Stephen Charles Chaney v Commonwealth of Australia - [2005] NSWSC 92

No judgment structure available for this case.

CITATION:
Stephen Charles Chaney v Commonwealth of Australia [2005] NSWSC 92

HEARING DATE(S): 16 -24/9/03, 15/12/03, 15-16/12/03, 20/02/04 (further written submissions)

JUDGMENT DATE :

25 February 2005

JUDGMENT OF:
Howie J at 1

DECISION:
Verdict for the defendant and plaintiff to pay the defendant's costs.

CATCHWORDS:
Personal injury claim by soldier injured in army training - Liability of Commonwealth not established - No matter of principle.

CASES CITED:
Fox v Percy (2003) 214 CLR 118
Jones v Dunkel (1959) 101 CLR 298
Huysse v Snowy Mountains Hydro-Electric Authority [1975] 1 NSWLR 401
Lustre Hosiery Limited v York [1935] 54 CLR 134
Hill v Commonwealth [2003] NSWSC 1025
Spiteri v Commonwealth [2003] NSWSC 391

PARTIES:
Stephen Charles Chaney v Commonwealth of Australia

FILE NUMBER(S):
SC 13256/88

COUNSEL:
P. Webb QC with F. Tuscano - Plaintiff
R. Williams QC with B. Skinner - Defendant

SOLICITORS:
Walker Smith, Solicitors - Plaintiff
Australian Government Solicitor - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

FRIDAY 25 FEBRUARY 2005
13256/88 STEPHEN CHARLES CHANEY v

COMMONWEALTH OF AUSTRALIA

JUDGMENT

1 HIS HONOUR: On 5 November 1982 the plaintiff, Stephen Charles Chaney, then aged 21, was a soldier in the Australian Army engaged in physical training with members of his unit on South Melbourne Beach. With other soldiers he swam and ran along the beach before being called upon to participate in a supervised exercise in which he was required to carry a fellow soldier on his back a certain distance up the beach and return. He claims that, just as he was positioning himself to take the weight of the person who was to be his partner, a soldier jumped on him without warning and occasioned an injury or injuries from which he still suffers and for which he seeks damages from the defendant, the Commonwealth of Australia.

2 The plaintiff claims that the Commonwealth is liable for the injuries occasioned to him in the course of his employment, that being as an enlisted soldier with the Australian Regular Army. The plaintiff complains of constant back, neck and head pain and urological difficulties. It is alleged that the defendant, by its servants or agents, being those army personnel of higher rank than the plaintiff and who were responsible for the conduct of the training at the beach, breached the duty owed to the plaintiff to take reasonable care for his safety by failing to provide “a proper and safe system of conducting its operations and sufficient supervision of the same”.

3 There is no dispute that the Commonwealth owed the plaintiff a duty of care in relation to the conduct of the physical training in which he was involved on the beach. There is no dispute that the plaintiff was injured to some extent during the course of the exercise in which he was taking part on the beach, referred to by the plaintiff as “a piggyback” or, more appropriately, “a Fireman’s carry”. The Commonwealth, however, contends that the Court would not be satisfied that the plaintiff’s account of the incident, said to have been the cause of his present physical and mental condition, is reliable. It also takes issue with the extent of any injuries that the plaintiff has suffered or now suffers as a result of the incident occurring at South Melbourne Beach

4 The plaintiff was born on 22 March 1959. He enlisted in the Australian army in Melbourne on 1 March 1978. He re-enlisted on two occasions before being discharged at his own request on 7 January 1987.

5 In the period leading up to the incident in 1982, the plaintiff served at a number of army bases in New South Wales and Victoria. He was attached to various transport companies, initially as a driver and later in administrative positions. Eventually he attained the rank of corporal. He participated in, and enjoyed, the various sporting activities and physical training that were a feature of army life as he knew it. He played a variety of sports as a soldier including cricket, volleyball, squash, and soccer.

6 Physical training activities were conducted at all the bases at which he served on a five days per week basis, usually in the mornings. The sessions were of approximately 25 minutes in duration and were always supervised, usually by at least one Physical Training Instructor (PTI). In the absence of such an instructor, the training was conducted and supervised by an officer or a senior NCO.

7 On an occasion in April 1982, when the plaintiff was stationed at Enoggera undertaking a clerk’s course, he participated for the first time in a game called “murder Frisbee”. This was a team contest conducted in a gymnasium under the supervision of a warrant officer and involved 36 players. During the course of the game, the Frisbee was thrown to the plaintiff. He fell to the ground and another player landed on top of him causing him to feel severe pain to his lower back. He had difficulty getting back to his feet.

8 He reported the injury to the Regimental Aid Post (RAP) and was told to treat his back by applying Dencorub. There is a Medical Attendance Form dated 19 April 1982 relating to this injury (Ex B6). It records that the plaintiff suffered a “direct blow to the back”. He complained of “pain on bending or extension” and his movement was “tender in all directions”. He was placed on restricted duty with “no P.T. to include 25-4-82”.

9 The plaintiff continued to experience pain for about one week after this incident. However, he recovered fully from the injury and before he returned to his army base in Victoria he participated in a squash competition, without pain or inconvenience, Thereafter he continued to participate in all forms of physical training and sports without restriction until the incident at South Melbourne Beach.

10 In cross-examination the plaintiff acknowledged that accounts he had given of the “murder Frisbee” incident included the following: that the person, who had fallen on him, had landed with his knees in the plaintiff’s back; that the person weighed variously between fifteen and thirteen stone; and that the plaintiff had to be assisted back to barracks. There was suggestions in some of the medical reports tendered that this incident had been the source of his present back pain, but the plaintiff denied that this was so. I will return to this issue in some detail later.

11 The incident at South Melbourne Beach occurred on 5 November 1982. As this is the basis of the claim I will deal with the plaintiff’s evidence on this matter separately.

12 In December 1982 the plaintiff was transferred to the Albury Transport Unit. He continued to experience pain in his back and left leg. At one point he was referred to a chiropractor. Although he continued to be involved in physical training sessions at the various army bases where he was stationed, the pain in his lower back and left leg persisted to varying degrees. He particularly experienced difficulty running. It is the plaintiff’s evidence that, in effect, he never recovered from the injury sustained in the incident on South Melbourne Beach.

13 Following the break up of his marriage in 1986, the plaintiff decided to find work outside the army and he obtained a position with the Department of Corrective Services (“Corrections”). He applied for a discharge from the army on 28 November 1986 citing the need to care for his children and the commencement of his training with Corrections in support of the application (Ex D).

14 For a period of five months prior to September 1986 he worked part-time for a cleaning firm in a Canberra suburb.

15 The plaintiff made application to join Corrections in September 1986. In the application form (Ex 3) he indicated that he had no current disabilities likely to affect his employment, He stated further:

16 The plaintiff commenced employment as an officer with Corrections in January 1987 and completed an initial training course without incident. He continued in that employment until September that year. His duties involved him in physical activities including tower duty, patrolling catwalks, searching cells and restraining prisoners. He had no serious health difficulties during this period.

17 However his back pain re-emerged. He had two episodes in 1987 that required admission to Goulburn Base Hospital. The first was between 10 and 19 September, when he found himself unable to stand after sitting in a chair the day after a game of squash. He was placed in traction to ease his pain. On 19 September he underwent a myelogram. The second admission occurred between 13 and 16 December, after he was unable to straighten his back. Again he was placed in traction.

18 In August 1988 he underwent surgery to fuse his spine. Following this surgery he found that the back pain was relieved for about six months but gradually it returned such that he found himself unable to stand upright. By this time he was living in Taree with his second wife. He never returned to work for Corrections after September 1987.

19 Because of his continued complains of back pain, the plaintiff was readmitted to hospital in December 1989 and underwent surgery to remove the screws and plates inserted in the first operation. It was following this surgery that the plaintiff began to suffer urological difficulties. From this time he was confined to a wheelchair for most of his waking hours because of the pain in his back and legs.

20 He was divorced from his second wife. A short time later he married for a third time but that marriage also failed.

21 Since December 1989 the plaintiff has been continually under the care of various general practitioners, specialists, and psychiatrists. His sister had been his full-time carer for about three years prior to the hearing. Neither of his children now resides with him. He spends his time in unpaid work on committees and counselling others. He believes that he is unable to work on a full-time basis because his physical condition varies from day to day and by reason of the changing requirements for his care depending upon the severity of his pain. He spends 80 per cent of his time in a wheelchair. He feels that he has reached a point of stability in control of his pain because of the insertion of an intra-thecal pump that administers metered doses of painkillers to him.

22 One of the exercises the plaintiff was taught to perform during his physical training in the Army was, what he described as, “piggybacking”: a type of race with one soldier carrying another on his back. It is more correctly referred to a “Fireman’s carry” and is a method used by various agencies, including the Army, for the removal of injured personnel to a place of safety or treatment.

23 The proper way of performing this exercise was demonstrated to him and other soldiers by two PTI’s at some stage during his basic training. According to the instruction he received, the person approaching from behind would tap the carrier on the shoulder and indicate to him that they were to be partners for the exercise. This procedure was adopted so that the potential partners would have the opportunity to assess one another to ensure compatibility in weight and height.

24 The plaintiff gave the following description of the demonstration in his evidence:

25 The plaintiff had performed the exercise numerous times during the basic training period. Towards the end of this period the exercise became competitive, with piggyback races being organised.

26 On the day of the incident on South Melbourne Beach the plaintiff was based at the Melbourne Transport Unit. As the unit did not have a PTI, an officer was in charge of training on this particular day. The plaintiff and approximately eighteen other soldiers were taken by bus to the beach for the purpose of undertaking physical training. When they arrived, they were told by the officer to go to the water’s edge and some of the men swam while others, including the plaintiff, went for a run along the beach.

27 Eventually, the group were required to gather around the officer. The plaintiff’s evidence was that the officer told them (T15):

28 The plaintiff gave the following version of events in evidence (T16.7):

29 Almost immediately he felt a lot of pain around his lower back area and his left leg. He was assisted by others to get up off the sand and was instructed to return to the bus. He remained there until the others had finished their training and eventually returned with them to the base. He was then taken to the RAP in Victoria Barracks, Melbourne, where a doctor examined him (Ex B8). He was in severe pain. The doctor declared him unfit for work and prescribed drugs to ease the pain. He went to his quarters and remained in bed for at least five days.

30 In effect the plaintiff’s evidence is that he was generally fit before the piggyback incident in November 1982 but thereafter suffered continuous pain to his lower back. On his account his present symptoms stem from the injury suffered at South Melbourne Beach.

31 A summary of the plaintiff’s medical record, both while serving in the army and after his discharge, is contained in an annexure to this judgment.

32 From early 1982 the plaintiff complained of intermittent back pain on three separate occasions: first on 18 February 1982, after a cricket match; the next after the “murder Frisbee” incident in April 1982; and then finally following the piggyback incident on 5 November 1982. Thereafter, he made frequent complaints of pain to the back. On each occasion after 1982 the Army Medical Board (AMB) examined the plaintiff, he is identified as being “abnormal” in the spine. There is no evidence as to the criterion for making that determination or upon what material it was based.

33 However, there are reports of the plaintiff being free of symptoms in the period shortly after the piggyback incident, for example after chiropractic treatment in December 1982 (Ex B15). In evidence the plaintiff denied that he was symptom free at this time or at any time after November 1982.

34 In February 1983, after the plaintiff’s back had been x rayed and no abnormality detected, Dr Isbister formed the opinion that the plaintiff had a “normal back - which had been strained” (Ex B18). The record of the AMB examination of the plaintiff in February 1983 states “No pain at present” and that the plaintiff does “PT thrice w(ee)kly” but notes “wears sorbothane heel insert for running”. Despite these findings the plaintiff was still identified as having an “abnormal” spine.

35 In March 1983 there is a medical report noting that the plaintiff complained of pain in the lumbar region of his back. In August of that year the plaintiff was issued with new boots in order to accommodate the sorbothane inserts “which have alleviated his low back pain while running, doing PT etc” (Ex B22).

36 In February 1984, the report of the examination by the AMB indicates that the plaintiff was asymptomatic in relation to a “LS strain”.

37 By April 1984 the plaintiff was again complaining of “nagging” lower back pain as a result of an “injury at PT in Melbourne - 82” (Ex B24). The plaintiff was referred to Dr Bentivoglio, an orthopaedic surgeon. A report of his examination refers to the plaintiff suffering from low back pain on and off for two years “since injury to back at a gym”, presumably a reference to the “murder Frisbee” incident. He considered that the plaintiff “could well have disrupted a LS Disc as result of injury 2 yrs ago” (Ex B25). However, an x ray revealed only a “straightening of normal lumbar lordosis [the curve of the spine]”.

38 From April to August 1984 the plaintiff continued to complain of lower back pain despite a course of physiotherapy and the use of a corset.

39 In August 1984 the plaintiff was hospitalised for an assessment of his condition as a result of complaints of severe pain to the back and down the left thigh. At this time Dr Collins thought that there were signs that the plaintiff was exaggerating his disability. When a CT scan produced no sign of abnormality, the plaintiff was discharged from hospital. In October of that year Dr Bentivoglio expressed the view that the symptoms did not warrant surgery.

40 Throughout 1985 the plaintiff was examined without any specific finding made as to the cause of his back pain. He was diagnosed as having “non specific low back pain” and prescribed an anti-inflammatory medication.

41 In 1986 examination notes of the AMB indicate that the plaintiff was complaining of occasional back pain but “nothing constant” and obtained good results at times from the use of a back brace (Ex B52).

42 On 30 October 1986 there was a determination made for the purposes of compensation that the plaintiff sustained personal injury arising out of his employment on 5 November 1982 namely “low back strain with left sciatica” (Ex B56). In November of 1986 the plaintiff sought to be excused from running because it produced a pain in his left leg. He also complained that his back condition was exacerbated after lifting heavy furniture. In December of that year the AMB examination diagnosed him as suffering from chronic low back pain.

43 By 1987 the plaintiff was assessed as being 15 per cent impaired by reason of his back pain. There was a provisional diagnosis that it was a result of a possible lumbar disc lesion (Ex B62). The plaintiff was hospitalised for traction on two occasions in this year. On 18 September he was subject to a lumbar myelogram. It did not reveal any abnormality (Ex B66), although there was some suggestion that it showed “nerve root involvement…..but this is not gross” (Ex B71). The plaintiff maintains that following that procedure he commenced to suffer severe headaches and neck pain, although there was no complaint made by him to any medical practitioner or hospital staff until 1990.

44 In 1988 there were further attempts made to ease the plaintiff’s pain. The first was an epidural injection administered on 21 July 1988 (Ex B73). On 19 August of that year Dr Robson carried out a spinal fusion by the use of plates and screws. This surgery was thought to be warranted because of “some degree of instability at the L5-S1 disc level so that operation and fusion with nerve root release at that level offers him a good chance of long term improvement” (Ex B71).

45 Dr Robson reviewed the plaintiff in March 1999 and was satisfied with the physical result of that operation (Ex B75). He reported that the plaintiff was “pretty comfortable except when he straightens up after having been stooped over, and he is a little uncomfortable but otherwise he seems able to manage pretty well”. However, after about a period of six months, the plaintiff commenced to complain of constant back pain radiating to both legs and his groin. As a result he needed total bed rest on occasions. Because of the pain he could not stand straight and he started to use a wheelchair.

46 On 8 December 1989, the plates and screws inserted the previous year were removed. It was reported however that the spine was “rock-solidly fused………there is no doubt about this” (Ex B77).

47 It was following this operation that the plaintiff first complained of urinary retention problems.

48 Despite the fact that an X ray indicated a solid fusion of the plaintiff’s spine (Ex B78), the plaintiff continued to complain of severe back and leg pain. In March 1990 he was unable to stand or sit for periods longer than 40 minutes and suffered “frequent exacerbation of pain requiring total bed rest” (EX B79). He was admitted to Manning Base Hospital in July 1990 complaining of leg pain and urinary retention. He also spent a period in Lady Davidson Hospital in 1990 and appeared to improve, at least to the point of not requiring a wheelchair on his discharge. But shortly after his release he resumed reliance upon a wheelchair for general mobility.

49 By February 1991 the plaintiff was complaining that he could not stand or walk for more than 10 minutes without experiencing back pain. There was a concern that there may be some abnormality at the L4-5 disc (Ex B89 and B92). However, by July 1991 it was considered that no further surgical intervention could assist the plaintiff but that he might benefit from treatment at a pain clinic (Ex B93). By September 1991 he was assessed as being totally incapacitated for work.

50 In 1992 the plaintiff was treated for pain relief and depression. Psychiatrists treating the plaintiff were of the view that his psychiatric problems were a result of his physical condition and the attendant pain (Ex B100). A psychiatrist, Dr Lambeth, was of the opinion that the plaintiff was suffering from Chronic Dysthymic Disorder, a depressive illness, resulting from his pain and inability to function because of it (Ex B102).

51 Dr Wade King, who was treating the plaintiff for pain relief, in a report of 3 August 1992 raised a suggestion that the plaintiff’s pain was a result of “post-operative arachnoiditis, cauda equina problems and disturbed sympathetic function” (Ex B102). He maintained this view in a report in June 1993 also opining that the plaintiff’s headaches were a result of his spinal injury and the treatment of it. This diagnosis was a matter of strong controversy at the hearing before me. Although Dr King was required for cross-examination, he could not be located at the time of the hearing and his evidence was, therefore, untested.

52 By early 1994 the plaintiff was declared to be unfit for work as a result of a lumbar disc lesion and a dysthymic disorder, both of which had been earlier recognised by the Department of Veterans’ Affairs. There were opinions expressed that he suffered from a disc lesion that had been exacerbated by back surgery. He was also found to be suffering from a neuropathic bladder associated with his spinal surgery. He complained of chronic headaches and neck pain. Dr Baz, an occupational physician, formed the view that he was unlikely to have a successful outcome from further rehabilitation (Ex B107). Dr Grant, an urologist, was of the opinion that it was unlikely that his bladder function would improve and the plaintiff would require self-catheterisation for life (Ex B108).

53 From 1995 onwards the plaintiff was frequently admitted to hospital for pain management or to treat his neuropathic bladder. He spent much of his time confined to bed (Ex B120).

54 In October 1996 the plaintiff was complaining of increased loss of sensation to his lower limbs. He was generally confined to a Spinal wheelchair or in bed.

55 In February 1999 he complained that the pain was worse than ever and was experienced from his groin to his feet. He continued to suffer neck pain. He was also experiencing general weakness in the lower limbs and burning pain in his legs (Ex B131). In May 1999 the plaintiff was admitted to treatment for Post Traumatic Stress Disorder at the St John of God Hospital and was an inpatient from 14 May to 8 July. Dr Smith, who treated him at the hospital, gave evidence before me and I will deal with this issue later.

56 The plaintiff continued to be treated for pain relief and associated psychiatric disorders throughout 2000 and 2001. He lived with his sister and continued to spend the large part of his waking time in a wheelchair or motorised scooter. He had difficulty in maintaining his personal care although on some days he could brush his teeth and shave. Otherwise he relied on a personal assistant. He self-catheterised his bladder thrice daily.

57 Throughout 2000 and 2001 he was being treated once a fortnight by a psychologist, Mr Grant, for Chronic Pain Disorder. In August 2001 an intrathecal pump was inserted to help him find relief from pain. The pump is refilled every 4-6 weeks. In a report dated 8 August 2001 Dr Smith expressed the opinion that the plaintiff was still displaying some symptoms of Post-Traumatic Stress Disorder and was suffering from Chronic Pain Syndrome and a Dysthymic Disorder.

58 In a report dated 2 December 2002 Mr Grant stated that the plaintiff thought that the use of the intrathecal pump had improved his quality of life.

59 The plaintiff appeared before me in a wheelchair. He was fitted with the intrathecal pump. He complained of continually suffering from pain in his lower back, left leg, and neck. He suffered from headache. He experienced pins and needles in his arms. His hands constantly shake. He was receiving psychiatric treatment, medication for pain relief and physiotherapy. Although he can walk unaided for short distances, it causes him discomfort and he is severely stooped over. He is able to drive himself and has been provided with a vehicle by the Department of Veterans’ Affairs.

60 The Plaintiff’s case is that his current back condition is causally related to the injury sustained during the physical training exercise at the beach on 5 November 1982. It is the plaintiff’s case that he fully recovered from the injury suffered during the “murder Frisbee” incident in April of that year.

61 Although there are references to back pain in various reports of Army medical officers prior to 5 November 1982, they refer to the source of his pain as muscle spasms or tenderness. There is nothing in those reports to suggest anything as serious as a disc injury.

62 On 18 August 1982, some five months after the “murder Frisbee” incident, the MBA examined the plaintiff and found that his spine was normal (Ex B7). However, on every year that the plaintiff was examined after November 1982 until his discharge from the Army in 1987, the MBA found that his spine was abnormal. The plaintiff’s case is that from 5 November 1982, his back has never been normal, and that there is nothing in any report since then which contradicts this assertion.

63 The plaintiff contends that he suffered a serious injury to his spine as a result of the incident on South Melbourne Beach. The plaintiff’s case is generally represented by the reports and evidence of Dr Russo, a medical practitioner described as a “consultant in pain management”. He was previously an anaesthetist. He has been treating the plaintiff since 2001 for pain relief. He diagnosed the plaintiff as suffering from failed back syndrome, also known as failed back surgery syndrome, derived from either of the two back operations carried out between late 1990 and July 1991. More particularly he was of the opinion that the plaintiff was suffering from arachnoiditis, an inflammation of the arachnoid lining of the spinal chord resulting from either one of the operations to his back. This, he believed, was the cause of the pain to his hips and legs.

64 The Commonwealth challenged the expertise of Dr Russo to make such a diagnosis, maintaining that this condition is usually diagnosed by a radiologist in conjunction with a neurosurgeon. Dr Russo would not agree that the reliability of the diagnosis was limited to such experts. He believed that a “pain physician”, such as himself, was capable of making such a diagnosis on clinical grounds alone. He did not believe that the diagnosis of this condition necessarily relied upon support from an MRI scan. He was of the view that radiologists did not always identify the condition and that he would need to examine the scan himself (T178). He had not viewed either of the MRI scans taken of the plaintiff. The effect of Dr Russo’s evidence was that he presumed that, by reason of the plaintiff’s complaints and history, he was suffering from either arachnoiditis or some other nerve root damage arising from scarring after surgery notwithstanding the absence of any radiological finding to support the diagnosis.

65 Dr Russo was also of the opinion that the plaintiff suffered a degenerative lumbar disease at the L5-S1 which caused his back pain. This was notwithstanding the radiological report of a successful fusion.

66 Dr Cook saw the plaintiff in 1992 and was of the view that the plaintiff’s condition could be described as failed low back surgery resulting from the surgery in 1990-1991, surgery that he believed was “ill-conceived”. He was of the view that the plaintiff’s headaches were also a result of the failed spinal operation. During his evidence he explained his understanding of the mechanics whereby pain is referred to the head from the spine by transmitted forces (T 197). He found support for his view in the opinions of Dr Wade King, to whom he referred the plaintiff for treatment.

67 However, Professor Taylor, who gave evidence on behalf of the Commonwealth, had this to say about the alleged relationship between the headaches and spinal injury:

68 Dr Pell, a neurosurgeon, also gave evidence on behalf of the plaintiff. He examined the plaintiff in March 1999 when he was admitted to St Vincent’s Private Hospital because of his chronic back pain. Dr Pell found that the plaintiff had weakness in the lower legs and his reflexes were absent. He examined the MRI scan taken in 1999 and could find no evidence of any degenerative disease other than at the level where the surgery had taken place in 1988-1989. He believed that there was early disc degeneration at L4/5 and a small annular tear.

69 Dr Pell diagnosed the plaintiff as suffering from:

70 In cross-examination Dr Pell accepted that this “diagnosis” was in effect a description of the symptoms rather than a statement of the cause of the plaintiff’s condition. He also accepted that the use of the word “paraplegia” might have been misleading in that there was no evidence of any lesion in the plaintiff’s spine. He meant by using that term to describe a weakness in the lower limbs.

71 Dr Pell was of the opinion that arachnoiditis was a diagnosis made on a radiological basis from an MRI or a myelogram. He did not make that diagnosis of the plaintiff.

72 Dr McClean had treated the plaintiff in 1991 and again in 1996 when the plaintiff was admitted to hospital: see Ex B122. On the later occasion, and continuing through to 1999 while the doctor was treating him, the plaintiff was complaining of pain in the neck as well as the back. Dr McClean gave evidence before me by telephone a procedure that, as would be expected, made it somewhat difficult for him. He had, from the history taken by him and other material, including part at least of the plaintiff’s medical records from the army, concluded that the injury of 5 November at South Melbourne Beach was the source of his later condition. He concluded that the plaintiff was suffering:

73 Dr McClean accepted that the 1991 MRI did not give any “clear indication of pain” and although in 1999 he thought that another MRI scan might have shown some changes to the plaintiff’s back, he was unaware whether there had been another MRI scan taken. He was of the view that the November 1982 incident was the substantial cause of the plaintiff’s chronic pain condition notwithstanding that there was no demonstrable disease. He was of the opinion that this could be so even though the original injury was muscular or ligamental. He thought that the neuropathic bladder was due to an injury of the spinal chord or cauda equina or “something like that”.

74 Professor Taylor gave evidence for the Commonwealth. In a report dated 19 August 2003 he denied that arachnoiditis could be diagnosed on clinical grounds alone and had seen no evidence to support the diagnosis in available MRI scans. He also did not accept that such a condition at the level of the surgery to the plaintiff could account for his complaint of weakness at the hips and knees.

75 Professor Taylor had seen the plaintiff for the preparation of a medicolegal report in October 2001. The results of his examination of the plaintiff and the radiological material are set out in a report of 25 March 2002. He found “no significant evidence of any major pathology and none of arachnoiditis” in either the CT scan or the MRI scan. Nor was there any evidence of past injury to the nerve roots. He came to the following conclusion:

76 While acknowledging that “assessment of uro-genital function is an extremely complicated and quite complex matter”, Professor Taylor was of the opinion that there was no evidence of any injury to the cauda equina as the cause of the plaintiff’s urinary problems. He formed the view that “the initial episode of urinary retention was a manifestation of the Munchausen syndrome” and that

77 Professor Taylor stated:

…………I have quite a large experience in Munchausen’s syndrome, hysteria and malingering, because of my position over thirty years as the senior surgeon in the spinal cord injury unit of Royal North Shore Hospital, and also abroad before I came back to Australia, where such patients frequently present with hysterical paraplegia, that is conversion reaction, malingering and Munchausen’s syndrome.

78 The Professor was also somewhat critical of pain management being conducted by specialists as reinforcing the “sick role” of the patient. He believed that this had occurred in the plaintiff’s case over time.

79 Although the professor accepted that the plaintiff may have suffered a disc lesion as a result of degenerative disc disease, and notwithstanding that he may himself not have operated on the plaintiff in 1987, he believed that there was a solid fusion and no other evidence of pathology. He was not satisfied that the lesion was caused by any injury on 5 November 1982 although it may have acted as a precipitating factor (T 237), just as bending over to tie a shoelace or carrying someone on the back (T 241) or playing squash may precipitate a lesion where the person had a degenerative disease of the spine.

80 Associate-Professor Jones, a specialist in rehabilitative medicine, prepared a medico-legal report dated 23 May 2001. He was of the opinion that the plaintiff did not suffer from any significant physical disability but the aetiology of his condition was:

……soft tissue injuries superimposed upon a mild back impairment and a psychological disorder which may have been at least in part, pre-existing, and is now compounded by his perceptions of disability and his need for wheelchair mobility. This is a lifestyle which Mr Chaney has adopted, but one which I would not have considered physically necessary.

81 In evidence before me Associate-Professor Jones confirmed that he had seen the plaintiff on only one occasion and that he could not express an opinion on whether the plaintiff was suffering from Munchausen’s syndrome as it was outside his expertise.

82 Dr Kerridge, an orthopaedic surgeon, saw the plaintiff at the request of Veterans’ Affairs in September 1992. After describing the plaintiff’s history and his examination of him, Dr Kerridge reported:

83 In 19 August 2003 Dr Kerridge, having seen the report of Professor Taylor, indicated that a diagnosis of Munchausen’s syndrome had occurred to him in 1992.

84 As far back as 1984 there were concerns that the plaintiff was exaggerating his disabilities. Dr Collins, orthopaedic surgeon, noted that the plaintiff had “at least 3 positive signs of voluntary exaggeration of disability” and stated them (EX B43). He suggested that he should have a CT scan and if no abnormality found he should be discharged. This is in fact what occurred.

85 In February 1994 Dr Prakash, an orthopaedic surgeon, examined the plaintiff and was unable to explain his then present symptomatology on organic grounds.

86 Dr Selwyn Smith who treated the plaintiff for Post-Traumatic Stress Disorder was asked to give his opinion on whether the plaintiff was suffering from Munchausen’s Syndrome in light of a report of Dr Bell of May 2001 to the effect that the plaintiff was suffering that condition. Dr Bell’s report was not in evidence before me. Dr Smith did not believe that the plaintiff fulfilled the criteria for that condition. In evidence before me Dr Smith expressed the opinion that Munchausen Syndrome was “fairly rare” and that he had seen only several cases in his career.

87 Early in his army career the plaintiff had been diagnosed as suffering from an anxiety disorder. There is a reference in the review of the plaintiff’s condition by Dr Baz in February 1994 (Ex B107) based upon army records of the plaintiff that are in evidence before me (Ex 1). The report contains the following summary of this material (I note that the date “September 1989” should obviously read “September 1979”):

The diagnosis of “psychiatric disorder” was made in September 1989 when it was considered that the veteran had a situation disorder. (P167) Supportive psychotherapy and short-term medication was suggested by a psychiatrist (P166). In October 1979 irritability and aggression were persisting and there was report of depressive affect and continuing initial insomnia. (P165)

In February 1980 the veteran was considered very tense, agitated and prone to outbursts of temper. He had been given many investigations, mostly for epigastric pain, all negative. The veteran apparently expressed strong thoughts on the inability of the medical profession to diagnose any of his problems. (P163) He requested a medical discharge. At further psychiatric review, in February 1980 it was considered the veteran should continue and finish his time in the army rather than be discharged medically unfit.

88 It was noted in his AMB examination in December 1980 that the plaintiff was suffering from a “mild underlying anxiety state” and had displayed psychosomatic symptoms. His emotional stability was noted as abnormal Ex B3. A similar finding was made in the examination in August 1982. However, in February 1983 Dr Mason thought the plaintiff could be “upgraded medically” as he seemed to have adapted “fairly successfully to Army life after a rather prickly start, and could do well in the future” (Ex B19). Yet the plaintiff was still categorised as abnormal for emotional stability and mental capacity in the AMB examination of February 1984 (Ex B). It was in this year that Dr Collins thought the plaintiff was exaggerating his symptoms.

89 In February 1985 the plaintiff was noted as being normal in his emotional stability and mental capacity in the AMB examination. The plaintiff was discharged at his own request from the army in 1987.

90 In January 1991 the plaintiff was given rehabilitation treatment at the Lady Davidson Hospital. The clinical report notes that the plaintiff denied depression but “is very angry towards medical profession and DVA (Department of Veterans’ Affairs)”. Although the plaintiff appeared to improve his mobility while undertaking the treatment he relapsed after discharge and returned to the use of a wheelchair. It was noted in a report of Dr Gyory, the Director of Rehabilitation Medicine at the hospital, that “ambivalence to rehabilitation needs monitoring”.

91 In 1992 the plaintiff came under the care of a psychiatrist, Dr Sandfield, for the treatment of pain by various medications, including Phenergan, Tegretol and Epilum. By this time the plaintiff’s mobility was extremely restricted by reason of his back pain and he was suffering from recurrent headaches. Dr Sandfield was unable to find that the plaintiff suffered from any psychiatric illness (Ex B99). In a report to the Department of Veterans’ Affairs (Ex B100), he stated that the plaintiff should be treated “as a person in chronic pain who might improve by rationalising his medication”.

92 In September 1992 his local medical practitioner referred the plaintiff to the care of Dr Lambeth for the treatment of the psychological effects of his chronic pain, including his irritability and decreased pleasure in normal activities. Dr Lambeth noted that the plaintiff’s self esteem “is almost totally absent” (Ex B102). He expressed the opinion that the plaintiff was “suffering from severe and genuine physical problems” and as a result was suffering chronic pain syndrome and a chronic Dysthymic Disorder, sometimes known as Neurotic Depression, arising from his pain. He did not believe that the plaintiff was malingering or was suffering from a factitious disorder.

93 In her report of February 1994 Dr Baz formed the opinion that the plaintiff’s history was consistent with back injury but, after noting the plaintiff’s psychiatric history in the army, added:

94 Dr Baz was of the opinion that the plaintiff was suffering symptoms “which are moderate and persistent” as a consequence of his dysthymic disorder.

95 The plaintiff came under the care of Dr Akkermann, psychiatrist, in July 1994 principally for pain relief and was prescribed a change in medication. The doctor noted that the plaintiff was “extremely eager to please and accepted this change without any problem” (Ex B113). At the time the plaintiff was no longer taking anti-depressive medication but was not having any adverse consequences.

96 In March 1996 Dr McClean reported:

97 In August 1999 the plaintiff came under the care of Mr Grant, a psychologist in Taree. He determined that the plaintiff suffered from a Chronic Pain Disorder and exhibited a range of symptoms consistent with an Adjustment Disorder. This was due to “his being exposed to a chronic stressor ie. his medical condition and chronic pain”.

98 In May 1999 the plaintiff came under the care of Dr Selwyn Smith, psychologist, for the treatment of Post-Traumatic Stress Disorder arising from his service in the army. According to his report of 8 March 2000 (Ex B 136), Dr Smith identified three traumatic incidents relevant to the disorder: the first was the “murder Frisbee” incident; the second being “while carrying another soldier, he fell and experienced pain in his lower back and legs”; and the third occurred “while he was employed at Victoria Barracks in Sydney when he experienced difficulties in undertaking physical training”.

99 When admitted to St John of God Hospital in May 1999 the plaintiff:

100 In a report of August 2001 (Ex B144) Dr Smith revised his opinion of the significance of the April 1982 incident stating that it was the November 1982 incident that was the most significant injury. He noted that the plaintiff was “most adamant that this was the most significant injury and impacted upon him initially from a physical and subsequently psychological point of view”. Dr Smith also indicated that there were other traumatic incidents arising during the plaintiff’s army career including the death of another soldier in an motor vehicle accident, the witnessing of the “sequelae arising from a young man in the army who placed a gun to his head in ?1984”, and a “macabre accident involving the death of a lieutenant at Puckapunyal when a tank decapitated his lieutenant’s (sic) head”.

101 Dr Smith reported that the plaintiff benefited from treatment at the hospital and that at the time of discharge “was much improved in regard to his psychological outlook” but that he would require ongoing psychological support for an indefinite period.

102 In his report of 17 January 2001 (Ex B140), Mr Grant refers to the fact that the plaintiff’s request to attend a number of follow up Post-Traumatic Stress Disorder residential sections had been declined, presumably by the Department of Veterans’ Affairs. He states that the plaintiff was “bitterly disappointed” that his request was denied. Mr Grant provided the plaintiff with “similar educative topics covered in their program”.

103 When Dr Smith reviewed the plaintiff in August 2001, he was no longer exhibiting symptoms of Post-Traumatic Stress Disorder but still required on-going psychological support.

104 Dr Smith gave evidence before me. He was strenuously cross-examined about his diagnosis and, in particular, the relationship between Post-Traumatic Stress Disorder and the two incidents in 1982. Dr Smith confirmed that he had received no history of any flashbacks or recurrent dreams, symptoms of Post-Traumatic Stress Disorder, in relation to either of these incidents (T 156) but nevertheless he was of the opinion that the disorder was a result of a number of traumatic incidents over the period in the army. He believed that the “murder Frisbee” incident pre-disposed the plaintiff to Post-Traumatic Stress Disorder and he was exposed to multiple traumatic events thereafter. The plaintiff was also a person who, in Dr Smith’s opinion was vulnerable and “sensitive to medical issues”.

105 Dr Smith was taken to the DSM IV definition for Post-Traumatic Stress Disorder and asked whether the plaintiff fulfilled the conditions for the condition having regard to the type of trauma specified and the general requirement that the symptoms occur within about three months of the triggering event. In particular Dr Smith was questioned about any link between the incidents in 1982 and his subsequent psychiatric illness, in the absence of any evidence of nightmares or flashbacks relating to those incidents (T164). Dr Smith was of the view that the absence of such a symptom was not essential to the diagnosis but it was sufficient that there was “recurrent and intrusive, distressing recollections” of events. However, he appeared to accept that there was no history of the plaintiff recounting distressing events in relation to the incidents in 1982 (T165).

106 As noted at the outset of this judgment the issue on the question of liability is a relatively narrow one: is it more probable than not that the plaintiff was injured at South Melbourne Beach on 5 November 1982 when another soldier unexpectedly jumped on his back as he was about to prepare himself to carry the soldier up the beach? If he was, there is no issue that the Commonwealth is liable for any injury he suffered as a result. If he was not, then the Commonwealth is not liable for any injury he suffered in the course of carrying out the training on the beach.

107 The answer to this question largely resolves on a finding of the reliability of the plaintiff as an historian of events on that day. It was never suggested directly to the plaintiff that he was being deliberately untruthful in his account of that event although generally the Commonwealth asserts that little or no weight can be placed upon the account given by the plaintiff of his history of injury after April 1982. It is clear that the plaintiff suffers from some psychiatric condition that may or may not influence his version of events related to his injuring his back and his subsequent condition from 1982 until the date of the hearing. Fundamental to a resolution of the issue of whether the plaintiff suffers from any physical injury as a result of the incident in November 1982 is an assessment of his mental state over the period from about 1979 to the date of hearing.

108 In many cases a primary source of information to a tribunal of fact in determining whether to accept the evidence of a witness will be an assessment of the witness as he or she gives evidence at the hearing. This assessment relates to both credibility and reliability. While there are limits to the weight to be given to that factor, see for example Fox v Percy (2003) 214 CLR 118 at [31], it is generally considered to be a matter which may be significant. In the present case for the following reasons the manner in which the plaintiff gave evidence is not an appropriate basis to make any determination of his credibility or reliability.

109 During the course of the plaintiff’s evidence I became concerned as to the manner in which he gave his evidence and what it might indicate as to his mental state at the time. I should note that he gave evidence seated in his wheelchair on the floor of the court and situated at the end of the bar table. I noted that he was often slow to answer questions, had difficulties remembering dates and the sequences of events, had to ask that questions be repeated and appeared at times to be mouthing the question as it was being asked of him. These peculiarities in his demeanour indicated to me that he might have been having difficulty concentrating.

110 I enquired of counsel whether there would be any evidence placed before the Court relating to the medication that the plaintiff was taking at the time of the hearing and whether it was possible that any of that medication could be affecting his capacity to give evidence. In due course, a document setting out the plaintiff’s daily intake of medication over the period of a week was tendered without objection and became Exhibit F in the proceedings.

111 The evidence of Dr Smith, a consultant psychiatrist, was that some of the drugs on that list were capable of affecting cerebral functioning and could result in clouding of consciousness, a sense of confusion, impairment in concentration, lethargy, drowsiness, blurring of vision, slurring of speech and an inability to focus. Memory impairment was another side effect mentioned by Dr Smith in relation to a particular benzodiazepine, Alodorm, of which the plaintiff’s dosage of 3mg was regarded by the doctor as being above the recommended rate.

112 I do not intend to refer to all of the evidence in relation to each of the drugs taken by the plaintiff. It is sufficient to note that Dr Smith’s evidence has confirmed my initial impression that the plaintiff was being adversely affected by medication during his time in the witness box so that little weight could be attached to his demeanour when giving evidence or the manner in which he answered questions. In fact, any decision about the reliability of the plaintiff’s evidence has to be founded on material other than the manner in which the plaintiff gave evidence. However, there is nothing to indicate that the plaintiff was adversely affected to any significant degree by any medication when he gave the various accounts of the incident at South Melbourne Beach prior to giving evidence before me.

113 There seems to me, however, to be matters found in the objective evidence and within the evidence of the plaintiff that raise considerable questions about the reliability of his account of the incident on South Melbourne Beach, even accepting that he was injured as a result of his participation in physical training on 5 November 1982.

114 There are no reasonably detailed contemporaneous reports to support the plaintiff’s version of events, notwithstanding that he had seen a number of Army medical officers over the few months following his injury. The Commonwealth submits that the failure to mention any detail in these contemporaneous reports is fatal to the plaintiff’s case because being jumped on is the very sort of fact one would expect him to have mentioned if the incident did in fact occur as the plaintiff claims. This omission, the defendant argues, is properly to be seen as contemporaneous objective evidence that detracts from the proposition that the plaintiff was injured in the way he now claims.

115 The first reference to the piggyback incident is found in a Medical Attendance and Treatment Report dated the same day as the incident occurred, 5 November 1982 (Ex B8). It contains a brief note to the effect that the plaintiff was complaining of lower back pain “after carrying soldier 500 yards”.

116 The most detailed contemporaneous account is found in a Department of Defence Report of an Injury or Illness dated 30 December 1982 (Ex B10). It contains a description of the exercise being performed when the injury was sustained, but, again, there is no mention of the plaintiff being jumped on by another soldier. Under the small field titled “Brief circumstances surrounding the illness or injury” appears the following:

117 True it may be, as the plaintiff’s argues, that the absence of detail may be a result of deficiencies by the person receiving the information from the plaintiff and that these are brief statements of the incident not designed to explore the cause of any injury that the plaintiff may have sustained. If they stood alone, they may not be of any great significance except that on the first occasion the plaintiff complained of injury arising from the incident on 5 November the record indicates he was carrying a soldier. But these accounts do not stand alone and to some extent they are consistent with later accounts said to have been given by the plaintiff over many years to various medical practitioners. There are a number of occasions where the plaintiff’s account of the incident on 5 November 1982 has been recorded as indicating that the injury arose while the plaintiff was carrying a soldier. These versions are consistent with the first record of the circumstances in which he was injured and are not inconsistent with the second account.

118 The simple fact is that the army records contain no account of the plaintiff complaining that another soldier jumped on him during training on South Melbourne Beach. This can be compared with the fact that the record of complaint by the plaintiff about the “murder Frisbee” incident in April 1982, Ex B6, notes that there was a “direct blow to the back” consistent with the plaintiff’s account of being jumped on by another soldier.

119 It was submitted on behalf of the plaintiff that the absence of any detailed record by the treating army medical officers of the incident giving rise to the injury is consistent with their lack of concern to know the cause of the injury in order to treat it. That submission does not accord with my general experience of treating doctors or my expectation that, in order to treat an injury, a medical practitioner would need to have some idea of how it was caused. Nor is it consistent with the fact that both medical practitioners treating the plaintiff in 1982 did make a brief record of the circumstances in which the injury was sustained. In April 1982 the medical officer noted it was a result of a “direct blow to the back” and the medical officer in November 1982 noted that it occurred when the plaintiff was carrying a soldier. That is clearly all they needed to know about the cause of the injuries in order to treat them. Whatever the medical officer treating the plaintiff in November 1982 was told by him about the cause of the injury, he understood that it occurred as a result of the plaintiff carrying another soldier.

120 In September 1986 the plaintiff filled in a claim form, Exhibit E. One of the fields to be filled in by the claimant is headed “How did injury occur OR what were you doing when symptoms of disease first become apparent?” The plaintiff has written, “participating in PT”. While by itself this may have no great significance, it seems to me to be more consistent with the injury occurring while the plaintiff was carrying a soldier rather than being jumped upon by a soldier: the plaintiff is describing what he was doing at the time of the injury rather than indicating how the injury occurred. If he were jumped up, I would have expected him to say so, as being an account of how the injury occurred rather than simply indicating what he was doing when injured.

121 There are a number of records of accounts apparently given by the plaintiff to various medical practitioners after his discharge from the Army in 1987. The Commonwealth submits that if, as the plaintiff contends, no attempt was made to obtain a detailed description of events by the army medical staff, that criticism cannot be made of these later occasions when accounts were taken by the examining medical practitioners who would have been concerned to understand how the injury occurred and not just recount the symptoms for treatment purposes.

122 In June 1987, Dr Lim, a specialist in rehabilitative medicine, examined the plaintiff. He was given an account that the injury occurred when the plaintiff was undergoing a PT exercise where he had to carry another serviceman for 200 yards. Dr Lim’s report notes that the plaintiff was only able to manage to carry the soldier about fifteen feet before experiencing a sharp pain in his lower back and left leg. There is no mention in this report of the injury occurring when another soldier jumped on the plaintiff’s back. The plaintiff gave accounts to the effect that the injury occurred while carrying another soldier to Dr Middleton in March 1990, Dr Gyory in November 1990 and Dr Kerridge in September 1992. The report of Dr Lyttle, dated 31 March 1988, simply states that the plaintiff was first injured in December 1982 when he was involved in piggy-back races at South Melbourne Beach.

123 Again the failure of these medical practitioners to mention the crucial fact that the injury occurred by an impact between the plaintiff and another soldier, however expressed, may be a result of unreliability by the medical practitioner rather than the plaintiff. But the likelihood of such a scenario diminishes as the number of accounts increases and when they are seen in light of the accounts recorded before the plaintiff was discharged from the army. They are all consistent with the plaintiff stating that the injury occurred while he was carrying a soldier.

124 The first occasion where any record is taken of the plaintiff giving an account of being jumped on by another soldier is found in the report of Dr Kerridge dated 1 September 1992. However, the reference to the plaintiff being injured in this way is not in respect of the incident at South Melbourne Beach, but rather to the “murder Frisbee” incident in April 1982. Dr Kerridge gave evidence before me and it was never suggested to him that he might have erroneously recorded the account given by the plaintiff of the incident in November 1982. Yet the plaintiff maintained in evidence that he had always given a consistent account of the circumstances in which he received his back injury.

125 The first report where reference is made to the plaintiff being jumped on in relation to the physical training at South Melbourne Beach is that of Dr Prakash dated 14 February 1994. That report contains the following passage:

126 During the course of his evidence the plaintiff was unable to recall in any detail the examinations of him by medical practitioners and was unable to comment on these inconsistencies in accounts given by them of the histories they apparently obtained from him or to explain them. However, he insisted that the account given by him in evidence in the Court was the correct version of the events leading to his injury and that other versions recorded that are inconsistent with this account are erroneous.

127 There are accounts recorded by medical practitioners after 1994 that the injury in November 1982 occurred while the plaintiff was carrying a soldier.

128 Dr Wade King in his report of 10 March 1994 refers to the incident in November 1982 as follows:

129 In Dr Selwyn Smith’s report of 8 March 2000 he records the plaintiff as reporting to him “three traumatic experiences that he sustained while serving in the army”. The first of those experiences was the “murder Frisbee” incident in April 1982 and the third occurred while the plaintiff was at Victoria Barracks in Sydney. The second is clearly a reference to the incident at South Melbourne Beach yet it is described as follows:

130 It will be recalled that Dr Smith was treating the plaintiff for Post-Traumatic Stress Disorder and as part of diagnosing that condition it was essential to identify the traumatic experiences that underlay it. It is difficult, if not impossible, to believe that Dr Smith could have been under the mistaken impression throughout his treatment of the plaintiff that the injury occurred while the plaintiff was carrying a soldier and not when the plaintiff was jumped on by a soldier, given the importance of the traumatic events described to the diagnosis of the illness and, presumably, its treatment.

131 Further, Dr Smith made a report dated 8 August in which he stated that he had reviewed the matter with the plaintiff, who was adamant that the November 1982 injury was the most significant one. Although in this report Dr Smith corrected a number of factual errors appearing in his earlier report, he never changed the version of the facts that he had given concerning the November 1982 injury.

132 In his report of 17 January 2001, Mr Grant, the plaintiff’s then treating psychologist, records a history of the plaintiff’s injury. The report indicates that the doctor had asked the plaintiff to “document in a chronological manner” his medical history. Presumably the account contained in the report was derived from the chronology provided by the plaintiff. It records the “murder Frisbee” incident of April 1982 and the resulting injury. It then gives an account of the November 1982 incident as follows:

133 As I understand this version, Mr Chaney did not collapse when the soldier jumped on his back. Rather the soldier was on the plaintiff’s back when the plaintiff collapsed under his weight, the soldier then falling on him while he was prone on the ground. Although this version contains a reference to a soldier jumping on the plaintiff’s back, that seems to be part of an account of how the fireman’s carry was performed. This version seems to me, again, to be consistent with the plaintiff suffering injury while carrying the soldier rather than when the soldier jumped on to him before he attempted to carry him. Mr Grant’s report of 29 January 2001 simply refers to the injury as being suffered “during training ie. participating in ‘fireman’s carry’”.

134 There are versions after 1994 more consistent with the plaintiff’s account of a soldier jumping on him. In his report of 23 May 2001, Associate Professor Jones records briefly the account of the incident at South Melbourne Beach as follows: “There was a fireman’s carry from A to B and someone jumped on him. He took three or four steps and then collapsed”. In his report of 11 April 2001, Dr Russo records that the history given as “he sustained an injury in 1982 when a soldier jumped on his back to do a carry”.

135 In my view the substantial majority of the versions of the November 1982 incident recorded by medical practitioners throughout the whole of the investigations of the plaintiff’s injury from the date of the injury to the time of the hearing are consistent with the injury occurring while the plaintiff was carrying a soldier.

136 The plaintiff submits that the lack of any reference to being jumped on prior to 1994 should not be used to show that he invented the version of events that he gave in evidence because the doctors who prepared those reports were concerned with treating him, rather than taking an accurately detailed history from him for the purpose of making a causal diagnosis.

137 It was submitted the lack of any particularity in the descriptions as to how the injury was sustained in contemporaneous reports is that the medical officers, who prepared them, were not intending to obtain a comprehensive description of the circumstances of the injury. Reliance is placed upon the limited space provided on the relevant forms for noting the injury. The plaintiff further submits that, in any event, the report of 30 December 1982 (Ex B10) is entirely consistent with the version given by the plaintiff in the witness box, and that, notwithstanding the lack of particularity, nothing in any of the contemporaneous reports is inconsistent with what the plaintiff said in evidence before me.

138 It was advanced on behalf of the plaintiff that, if support for his evidence is required, then the Court need look no further than paragraph 5 of the original Statement of Claim filed in June 1988. The pleading states:

139 However, while acknowledging that there are accounts consistent with the plaintiff’s version of the injury being the result of his being jumped on, as I have indicated there is a considerable body of evidence inconsistent with that account. I do not believe those inconsistent accounts can be explained by deficiencies on the part of the medical practitioners or their concern to treat rather than diagnose. I doubt that such a distinction is a realistic one and in any event inconsistent accounts are recorded by medical practitioners who were clearly interested in the cause of the injuries of which the plaintiff complained. Nor are the inconsistent accounts explained, in my view, by any reticence that the plaintiff might have to answer questions fully or volunteer accounts. There is nothing to suggest that this was the case in his relationship with persons such as, for example, Dr King, Dr Selwyn Smith or Mr Grant.

(d) Internal inconsistencies in the present version

140 The Commonwealth criticises the plaintiff’s account given in evidence on the basis that it is internally inconsistent and illogical. As I have recounted, his evidence was that, before having chosen a partner, he was unexpectedly jumped on as he was proceeding to adopt the appropriate position to receive his passenger. However, according to the instruction the plaintiff received during basic training, the first step in performing the exercise was for each soldier to select a partner mutually acceptable as suitable for the exercise; that is of approximately equal weight and height. The question then arises as to why the plaintiff proceeded to adopt the position to take the weight of his partner, if he had not yet chosen a partner?

141 The plaintiff was adamant that, after being told of the exercise, he immediately started to assume the kneeling position to take the weight of his partner. He explained in more detail in cross-examination the correct method for preparing for the piggy-back as follows (T61):

142 The plaintiff acknowledged that he could have been bent forward but “it was not to take the weight of my partner, it was to get into a position to take the weight” (T61.35). He had to take up a kneeling position before the partner commenced to mount him. The plaintiff maintained that he had commenced to take up the carrying position, notwithstanding that he had not in fact been partnered off with another soldier. He was adamant that he was to wait in this position until a soldier came to him and tapped him on the shoulder indicating that he was to be his partner (T64).

143 I made it plain at the hearing that I had some difficulty in understanding the plaintiff’s evidence. It seemed to me at the time, and still does, that it was a most inefficient way for the exercise to be organised: soldiers would simply take it upon themselves to enter into the prone position as a carrier without any determination or designation as to who of the group were to be carriers and who passengers for the first run down the beach. Yet despite my raising this concern with the plaintiff, he maintained that this was how the exercise was always conducted. This is notwithstanding that it appears to be at odds, to some degree, with the description he gave of the demonstration by the PTIs in evidence in chief, set out above, and apparent instructions given to his solicitor as set out below.

144 In a letter from the plaintiff’s solicitors to the Manager of Unisearch House dated 11 January 2001, (Ex 2), the following passage occurs:

145 There is a further letter dated 30 March 2001 in reference to a report by Dr Ewens consequent upon that letter. It is clear that the plaintiff’s solicitors received further instructions from the plaintiff in order to address certain questions raised by Dr Ewens concerning the activity in which the plaintiff claimed to be injured. The following passages appear in the second letter to Dr Ewens:

“He and a number of soldiers had gone to the beach at South Melbourne. They had a quick swim and were grouped together under the supervision of a Lieutenant. The lieutenant gave the order that they were to pair up with someone of approximately their own height and weight and that on the command he was to carry his partner 200 metres down the sand. What happened after that was to be the subject of further order.

146 The plaintiff in evidence before me denied that this was an accurate account of what had occurred. He denied standing with his back to his partner, because no partner had been assigned to him. He denied being bent slightly forward to take the weight of his partner. He did not know whether the other soldier jumped or leapt onto him, as he did not see him.

147 The plaintiff’s evidence was that he was in the course of going from the standing to the kneeling position when the soldier jumped on his back. He staggered a couple of paces and fell straight into the sand. He denied the accuracy of the account recorded by Dr Lim that he had staggered 15 feet,: it was only a couple of steps.

148 There is a further account contained in the report of Dr Ewens of 21 August 2003. This report was apparently prepared after Dr Ewens met with the plaintiff and his solicitor on 19 August 2003 from which meeting Dr Ewens obtained what he described as “additional information and clarification of previous assumptions”. Dr Ewens’ report contains the following:

· On arrival at the beach no formal instructions were given or formations required.

· Some soldiers informally jogged along the beach others merely stood around.

· At a given time the officer ordered the soldiers to gather in an informal group. At which time he instructed the group to pair off with a person of similar height and weight for a 200 metre “Fireman’s carry” drill.

· No formal warm-up was undertaken, no instruction of technique was given, no statement of the purpose [aim] of the activity was stated or was there any appropriate formation to standardise the drill.

· Mr Chaney was positioned behind the officer in an informal standing posture when, unbeknown to him, a fellow soldier jumped on his back. The force of the contact threw him forward on to the sand.

149 This version was not put to the plaintiff during cross-examination. Yet it was an account apparently taken from him as late as August 2003 in the presence of his solicitor. If Dr Ewens had reported the information provided to him by the plaintiff incorrectly, one would reasonably expect that his solicitor would have raised the matter when he received the report on 25 August. This version is inconsistent with the account given in the solicitor’s letter of 21 March 2001 but is also somewhat inconsistent with the account given by the plaintiff in evidence before me when it suggests that he was in an “informal standing posture” when the soldier jumped on him, in contrast to the plaintiff’s evidence that he was in the course of taking up the first position at the time that he was jumped on.

150 There were areas of the plaintiff’s evidence in which he was vague or confused, probably due to the effect of medication upon him during the hearing and the numerous medical examinations to which he has been subject over many years. However, the plaintiff was very precise about the circumstances in which the injury occurred at South Melbourne Beach. It is an account about which I would have had some misgivings before accepting even if it were considered alone. But in the light of the history of inconsistent, or apparently inconsistent, accounts given by the plaintiff over a very lengthy period of time I cannot find on the balance of probabilities that any injury suffered by the plaintiff on 5 November 1982 occurred when a soldier jumped on his back unexpectedly and before he was ready to take his weight. If it were necessary to do so, I would find on the balance of probabilities that he was injured during the course of carrying a soldier.

247 I am not persuaded to any degree that, if the plaintiff was suffering from Post Traumatic Stress Disorder as a result of his service in the army, it had anything to do with the incident on South Melbourne Beach.

248 It is clear from my findings that, regardless of evidence of the absence of a clear physiological cause, the plaintiff is not confined to a wheel chair because he is malingering or because it is a voluntary decision on his part. I cannot determine the amount of disability that has a physiological basis and that which is a result of a psychiatric disorder. But the simple fact is that, as a result of the injury suffered by him in 1982, the plaintiff is now confined to a wheelchair or bed for about 80 per cent of his waking life and has relied upon some form of support, such as sticks, crutches or a wheelchair for his mobility since 1990. He is now aged 44 years.

249 It may be that some medical practitioners, such as Professor Taylor, are critical, perhaps with justification, of the ways in which other medical practitioners have dealt with the plaintiff and his complaints of pain. These criticisms appear to include both the decision to operate in 1988 and the use of a large number of medications to meet his claims of pain in more recent times. But Professor Taylor concluded:

250 However, by the use of the intrathecal pump the plaintiff’s condition has stabilised but there is no likelihood of improvement. There is, however, no suggestion that the plaintiff’s life expectancy has been reduced by the injuries.

251 In summary then the plaintiff suffered a spinal injury in November 1982. From that time until 1987 he suffered little pain or discomfort as a result of that injury. There was occasional discomfort experienced by the plaintiff particularly at times of physical exercise, but there were considerable periods when he was largely pain free. The use of shoe inserts, occasional treatment from a physiotherapist or the use of a corset or back brace largely relieved what discomfort he felt. I do not believe that he was seriously discomforted during the period that he was working outside the army.

252 In September 1987 his condition deteriorated and thereafter he suffered continual pain in the back and legs relieved for relatively short periods by treatment and the first attempt at spinal surgery. By March 1990 he was complaining of back pain radiating to his legs and he found he could not stand or sit for periods of more than 40 minutes at a time. By 1992 he was complaining of almost constant pain and was seeking both pain management and psychiatric treatment for a dysthymic disorder and chronic pain syndrome. Although throughout this period he was suffering from other conditions that I have held are not related to the spinal injury, namely the headaches and bladder problems, it is clear that his major disability was caused by the pain to the back and legs and the associated psychiatric condition. The plaintiff continued in this condition with fluctuations in the extent of his pain and its effect upon him until the insertion of the intrathecal pump in October 2001.

253 Since 1987 the plaintiff has been by his disabilities deprived of his interest in sports and physical training that he actively pursued both in the army and in Corrections. They have interfered with his relationships with family members and others, although with the help of several women with whom he had relationships over this time he was able to bring up his children from the first marriage. They left home in their late teens. He has been restricted in his ability to travel at will and limited in the tasks he can perform. He does have some interests and counsels persons who come to see him without charge. His sister is his full-time carer.

254 I would have awarded general damages in the sum of $250,000.

255 I would have allowed interest on half that sum for a period of 20 years at 2 per cent. This is because the plaintiff has suffered the most severe disabilities since 1987 but before he received the benefit of the intrathecal pump, and the period of 20 years seems to me to be a reasonable period to reflect the varying degrees of pain and disability suffered by the plaintiff since 1982.

256 The major dispute between the parties on the question of economic loss, if the Commonwealth’s liability for the injuries were established, centres upon whether the loss should be calculated on the basis that, had he not been injured, the plaintiff would have continued to work until retirement as a soldier or whether he would have continued to work in Corrections. He has no capacity for any significant future earnings.

257 It is clear that the plaintiff left the army voluntarily and not for any reason associated with his injuries. He had determined upon a career with Corrective Services for the reasons he gave in his application. Although he gave evidence that he wished to re-enlist in the army in 1988, by this time he had suffered the serious deterioration in his health following the squash game in 1987. He said that he wished to re-enter the army as a Corporal and continue his career. I doubt this evidence, as it seems to me inconsistent with the reason that he had left the army a relatively short time before. He lost his employment with Corrections because of the amount of time he was off work as a result of the increased pain to his back and not because of any difficulties with Corrections or his work that might have led him to wish to terminate that career. I do not know whether he would have been re-enlisted even had he made application to re-enlist in 1988.

258 I believe it would have been appropriate to consider his past and future economic loss on the basis of his continued employment in Corrections. The appropriate value of these losses has been calculated by Howarth (NSW) Pty Limited in a report tendered by the defendant. They are as follows:

259 It also seems reasonable to allow for an amount for loss of long service leave of about $25,000 based upon the assessment made by accountants on behalf of the plaintiff.

260 Because of the plaintiff’s predisposition towards a functional overlay in respect of physical injuries, which I believe accounts for a considerable part of his present condition, I would have calculated contingencies at 25 per cent and reduced the amount for economic loss accordingly.

261 The plaintiff has made a claim for expenses in relation to adapting his home for the use of a wheelchair and various items of special equipment. These seem to be generally appropriate. However, two items seem to be unjustified. The first is the fitting of air conditioning to his home. While no doubt this would improve the plaintiff’s quality of life, it does not seem to me to be justified by reason of the particular nature or extent of the plaintiff’s injury. Secondly, as the plaintiff fears drowning and has never availed himself of hydrotherapy because of his fear (T45.50), the claim for a swimming pool is unsupportable.

262 The costs of these various amenities and equipment is set out in the plaintiff’s submissions in accordance with the report in Exhibit C although no attempt was made to compute them.

263 There is no evidence before the Court of past out of pocket expenses and future expenses have been listed in the plaintiff’s submissions but not computed.

264 There was little or no evidence led from the plaintiff as to his past domestic assistance. In 2000 Dr McClean reported that the plaintiff “could not help with many household chores”. Attempts to vacuum or make his bed resulted in exacerbation of pain resulting in his returning to his bed for a number of days. Dr Baz’s report indicates that in 1991 the plaintiff reported that he could do grocery shopping with difficulty but could not help in any other household chores. He could wash dishes from his wheelchair but with difficulty. A functional assessment report in 1990 (Ex B83) describes the plaintiff undertaking set tasks that would indicate that he would have little difficulty in attending to almost any household chore. A physical function report in the same year (EX B81) indicated that the plaintiff had a 75 per cent level of independence for personal care and 50 per cent for domestic activities. He needed assistance for cleaning, laundry and gardening. Prior to 1990 there is little evidence as to the amount of assistance the plaintiff required but he needed almost none before 1987. As I understand the evidence, the plaintiff’s sister has been caring for him since 1999 but she was not called to give evidence before me.

265 The report of the Mid-Coast Domestic Service dated 26 March 2000 (Ex C) at page 12ff contains a “Schedule of Care”. The first part of that Schedule is entitled “Post-accident Assistance”. This is based upon reports by the plaintiff as to the amount of care he has required since 1982. The plaintiff did not adopt it in evidence. In any event I have already commented upon the poor quality of the plaintiff’s historical accounts. Some of the account in the report does not seem to me to be borne out by the evidence. It is estimated that his care to 31 December 1998 amounted to $234,927. I would have thought that a closer approximation was $175,000. There is a further $50,000 cost to 13 March 2002 and a further $300,989.40 to 28 February 2003. Thereafter the cost was $2,099.50 per week or $110,659 per annum. He would be entitled to interest on the cost of past assistance at about 6 per cent.

266 There is an estimate of his future care based upon 42 hours per week and calculated by the plaintiff on a life expectancy of 35 years at $2,389,231.

267 There should be verdict for the defendant. The plaintiff is to pay the defendant’s costs.

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Annexure
Plaintiff’s Medical History

· 25 June - Army Medical Board (AMB) examination. Found normal on each and every criterion. In particular his spine was normal. (Ex B1)

· 10 December - Examination by the AMB. “Normal” in all his physical attributes, including his spine. Abnormal in his “emotional stability” because of what was diagnosed as an “Underlying Anxiety State”. Suffering “psychosomatic symptoms”. (Ex B3)

· 19 February – Attendance on medical officer complaining of lower back pain after playing cricket.

· 19 April - Medical examination following the “murder Frisbee” incident.

· 18 August – Examination by AMB. “Normal” for lower extremities, feet, spine, posture. “Abnormal” for emotional stability – to avoid employment under stress conditions. (Ex B7).

· 5 November – Examination following “piggyback” incident. (Ex B8).

· 8 November – Medical examination. Lower back pain and left sciatica.

· 12 November – Medical examination. Lower back pain less. Fit for restricted duty.

· 18 November – Attendance on chiropractor. Recommend a Sorbothane shoe insert to help lower back condition.

· 19 November – Medical examination. Request Sorbothane heel insert for running. Fit for restricted duties.

· 26 November – Medical examination. Complaint that sit-ups hurt his back over L/S area.

· 9 December – referral to specialist for “low back sprain”

· 9 December – Examination by Dr Brady. Sacrum and left ilia sublaxed. Chiropractic care. (Ex B 15)

· 15 December – Chiropractic treatment. “Seemed totally symptom free”. (Ex B15)

4. 1983

· 4 January – Specialist report by Dr Brady – Prognosis is very good.

· 1 February – Referral to Dr Isbister, orthopaedic surgeon, re history of back injury since October 82. Referral to psychiatrist re history of mild anxiety, inability to cope with discipline.

· 2 February – Examination by AMB. “Abnormal” for spine. “Back injury Oct-Nov 82 playing on beach…..No pain at present. Does PT thrice wkly. Wears sorbothane heal insert for running”. Diagnosis: “old back strain”.

· 7 February – Examination by Dr Isbister. “Normal back which has been strained.”

· 9 February – Examination by Dr Mason. “Can be upgraded medically, he would seem to have adapted fairly successfully after a rather prickly start…”

· 31 August – Medical examination. Requests new footwear “to accommodate sorbothane shoe inserts which have alleviated his low back pain while running, doing PT etc”. – Recommended.

5. 1984

· 20 February – Examination by AMB. “Abnormal” for spine – “L-s strain, asympt(omatic) now.

· 11 April – Medical examination: “nagging back from low down….lumbar area…….injury at PT in Melbourne – 82.” Fit for restricted duties, no active duties or PT a week. Referral to Dr Bentivoglio for “recurring low backache”.

· 24 April – Examination by Dr Bentivoglio “accident 1982 at gym – playing killball – another player jumped on back (13 stone)”. (Ex B28)

· 24 April - Report Dr Bentivoglio- “2 yrs LBP on & off since injury to back at a gym – LBP present most of the time occasional radiation to (L) Knee region – locking – if anything worst recently”. “Could well have disrupted a LS Disc as result of injury 2 yrs ago”. (EX B 25)

· 26 April – Medical examination – “to start physio Mon 30 Apr needs PT restrictions until then”.

· 9 May – Medical examination - “short run this AM, developed acute (L) sciatica extending to buttock at 2.30 pm. No recent trauma”. Not fit to 11 May. (Ex B30)

· 14 May – Medical examination – “back has improved. Still has some minor radiation of pain” (Ex B31)

· 26 June – Review by Dr Bentivoglio “If anything worse” - review 1 week. (Ex B32)

· 3 July – Review by Dr Bentivoglio “Try corset L/S” - review in 6 weeks.

· 1 August – Medical examination – “Sudden onset of pain in back and down left thigh………….impossible to examine because of his complaint of pain”. Admit 2 Mil Hosp for assessment.

· 1 August – Admitted to 2 Mil Hosp – “ back pain dates back to injury 1982 when player fell on him” - “has a long long long history of functional disorder”. (Ex B41)

· 1 to 8 August – Hospitalised 2 Mil Hosp.

· 6 August – Examined by Dr Collins – “This man has at least 3 positive signs of voluntary exaggeration of disability….CT scan….if no abnormality he should be discharged to unit”. (Ex B43)

· 7 August – C.T Scan – “Only abnormal finding of this study is minor central postero-inferior disc bulging of L5-S1 which does not cause direct compression on the thecal sac or associated nerve root structures”. (Ex B44)

· 8 August – Discharged as CT normal.

· 10 August – Medical examination – Has no symptoms found

· 9 October – Review Dr Bentivoglio - “Corset some help……I feel back problem is due to disruption L5S1 Disc level”. Symptoms do not warrant surgical investigation. (Ex B36)

· 26 March – Referral for neurological opinion.

· 10 May – Examination by Dr Psycharis – “3 years history of low back pain which dates from back injury whilst partaking in strenuous PT exercises”.

· 3 June – Examination by Dr Vernea - “..three year history of low back pain, which started after an indoor game in which he fell to the floor and another heavy player fell on top of him” – diagnosis : “non-specific low back pain”. (Ex B51)

· 24 February – Examination by AMB. “Abnormal” for back. “Only occasional pain in spine and down legs - nothing constant – wears back brace at times with good results” (Ex B52)

· 4 June - Medical examination. “Able to do all parts of PTT except sit-ups which aggravate”

· 23 August – Examination by AMB. “Abnormal” for back. “Has occasional pain in lower lumbar spine. Wears back brace at times with effect”. (Ex B54)

· 4 November – Medical examination. “Having trouble with army running – always has pain down the left leg after about 1 kilometre run. He requests exemption from running”.

· 26 November – Medical examination. Complaint of exacerbation of low back pain after lifting heavy furniture. Sedentary duties only.

· 23 December – Examination by AMB. “Abnormal” for lower extremities and back. Diagnosis; “Chronic low back pain”. (Ex B59)

· 23 June – Entitlement Medical Report – Provisional diagnosis: “? L/S disc lesion”. (Ex B62)

· 28 July – Combined Impairment Assessment - Lumbar disc lesion: 15% impairment. (Ex B63)

· 10 to 19 September – Goulburn Base Hospital. Traction for back pain.

· 18 September – Lumbar myelogram: “No definite evidence of significant disc projection into the column of contrast”. (ExB66)

· 13 to 16 December – Goulburn Base Hospital. Traction for back pain.

· 4 January – Request by Dr Robson to purchase plates and screws for spinal fusion operation. (Ex B70)

· 21 July – Epidural injection for low back pain.

· 18 to 27 August – Goulburn Base Hospital.

· 19 August - Spinal fusion by Dr Robson.

· 29 March – Letter Dr Robson to Dr Lyttle. Fusion “quite satisfactory”. Patient “pretty comfortable except when he straightens up after having been stooped over, and he is then a little uncomfortable but otherwise he seems to manage pretty well”. (Ex B75)

· 7 to 13 December – Goulburn Base Hospital. Removal of Plates and screws. “Able to walk usually but can only last 10-15 minutes. Has sharp pains down legs.

· 9 December – Unable to void - catheterised.

· 13 February – X ray report. “……apparent solid bone fusion on each side”. (Ex B78)

· 5 March – Report Dr Watson. “Constant back pain with radiation down both legs to feet. Inability to stand or sit for periods longer than 40 minutes. High intake of analgesics. Frequent exacerbations of pain requiring total bed rest”. (Ex B79)

· 21 to 25 July – Manning Base Hospital. Back pain and urinary retention.

· 7 August – Report by Dr Newman. (Ex B80)

· 19 April – Report Dr Isaacs. “Most likely his present bilateral sciatic nerve root irritation brought about by the L4-5 disc and a possible perineural fibrosis at the operation site’. (Ex B92)

· 10 July – Report Dr Isaacs. No further surgical treatment – could benefit from a pain clinic. (Ex B94)

· 27 November – Manning Base Hospital. Back pain - therapeutic epidural.

13. 1992

· 8 July – Report of Dr Sanderfield. Treating for pain relief, unable to find any psychiatric disorder. (Ex B99)

· 3 August - Report of Dr Wade King. Treating for pain relief. Lower back pain has “a very nasty smell of post operative arachnoiditis, cauda equina problems and disturbed sympathetic function”.

· 30 September – Report of Dr Lambeth. Suffers from Chronic Dysthymic Disorder. Sometimes known as “Neurotic Depression” as a result of physical disorder. (Ex.B102)

· 11 February – Report of Dr Baz. Unfit for work as a result of accepted disabilities: lumbar disc lesion and dysthymic disorder. (Ex B107)

· 14 February – Report Dr Grant. Grossly disturbed bladder function. Diagnosis: Neuropathic Bladder secondary to Spinal Surgery for Chronic Back Pain. Unlikely to improve. (Ex B108)

· 10 March – Report of Dr Wade King. Suffered a lumbo-sacral disc lesion exacerbated by spinal surgery. (Ex B109)

· 18 April – Report Dr Burton. Chronic headaches and neck pain. No neurological disease. (Ex B110)

· 29 August – Admission to Manning Base Hospital. Neuropathic bladder. (Ex B119)

· 4 to 13 March – Wingham and District Hospital. Lower back pain, urine infection. Pain management. Dr McClean. (Ex B122)

· 3 October – Admission to Manning Base Hospital. Increased loss of sensation to lower limbs. (Ex B126)

· 19 July - Admission to Manning Base Hospital. Insertion of IDC. (Ex B 28)

· 10 November - Admission to Manning Base Hospital. Complaint of abdominal pain, generally unwell.

· 16 February – Report of Dr McCLean. Pain worst than before, below waist into groin to feet and neck. Refer to Pain Clinic. (Ex B130)

· 23 March – Examination at St Vincent’s Clinic for investigation and management of chronic pain. Continued on current regime. (Ex B131)

· 26 May – Admitted to St John of God Hospital PTSD programme.

· 8 March – Report of Dr Selwyn Smith. Psychological injuries a result of injuries he sustained in April and November 19[8]2. (Ex B136)

· 27 March – Report of Dr McClean. (Ex B137)

· 30 October – Report of Dr Pell. (Ex B139)

· 17 January – Report of Mr Grant. Adjustment Disorder. (Ex B140)

· 11 April – Report of Dr Russo, Hunter Pain Clinic. Failed Back Disorder. (Ex B143)

· 8 August - Report of Dr Selwyn Smith. (Ex B144)

· 9 August – Report of Dr Selwyn Smith (Ex B145)

· 26 October – Insertion of intrathecal pump. (Ex B148)

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Citations

Stephen Charles Chaney v Commonwealth of Australia [2005] NSWSC 92

Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Brian Finlay Hill v The Commonwealth of Australia [2003] NSWSC 1025

Spiteri v Commonwealth of Australia [2003] NSWSC 391

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CITATION:	Stephen Charles Chaney v Commonwealth of Australia [2005] NSWSC 92
HEARING DATE(S):	16 -24/9/03, 15/12/03, 15-16/12/03, 20/02/04 (further written submissions)
JUDGMENT DATE :	25 February 2005
JUDGMENT OF:	Howie J at 1
DECISION:	Verdict for the defendant and plaintiff to pay the defendant's costs.

CATCHWORDS:	Personal injury claim by soldier injured in army training - Liability of Commonwealth not established - No matter of principle.
CASES CITED:	Fox v Percy (2003) 214 CLR 118 Jones v Dunkel (1959) 101 CLR 298 Huysse v Snowy Mountains Hydro-Electric Authority [1975] 1 NSWLR 401 Lustre Hosiery Limited v York [1935] 54 CLR 134 Hill v Commonwealth [2003] NSWSC 1025 Spiteri v Commonwealth [2003] NSWSC 391
PARTIES:	Stephen Charles Chaney v Commonwealth of Australia
FILE NUMBER(S):	SC 13256/88
COUNSEL:	P. Webb QC with F. Tuscano - Plaintiff R. Williams QC with B. Skinner - Defendant
SOLICITORS:	Walker Smith, Solicitors - Plaintiff Australian Government Solicitor - Defendant