Samardzic v State of New South Wales

[2004] NSWSC 15

CITATION:	SAMARDZIC v STATE OF NEW SOUTH WALES [2004] NSWSC 15
HEARING DATE(S):	31 March 2003-7 April 2003
JUDGMENT DATE:	4 February 2004
JUDGMENT OF:	Hulme J at 1
DECISION:	Orders to be entered at a later date
PARTIES :	Zlatko Joseph Samardzic State of New South Wales
FILE NUMBER(S):	SC 20062/98
COUNSEL:	Plaintiff: CA Evatt, MK Rollinson Defendant: MB Williams SC, M Lynch
SOLICITORS:	Plaintiff: Teakle Ormsby George Defendant: I V Knight Crown Solicitor

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HULME J

Wednesday 4 February 2004
File No: 20062/98

Zlatko Joseph SAMARDZIC v STATE OF NEW SOUTH WALES
JUDGMENT

1 HULME J: In January 1986, the Plaintiff in these proceedings joined the New South Wales Police Service. After 3 months spent in a training course at Goulburn he commenced work at Campbelltown Police Station and then was transferred to Liverpool.

2 On 15 October 1987 he was subjected to a blood test which in due course revealed that he was infected with Hepatitis B. He claims that this infection arose from negligence on the part of the Defendant or persons for whom the Defendant is responsible. After some time off, the Plaintiff resumed work, albeit on light duties. In May 1994 he was dismissed on the grounds of ill health and has not worked since. He claims that a consequence of the infection is that he suffers from chronic fatigue which has substantially affected his life and rendered him unable to work since 1994.

3 The Defence placed all elements of the Plaintiff’s claim in issue. The proceedings were set down for hearing with a jury. On the first day counsel for both parties suggested or agreed that the jury be dispensed with because of the complexity of issues which seemed likely to arise and the case proceeded before me without a jury.

4 Included in the topics on which the parties were at issue was whether the Plaintiff’s contraction of hepatitis was something which arose out of his employment in the Police Service. Medical reports, statements made during the course of discussion about dispensing with the jury, and remarks during the tender of evidence directed to showing that prisoners or offenders with whom the Plaintiff had come into conduct were infected with hepatitis tended to confirm the existence of that issue.

5 However late in the Plaintiff’s case there were tendered two documents which became Exhibits S and T. The first was a letter over the signature of the Deputy Director of Police Medical Services. Its terms were:-

“It is quite impossible to give an absolute incubation time for Hepatitis ‘B’ but it is accepted that sixty to ninety days incubation is the usual range.
The contamination of an officer with a minute fraction of a millilitre could result in an infection.
Contamination could result from any offender, victim or even traffic accident attended to by the Officer.
If the Officer presents as a person unlikely to be exposed to other sources of infection (i.e. blood transfusion, drug use) then it is extremely likely that he sustained the infection from a work related event.
The balance of probability would be for the infection to be attributable to Hurt on Duty events.”

6 Exhibit T was a letter from a Delegate for the Commissioner of Police, dated 20 May 1994. So far as is relevant, it said:-

“In terms of section 10B(3)(a) of the Police Regulation (Superannuation) Act, 1906, (as amended), I have decided that the suffering by Constable Z. J. Samardzic of the infirmity “Chronic fatigue syndrome secondary to Hepatitis B carrier state”, as specified in the certificate to the Police Superannuation Advisory Committee, dated 29 April, 1994 was caused by the member being hurt on duty. Notional date of injury: 15 October 1987. Former Constable Samardzic is being advised direct of my decision.”

7 During the evidence of one of the Plaintiff’s witnesses, Professor Cossart, it was suggested that she and Dr Vickers, a doctor who had prepared a number of reports at the instigation of the Defendant, might confer with a view to identifying the differences between them. Such a conference occurred and the result was a joint report which became Exhibit 5. The document includes the following:-

“The consensus opinion was the hepatitis B infection in the plaintiff was more likely to have been acquired during the course of occupational duties in the NSW Police Force between 1986 and 15 October 1987, than would have occurred prior to his employment through other potential causes. The reasons for this conclusion are as follows:
….
On balance therefore, we have agreed that it is more probable that the plaintiff acquired his hepatitis B through an occupational risk in his handling of prisoners rather than through other means unknown prior to joining his work with the Police Force.”

8 Despite this, I was informed that the question of whether the Plaintiff acquired hepatitis in the course of his employment remained theoretically in issue.

9 Putting aside some reports of Dr Vickers which pre-dated his agreement with Professor Cossart, the Defendant in fact adduced little evidence – and none of it persuasive - that argued for the Plaintiff’s acquisition of hepatitis otherwise than in the course of his police duties. In light of the matters to which I have referred, I am satisfied that the Plaintiff’s hepatitis was acquired in the course of his duties as a police officer. (In fairness to Dr Vickers I should acknowledge than at the time of his first report, one of the issues was whether the Plaintiff contracted hepatitis on particular dates.)

10 By the time of final submissions, it was not suggested that the Defendant did not at relevant times owe the Plaintiff a duty of care. Clearly, as the Plaintiff’s employer – a fact admitted on the pleadings - it did.

Breach of Duty

11 There was a deal of evidence bearing on the question of whether the Defendant breached its duty.

12 A memorandum of the Department of Health of 19 October 1983 recorded that the Department had, subject to some exceptions, adopted as policy, recommendations of the National Health and Medical Research Council of Australia. The memorandum records that there was no data available to indicate that Hepatitis B vaccination carried any appreciable risk of serious side effects but because all vaccines carry a theoretical risk of untoward affects it was not possible to give an absolute guarantee of safety. It records also that US authorities and the World Health Organisation had said that there was no evidence to indicate that Hepatitis B vaccine carried any risk of causing AIDS but that because Hepatitis B infection was relatively uncommon in the general population, mass immunisation was not indicated and vaccination should only be offered to members of high risk groups. These groups included “members (particularly children) who are seronegative, of households containing a know carrier or a person with acute hepatitis B” (sic), and illicit intravenous drug users. The memo recorded also that the Council had recommended that vaccination be offered to health care and other workers, patients and contacts considered by the institution concerned to be at increased risk of infection. It went on to say that “as the risk of infection differed from institution to institution, the Council recommended that each institution develop its own immunisation policy based on the prevalence of serological markers among staff”.

13 The Police Department itself considered the topic of vaccination. A memorandum of 11 October 1984 recorded:-

“The medical advice establishes that the infection chance of the majority of police is no higher than that of the general public. Universal vaccination of the force is therefore not proposed”…”The Minister for Police and Emergency Services has thus approved of my recommendations that:-

· Police engaged in high risk activities be automatically vaccinated against Hepatitis ‘B’; and

· Police performing other duties be vaccinated after confirmed duty caused exposure to Hepatitis ‘B’; and

· Vaccinations be voluntary.”

14 The memo went on to record the duties which were regarded as high risk. They included the drug squad, the homicide squad and continued:-

“Vaccination of other police will be decided and arranged by a Police Medical Officer. A member of the force – who has not been vaccinated – and who considers he/she has had direct duty caused contact with a suffer/carrier of Hepatitis ‘B’ during normal hours should immediately contact a police medical officer… I am advised that vaccination is effective if given within 5 days of the contact…
The principle mode of transmission (of Hepatitis ‘B’) is by spread of infected blood, blood components, urine, saliva or semen directly from one person to another, particularly through abrasions and open wounds. The disease is common in drug addicts, homosexuals and the promiscuous.”

15 A supplementary memorandum seems to have been sent from the Commissioner’s Office to all police stations on 3 January 1985. The terms of this document indicate that its primary purpose was to dispel perceived fears on the part of some to whom vaccination had been offered that there was a possibility of contracting AIDS from the Hepatitis B vaccine. Having said that none of millions of recipients of recipients of the vaccine had been shown to have acquired AIDS from it, the document went on:

“This knowledge must be considered and weighed against the risk of acquiring Hepatitis B. The lifetime risk for the population as a whole, let alone the high risk population, is believed to be about 5%. Of those who do get the disease 85% or more completely recover. Of those who are seriously affected and require hospital admission about one in one hundred die in the early stages of the disease and a significant proportion of others who do not make a complete recovery go on to carry the disease, to suffer chronic liver deterioration and even cancer.”

16 In a report of 6 March 1996 Dr Jones, a gastroenterologist and hepatologist observed that:

“… most, if not all, doctors in full time clinical practice in this Country, particularly those working in Hospital situations, have been offered vaccination against Hepatitis B since the early 1980s. Practically all larger Hospitals that I am aware of offer vaccination to all their staff whether they be Nurses, Paramedical Staff or even Domiciliary Staff involved in, for example, the cleaning side. This has therefore been common practice since at least 1985.”

17 Dr Vickers, in a report of 16 May 1997 to the Crown Solicitor said:-

“I support the view that all occupations which deal with large numbers of the public should have full vaccination. I do not know what the Government Medical Officer’s advice to the Police Department was in 1987 and a good knowledge of hepatitis B virus would certainly have been available at that time to make such a judgement.”

18 No one with any significant experience in the criminal courts or many other places can but be aware that a great deal of police work involves dealing with the riff-raff of society - persons disposed to violence, alcoholics and other drug users - many of whom not only care little for their own health and cleanliness but care little about the health or cleanliness of others. Many of such persons share articles liable to transmit infection such as needles or bottles. By some, sexual favours are freely given. Some search through garbage bins looking for food. When regard is had to the principal modes of transmission of Hepatitis B as referred to in the Commissioner’s memo, it is impossible to avoid the conclusion that such persons are not a high-risk group.

19 And the circumstances where persons within this group come into contact with police officers are also conducive to transmission. This may occur through fighting or other resistance to arrest, through bleeding, open wounds or assaults with needles, or through spitting, all of which occurrences are not uncommon. The Plaintiff gave evidence, which I accept, that some of this type of conduct was common.

20 I do not know what the medical advice was that was referred to in the memorandum of 11 October 1984 but it seems to me to fly in the teeth of common experience, something which I, as a tribunal of fact, am entitled to take into account. The risks seem to me more accurately reflected in the later part of that of that memo where advice was given that “A member of the force … who considers that he/she has had direct duty caused contact with a sufferer/carrier of Hepatitis ‘B’ during normal hours should immediately contact a police medical officer” although the document ignores the fact that often it will not be known whether the person with whom contact was had was a sufferer or carrier.

21 In my judgment the Defendant breached its duty to the Plaintiff in not at least making vaccination available and encouraging the Plaintiff to receive it. In light of the memorandum of 11 October 1984, Dr Jones’ report of 6 March 1986 and Dr Vickers’ remarks which I have quoted, that breach existed for the whole of the Plaintiff’s time as a serving police officer.

22 I am also satisfied that, had the Defendant not defaulted in this way, the Plaintiff would have been vaccinated. At one time, on or about 6 May 1987, at the suggestion of a superior he actually approached a Police Medical Officer and requested vaccination but was told that he could not be given it as he was not in a high-risk group. The Plaintiff then asked for gloves to be provided, further indicating his interest in looking after his own health. It seems to me likely that, had the Plaintiff had the added impetus of actions of the Defendant such as described in the immediately preceding paragraph, he would have taken similar steps at the outset of his career.

23 The approach of counsel for the Defendant in closing submissions to the effect that “the only real issue in this case is the genuineness and, if so, the measure of any of the symptoms of which the plaintiff complains, reinforces the views expressed in this part of my reasons.

24 I have already said that I am satisfied that the Plaintiff’s hepatitis was acquired in the course of his duties as a police officer. In these circumstances it is unnecessary for me to embark upon aspects of the evidence which were said to demonstrate that the Plaintiff probably was infected with hepatitis during contact with certain named persons in the course of his police duties.

25 The clear inference from the evidence concerning vaccination is that, had the plaintiff been vaccinated, he would not have contracted the hepatitis from which he suffers.

Impact on Plaintiff

26 In December 1987 a Police Medical Officer informed the Plaintiff that it looked as though he had hepatitis and had contracted it in October. The plaintiff referred to the symptoms he was then experiencing as those of a bad flu and including feeling tired and weak, and experiencing headaches, nausea, sore muscles and joints, hot flushes, and diarrhoea. The Plaintiff also gave evidence that he was then turning yellow although the tenor of the Plaintiff’s evidence was that it was Dr Yenson who noticed that fact. The Plaintiff was placed on sick report for a month or so.

27 The Plaintiff said that he had experienced a number of these symptoms in June, July or August 1987. He agreed in evidence that later he had told Dr Broughton that in July or August 1987 he had experienced abdominal and muscle pains and his urine was darker than normal.

28 After his time off in about November 1987 the Plaintiff went back on light duties but was not coping. He made application to join the fingerprint section. During his work in that section he was fatigued but tried to carry on. Prior to being terminated in 1994, at what the Plaintiff referred to as the last stage, he was working 4 to 5 hours a day for 3 days a week but sometimes going to sleep in his cubicle at work. The work was taking its toll. On 20 May 1994 he was retired from the Force because, in the opinion of a police medical officer, the Plaintiff was not fit enough to carry out his duties.

29 The plaintiff said that since November 1987 his symptoms have become progressively worse. He said that his present symptoms included fatigue, diarrhoea, migraine and possibly other headaches, he has difficulty in keeping down some types of food, gets pains in his muscles and joints and suffers from dizziness. He also has high blood pressure. The muscle and joint pains are experienced 2 to 4 days a week and commonly last from 2 to 3 hours. Sometimes they may last only one hour but sometimes all day. The nausea comes 3 to 4 times a week. The dizziness occurs basically when the plaintiff stands up after lying or sitting down. Generally the period of this dizziness is short – 30 to 45 minutes but sometimes longer. The dizziness occurs 3 to 4 times a week.

30 The Plaintiff takes Panamax for his headaches, Losec for his gastric problems and other tablets for high blood pressure. He spends some $20 a week at the chemist. Elsewhere the Plaintiff said he also took anti-depressants.

31 The Plaintiff said that headaches come twice a day for 2 or 3 hours. The pattern seems to be that they come for 3 or 4 days and then he is free for 3 or 4 days before the headaches return. The plaintiff’s description of his fatigue included the following. The fatigue is constant. He is not fatigued when he rises in the morning and will not be for 2 or 3 hours. At about 11 or 12 o’clock, he will usually have a nap for an hour or two and feel not too bad again. After several hours he will be fatigued again. When fatigued he cannot do anything.

32 After I had made some remarks inspired by my observations of the Plaintiff, he was recalled in reply. He then said that he had his good days and had been tired at various times during and after the days of the proceedings. He also said that his son had been picked in the state tennis squad and on occasions during the last 2 or 3 years he had been driving his children to tennis lessons at Homebush and Campsie. The travelling time on these occasions varies between 30 and 45 minutes.

33 The Plaintiff said that while before 1987 he and his wife shared the housework and domestic duties equally, he helping around the house with the cooking, cleaning, dishes, making beds, vacuuming the carpet, shopping and banking. Now he can hardly do anything. Since late 1987 his domestic duties have totally dropped off. When working he would come home so tired that he just had something to eat and would go straight to bed. Although he is no longer working, the position now is basically the same. His wife does all the work around the house that he used to do. When the topic was revisited in cross-examination the Plaintiff said that he tried to do a lot of things around the home but struggled with them and “it’s a huge effort”. Later he said that he attempted on some occasions to do a lot of things by way of duties around the house but found it difficult to maintain on a regular basis. He maintained that he needed his wife to look after him around the home. He was not asked expressly whether he mowed the lawn.

34 The Plaintiff said that his wife spends 5 or 6 hours a day looking after him. At one stage he said the she had ceased work in about 1995 because she was needed to look after him on a full time basis but later said that this was to look after him and the children. (In January 1995 two would have been aged about 7 and 4. One was born later that year.)

35 The Plaintiff had been an above average soccer player. He said that between 1987 and 1994 he attempted to return to take up soccer again, albeit with a “social third grade team”. The team usually trained twice a week but he probably trained once. However, he could not overcome his fatigue problem. He tried to play on and off and did complete some games. He was at least in part motivated by advice from a specialist that he seek to build up his strength by vigorous exercise.

36 He said that since 1994 he has not attempted to obtain employment or to retrain. He has put some accountancy training which I refer in more detail below to use by doing some bookwork for his family and friends for an hour or two at a time but his concentration seems to waver. He has derived no remuneration from this.

37 The Plaintiff’s wife largely supported his evidence of being unable to do anything although there were some differences between their evidence, largely in matters of detail, albeit detail which may be important. Asked whether the Plaintiff mowed the lawn she said:-

“Sometimes he does. I try and get him out to help me, and get him to do something. He does it but he comes inside and just dives on the lounge and breaks out in a big sweat.”

38 Mrs Samardzic said that she now does at least 8 hours more of housework a day than she did before her husband became ill in 1987. She said that the Plaintiff “Has tried to do things, but nowhere as near as he used to do. I do everything now, everything” including all the cooking, vacuuming, mopping of the floor, washing the car, and shopping. Mrs Samarzic also manages the family finances, banking & bill-paying.

39 She said that she has always driven the children to school each day. The Plaintiff could go to bed anytime after 6 pm, sleep till 8.30 or 9.30 am and, 80% of the time, still look tired. The plaintiff would also sleep 2 to 3 hours during the day. Asked, “Is he always in bed at the time you take the children to school?” she said “Most of the time, yes”. When I asked her what about picking the children up from school, she said that the Plaintiff was “still dozing”. The Plaintiff gave evidence that the trip to school involved a distance of 2 or 3 kilometres.

40 As has been said, after he was recalled, the Plaintiff said that on occasions during the last 2 or 3 years he had been driving his children to tennis lessons.

41 There was also evidence that the Plaintiff played an appreciable amount of golf. The Plaintiff acknowledged that since 1994 he has played golf, once, twice or at most 3 times per week. However he said that it was sometimes less frequently and sometimes not at all. He said that he had not played in the 3 or 4 months prior to 31 March 2003, the time of trial. The Plaintiff said that he had given up golf in about mid-November last because he would have become too tired and had to drive his children to tennis. When he played, most of the time it was 18 holes which took between 3 and 5 hours, an average of 4 hours. He said that sometimes he walked and sometimes used a cart. Sometimes he struggled to finish a round and some rounds were incomplete. The Plaintiff said that he enjoyed golf and that medical specialist he had seen had advised it as it gave him physical exercise. In about 1999 his handicap was down to about 7 although more recently it seems to have grown to about 12. A comparison of Exhibits 1 and K suggests that the frequency of play seems to have dropped significantly, perhaps to an average of 3 times a month in the second half of 2001. Mrs Samardzic suggested that the Plaintiff might have played only 5 or 6 times in the last couple of years.

42 There was other evidence in the Plaintiff’s case which tended to corroborate or alternatively contradict that to which I have referred. There was, as is almost invariable these days, a wealth of reports from mainly non-treating doctors. Reports from 12 doctors were tendered. Some of these reports contained extensive reviews of earlier reports. The content of others reflected their author going outside his field of expertise. Some of the doctors were called. Because of what ultimately were only limited areas of dispute, I do not regard it as necessary to attempt a comprehensive review of all of the medical evidence.

43 There is, as I have indicated, no doubt that the Plaintiff has hepatitis B. I am also satisfied that, given the time the Plaintiff has had that infection, it is almost certain that his infection will be permanent. The Plaintiff’s infection carries with it the risk that he will develop cirrhosis and cancer of the liver and the possibility that he may need a liver transplant at some time. However I am not satisfied that the possibility of either cirrhosis or cancer is more than “modest”. That was the term used by Dr Jones in his report of 24 July 1996. In an earlier report of 25 July 1994 he had described it as “small”. Dr Nair, in his report of 24 September 1998, said the risk was “moderate”. Dr Turner (report 17 June 1999) said cirrhosis was “possible”. In September 1999, Dr Vickers said:-

“If he remains e antigen positive and with elevated ALT levels, then there would be a 15% risk of chronic liver disease. Cirrhosis can occur within 20-30 years. This would place the Plaintiff at about the age of 60 years. Following the development of cirrhosis, there is a 50% chance of survival over the following 10 years. It is therefore possible, although very unlikely, that if the Plaintiff’s liver inflammation associated with Hepatitis B kept on the way it is, his life span may be shortened by approximately ten years of so.”

44 The evidence showed that the “e antigen positive” state referred to in this passage was present for only a limited period and thereafter the Plaintiff’s liver reverted to the more healthy “e antigen negative” state. The joint statement of Professor Cossart and Dr Vickers concluded by saying that the Plaintiff had an essentially good prognosis compatible with a normal life style and normal life span and his condition -

“may have a small but unquantifiable impact on his quality of life and lifetime prognosis but it is not likely to be significant. It is extremely unlikely that the patient will develop primary liver cancer or require a liver transplant procedure for liver cirrhosis. He is not likely to require any form of treatment with his current level of serological tests”.

45 Dr Kendall assessed the chances of the Plaintiff developing further problems as higher. Indeed in one report he said of the Plaintiff that “he will” develop cirrhosis. However I am not persuaded by this evidence. In part I am influenced by a view that Dr Kendall is less than objective and too sympathetic to the Plaintiff or his cause. That impression appears in more than one of his reports and was repeated by his oral evidence. However, I make it clear that I do not rely in this regard on the document Exhibit 10 which purports to be a photostat copy of a document signed by Dr Kendall and which in its terms, is indicative of a less than objective and professional approach. I am not persuaded that the document – of poor quality – is genuine.

Fatigue

46 There was a deal of medical evidence that the Plaintiff was suffering from Chronic Fatigue Syndrome or, if the definition of that condition requires the exclusion of other identifiable illnesses as a cause, a condition closely approximating thereto. (Hereafter I shall refer to both such situations as CFS, the distinction not being material to the issues I have to decide.) I am disposed to accept the evidence of Dr Turner that the condition is a rare side effect of hepatitis B. I am also satisfied that insofar as the Plaintiff is suffering from CFS, the cause is his hepatitis B. I am led to this conclusion by the timing of events, the Plaintiff’s denial of ever suffering from glandular fever and the paucity of evidence of other possible causes. I am also satisfied any CFS from which the Plaintiff suffers is likely to be permanent.

47 However it is clear that in reaching the conclusions that the Plaintiff does have CFS, the doctors who did so were relying on the accuracy of the Plaintiff’s account of his symptoms.

48 In 1991 Dr Demetriou, a cardiologist, thought the Plaintiff had CFS. In September 1998, Dr Nair expressed the same view. On the basis of the Plaintiff’s complaints, in June 1999 and August 2002, so did Dr Turner, a gastroenterologist who said that he had seen extreme lethargy in other patients also. Dr Turner was called and cross-examined.

49 The Plaintiff was seen over a longer period by Dr Brian Jones, a gastroenterologist and hepatologist. In July 1994 he reported that he felt in July 1992 that the Plaintiff’s fatigue was related to his hepatitis since there had been no obvious exposure to any other virus or illness. Later reports take the matter of CFS no further other than to indicate that Dr Jones would not seem to have given the topic of CFS much attention. Given his specialty, that is unsurprising. Dr Jones was also cross-examined.

50 Another of the doctors who provided a report on behalf of the Plaintiff and who was called was a Dr Donohoe, who describes his specialty as “Environmental Medicine”. He said that the majority of his practice consists of patients referred to him for assessment and advice to other practitioners concerning chronic fatigue. In his report of 27 February 2003, Dr Donohoe said that he had seen the Plaintiff for some 90 minutes. On page 1 of the report, Dr Donohoe said this was on 21 February 2002 but on page 3, that it was on 21 February 2003. The latter seems more likely. Dr Donohou described the Plaintiff as a “Clearly fit male who appeared profoundly fatigued, weak and distressed about his illness and disability, and the long legal battle with his employer for compensation” and as someone having “some problems with concentration and short-term memory, (who) relied on written material for much of his recollection”.

51 Dr Donohoe diagnosed the Plaintiff as suffering from CFS. He said that the extent of fatigue may vary massively from patient to patient. Mornings are typically worse. He would not agree that playing golf indicated that the Plaintiff did not have CFS saying, in substance, that one would need to consider the effect of such golf on the Plaintiff. The doctor did however say that the “spectrum – I infer he included the energy involved – of what does a round of golf involve is beyond me”. He agreed that 90 minutes consultation with himself would be less stressful than sitting in the witness box for 3 or 4 hours but would not expect any lapse of concentration to be evident in the course of giving evidence over such a period. He said that a person with CFS is normally able to function reasonably normally in stressful situations due to the presence of adrenalin. Doctor Donohoe said that he was not able to make a judgment that if the Plaintiff could play 5 hours of golf he could spend half an hour driving his children to school, saying that half an hour’s drive means different things and most CFS sufferers could not make it through half an hour’s peak hour driving.

52 Dr Donohoe explained the reference to “fit” as “well muscled, low body fat” and that that Plaintiff did not appear unfit or deconditioned. In relation to the later remarks the doctor said that as time went by during the consultation the Plaintiff was less and less able to answer questions appropriately, was more and more delayed (in answering) and had to refer more to notes. He said that the Plaintiff walked into the room looking nothing like his physique suggested, and slouched in his chair.

53 Dr Donohoe also expressed the view that CFS did not constitute an absolute inability to work although it was necessary that work conditions be very flexible and such that persons with CFS were not overworked and could take time off in periods of exacerbation. On a full reading of what the doctor said, it is clear that with the qualifications just mentioned, he thought the Plaintiff could work. The doctor recounted that the Plaintiff had expressed the view that he could carry out work – many hours a week - in the fingerprinting section of the police force. I do not understand Dr Donohoe’s opinion as to the Plaintiff’s capacity to be dependant on the accuracy of that information.

54 In his report of 26 February 1997, Dr Kendall also expressed the diagnosis of CFS, a view to which he adhered. Dr Kendall was of the view that “limited self-employment or employment in a ‘grace and favour’ situation would be possible, or should be possible”.

55 There was in evidence a video tape taken of the Plaintiff cutting the lawn with a whipper-snipper with apparent ease and without any sign of tiredness although it must be recognised that the tape ran for only a limited period. Dr Kendall said that it could be expected that patients such as the plaintiff could participate in that sort of exercise although if it was vigorous someone in the Plaintiff’s situation might be no good for the next day or two. Dr Kendall thought that such exercise was ideal therapy. He was asked also about the Plaintiff’s playing of golf. Dr Kendall said that playing was consistent with what the Plaintiff had told him, viz. that on some days he felt better and tried to do as much as he could and that the golf could be regarded as therapeutic.

56 Dr Vickers saw the Plaintiff on 16 September 1999. He said that the Plaintiff presented as tall, muscular and fit, that there were not obvious physical disabilities and he appeared affable, friendly and quite alert. Dr Vickers recorded, inter alia, the Plaintiff’s reports of tiredness, that the Plaintiff said he did the grass cutting and gardens but no other significant jobs around the house, could drive for up to 45 minutes, and had intercourse and played golf once or twice a week. The doctor said that he found it unusual that the Plaintiff had such an excellent golf handicap and sexual potency but felt worthless and having very little energy to do anything else”. In his account of the Plaintiff’s symptoms, Dr Vickers said that no new symptoms, other than tiredness and lethargy, had developed in the 11 years since suggested infection.

57 Dr Vickers’ opinion was that, subject to the result of a liver biopsy, he did not believe the Plaintiff’s life or quality of life had been more than minimally affected by the hepatitis and that he could not substantiate any physical basis for the Plaintiff’s weakness and fatigue, except possibly for sleep apnoea.

58 There was no evidence of any significant problem being revealed by any later biopsy result. A bundle of pathology reports were tendered. A biopsy report of samples apparently taken on 24 September 1999 recorded that there was “Mild activity and portal fibrosis suggestive but not characteristic of chronic hepatitis B”.

59 On behalf of the Defendant 3 reports of a Dr Lewin, psychiatrist, were tendered and Dr Lewin was called. In his report of 27 May 1997, Dr Lewin opined that the Plaintiff was suffering from a low grade chronic depressive condition which was not serious and was treatable. Dr Lewin was of the view that this diagnosis was sufficient to explain all of the Plaintiff’s symptoms and the additional diagnosis of CFS was not warranted.

60 Among the matters Dr Lewin recorded were a number of emotional reactions of the Plaintiff to the hepatitis B, that the Plaintiff had a reduced libido, that the Plaintiff had told him that the diagnosis of CFS had been made 6 or 7 years ago but that there had not been any treatment for it beyond the occasional taking of a vitamin supplement. Later Dr Lewin observed that there is no recognised medical treatment for CFS. Dr Lewin recorded that the Plaintiff had been prescribed Aropax, an anti-depressant medication, some 7 months earlier. Although Dr Lewin did not record what the Plaintiff had said which inspired these comments, Dr Lewin also said:-

“Mr Samardzic has also adopted the mantle of the chronic invalid. He argues quite forcefully that he is unable to work. … He lists reasons why he cannot make any attempt. The predominate reason he advances at the moment is that no one would employ him but I also note that he believes that his current legal status prevents him from making active attempts to rehabilitate himself. He evidently fears that if he tries too hard at this stage, he will lose out financially.”

61 In evidence Dr Lewin said that he thought the statement “he believes …” was a summary of what the Plaintiff had said. Because of the terms of the questioning, whether the last sentence summarised something the Plaintiff had said, or was the doctor’s own opinion is unclear.

62 In his report of 17 August 1999, Dr Lewin said that the Plaintiff presented “as a physically robust man who moved briskly and energetically”. He no longer suffered from a depressive illness but had an illness conviction in the absence of clearly defined evidence of either physical or psychiatric illness. The doctor recorded that the Plaintiff had said that he slept between 8 and 9 hours most nights, sometimes up to 10 hours. The Plaintiff also said that he enjoyed golf one or more times a week and taking his children to tennis on the weekend.

63 Dr Lewin saw the Plaintiff again on 28 February 2002. In the report which followed, Dr Lewin said that while the Plaintiff had a range of complaints they were insufficient to diagnose any specific psychiatric condition and the Plaintiff did not suffer from a depressive disorder at that time. The Plaintiff expressed frustration and anger at his current predicament. The Plaintiff said that his antidepressant medication had been withdrawn about 12 months previously but the Plaintiff had not noticed any marked change in his condition in consequence. The Plaintiff was preoccupied with his legal predicament. The Plaintiff felt tired and had low energy. Dr Lewin recorded, “Mr Samardzic told me that he does very little. He resists his wife’s requests for him to take a more active role with regard to housework”.

64 Dr Lewin also observed that the Plaintiff presented as a lively and animated interviewee and interacted warmly. “He concentrated well throughout a prolonged examination.” Dr Lewin expanded on some of these matters in evidence. He said that at the interview which inspired the second report there was no presentation such as Dr Donohoe had described. He said that in the third interview, the Plaintiff was a forceful interviewee, not withdrawn or timid. The doctor said that he believed the plaintiff’s preoccupation would settle and the complaints probably go once the litigation was resolved.

65 Reports obtained on behalf of the Plaintiff from 2 further psychiatrists were in evidence. That of Dr Morse of October 1988 does not suggest that the Plaintiff was suffering from any particular psychiatric condition although the doctor records substantial emotional reaction including depression on the part of the Plaintiff to the news of hepatitis. The Plaintiff was apparently depressed at the time Dr Morse saw him. Dr Robertson, who saw the Plaintiff in August 2002 opined that the Plaintiff was probably suffering severe depression at some time prior to being put on Aropax, and when it was temporarily discontinued. The reference to the recurrence of depression was clearly based on the Plaintiff’s account to the doctor that he had slipped back 3 to 4 months after ceasing to take the Aropax. According to Dr Robertson, at the time of the consultation the Plaintiff was probably suffering from “an obsessive-compulsive disorder manifesting itself in obsessional thought relating to his illness”.

66 It is appropriate to repeat an observation I made at the end of the Defendant’s case. I said:-

“I think I should say at this stage that during the course of the case I have paid considerable attention to the plaintiff’s appearance. I have not seen anything like the symptoms of tiredness that I would have expected in accordance with the evidence which I have heard in chief.”

67 Despite evidence given by the Plaintiff and his wife in reply, I see no reason to change the views then expressed.

Jaundice

68 Another issue about which there was a deal of evidence was whether the Plaintiff had ever exhibited jaundice or reported so suffering. In evidence in chief he said that in November 1987 he was turning yellow. Later he said that it was Dr Yenson who had (first) noticed that fact. Asked about his own observations, he said that he did not look in the mirror and although his answer may literally be capable of referring to the particular morning he saw Dr Yenson and was told of looking yellow, I doubt that that was the intent of the answer which had an element of the improbable in it. The Plaintiff said that he stayed jaundiced for a month. Mrs Samardzic said that the Plaintiff had looked yellow in November 1987.

69 Dr Yenson gave evidence that if a patient was sufficiently jaundiced to inspire a comment to that effect, he would make a note of that condition and in the case of the Plaintiff, had not done so. In the pathology reports which the doctor had, there is no mention of hyperbilirubinemia.

70 In his report of 28 October 1988, Dr Morse recorded in a report to the Plaintiff’s solicitors that the Plaintiff had not turned yellow. Given that Dr Morse is a psychiatrist, the clear inference is that this statement was based on what the Plaintiff had told him. On 16 September 1999, Dr Vickers recorded that the Plaintiff stated to him that he had never had jaundice but that in a report of a Dr Breit it is noted that the Plaintiff told that doctor that he had had jaundice. Based on answers the Plaintiff gave him, Dr Donohoe recorded that the Plaintiff was never jaundiced.

71 Counsel for the Defendant suggested that the Plaintiff’s account of jaundice was part of an attempt to assert text-book symptoms of hepatitis in support of a claim of infection at a particular time and that his denials of it on other occasions were simply a result of the plaintiff taking his eye off the ball. The second half of this proposition is not particularly persuasive but the discrepancy in accounts does inspire scepticism of the Plaintiff’s reliability.

72 On another topic, it might be mentioned also that Dr Turner gave evidence that in 1998 the Plaintiff has said to him that he suffered headaches “occasionally” and did not give a history of headaches along the lines of that recounted above. Dr Turner did say that the consultation was about the Plaintiff’s liver and concentration would have been on that.

Credit

73 To a significant extent the Plaintiff’s case depends on the acceptance of the evidence he and his wife gave about his condition. Somewhat surprisingly, no other lay witnesses, e.g. his golfing partners were called to corroborate their evidence. The Plaintiff’s credibility was the subject of attack on a number of fronts and, in addition to the matters I have mentioned there are some others to which I should refer.

74 The Plaintiff said that he joined the Police force because he had always wanted to be a police officer. In the years 1983 to 1985 he had played first grade soccer, describing himself as “semi-professional” in that if his team won he would be paid, he said at one stage, $300. In 1986 he had a car accident, suffering injuries to his neck and shoulders and, possibly, to his upper back. He may have been off work for a few days but disclaimed any suggestion that his injuries affected his duties as a police officer.

75 In consequence of the motor accident the Plaintiff bought an action in the District Court. According to the reasons for Judgment of Mahoney DCJ, which were tendered by the Plaintiff’s counsel, the substantial component of the claim was said to be loss arising from an inability to play football in consequence of the car accident. The Plaintiff’s police career was advanced as “merely a back-up career, in the form of an economic safety net”. It also appears that, until the Defendant supplied evidence in this regard, the fact that the Plaintiff had been suffering from hepatitis and complaining of chronic fatigue since 1987, was kept from Mahoney DCJ who drew the inference that the Plaintiff was “prepared to be less than frank with this court in order to secure a higher verdict than he might otherwise receive”. Before me the Plaintiff denied that he had concealed evidence that might have suggested hepatitis and fatigue syndrome might have played a part in his disability. It also appears from his Honour’s reasons that the Plaintiff’s complaints seemed to be excessive by comparison with the vast majority of the medical evidence that was given.

76 The Plaintiff said that he had received money as a result of his soccer playing from 1981 or 1982 to 1985. At one stage when he was playing at lower than first grade the amount was $150 per win. In first grade the payment was of the order of $300. He acknowledged that in his District Court proceedings he had been unable to produce any tax returns which reflected any receipt of such monies. Asked to agree that he had not been declaring those monies, the Plaintiff responded, “I was under the impression at that time that you had to earn so much money before you filled in a tax return”. The Plaintiff denied that he was a “tax cheat”.

77 Given that there was and is a threshold before one has to lodge a tax return or pay tax - $4,595 according to the 1984 edition of the Australian Income Tax Guide - and that there is no evidence that in the years prior to joining the police force the Plaintiff had any other income, I do not regard this matter as reflecting on his credit. Ultimately, during the course of submissions, counsel for the Defendant agreed. (I should perhaps add that the liability to tax on the soccer earnings which the Plaintiff had received, seems to have been virtually conceded before Mahoney DCJ, probably wrongly.)

78 It may also be noted that Mrs Samardzic left her last full-time job just before she had her second child in January 1991. She returned to part time work until just before her third child was born in April 1995. Since then the family income has been the Plaintiff’s police pension which seems to be 80% of his previous salary, sometimes supplemented by part of a means tested disability pension. The evidence does not reveal whether the former pension has been adjusted for inflation or by reference to increases in policemen’s salaries. The reason for the latter pension being paid only sometimes seems to have been that the assets of the Plaintiff and his wife have grown. While that fact raises some queries as to the Plaintiff’s income, the Plaintiff has had some family help in the acquisition of assets and the matter was not taken far enough to cause me to conclude that the Plaintiff’s income since his leaving the police service has been higher than as stated in this paragraph.

79 Finally in this section of these reasons, I should add that apart from the lack of signs of fatigue on the part of the Plaintiff, there was nothing in the demeanour of the Plaintiff or his wife which argues against acceptance of their evidence. Impressions I recorded during Mr and Mrs Samardzic’s evidence were respectively “seems genuine” and “seems honest” although later during cross-examination of the Plaintiff I recorded that “Some of his answers don’t impress”. Despite some differences between the evidence of Dr Lewin and the others, I was impressed with Doctors Jones, Donohoe and Lewin as witnesses.

Plaintiff’s Condition - Conclusions

80 The contention of the Defendant was that most of the Plaintiff’s complaints were false and the suggestion that he was chronically fatigued, preposterous. I have not found resolution of the issues thereby posed easy.

81 For acceptance of the Defendant’s stance carries the implication that the Plaintiff has been living a lie for much or all of some 15 or so years, including 2 years or so when he was working in the fingerprint section of the Defendant. For the balance of the time, he will in all probability have had to exercise care to limit his activities to a substantial extent so as to minimise the chances of his lie being discovered. And one may expect that there will have been some financial impact on the family over this time. Fifteen, or even 10 years, is a long time to – if the Defendant is correct - voluntarily endure that. And there is precious little surveillance footage to support the Defendant’s contention.

82 On the other hand, one must recognise that his pension(s) has provided a significant income and there would seem to have been some increase in wealth sufficient to interrupt payment of the disability pension.

83 The difference between Dr Donohoe’s account of his observation of the Plaintiff’s attitude during consultation and Dr Lewin’s account of his observations is also striking. And given that the Plaintiff must have been aware of the purpose of seeing both doctors, it is unlikely he would not have, at least so far as it was a matter of conscious ability, exhibited a similar attitude to both (and to Dr Vickers whose observations were not far different from those of Dr Lewin). The Plaintiff’s taking to the consultation with Dr Donohoe, and use, of notes there also seems to distinguish this visit from the consultations with the other doctors. I would have expected them to comment on such an event had it occurred.

84 But if the Plaintiff has been living a lie, presumably to boost his likely verdict, it is surprising that he should have acted so inconsistently with that stance when visiting the Defendant’s doctors such as Dr Lewin. Why would he move “briskly and energetically” if he were trying to demonstrate a general state of lethargy.

85 It is impossible to reconcile the evidence of the Plaintiff’s playing golf for hours with the evidence that he can do virtually nothing around the house. Furthermore, it takes no more effort to supermarket shop for an hour or so than to walk around a golf course for 3 hours. I do not forget that sometimes the Plaintiff used a golf cart but the evidence concerning his participation in household tasks was extreme.

86 It is difficult to reconcile the detail of some of Mrs Samardzic’s evidence concerning the Plaintiff’s sleeping (or dozing) and its effect with that he gave. And while no doubt there is some variation from day to day in the hours the Plaintiff lies down or sleeps, I do not regard that fact as sufficient to explain the inconsistency.

87 Given that the last sentence I have quoted from Dr Lewin’s first report – see [60] above - may be the doctor’s opinion rather than an account of what the Plaintiff said, I do not feel disposed to rely on it. However the immediately preceding passage, which Dr Lewin thought was a summary of what the plaintiff had said, argues significantly for the Defendant.

88 As I have said, the evidence on the topic of jaundice and the Plaintiff’s statements in that regard also inspire scepticism of the Plaintiff’s reliability. In this connection one may note also the apparent inconsistency between what the Plaintiff is recorded as telling Dr Lewin and what he is recorded as telling Dr Robertson as to the effect of ceasing the use of Aropax and also between his evidence concerning headaches and what he told Dr Turner.

89 There is also my own impression of the lack of signs of lethargy on the part of the Plaintiff in court over a period of the order of 4 days. While Dr Donohoe’s reference to adrenalin may be an explanation for this, I have difficulty in accepting that explanation for conduct over so long a period.

90 Full weight must be given to the evidence of the number of doctors who expressed the view that the Plaintiff was suffering from CFS but, despite this and the impressions of the Plaintiff and his wife that I have recounted, the matters to which I have referred lead me to the view that I am not persuaded that the Plaintiff suffers from CFS or any condition similar thereto.

91 On the other hand, it does seem clear that the Plaintiff had an emotional reaction to the diagnosis of hepatitis B. The evidence of 3 psychiatrists, Doctors Lewin, Morse and Robertson, and the fact that the Plaintiff had been put on anti-depressant medication indicates this and also the fact that depression was one of the consequences of the infection. It does not require medical evidence to know that a degree of fatigue or listlessness is commonly a consequence of depression.

92 The conclusion I have reached is that probably the Plaintiff has suffered and still suffers from a degree of fatigue consequent on being infected with Hepatitis, either directly or because of his emotional reaction to realising he has the disease. However, I am unpersuaded that the fatigue has been or is anywhere nearly as great or disabling as he maintains or as his apparent conduct or complaint over the years suggest. There was his appearance during the hearing; there seems some inconsistency in between the things he can do and those he says he can’t; there was his appearance to, for example, Dr Donohoe, Dr Vickers and Dr Lewin – an appearance at odds with what one would expect of someone who can do, and does, as little as the Plaintiff says he can. There were the other matters to which I have referred reflecting on his credibility. (I exclude in this respect the findings of Mahoney DCJ. Given the incomplete state of the evidence before me as to those proceedings, I am not inclined to rely on those.) All of these matters have resulted in the Plaintiff, who carries the onus, failing to satisfy me of fatigue to a greater extent than I have indicated.

93 I should observe that depression is not a matter of complaint in any of the Plaintiff’s pleadings. In this regard it is sufficient to commence by reference to an order of Registrar Howe made on 1 May 2000 that the Plaintiff have leave to file and serve an amended statement of Claim within 14 days. One was filed on 9 May 2000 in which the injuries and disabilities were described as:-

Hepatitis,
Shock,
Anxiety,
Worry, and
Nerves

94 Appeals by the Defendant from this order to Master Harrision and Sully J were in substance dismissed, the decision of Sully J being delivered on 1 June 2001. Particulars under Part 33A Rule 8A had been filed on 17 June 1998. That document specified the injuries and disabilities as:-

Injuries
(a) Contracted Hepatitis B
(b) Shock
(c) Anxiety
Disabilities
(a) Hepatitis B
(b) Anxiety
(c) Worry
(d) Nerves
(e) Lethargic and fatigue
(f) Chronic Fatigue Syndrome
(g) Damage to the liver

95 Another set of particulars under Part 33 Rule 8A was filed on 23 February 1999. It stated the claimed injuries and disabilities in different terms, viz:-

Hepatits B,
Infected liver,
Extreme Fatigue,
Poor Concentration,
Anxiety, Worry and nerves, and
The Plaintiff is well aware that he has a lifetime disease affecting the liver which could lead to other fatal diseases.

96 An undated “Memorandum of Specific Matters of Fact and Law in Dispute” signed on behalf of both parties identifies the issues concerning non-economic loss as:-

“Whether the plaintiff, as a consequence of suffering from Hepatits B has suffered:
a) chronic fatigue;or
b) other physical or psychological sequelae:”

97 Nevertheless, given the extent to which depression was the subject of reference in a number of medical reports from the psychiatrists on both sides to whom I have referred and which were tendered without objection and no point was taken in address to the effect that depression or its consequences were not matters in respect of which the Plaintiff could recover, it does not seem to me that I should put aside the issue of depression and any consequences thereof.

98 The conclusions I have reached on the issue of fatigue bear on the issue of the Plaintiff’s capacity to work since his infection. I do accept that he could not have carried on in the normal role of a police officer interfacing with the public but it does not follow that he could not have continued performing light duties. Indeed I am unpersuaded that the 4 to 5 hours a day, 3 days a week he says he was working prior to being terminated was beyond him. Indeed I am unpersuaded that he could not work a significantly greater number of hours in a week had he chosen to do so.

99 I am also unpersuaded that the Plaintiff suffers to anywhere near the extent he alleges the symptoms and sensations referred to in paragraph [29] above. I think that, rather than his evidence in this regard being all completely fabricated, the probability is that he suffers some or all of the symptoms and sensations sometimes.

Damages

100 It is agreed that the assessment of damages in this case is not affected by any of the numerous limitations which Parliament has introduced into this field.

101 The Plaintiff was born on 11 November 1965. He came to Australia in about 1969 with his parents. He completed his Higher School Certificate and then studied accountancy for 2 years at TAFE before joining the police force as a cadet in January 1986. He completed his TAFE education in 1989 having been given time off from the police force to do so. He received an Associate Diploma in Business, majoring in accountancy.

102 The Plaintiff married on 3 May 1986 and has 3 children one born in 1987, one in 1991 and the third in 1995. In consequence of his termination from the police force and the circumstances thereof, he has since that termination been in receipt of a pension from the police force. It is common ground that this is not to be taken into account in the assessment of damages, even though, apparently, there will be no need for the Plaintiff to make any refund. As has been said, at some time or times the Plaintiff has also been in receipt of Social security payments.

General Damages

103 My reservations as to the extent to which the Plaintiff’s infection has genuinely impacted on him must find reflection in any assessment of general damages. However, I am disposed to regard that impact as somewhat greater than “small”, the term used by Professor Cossart and Dr Vickers in their joint statement. The infection looks virtually certain to be for the Plaintiff’s lifetime, it has had a significant effect on him emotionally, and carries a risk, though in my judgment small, of cirrhosis and cancer. At my invitation, counsel for the Plaintiff submitted that general damages should be assessed in an amount between $200,000 and $250,000; Counsel for the Defendant urged an amount of the order of $70,000 to $90,000. In my view, the amount to be awarded under this heading is $100,000. For the purposes of interest calculations, I would divide this evenly between past and future.

Loss of Earning Capacity

104 The Plaintiff has satisfied me that he is entitled to some damages under this heading. As advanced by his counsel, the claim was that he was totally incapacitated since his dismissal from the police force in 1994 but might be capable of earning half the current pay of a sergeant 1st class after January 2004.

105 The stance of counsel for the Defendant was to recognise that the Plaintiff might, and concede that he would, have reached that rank by the time of trial, and for the period to the time of trial, adopt an average between that and the Plaintiff’s income at the time of termination, and subtract from that average the average of weekly full-time adult male earnings over the period. He submitted that any period during which the Plaintiff was genuinely disabled form earing the equivalent of average male earnings had expired well before his termination from the police force. Counsel suggested that for the future one might proceed on the basis that the Plaintiff had lost the difference between average male weekly earnings and those of a sergeant 1st class. In the alternative, counsel for the Defendant submitted that an “in globo figure or buffer sum would be appropriate”.

106 I do not regard the Plaintiff as having been incapacitated from earning as his counsel submitted. Nor do I regard the Defendant’s approach, certainly the first method, as appropriate. And the difficulty with the buffer approach lies in its quantification.

107 Recognising its difficulties and imprecision, I am disposed to approach the matter this way. The Plaintiff’s accountancy training clearly suggests that, apart from his infection, he is capable of doing the work of a bookkeeper. I do not regard the infection as detracting from that, except in terms of the proportion of a week he can work. Although there was no specific evidence in this regard I may use my general knowledge of the world to recognise that many small businesses use the services of a bookkeeper part time and in circumstances where there is considerable flexibility of working hours; books commonly need be written up only once a week or once a month, and not always on the premises of the business. I am not persuaded that bookkeepers earn any less than police officers, be they constable or sergeant. Given the imprecision necessarily involved, I do not regard it as necessary to differentiate between such ranks.

108 I have no doubt that the Plaintiff is capable of doing such work for appreciably over half of each working week and has been so capable since he left the police force. The probabilities are that he is not capable of such work full time. The best assessment I can make is that he is capable of working for 70% of a week. Accepting the Defendant’s concession that the Plaintiff would probably have attained the rank of sergeant, level 1, by the time of trial, an appropriate calculation of what he would have earned since 1994 until then may proceed on the basis of the average between his earnings when he left the force and the salary of a sergeant, first class, in at April. The Defendant’s written submissions place this at 679.13 per week net – a figure from which counsel for the Plaintiff did not dissent. The Plaintiff’s loss to that time should be calculated on the basis of 30% of this.

109 For the time since and for the future, the damages should be calculated on the basis of the loss of 30% of the salary of a sergeant, first class. Subject to any argument the Defendant may care to present, given the time since trial, I am inclined to allow the Plaintiff to re-open to prove what that salary is at the time of presentations of these reasons, although the parties may be able to agree on that.

110 I should return to the topic of soccer. As has been said, at one time the Plaintiff earned some monies from playing soccer. The amounts were however small. He was in a reserve grade team. He gave evidence that during his time as a probationary constable his superior officer would not allow him to play until his probation was finished. He was then precluded for a time from playing as a result of the injuries suffered in the car accident to which reference has been made and which occurred in 1986. In these circumstances, I am unpersuaded that, but for becoming infected with hepatitis, the Plaintiff would ever have returned to earning money from the playing of football.

Superannuation

111 It was contemplated that some claim under this heading would be made by the Plaintiff. Leave was given for written submissions to be adduced in this regard. In submissions made on behalf of the Plaintiff, reference was made to the “hurt on duty” pension he is receiving and it was stated that no damages under this heading are claimed. Accordingly, I need not refer to the topic further.

Griffiths v Kirkemeyer

112 Counsel for the Plaintiff made a substantial claim under this heading, suggesting, on the basis of evidence given by the Plaintiff and his wife, that the Plaintiff required 6 or 7 hours care a day. The claim obviously has to contend with my conclusion that the Plaintiff has not been shown to be anywhere as disabled as he claims to have been.

113 Furthermore, I have no doubt that a deal of the housework which the Plaintiff’s wife does now, compared with what she did before he was injured is a consequence of the children she has had.

114 That said, it seems to me not unlikely that the Plaintiff’s capacity to attend to himself and household duties has been impaired to some extent. I am unpersuaded that this would occur every day or extends to more than, on average half an hour in any day such impairment occurs. In the result it seems to me that an allowance based on 2 hours per week, for the future and, subject to what follows, for the past, is a fair assessment of this claim. On the basis that there would seem to have been some times when the Plaintiff’s condition was worse than normal, I would allow 7 hours per week for 2 years, assumed to be the first 2, after the infection was discovered.

Past Medical Expenses

115 These were agreed at $4197.

Future Medical Expenses

116 Subject to what follows, these should include, as the Defendant’s counsel submitted:-

$65 per annum for a specialist consultation,
$30 per annum for a general practitioner consultation,
$200 every 2 years for an ultrasound.

117 The first additional matter relates to pharmaceuticals. The Plaintiff gave evidence of spending $20 a week on these and what they were for. I accept that there was limited direct evidence linking the pharmaceuticals bought or the symptoms which inspired their purchase to the Plaintiff’s hepatitis but, given the timing and particularly his emotional reaction, it seems to me likely that some of the expenditure is likely to be the result of that infection. I do not forget that I have not been persuaded of the severity of symptoms of which the Plaintiff complains but I would allow $5 per week on this account.

118 Dr Vickers in a report of 16 September 1999, provided somewhat higher estimates. He suggested that what was required for the future would include:-

Liver Biopsy	$800
Interferon Treatment	$5,000
Lamivudin Treatment	$2,000
Biannual review and blood tests and medical costs	$500 per annum
Partial liver resection for hepatoma in the future (unlikely event)	$10,000
Liver transplant (unlikely event)	$100.000

119 The plaintiff had a biopsy later in 1999 and presumably the cost of this is reflected in the amount agreed for past medical expenses.

120 There was little evidence concerning the likelihood of the 2 treatments being required and, if so, when. The biannual review costs are slightly larger than the submissions of by counsel for the Defendant, based on the evidence of Dr Turner. The amount of, approximately $400 every 2 years strikes me as somewhat tight and I propose to allow a mid-way figure of about $350 per year or $7 per week on that account

121 Various estimates were given as to the likelihood of the Plaintiff requiring surgical intervention so far as his liver is concerned. Nothing will be gained by my detailing the differences here. I propose to make an allowance for the chance of this occurring by taking 10% of $110,000, the total of Dr Vickers’ last two estimates. The value of the resultant $11,000 should be discounted upon the basis that it will not be required for 20 years.

Other Matters

122 During the course of submissions I indicated that rather than attempt to carry out the actuarial and mathematical calculations necessary to determine any final figure, I would publish my findings and reasons and allow the parties to carry out such calculations. I have, I think made all the findings necessary in this regard but if the parties think there is anything I have missed, they should send a message to my Associate and a copy to their opposite number. Subject to that, the matter will stand over to a convenient date for the entry of a formal verdict and judgment.

123 Finally, I remarked in paragraph 42 on the nature of some of the medical reports. The practice which seems to have arisen of having expert after expert review the opinions of others is calculated to increase the costs of litigation unnecessarily. The matter has not been argued and I have not sought to form any concluded view but I am by no means satisfied that any order for costs which the plaintiff may enjoy should encompass all of the costs of all of the reports I have seen. The parties may take up this issue if they wish.

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Last Modified: 02/05/2004