Zeppelin v Commonwealth of Australia

[2002] NSWSC 228

CITATION:	Zeppelin v Commonwealth of Australia [2002] NSWSC 228
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 19044/93
HEARING DATE(S):	5 - 7 March 2002 20 March 2002
JUDGMENT DATE:	28 March 2002
PARTIES :	Erik Jack Zeppelin Commonwealth of Australia
JUDGMENT OF:	Burchett AJ at 1

COUNSEL :	Mr B Gross QC with Mr J Heazewood for the Plaintiff Mr T J Morahan for the Defendant
SOLICITORS:	Baker Ryrie Rickards Titmarsh Solicitors for the Plaintiff Australian Government Solicitor for the Defendant
CATCHWORDS:	Negligence - personal injury sustained in Army Reserve military activity - serious conflict of medical evidence - conflicting possibilities affecting calculation of damages for loss of earning capacity, both past and future - damages estimated in accordance with dictum of Brennan & Dawson JJ in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 640
CASES CITED:	Ahmedi v Ahmedi (1991) 23 NSWLR 288 Croft v Commonwealth of Australia (unreported, 8 July 1988) Groves v Commonwealth of Australia (1982) 150 CLR 113 Joukhador v Donnelly [1999] NSWCA 468 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 State of NSW v Moss [2000] NSWCA 133 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485
DECISION:	See paragraph 33 of the judgment.

- 19 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Burchett AJ

Thursday, 28 March 2002

019044/93 Erik Jack Zeppelin v Commonwealth of Australia

Judgment

1 His Honour: The plaintiff, a single man born 5 September 1957, sues the Commonwealth of Australia for damages for negligence in respect of injuries sustained on 27 November 1988, when he was aged 31. At the time, the plaintiff was a Lance-Corporal attached to the Second Commando Company, a unit in the Army Reserve based in Melbourne.

2 In one sense, what led to the plaintiff’s injuries was his participating in a demonstration of an inherently hazardous military skill – forward exit rappelling from a helicopter hovering at a height of about thirty metres. But, of course, training in the armed forces necessarily involves practising dangerous operations. What the plaintiff’s senior counsel relies on, therefore, is not the inevitable danger of the exercise, but that (he alleges) the order to carry it out was given in circumstances which unnecessarily and carelessly increased the risk so as to involve a breach by the Commonwealth of a duty of care owed to the plaintiff. The defendant did not raise any argument to deny the existence of a relevant duty of care owed to the plaintiff, but contested the conclusion that there was a breach of that duty. In adopting this stand, it was doubtless guided by the decision of Grove J in Croft v Commonwealth of Australia (unreported, 8 July 1988) and the dicta, there discussed, of the members of the High Court who decided Groves v Commonwealth of Australia (1982) 150 CLR 113.

3 Forward exit rappelling from a helicopter is an advanced skill developed to enable special forces to descend rapidly and with an element of surprise. It involves a team (typically five persons, two on one side and three on the opposite side of the helicopter) jumping forward, clear of the helicopter’s skids, at the same time as each other, and free falling for some distance before bringing their descent under control by means of fixed ropes attached to the helicopter. The personnel involved are wearing harness (in earlier days Whillans climbing harness, which in 1988 was being replaced by a specially designed full body harness) attached by a steel screw gate karabiner (a kind of safety shackle) to a figure eight descending device through which the rope is passed in order to provide a friction brake upon the application of pressure by the user. It is a feature of the method that the rope, which in basic rappelling practice would hang down to the ground, is coiled in a leg bag, from which it is progressively withdrawn during the descent, the absence of visible ropes denying persons below any advance notice of the deployment from the helicopter. The technique of forward exiting was actually developed as late as 1980 by Mr Michael Herrick, a witness called for the plaintiff, who was then serving in the Counter Terrorist Squadron of the Special Air Services Regiment (SASR). Mr Herrick was a very impressive witness, who is presently engaged on the drafting of the Army’s Airborne Rappelling Operations Manual, and was also involved in the design and testing of the full body harness. I accept his expertise and his evidence.

4 Mr Herrick said that he had noted, before the plaintiff’s injury, a “high incidence” of back injuries in rope descents. A factor was the low centre of gravity of a person descending while wearing the Whillans harness. That problem was overcome by the high centre of gravity offered by the full body harness, enabling the descender to assume a more upright position, and also enabling him to make use of two friction control points, rather than only one, during his descent. This matter is important because one of the plaintiff’s complaints is that he and the others with him were required to perform the exercise while wearing the Whillans harness, although full body harness was available. However, the use of the full body harness had not yet by 1988 become universal, and I think the more significant impact upon the decision in this case of the type of harness involved relates to Mr Herrick’s next point.

5 For Mr Herrick emphasised the need to rehearse so demanding a technique immediately before its employment by personnel not completely habituated to it by constant practice. That, I think, must have been particularly required when the older harness, known to have been implicated in previous incidents, was to be utilized. Mr Herrick gave evidence that it was “against recommended procedures” to have personnel “perform an unrehearsed demonstration” of what he described as “such a hazardous activity”. It is obvious that Reserve personnel (and all five of the men ordered to jump on this occasion were reservists) are, in the nature of things, unlikely to have had the same opportunity as members of regular special forces to acquire confident mastery of their own natural apprehensions when launching themselves from a helicopter at a height of thirty metres. They need to rehearse the operation if they are to perform it flawlessly.

6 If the initial jump is not performed flawlessly, there is a risk of collision with other personnel jumping at the same time. Mr Herrick referred, as one of the “[k]ey elements” of this descent method, to the –

“importance of personnel not arresting their descent too soon after leaving the aircraft as this will lead to collisions under the aircraft.”

What happens when a person who has jumped out past the helicopter skid then brakes quickly on his rope is that he swings back, in an uncontrolled fashion, under the helicopter and may collide with someone descending from the other side. If he is wearing a Whillans harness, he is likely to do this with his body in a horizontal position, so that his boot may strike the other, perhaps in the face. The evidence makes it clear that the risk of this is real, particularly if the operation is not rehearsed carefully beforehand, since the natural impulse of a person in free-fall is to arrest that fall before (as he may fear) it is too late.

7 According to the plaintiff’s case, it was this very thing, or something like it, that occurred when he was injured. The incident happened on the last day of a course at Laverton RAAF Base, near Melbourne, which had not included any forward exit rappelling. The plaintiff had spent the night at Williamstown and had been transported to the base at the required time. On arrival at the base, he put on his equipment; this was the Whillans harness, which was also worn by the other persons involved. Counsel for the plaintiff asked him about the whereabouts of his full body harness.

“My full body harness was in my small day pack on the back of the truck along with other instructors’ small day packs, about 100 metres away from where I was.
Q. Why were these harnesses in the back of the truck 100 metres away?
A. There was no advance notice that we were going to do a forward exit demonstration so all of us just left our gear in the truck as it wasn’t needed.”

Then, the plaintiff said, he was given the instruction to demonstrate the forward exit procedure from an Iroquois helicopter:


“Q. Who gave the instruction to you?
A. Warrant Officer Remynse.

…

Q. Give us the words as close as you can.
A. He pointed directly at me and four other instructors and said, ‘You, you, you and you grab those leg bags and the ropes off the men that have just rappelled off the helicopter’. [ Those men had been employing the basic method of rappelling, which did not involve anything like the difficulty of a forward exit .] He said, ‘You, you, you and you grab those leg bags, you are going to do a demonstration.’”

8 The plaintiff entered the helicopter with the others and the demonstration proceeded. The helicopter took off, reached its prescribed height of thirty metres, and location, and the signal to jump was given.

“Q. So just tell us what happened. You exited the helicopter in the manner you described?
A. Got the signal to jump, propel myself out and just as I come around and underneath the belly of the helicopter all of a sudden I had something hit me in the head and somebody from the other side had …
I got booted in the head and by the time I regained consciousness I could tell by the acceleration as I’m in virtually a horizontal position – as I regained consciousness my colleagues are way up high still and I went straight into the emergency drill which you try and do a friction brake with your gloved hands on the rope with the figure eight descender and I was attempting to do that and [had] my impact just prior to getting an emergency brake on.
…
Q. In what manner did you land on the ground? I’m asking you about your bodily posture.
A. Virtually in an upright position with my legs together, with my knees together as I’m trying to go through the emergency brake.
Q. So what hit the ground first?
A. My feet. Then my upper torso was still accelerating down but my feet were getting pushed up, so my chin ended up bouncing off my knee and my ear ended up being right close to my right heel. So like a sharp twisting U in a sense.”

9 The plaintiff was taken by ambulance to the Laverton Base military hospital, where he remained from 27 November to 9 December 1988. He was then transported to the military hospital at Ingleburn, but was effectively discharged on arrival.

10 At the base hospital at Laverton, the plaintiff was found upon X-ray and CT scan to have suffered a compression fracture (described as “mild”) of the body of the second lumbar vertebra. A spinal survey on 28 November 1988 also suggested he might have suffered as well “a mild compression injury” at the thoracic level involving T3, the report stating:

“There is a slight upper thoracic scoliosis with a convexity to the left and maximal at the level of T3. The body of T3 appears slightly wedged laterally on the right side, where the articular margin superiorly has lost definition.”

Dr Pincus, who examined the plaintiff on behalf of the Commonwealth in January 1990 and again in October 1998, expressed “doubt” that he suffered a bony injury of the thoracic spine. Dr Pincus is not a spinal or orthopaedic specialist. Dr Bentivoglio, an orthopaedic surgeon specialising in spinal cases who saw the plaintiff on a number of occasions from 9 August 1989 onwards, reported, in his initial report, that –

“X-rays of his lumbar spine showed he had 20-25 % anterior compression of the L2 lumbar vertebra and a compression fracture of T3 predominantly on the right.”

In two later certificates, he referred again to the fracture of T3, but in a report of 16 September 1998, he referred to viewing “plain X-rays” which showed the compression fracture of L2 as involving “one-quarter to one-third vertebral body compression”, and continued:

“I viewed plain X-rays taken of his thoracic spine region. Although they have been reported as showing compression fractures at T6 and T3 I am not convinced of this.”

At the hearing, this comment was treated as a retraction of the doctor’s earlier opinion, but it may really have related only to a then recent X-ray report asserting fractures of both T6 and T3. In any case, the eminent spinal specialist, Dr John Yeo, also saw the plaintiff, reporting on 2 July 1991 that “X-rays taken in 1989 confirmed the presence of compression fractures of T3, T6 and L2” and “repeating X-rays” on 11 June 1991 –

“confirmed the presence of an exaggerated dorsal kyphosis with mild scoliosis and only minimal compression of the T3 T6 vertebra [ sic ].”

He described the injury as “significant”. In a later report of 1 September 1993, Dr Yeo referred to “compression fractures of T3, T6 and L2”, and added:

“My interpretation was that he had suffered a mild contusion injury to the spinal cord associated with the compression fractures of the vertebrae.”

On all the evidence, I conclude that there were fractures at all three levels.

11 The first question in the case is whether the plaintiff sustained his injuries in the way he described. He was cross-examined to suggest he had given a different account very shortly after the event. This was contained in a Department of Defence form headed “REPORT OF AN INJURY” signed by the plaintiff and dated “27 Nov 1988” in some other hand. The form was completed by a typewriter to show the manner in which the injury occurred as follows: “Whilst rappelling from a helicopter, I lost control of my brake due to a kink in the rope.”

12 The form showed the name of only one witness – WO2 J. Remynse, by whom it purported also to be signed. The plaintiff said the form was presented to him already completed, whereupon he protested, but was required to sign it. Shortly afterwards, he gave an account in writing which is consistent with his evidence. No evidence was called, either from Warrant Officer Remynse or from the clerk who, the plaintiff alleged, required him to sign the form, or from anyone else, to show the source of the version set out in the form, or to deny the plaintiff’s explanation. I should add there was a second undated form, headed “CLAIM BY EMPLOYEE FOR COMPENSATION FOR INJURY OR DISEASE”, completed in the same way and to precisely the same effect, so far as the manner of injury was concerned, which the plaintiff claimed to have been signed by him at the same time and subject to the same protest. It seems unlikely that either form was in fact signed on the date written as the date of the signing of the report of injury, or that the plaintiff was able, immediately after his injury, to prepare these documents. The documents are likely to have been prepared by an appropriate clerical person after he had ascertained the information in them. Whether the relevant information was ascertained accurately, bearing in mind the plaintiff’s firm denial and his assertion that he was required to sign under protest, could only be determined after a consideration of the evidence of the person who did fill out the forms (it was almost certainly one person, since the completion of the forms reveals similarities that could hardly be coincidental). The failure of the Commonwealth (without explanation) to call evidence on this point therefore makes it difficult to reject the plaintiff’s evidence concerning the circumstances in which he signed the documents. Furthermore, the Commonwealth tendered a statement of an eyewitness which confirmed that, when the plaintiff and the others left the helicopter, they “seemed to swing together and meet approximately half way to ground”. That appears to confirm the plaintiff’s account, and makes no mention of any suggestion at the time of a kink in the rope. A second statement tendered by the Commonwealth neither refers to any collision, nor mentions any kink in the rope. It attributes the fall to the plaintiff not having his “hand securely on his rope”; but, of course, depending when the observer first noticed something was wrong, this might have been an accurate observation of a consequence of an earlier collision immediately beneath the helicopter. A suggestion in one of the statements that the plaintiff did not really fall very hard is contradicted both by the other and by the medical evidence, which shows a young man would be unlikely to sustain a compression fracture of L2, quite apart from the additional fractures, without a fairly severe impact. Vertebrae have significant compressive strength.

13 In all the circumstances, but ultimately on my assessment of the credibility of the plaintiff’s account itself, I accept that account as true.

14 That leaves the question whether, the injuries having been sustained in this way, the Commonwealth is liable for them. In my opinion, the collision the plaintiff felt under the helicopter was probably a result of the lack of any opportunity for an adequate rehearsal of the difficult task to be carried out. Skill and timing were needed, as well as a full measure of control over their own instinctive reactions by those performing the operation. I think at least the person who collided with the plaintiff failed to achieve what was required, with very serious consequences. That he did so fail was caused by the lack of adequate rehearsal. The evidence of Mr Herrick makes it clear this was a known risk, and the remedy was also known. I conclude that the Commonwealth is liable in negligence.

15 The plaintiff had a difficult childhood. He was in a church foster home for six months at about five years old, his parents having separated before his first birthday, and his mother having encountered problems coping with alcohol. He was at seven different schools over a period of nine years, ultimately leaving school at the age of 16, when he was in year 11 at Randwick North High School. Over the next ten years, he worked in a variety of occupations including labouring, working on a fishing trawler, and working for about three years as a kitchen hand in a restaurant at Bondi Beach. On 30 April 1983, at the age of 25, he joined the Army Reserve, being chosen, the next year, as one of 22 out of 300 applicants, to be appointed to a commando unit, the First Commando Unit which was based at Mosman. In the activities of that unit, he found much personal satisfaction, achieving the rank of Lance-Corporal in July 1987. He described his army life as “a wonderful experience, and the people I trained with [he said] became a sort of de facto family in a sense”.

16 For most of the time after the plaintiff joined the Army Reserve, he engaged in no other employment, although from August 1987 to January 1988, he worked as a leading hand builder’s labourer on a particular construction job earning $1058 gross per fortnight. But this work was done more as a favour to the builder than for its own sake. The plaintiff had no firm plans for an economic future outside the Army, and when he left the construction work, he began a selection course for the Special Air Services Regiment, with a view to a permanent army career in that unit. But he failed the course, and although he says he continued to have the ambition to pursue the matter, it must be very doubtful whether, at the age of 31, he could have reversed that failure. This does not mean that the possibility of his success should be left out of account in the assessment of his economic prospects, had he not been injured, just as the possibility he might ultimately have contented himself with the easier path of an infantry battalion in the regular army must also be evaluated, so long as it should be seen as real: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; Ahmedi v Ahmedi (1991) 23 NSWLR 288 at 302-303; State of NSW v Moss [2000] NSWCA 133 at [71]; Joukhador v Donnelly [1999] NSWCA 468.

17 The plaintiff’s evidence does, I think, indicate that he had a general desire to join the regular army, not limited to his undoubtedly strong specific desire to achieve acceptance into the Special Air Services Regiment. He explained that he joined the Army Reserve at a time when there were “no regular Army enlistments for about three and a half years”, so that his “only other option was the Army Reserve and wait for an opportunity to get into the regular Army”. In the meantime, he was learning military skills. He passed a course in rappelling in September 1984; had an application to attend a Special Air Services course refused following a psychological interview in November 1985; did a further rappelling course from 30 November to 8 December 1985; did a course known as a Mountain Leader course, which involved rappelling in mountainous terrain, in April 1988; failed an instructors’ course in roping and rappelling in May 1988 (but was accepted as an assistant instructor in roping and an instructor in airborne rappelling); was admitted to a regular Army engineers divers’ course on 31 August 1988, for a period of six weeks; and completed on 13 November 1988 a small craft handler assistant instructors’ course taken over 16 days. It is clear that the tempo of his army activities had increased during the year that led up to his helicopter accident. His evidence was: “I intended to make it [army service] my life.”

18 After his injury, the plaintiff returned to duty (but he says he was not really fit to do full duties) on three weekends in June and July 1989. He was still suffering pain and spasms and was not able to continue. He was referred by an Army medical officer to Dr Bentivoglio in August 1989, and was discharged from the Army Reserve on 9 November 1989. He received compensation payments until after he saw Dr Pincus in January 1990, when those payments were stopped. Indeed, in cross-examination, the plaintiff conceded that he considered himself fit for work in January 1990.

19 It does not appear that the plaintiff did any work, or made any consistent efforts to obtain work from then until late 1992. He seems rather to have remained hopeful of achieving full fitness, for he says he exercised, and in 1991 he sought certification as a commercial diver, passing a written test, but being advised that he could not be certified medically fit for that activity. Dr Yeo’s reports make it clear the risk of spinal bends was regarded as having been increased by his injury, so that it was recommended he not dive. The occupation of a civilian diver had been contemplated by the plaintiff, in the period shortly before his injury, as an alternative to the Army which he might pursue if he failed again to secure admission to the Special Air Services Regiment.

20 In late 1992 and into 1993, for about six months, the plaintiff worked with a company known as Paradynamics in Prahran, a Melbourne suburb. He obtained this employment under the Commonwealth “Job Start” programme. The work was making holsters for military or police use. The plaintiff claimed to suffer back pain after some time in this employment, but it clearly interested him, and led to his working on boot and cap designs for military use, which, however, came to nothing at the time. However, in 1996, the plaintiff followed it up to the extent of doing a course one evening a week for six months at Sydney Technical College in footwear pattern making.

21 In 1998, pursuant to the Commonwealth New Enterprise Incentive Scheme, the plaintiff did a course lasting six weeks at Mission Employment Katoomba to teach him how to formulate a business plan. The plaintiff had previously, following his work at Paradynamics, arranged for the production of camouflage tape for army use, and, as he put it: “I started on the business aspiration for selling my camouflage tape product as a business”. He sold it to various army units. He also designed and made 30 holsters for 4RAR, about 200 pouches and 20 rifle slings. He traded under the name Tactek, grossing about $18,000, but not breaking even after expenses. He expressed in evidence the hope of continuing this business in the future, claiming to have devised at least 12 different designs of products with military utility. He made it clear his medical condition had not prevented him carrying out research and administrative duties in connection with his attempt to establish himself in business. Nor did he suggest it prevented him performing as a salesman.

22 The plaintiff, however, gave evidence of fatigue and lower back pain “[e]very morning” on waking, with spasms and very poor sleep. He has a feeling of “abandonment”, he says. He fills in time reading, and tries to “socialise up at the café to play chess” to get himself out of the house. He has spoken of doing a university course in naval architecture, but nothing came of that.

23 It is difficult to evaluate the extent of the diminution of the plaintiff’s working capacity since January 1990. As I have said, he thought himself fit for work then, and the evidence does not reveal that anything happened to render him less so afterwards, at least physically. Perhaps he lost interest, for some time, and regained it only sporadically, upon being deemed unfit for special forces activities, including as a commando. After all, his working record prior to his injury had large gaps when he was on social services. To make this observation is not to overlook Dr Bentivoglio’s view that it “is likely [he] will continue to experience some degree of symptoms present in his back region probably indefinitely”, and that he –

“will always have to be careful to avoid activities which are arduous in nature or which require him to do bending and twisting movements of his back.”

But, at the same time, Dr Bentivoglio made the comment which seems to be in accord with other aspects of the evidence:

“Although he does have genuine reason for ongoing disability there are signs on physical examination today that he is exaggerating his complaints.”

Having considered all the medical evidence, I think it is appropriate to accept Dr Bentivoglio’s assessment of the plaintiff’s physical condition

24 There is also the question of the psychological effect of what happened to the plaintiff. I have had the benefit of evidence from Dr H Jolly, a psychiatrist with military experience, who had a long consultation with the plaintiff on 17 December 1996. Dr Jolly considered the plaintiff’s background and personality provided a setting in which he displayed vulnerability in “coping with the emotional consequences of the accident including the reaction to pain”. He diagnosed reactive depression amounting to an adjustment disorder, and he thought “[t]here may well be a considerable ‘tension’ component in [the plaintiff’s] back pain experience”. He suggested “[f]urther treatment / rehabilitation [was] indicated”; and he attributed the adjustment disorder to the loss of a career which amounted to a “personal disaster” to the plaintiff (who saw the Army as his family), and the loss of part of the plaintiff’s self-image as a very fit man. Other psychological material was placed before me. A psychologist, Mr Probets, reported on 14 February 1997 that the plaintiff was “very depressed and anxious”. Dr J W Shand, on the other hand, reported on 28 September 1998 that the plaintiff’s history “is an exaggerated one with respect to both physical and psychiatric disorder”. He commented that –

“once any temporary bruising of the spinal cord, if it happened, had settled down, he would, after a period of no more than six to twelve months, have been left with chronic intermittent low backache, but apparently not severe enough to prevent him from seriously considering commercial diving work.”

While I accept, particularly having regard to the findings of Dr Bentivoglio, that there is a degree of exaggeration in the plaintiff’s complaints and that his willingness to pursue the possibility of diving work throws some light on the extent to which his disabilities restricted him in practice, I accept generally Dr Jolly’s views about him.

25 I am satisfied that the plaintiff sustained a severe injury, causing significant pain and restriction in his back, which continued to incapacitate him during the year 1989. It also caused him a great deal of natural apprehension, and even fear, for the future. However, he made a significant degree of recovery, so that by January 1990 he was fit for many forms of work, although still suffering, as he has since continued to suffer, some back pain which has troubled him from time to time. He will always have a vulnerable back; and this must be taken into account, not merely as restricting his activities, but also as posing a risk of exacerbation at some time through some untoward happening not in itself of a compensable nature.

26 Counsel for the plaintiff seek an assessment of his past and future economic losses on the basis that he would, if uninjured, have pursued a career in the Army, or alternatively would have earned regularly at the same rate (with accretions over time) as he did for six months as a builder’s labourer. His own evidence on the subject of his working intentions suggests his mind was very much focussed upon the Special Air Services Regiment; but, on all the evidence, I think it is not probable he would have achieved selection for that unit. I would assess his prospect of doing so as quite small, but I think his significant level of interest in military skills, during 1988 in particular, suggests a greater likelihood that he would have joined the Army, perhaps in a unit such as the Third Royal Australian Regiment. I would therefore put the prospect of his enlistment, one way or the other, at 50 per cent. Had he enlisted, his level of fitness, his interest in the acquisition of military skills and his general intelligence lead me to the conclusion that he would have had a prospect of achieving the rank of sergeant within a reasonable time of 50 per cent, or at least a prospect of achieving the rank of corporal of 65 per cent. At his age, I do not think more than that was reasonably possible, nor do I understand counsel to suggest it was. None of the percentages I have estimated, or shal estimate, has any precision about it; all of them represent the best the Court can do on evidence which is itself quite imprecise. If the plaintiff had not gone into the Army, the probability is he would have continued, as in the past, to work intermittently, drawing social service payments the rest of the time. But he might have pursued commercial diving, or some other path. Having regard to his past history, I cannot assess the prospect of his working outside the Army, on a full-time regular and long-term basis, at a greater likelihood than ten per cent. There is a strong likelihood that, at some stage, he would have done just what he did do – that is, pursue in a desultory way unsuccessful attempts to conduct some form of business on his own account.

27 But the plaintiff’s economic loss cannot be measured simply by what he would have done, or would now do, if uninjured. On the evidence, except for the first year, together with some reasonable period thereafter to obtain suitable employment, he was not rendered incapable of earning by the consequences of his injuries. The evidence was very threadbare as to the extent of the reduction of his capacity to earn by reason of the disabilities I have found the medical evidence to indicate. Counsel, in their submissions, accepted that I could adopt the broad brush approach of selecting a figure to represent my assessment of the effect upon his earning capacity of the disabilities I find him to suffer. Counsel for the plaintiff suggested possible figures of $400 and $500 net of tax per week, conceding that I could take a proportion of the result if I thought either of these figures inappropriate. A single figure of this kind might be adopted for the whole period as an estimate to take the rough with the smooth, allowing, on the one hand, for periods of significant loss, and on the other, for periods when no loss might be incurred.

28 On the figures put before me (the calculations were not contested by counsel for the defendant), if it be assumed that the plaintiff would have earned, but for his injuries, and without making any allowance for adverse vicissitudes, at the rate appropriate to a Corporal 4 0/1 in the Regular Army (which rose between 27 November 1988 and 1 March 2001 from $21,949 to $35,512 gross per annum), further that he was deprived of all of those earnings except for the minimal amounts he did earn, and that appropriate interest should be added, the plaintiff’s loss of earnings to the date of trial would be $467,715. If it then be assumed that the plaintiff will lose in the future at the rate of $400 per week net of tax till he attains the age of 65 years by comparison with what he would have earned uninjured, and will lose the corresponding amount of superannuation, the figure representing these additional losses would be $371,737. These figures can only provide signposts. On no view would the plaintiff have begun earning as a corporal at the level postulated, or at any level, on the day following the accident. Nor was there, nor could there have been, any precise basis put to me upon which the figure of $400 net per week could have been selected. One way of dealing with figures of this kind would be to deduct percentages reflecting the views I have expressed of the plaintiff’s prospects, together with further percentages reflecting the other uncertainties involved in estimating the economic losses in question. But, in this case, such a process would be extremely artificial. The possibilities are too complex for a calculation of that kind to have any semblance of reality. In Malec v J C Hutton Pty Ltd at 640, Brennan and Dawson JJ said:

Although we agree with the general thrust of the reasoning on this point in the judgment of Deane, Gaudron and McHugh JJ., we think it undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage. Damages need not be assessed by first determining an award on the footing that the hypothetical situation would have occurred and then discounting the award by a selected percentage. Damages founded on hypothetical evaluations defy precise calculation.

A similar approach was taken by Clarke JA (with whom Handley JA agreed) in Ahmedi v Ahmedi at 302 and may be supported by reference to what was said by Heydon JA in State of NSW v Moss at [71].

29 It is appropriate that I should have regard to all of the material put before me, including all the calculations relied on by counsel, but ultimately I must assess the figures that are reasonable to compensate the plaintiff on all the evidence. In doing so, I take into account the fact that the plaintiff chose, over a period that was long, though not precisely defined by the evidence, to pursue a business venture which failed, and he continues to favour the pursuit of that venture. A defendant is not bound to pay for a failed enterprise upon which a plaintiff chose to embark, thereby giving himself the chance of gains exceeding those of a wage-earner, unless in some circumstances it was reasonable for the plaintiff to do so. I do not think the venture here in question was ever reasonable, but the plaintiff’s ability to pursue it shows that he had significant working capacity had he obtained appropriate employment. One respect in which the evidence is conspicuously lacking is any indication of consistent attempts by the plaintiff to obtain suitable employment.

30 I have come to the conclusion that all the relevant considerations, and possibilities attending them, including the plaintiff’s entitlement to interest in respect of past economic losses from the various dates at which they accrued, to the extent that the relevant amounts can be fixed, and, to the extent they cannot, the plaintiff’s entitlement to the inclusion of this factor in the estimate of a figure reflecting the hypothetical percentage possibilities, would be met by an award of $150,000 to compensate the plaintiff for past economic loss. A further sum of $100,000 should be allowed for future economic loss.

31 As to general damages for pain and suffering and the loss of amenities, it will be apparent that, although medical evidence points to some exaggeration by the plaintiff, even a good recovery does not deny these were severe injuries with ongoing consequences. Notwithstanding the doubts I have expressed about what the plaintiff’s future career would actually have been, there is no doubt that a most important part of his self-image, and of the hopes he cherished for his life, was bound up with his very fit physical wholeness. So far as, through the Reserves, he had experienced a special forces environment, it had provided this man from a difficult background with a feeling of belonging, and whether or not he would have realised his dream of joining the elite force to which he aspired or would have found some other home in the military, the loss of any prospect of achieving either of these things inflicted a lasting wound to his personality and his satisfaction with life. It is to be hoped that when the case is behind him he will be able to accept the effect of the medical evidence, that he is capable of many employments, and will resume an enjoyable career, but there can be no certainty of this, and he will, as I have found, always have a back with a problem and a degree of vulnerability. In my opinion, he should be awarded $100,000 for general damages for pain, suffering and loss of amenities, of which the sum of $65,000 should be apportioned to the past. Subject to checking by counsel, I calculate that the sum of $17,333 should be added for interest at the conventional rate of four per cent on the basis (which the plaintiff’s submissions accept) that the component of general damages for the past accrued over the period which elapsed between 27 November 1988 and 28 March 2002.

32 Hospital and medical expenses to date have been agreed at the sum of $1,707, and I add a further $1,500 to allow for analgesics and the possibility of future treatment (whether medical or hospital or both).

33 In the result, there should be judgment for the plaintiff with costs for $370,540, being the addition of:

(1)	Past economic loss	$150,000
(2)	Future economic loss	$100,000
(3)	General damages	$100,000
(4)	Interest on past component of general damages	$17,333
(5)	Hospital and medical expenses	$1,707
(6)	Allowance for future treatment	$1,500
$370,540



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Last Modified: 04/02/2002