Michael James Boland v the Commonwealth of Australia [1988] ACTSC 50 (26 August 1988)

SUPREME COURT OF THE ACT

MICHAEL JAMES BOLAND v. THE COMMONWEALTH OF AUSTRALIA
S.C. No. 7 of 1985 and 863 of 1986
Negligence - Evidence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Negligence - actions for damages for personal injuries heard together by consent - plaintiff injured back at work because of falls caused by slippery floor and dangerously positioned telephone cable.

Evidence - admissibility of determinations of the Delegate of the Commissioner for Employees' Compensation to establish an issue estoppel or as admission by defendant - question of credibility of plaintiff as witness.

Damages - no new matter of principle.

Cross on Evidence (2nd Australian edition, para. 13.6)

Laws Holdings Pty. Ltd. v. Short (1972) 46 ALJR 563

Pastras v. The Commonwealth (1966) 9 FLR 152

Huysse v. Snowy Mountains Hydro-Electric Authority (1975) 1 NSWLR 41.

HEARING

CANBERRA
26:8:1988

Counsel for the Plaintiff: Mr T.J. Higgins Q.C. Mr B. Meagher

Solicitors for the Plaintiff: Messrs Higgins Solicitors

Counsel for the Defendant: Mr B. Oslington Q.C. Mr Curlewis

Solicitors for the Defendant: Australian Government Solicitor

ORDER

In matter number S.C. 7 of 1985.

There be judgement for the plaintiff in the sum of $13,912.68

The defendant pay the plaintiff's costs.

In the matter number S.C. 863 of 1986.

There be judgement for the plaintiff in the sum of $26,267.38

The defendant pay the plaintiff's costs.

DECISION

These are two actions for personal injuries heard together. In matter No. S.C. 7 of 1985 the plaintiff sues the Commonwealth of Australia in respect of injuries he sustained on 8 October 1982 when he slipped on the floor of a corridor in a building occupied by the Department of Defence at Campbell Park. In matter No. S.C. 863 of 1986 he sues the Commonwealth in respect of injuries sustained on 15 March 1984 when he claims he was tripped by a telephone connection box and cable in the same building. In relation to both injuries he alleges aggravation of pre-existing lumbar spine injury. In relation to the 1982 injury he alleges "onset of pain" in the cervical and thoracic spine. In relation to the 1984 injury he alleges "aggravation of pain" in the same area. Otherwise the particulars of injury alleged in each case are identical.

2. In the statement of defence filed in relation to the 1982 injury the defendant simply declines to admit the statements of fact alleged in the statement of claim. In the statement filed in relation to the 1984 injury the defendant positively denies the allegation of facts relating to the circumstances of the injury. Towards the close of the case, and during the addresses of counsel, an application was made on behalf of the defendant to amend the statements of defence to include allegations of contributory negligence on the part of the plaintiff. This application was refused for reasons which were given at the time.

3. It is necessary to say that the plaintiff was not an impressive witness and his memory failed him on many occasions. In addition, his evidence as to the circumstances in which he received his injuries on both the occasions was extremely meagre. However, he was not cross-examined as to the circumstances of either of the injuries, a circumstance which caused me to inquire of counsel as to whether liability was in dispute. It appears that the attitude taken on behalf of the defendant was that the plaintiff's evidence was so wanting that the defendant should not run the risk of strengthening the plaintiff's case as a result of cross-examination. The only witness called by the plaintiff in support of his allegations as to the circumstances of the injuries was a Mr. Denis Jay Mace. Mr. Mace did not observe the plaintiff receive his injuries, but he spoke as to his experience of water on the floor in the area where the plaintiff fell in 1982 and his experience as to the installation of telephone junction boxes in the building which was relevant to the injuries alleged to have occurred in 1984. Mr. Mace was not cross-examined in relation to the 1982 incident. He was asked some questions in cross-examination about the installation of telephones and junction boxes as that related to the 1984 incident but not so as to suggest that the 1984 incident did not happen. The defendant did not call any evidence on the issue of liability in relation to either incident.

4. My finding as to the facts may be shortly stated. The plaintiff was employed as an accounts clerk, acting Grade 2/3 in the Department of Defence at Campbell Park. At about 11 a.m. on 8 October 1982 he was on his way to the toilet. To get to the toilet he had to go past a drinking fountain or water cooler which was installed in a recess in the wall. According to a plan in evidence there was a distance of about a metre to a metre and a half between the drinking fountain and the opposite wall. The floor was made of polished vinyl tiles. His description of what happened next was brief. He said "I walked past the cooler and the next thing I know, I have got my feet in the air and I reached and grabbed the cooler to support myself, and managed to stop myself from falling". He did not fall to the floor.

5. He said that prior to the incident he noticed a puddle of water on t he vinyl floor which was about two feet across. After the incident he got some paper towels from the toilet and placed them on the floor to soak up the water. He reported the incident.

6. The plaintiff said in evidence that when he grabbed hold of the wate r cooler he felt "severe pain in the back" which was primarily between the shoulders. I shall deal with this aspect later in relation to damages.

7. Mr. Mace gave evidence on behalf of the plaintiff. He was a colleagu e. He had noticed prior to October 1982 that the floor around the drinking fountain was quite often wet. It was necessary to sidestep pools of water to get access to the toilets. As the cleaners did not work during the day the pools of water stayed there for long periods of time.

8. In the light of evidence, I am satisfied that the defendant failed t o take proper care for the plaintiff by failing to take reasonable steps to ensure that the surface of the floor in the vicinity of the drinking fountain was kept dry and not liable to become wet and slippery, thus constituting a danger for employees like the plaintiff who wished to go to the men's toilet. It was the slipperiness of the floor that caused the plaintiff to lose his balance and to suffer injury as a result.

9. On 15 March 1984 the plaintiff was an acting Class 4, accounts clerk . He was working in the finance area of the Department of Defence in the same building at Campbell Park. He worked in an open-plan office with desks abutting each other. There were telephones on the desks. Each telephone was connected to a junction box on the floor. There were several junction boxes in the room. They were more or less in a line as they were connected to a Telecom service cable which was set in a straight channel in the floor beneath the carpet. Normally the desks were arranged in such a way that each junction box was effectively covered or protected by a desk which was placed immediately above it. When the desks were arranged in that way there was no danger of an employee making contact with the junction box whilst walking in the office area. On occasions when it was necessary to move a desk so the junction box beneath it was exposed, it was customary to protect the junction box, and the safety of employees who had to move around the area, by placing an upturned waste paper bin over the junction box. The plaintiff said in evidence that on the day in question there was some movement of furniture taking place in the office. He had not received any notification that his desk had been moved, and presumably he had not noticed that such was the case. He got up from his desk to go to a filing cabinet and then tripped. All he could say was that he remembered hanging on to a filing cabinet sweating with pain, and when he turned around he noticed someone picking up a telephone from the floor. He added that he saw "that junction box out in the middle of the walkway instead of being hard up against my desk as it had been previously". Although the evidence is far from clear, I draw the inference on the balance of probabilities that what caused the plaintiff to trip to the extent that he found himself hanging on to the filing cabinet was the junction box which had been exposed by somebody moving his desk previously. In those circumstances, again I am prepared to hold on the balance of probabilities that the defendant failed to take reasonable care for the safety of the plaintiff by failing to inform him that his desk had been moved and by failing to take effective steps to draw attention to the exposure of the junction box. The plaintiff therefore succeeds in both actions.

10. I turn to the question of damages. The plaintiff was born on 14 December 1945 and was educated until the Intermediate Certificate Level in Cooma. He followed a variety of occupations mainly of a clerical nature until he was conscripted for military service in 1967. He saw active service in Vietnam and received some sort of spinal injury in 1968 in the field whilst lifting a rock. He was put on light duties around the camp for what appears to have been a period of no more than weeks, and was discharged from national service the following year. His back continued to "play up" over the ensuing years, but that did not prevent the plaintiff from following a variety of occupations in various parts of Australia until he came to Canberra in 1972. He married in the same year. He again followed a variety of occupations including selling insurance and driving trucks until he commenced as a clerical assistant with the Commonwealth Department of Business and Consumer Affairs in 1975. He continued in the Public Service and was permanently appointed as a Clerical Assistant Grade 2 with the Department of Defence in 1979.

11. The plaintiff was an evasive witness with remarkable lapses in memo ry and where his evidence on matters of detail is not supported by documentary evidence, it must be approached with some caution. Ever since the Vietnam days the plaintiff has been the recipient from time to time of entitlements from the Department of Veterans' Affairs for his injury there. An examination of the plaintiff at Concord Repatriation Hospital in January 1973, when the plaintiff was complaining of periodic attacks of backache, revealed no abnormality and x-rays were confined to the lumbo-sacral spine to which, presumably, the plaintiff restricted his complaints at that time. In evidence the plaintiff initially said that the first operation to his back was carried out in 1979, but he then agreed with his counsel that it was in May 1977. According to Dr Newcombe whom he first saw in December 1978, he had a "disc excision at L5/S1" in Sydney in 1976. There was no evidence from DrGraham, who according to the Veterans' Affairs' records was the operating surgeon, (or anybody else) directly relating to this first operation. I conclude, however, that it was certainly before he saw Dr Newcombe at the end of 1978. The plaintiff told Dr Newcombe that this operation gave him "immediate relief". He told the Court that "the improvement was miraculous after that operation". He said that the symptoms from which he was suffering when he first saw Dr Newcombe were "neck pain, difficulty in bending and moving". According to Dr Newcombe, however, there was no mention of neck pain at all and the complaints were of low back pain with left-sided sciatica from the buttock to the heel and occasionally mild right-sided sciatica.

12. Some records from the Department of Veterans' Affairs (exhibit 1) indicate that on 1 April 1978 the plaintiff was examined by an orthopaedic surgeon, Dr W. Lennon, in Sydney, complaining of "bilateral neck stiffness". He gave a history of "cervical pains since 1973, worse in the last six months". There was no history of neck injury. There was full movement of the cervical spine with no definite spasm and no definite local tenderness. X-rays showed minimal spondylitic changes in the cervical spine. There was no mention of an operation and I can only infer that the operation by Dr Graham occurred somewhere between May and December 1978.

13. As at December 1978 Dr Newcombe thought that the plaintiff may have developed lumbar canal stenosis as a result of the lumbar fusion done as a consequence of the back injury in Vietnam. This was confirmed by lumbar radiculogram on 18 January 1979 and a decompressive laminectomy for that condition was performed in Royal Canberra Hospital on 3 January 1979. The plaintiff told Dr Newcombe that this produced good relief although there was an exacerbation which had settled by the time Dr Newcombe saw him on 2 August 1979. At that stage Dr Newcombe expected further occasional symptoms but expected the plaintiff to be able to cope reasonably well overall. By 23 October 1979 the plaintiff improved to the extent that he had returned to running a few miles at night. Dr Newcombe did not see the plaintiff again until after a further three years, namely on 29 October 1982. In the meantime, on 11 June 1980 the plaintiff gave evidence to a Commonwealth Tribunal (probably in connection with veterans' entitlements) of starting to have back problems in February 1980 which caused him to limp and have difficulty working in a standing or sitting position for prolonged periods. He also complained that since the operation performed by Dr Newcombe there were certain tasks that he could not carry out, for instance, minor repair work on his car. He complained to the Tribunal, as he had complained to Dr Newcombe, that his ability to carry out the gardening was severely reduced. He made other complaints such as inability to do any work which required holding something above chest height. He said, as he did in evidence to the Court, that he had confined his sporting activities to canoeing, although he needed help to get the canoe on and off the car.

14. In 1981 the plaintiff lost many weeks from work which he claimed, according to the documents he completed at the time, was due to "back injury". There was a similar pattern in 1982 to that of 1981. On 18 January 1982 the plaintiff wrote to the Department of Veterans' Affairs in relation to his back condition that it had "once again started to cause trouble and is apparently deteriorating". He requested further examination by Dr Newcombe before any determination as to his rights. On most occasions of loss of time from work in that year the plaintiff claimed war service sick leave. He was absent from work, the stated reason being "back ache and flu", from 9 August to 17 August 1982. He was then back at work until the injury on 8 October 1982.

15. The plaintiff said in his evidence that immediately after the injur y on 8 October 1982 he attempted to continue work but the pain was so intense that he had to go home and that he remained away from work for some considerable time, weeks at least. His evidence in this regard is clearly in conflict with the rest of the evidence and I reject it.

16. The plaintiff also said in his evidence that the pain he experience d immediately after the October 1982 injury was "most severe there between the shoulder blades" at the "mid-back" level. Again, this is contradicted by the rest of the evidence. He made no complaint of pain in the thoracic or mid-back area immediately after the 1982 injury or in the months that followed. I reject his evidence on this aspect also.

17. The injury occurred on a Friday. The plaintiff did not seek medical attention until the following Monday when he visited his local doctor, Dr Choong, who practiced at the Melba Health Centre. He complained to Dr Choong of "aggravation of low backache radiating down both legs". There was also complaint of localised tenderness in the muscles to left of lumbar spine which he had never experienced before. He also complained of some neck stiffness. Apart from losing less than two hours from work on 15 October 1982, the plaintiff does not appear to have gone off work until 19 October. He remained off work until 1 February 1983. During that time he was examined by Dr Newcombe, to whom he described aggravation of the long-standing backache with radiation of pain to the buttocks and also some neck pain which improved quickly with physiotherapy. Dr Newcombe examined lumbar spinal x-rays which "showed no new features". He thought that the plaintiff would have been ready to go back to work by about 6 December 1982. He last saw the plaintiff at that stage on 3 December 1982.

18. During the ensuing months of 1983 the plaintiff's work record indicates that he took occasional days off, some of which he attributed at the time simply to backache and others which were the subject of a claim for war service sick leave. In his application for compensation dated 14 October 1982 he identified the nature of the injury as "aggravation of existing back injury" and added a note "if an extended period of work appears likely then the problem will be Veterans' Affairs".

19. There were received into evidence, subject to a ruling as to their admissibility, a number of determinations of the Delegate of the Commissioner for Employees' Compensation under the Compensation (Commonwealth Government Employees) Act 1971. Counsel for the plaintiff argued that these were admissible in order to establish an issue estoppel, or alternatively, as an admission on behalf of the defendant. According to Cross on Evidence (2nd Australian edition, para. 13.6:
"To give rise to an issue estoppel there must

have been a final judgement between the same
parties, litigation in the same capacity, the
issue before the court must be the same as that
alleged to have been the subject of adjudication
in previous proceedings and the estoppel must be
pleaded.

20. Counsel for the defendant took the point that the estoppel was not pleaded. However, that does not appear to be fatal. Again Cross at para.13.9 refers to old authority to the effect that a party alleging the existence of an estoppel by record must plead the former judgment, and if that is not done, the record is merely an item of evidence in that party's favour which must be considered by the tribunal of fact. In Laws Holdings Pty. Ltd. v. Short (1972) 46 ALJR 563, the High Court allowed a party to rely on an estoppel where the plea was not raised but where the facts with respect to the estoppel had been fully explored in evidence.

21. In Pastras v. The Commonwealth (1966) 9 FLR 152, Lush J. in the Supreme Court of Victoria expressed the view that the Commissioner for Employees' Compensation under the Commonwealth Employees' Compensation Act 193 was not a judicial tribunal whose determination gave rise to an issue estoppel and further that, because the Commonwealth had no right of appeal from a determination, payment pursuant to a determination did not amount to an admission. Neither proposition, however, found favour in the New South Wales Court of Appeal in Huysse v. Snowy Mountains Hydro-Electric Authority (1975) 1 NSWLR 41, Hutley J.A in particular expressing the view that a determination under the Compensation (Commonwealth Employees) Act 1971 was not final as the Commissioner was empowered of his own motion to vary or revoke a determination. Hutley and Samuels JJ.A. considered that payment pursuant to a determination could amount to an admission if made under the authority of an officer of sufficient seniority to be entitled to make admissions. There is no evidence in the present case relating to the authority under which payments of compensation were made to the plaintiff subsequent to the determinations and the payments cannot be taken to constitute admissions. There is no authority to support the proposition that the Commissioner in making a determination makes admissions on behalf of the Commonwealth. As to the estoppel point, I rule that the determinations of the Delegate of the Commissioner for Employees' Compensation are admissible in evidence, but because estoppel was not pleaded they are not conclusive of the issues which they purport to decide.

22. The next event of significance is that on 4 November 1983 the plaintiff sneezed at work, which brought about immediately what he described in evidence as "a very severe pain between the shoulder blades in the same location". He saw Dr Choong three days later on 7 November and was back to see Dr Newcombe on 18 November. To both those doctors he complained of pain between the shoulder blades and mid-thoracic area. I accept that the incident occurred as the plaintiff described and that he had pain in the mid-thoracic area. I do not, however, accept that it was "in the same location". The probabilities are, in my view, that it was the initial onset of significant pain in the thoracic area. The plaintiff was off work from 7 November 1983 to 7 March 1984. By a determination of 18 August 1988 the Delegate of the Commissioner for Employees' Compensation determined that the plaintiff sustained personal injury by way of an aggravation of a pre-existing thoracic intervertebral disc lesion on 4 November 1983. I agree with that finding. So did Dr Newcombe. However, Dr Newcombe expressed the view in his report of 4 April 1984 that it was likely that the plaintiff had an aggravation of the T5/6 intervertebral disc lesion in October 1982, with further aggravation on 4 November 1983. In my view, Dr Newcombe's opinion about the relationship of the thoracic condition to the October 1982 injury is based upon a false assumption that the plaintiff had frequent attacks of interscapular pain (as well as low back pain) between October 1982 and November 1983. Although it is quite possible that a pathological condition, which might be described as a lesion, was present in the thoracic spine as far back as October 1982, I am quite unconvinced on the evidence that the plaintiff suffered any symptoms in that area prior to the sneezing episode on 4 November 1983 which, of course, occurred quite independently of the October 1982 injury. I am also unconvinced that it was the 1982 injury which caused the lesion.

23. In the particulars of injury accompanying the statement of claim in matter No. S.C. 7 of 1985 relating to the injury of 8 October 1982, the plaintiff alleged:

" i. Aggravation of pre-existing back injury at
L4/5 and L5/S1 level
ii. Onset of pain in cervical and thoracic spine."

24. I am satisfied on the probabilities that the aggravation of pre-existing back injury at the lumbo-sacral level has been proved, but that the effects of that aggravation did not go beyond the end of February 1983. This happens to accord with the determination of the Delegate of the Commissioner for Employees' Compensation. It is possible also, I think, that in addition there was some very minor aggravation of a pre-existing cervical spondylosis but this was almost overwhelmed by the lumbo-sacral symptoms and had entirely vanished by the end of February 1983. I further find that the sneezing episode of 4 November 1983 precipitated the symptoms in the thoracic area which had nothing to do in any causal way with the 1982 injury. The period off work between 7 November 1983 and 7 March 1984 cannot be attributable to the injury in respect of which the plaintiff sues.

25. On 22 November 1983 the plaintiff attended a chiropractic clinic fo r the first time, his complaint being of severe mid-thoracic discomfort. The chiropractor, Mr.Pirie, reported that radiographic examination revealed reduction in the disc spaces between C2-C3 and C3-C4 and there was some sort of irregularity from T3-T6. Mr. Pirie thought that the plaintiff had strained muscles in the latter area.

26. On 12 March 1984 the plaintiff attended an office of the Department of Veterans' Affairs, wanting to know if there was any way he could be awarded a lump sum payment for a back condition. He also indicated that he had a further consultation with Dr Newcombe booked for 7 March 1984. In fact the plaintiff did attend Dr Newcombe on 6 March 1984 following which the doctor reported on 4 April 1984 in the terms to which I have already referred. Dr Newcombe thought the plaintiff should be returning to work on 12 March 1984, continuing with physiotherapy and with a view to further assessment after two months.

27. Return to work the plaintiff did, a day or two later. By 13 March 1984, however, he lost another two and a half hours from work, which he described at the time as due to "back injury". Dr Choong has a note for that date of "pain in thoracic and low back. I.S.O. started work again since yesterday." Two days later, according to the plaintiff's evidence, the second injury occurred in respect of which he sues in matter S.C. 863 of 1986. There are several peculiar features about his claim in respect of this alleged incident, but as I have already indicated, I am satisfied on the balance of probabilities that it took place and that the defendant is liable in negligence for the consequence. Curiously, the particulars of injury claimed are almost identical to those claimed in respect of the 1982 injury. I have no hesitation in rejecting the allegation that the injury on 15 March 1984 aggravated the lumbar condition. It is curious also that although Dr Newcombe had charge of the plaintiff's condition, in conjunction with Dr Choong, as late as 6March 1984, he did not see the plaintiff thereafter until 18 November 1986. Dr Newcombe noted in a report of 1February 1988, which was the only other subsequent occasion on which he saw the plaintiff, that since the 1984 injury the plaintiff "has since been treated for his lumbar spinal injury". Insofar as this may relate to either the 1982 or the 1984 injury, it is not supported by the other evidence. In the plaintiff's claim for compensation dated 5 April 1984 (exhibit 1) the plaintiff clearly distinguishes between "pain to upper back and neck" in respect of which he is making a claim and "repatriation pension for lower back injury" in respect of which he claims an entitlement from the Department of Veterans' Affairs.

28. The aftermath of the injury on 15 March 1984 was somewhat dramatic if one is to accept the evidence of the plaintiff. He said he was suffering from so much pain in the neck that he had to travel home in a bus lying flat on the back seat, that he was given a collar to wear, pain-killers, analgesics, physiotherapy and rest. He said that although his memory was hazy he believed he was then off work for about three months. He said that when he returned to work he had to take pain-killers which he carried in his briefcase. He then started to develop pains in his arms, elbows and left shoulder in particular. He said that the pain in the neck was the worst he had ever experienced causing him to seize up so that he was in spasm from the neck down to the lower back with headaches nearly all the time.

29. The records in evidence, however, disclose a quite different picture e. The plaintiff did not consult Dr Choong until 21 March when he took half a day off from work. He complained then of grave exacerbation of pain in the upper back and neck with vague aching pain in the left arm. The plaintiff told Dr Choong, as he at one stage told the Court, that although he was in considerable pain in this period, he declined to take time off from work as he was embarrassed to do so after his previous long absence. However, he did take another half day off work on the following day, 22 March 1984 for the purpose of visiting Dr Choong and for physiotherapy at a city physiotherapy clinic. He took the whole of the next day off work on 23 March, but he did not visit Dr Choong on that day. His next absence from work was on 3 April when he lost a whole day and there were two other days in April when he lost part of a day from work again complaining of back injury. He had odd days and part days away from work for this same reason until 2 August 1984 when he was absent for a continuous period until 17 August for "recurrence of neck ache". He lost a further week immediately thereafter the reason for which appears to be stress rather than his back condition. There were several other days and part days during the rest of 1984 when he lost time from work for back pain, usually described in the notes of Dr Choong as neck or thoracic pain. There were several other days when he lost time for other medical conditions not associated with the subject injuries. In the first half of 1985 he lost many weeks from work for reasons appearing in Dr Choong's notes to be associated with backache and the like.

30. On 4 June 1985 the plaintiff wrote to the Director of Service Conditions in the Department of Defence in which he stated:

"Within the last week there has been an improvement
in my back condition that is nothing short
of a miracle. I have gone from being in constant
severe pain to feeling the best I have in years."
Sitting incorrectly to write this letter causes
some pain in the left, but this was eased
with a change of posture."
The week 3.6.85 to 7.6.85 shall be taken as
holidays and I shall return to work on Tuesday
11.6.85. However, I can, as usual, offer no
guarantees as to the future.
Perhaps I would be better off in some field outside
the Public Service such as insurance work
where your or my absence would not increase the
workload of the others.

31. A note of Dr Choong of 3 June 1985 states that the plaintiff is "mu ch improved" and fit to resume work. However, the next note of Dr Choong is dated 12 June 1985 and reveals that the plaintiff was involved in a motor vehicle accident two days before resulting in exacerbation of pain in the low back whilst he was on recreation leave. In fact the plaintiff did resume work on 28 June 1985, but that was followed by increasing periods away from work for pain in the back, sometimes described as low backache, sometimes as pain in the shoulder, sometimes as pain radiating down one or both arms. There is also a notation on Dr Choong's records of stress which was apparently associated with marital breakdown and claims being pursued against the Department of Veterans' Affairs. On 21 July 1986 there is a note of aggravation of pain in the thoracic spine brought about when the plaintiff slipped while trying to push a car. Dr Choong's notes continue in like vein until 29 September 1986. The plaintiff lost over two months from work at about that time and his general management appears to have been assumed by Dr Berenson, who gave several certificates for "back pain", "back pain from neck to low back" as well as for back pain associated with pain in the arms.

32. In 1987 until about September the plaintiff lost far fewer days fro m work than in the previous years. According to the records, he claimed a total of about 4 days only due to back pain, although there are many other days lost from work when the reason is unspecified. At any rate, on 16 September 1987 he was referred to Dr Chandran, a neuro-surgeon, complaining of pain in the neck extending into the arms, left more than right and particularly into the medial two fingers. X-rays and other investigative techniques disclosed bulging at C5/6. This was confirmed by a discogram which apparently also indicated involvement of C6/7. In any event, Dr Chandran performed a fusion at both levels on 3 May 1988. When last reviewed by Dr Chandran on 25 July 1985, the doctor expressed the view that there had been "excellent fusion".

33. Dr Chandran in cross-examination suggested that the injury of 1984 was responsible for the ultimate fusion, based upon the temporal relationship between onset of symptoms at the time of injury and a complaint of continuing neck pain, associated with pain in the arms up until the time of the fusion. Dr Chandran conceded, however, that if there was in fact not constant pain in the neck from March 1984, then the basis for his opinion was weakened. It was put to Dr Chandran in re-examination by leave that if an x-ray of the cervical area taken in 1984 showed no signs of abnormality, then the 1987 x-rays and the discographic findings suggested that something happened between February 1984 and 1987..

34. Dr Newcombe stated in his report of 4 April 1984 and confirmed in h is evidence that cervical spine x-rays taken on 17 February 1984 revealed no bone or joint abnormality. Dr Newcombe did not in fact see the x-rays themselves but was relying upon a report furnished to him presumably by a radiologist. In any event, what he said on that precise point was not challenged. The defendant rather took the point that if there were significant periods of time without neck pain between the incident of March 1984 and the time of the fusion operation in 1988, then the causal relationship between the injury and the fusion was destroyed. DrNewcombe agreed in the end, as did Dr Chandran, that the crucial factor was the continuity or otherwise of symptoms. In my view, the evidence of continuity is not sufficiently positive to convince me on the balance of probabilities that there is the causal relationship. The plaintiff was cross-examined thoroughly on this aspect and in the end agreed that he was not in constant neck pain from April 1984 and that there were significant periods when he was free of neck pain. It is to be remembered that he suffered an exacerbation of pain which was said to be in the lower back shortly after 4 June 1985 when he was involved in a motor vehicle accident and another exacerbation of lower back and thoracic pain on 21 July 1986 when he was pushing a car. By 1987 he felt well enough to find employment outside the Public Service during a period of long-service leave. During this time he worked as a real estate agent, something which he had been contemplating since June 1985. He later returned to his clerical duties in the Public Service. The defendant caused a video film to be taken of the plaintiff's activities around the front of his house at McGregor on 29 October 1986. This film showed that the plaintiff was capable of a wider range of activities than he was prepared to admit in evidence. He was shown as having no apparent difficulty in pushing or pulling a rotary type motor mower, squatting to pull weeds out of the garden, lifting and shaking grass out of a full grass-catcher and spreading fertilizer over a well-tended garden. On the other hand, the plaintiff was not shown to be remarkably active and towards the end of the film he displayed a slight limp. The video film reflected to some extent against the plaintiff's credit as a witness, but otherwise it is of little significance.

35. The determination of the Delegate of the Commissioner for Employees ' Compensation of 18 April 1988 is "that on and from 1/9/87 the Australian Bureau of Statistics is not liable to pay compensation in any thoracic and lumbar spine injuries sustained by the said Michael James Boland on 8 October 1982, 4 November 1983 and 15 March 1984".

36. As I have already explained, I do not approach the finding of the Delegate as raising an issue estoppel nor, if it is to be taken as an admission on the part of the Commonwealth, do I regard the determination as conclusive. On the other hand, it is something to be taken into consideration bearing in mind also the previous determinations of 18 April 1984 and 22 March 1988, which included findings that the plaintiff sustained personal injury on 15 March 1984 by way of aggravation of pre-exiting thoracic intervertebral disc lesion and aggravation of cervical spondylosis.

37. If the determinations were left completely out of account, I might be disposed to find that the injury of 15 March 1984 had ceased to be causally related to any symptoms or incapacity beyond the "miraculous recovery" referred to by the plaintiff in his letter of 4 June 1985, and that any exacerbation thereafter was due to the motor vehicle accident, or alternatively, that the aggravation of 21 July 1986 when the plaintiff was pushing a car, put an end to the causal connection. However, bearing in mind the determinations by the Delegate and the considerable number of days taken off for back pain between September and November in 1986, I am satisfied on the probabilities that there was sufficient continuity of symptoms into 1987 for the causal connection to be established, and it is as appropriate to regard 1 September 1987 as the cut off date as any other particular date.

38. I now face the formidable task of trying to convert these findings into dollars and cents. In matter No. S.C. 7 of 1985 I would award the plaintiff his loss of salary for the odd days he was off between 8 October 1982 and 15 October 1982 together with his loss of salary from 19October 1982 to 1 February 1983. I would also award his loss of salary for the odd days taken off for backache up to and including 28 September 1983. I would award out-of- pocket expenses incurred during this period as well. However, I am not satisfied that any effect of the injury of 8 September 1982 went beyond the beginning of November 1983 when any such effect was completely obliterated by the events of 7 November 1983. The plaintiff is entitled to a modest award for general damages, which I fix at 5,. There may be a Fox v. Wood component, but I do not know what it is and I am unable on the material before me to fix the amount to be awarded for the loss of salary and out-of-pocket expenses.

39. In respect of the damages to be awarded in matter No.S.C. 863 of 19 86, the plaintiff is to have his loss of salary for days lost due to back pain or neck pain between 15 March 1984 and 16 September 1987 together with out-of- pocket expenses incurred during that period. Again, on the information before me, I am not able to calculate the amount due. I fix the general damages at 8,. There may be a Fox v. Wood component, but I do not know what it is.

40. In neither case am I satisfied that there is any ongoing incapacity due to the injury sued upon and there can be no award for continuing economic loss. I am not satisfied that the plaintiff suffered any loss of promotion as a result of either injury. I take into account that his social and domestic life was disrupted during the periods of incapacity, but a reading of the particulars furnished in support of the plaintiff's claim in each case indicates that the claims are grossly exaggerated and in each case the award must be a moderate one. A video tape of the plaintiff working in his garden confirms the exaggerated nature of his claim.6 I am unable, on the material before me at the moment, to make any award which I would regard as satisfactory in respect of economic loss or out-of-pocket expenses. If the parties wish to put further material before me on these aspects in the light of my findings I am prepared to consider that material, or if they wish to put further will simply do what I humanly can on the material I have. The matter will be stood over to a date which I will now fix so that the parties can inform me of their attitude.