June 1997 the plaintiff was awarded $32,004.05 plus expenses in the District Court as compensation for his injury and loss arising from the 1992 incident (Reed v The Assessor of Criminal Injuries Compensation, unreported; DCt of WA; Library No D970170; 5 June 1997 per Viol J).
Section 40(1) of the Criminal Injuries Compensation Act 1985 is in these terms:

"Crown to be reimbursed out of other compensation or damages recovered
40. (1) Where compensation is paid under this Act to or for the benefit of an applicant or any close relative in respect of an injury or loss and he also receives, by way of compensation, damages or moneys paid under any contract of insurance for that injury or loss independently of this Act, any sum that has not been deducted pursuant to section 26, an amount equal to —
(a)the compensation paid to him or for his benefit under this Act; or
(b)the other compensation, damages or sum paid under the contract of insurance,

whichever is the less, shall constitute a debt due to the Crown by the applicant or the close relative or by any person who holds the compensation, damages or sum paid under the contract of insurance on his behalf."

The total provisional award of damages in this case is $36,650. The earlier award under the Criminal Injuries Compensation Act would be recoverable as a debt due to the Crown from the plaintiff if he ever were to receive the provisional award.

Summary of provisional damages award

Pain, suffering and loss of amenity  $30,000.00
Past loss of earning capacity and interest                   $6,650.00
Total provisional award  $36,650.00