Allan Arthur Jones v David John Stephenson [1990] ACTSC 32; (1990) 101 FLR 23 (16 August 1990)

SUPREME COURT OF THE ACT

ALLAN ARTHUR JONES v. DAVID JOHN STEPHENSON
S.C. No. 384 of 1985
Damages
[1990] ACTSC 32; (1990) 101 FLR 23

COURT

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

CATCHWORDS

Damages - action for personal injuries caused by negligence - matters to be considered in reduction of damages - worker's compensation payments referrable to independent injury disregarded.

The National Insurance Company of New Zealand Limited v. Espagne [1961] HCA 15; (1960-1961) 105 CLR 569

Redding v. Lee [1983] HCA 16; (1982-1983) 151 CLR 117

HEARING

CANBERRA
16:8:1990

Counsel for the plaintiff: Mr. B. Hull

Solicitors for the plaintiff: Gallens Crowley and Chamberlain

Counsel for the defendant: Mr. J. Hartigan

Solicitors for the defendant: Abbott Tout Russell Kennedy

ORDER

There be judgment for the plaintiff in the sum of $75,530.60.

DECISION

This is an action for personal injury sustained by the plaintiff on 31 May 1983. Liability is not in issue. The plaintiff sustained his injury when he was driving his motor vehicle in Kings Avenue, Barton at or near the then intersection with Capital Circle. Counsel for the defendant was concerned to rely upon what he submitted was the trivial nature of the impact between the plaintiff's vehicle and the defendant's motorcycle which collided with the rear of the plaintiff's vehicle. The plaintiff said in his evidence that he had brought his vehicle to a stop at the intersection, and then, seeing the motorcycle in his rear-vision mirror and anticipating the collision, removed his foot from the brake. Nevertheless, he said that he felt his head go "forward and backwards" with the effect of jarring his neck. The rider of the motorcycle was not called, nor was the police officer who came to the scene to take details and in the circumstances I accept the version given by the plaintiff. However, in my view, not a great deal turns on it, because from what the plaintiff told a number of doctors over a period of time, he was more concerned with the welfare of the motorcyclist than with himself. The plaintiff's evidence that he felt pain in his neck later that night is corroborated by the evidence of his wife relating to his complaints.

2. The statement of claim filed on 30 May 1985 limits the injuries of the plaintiff to the following:
"(a) an injury to the neck involving C5/6 or C6/7

spondylosis;
(b) shock and bruising;"

3. The amended statement of claim filed on 14 December 1989 alleges the following disabilities:

"(a) continuing pain in the area of the neck requiring
constant medication and use of a surgical collar;
(b) inability to sit for any lengthy period either
while driving or at work;
(c) headaches;
(d) pain across the left shoulder and into the left arm;
(e) restrictions in family activities involving playing
sport with his children and similar activities."

4. The plaintiff was born on 22 March 1945 and at the time of his injury was a Sergeant in the service of the Australian Federal Police. He attended a rural secondary school near Goulburn and acquired his leaving certificate with passes in a number of subjects relating to rural studies. He had spent his early boyhood with a foster family. After finishing school in 1962 he returned to work on the family farm until 1966. He then worked as a salesman in the Bega district. He came to Canberra and joined the then Commonwealth Police on 2 November 1970, transferring to the Australian Capital Territory Police on 13 September 1971 and to the Australian Federal Police in October 1979. He progressed in the Australian Federal Police, becoming a First Constable on 7 June 1976, a Senior Constable on 7 June 1978 and a Sergeant on 30 September 1982. In the early years in Canberra he had done some extra casual work as an assembler of compactus units.

5. In his early teens the plaintiff noticed low back pain for the first time. This occurred whilst horse-riding. He still notices minor low back pain from time to time, but it has never been debilitating.

6. On 30 September 1980 the plaintiff fell from his racing bicycle whilst riding to work. He was taken to Woden Valley Hospital, but sent home the same day. He lost only two days from work. He attended his local practitioner, Dr Marinos on 9 October 1980. His initial problems were mainly in the right lower rib area, and over the next few months he continued to have pain around the rib cage. Some pain in the dorsal area of the back began to develop, but this was not debilitating. The plaintiff was particularly concerned about pain in the chest and rib area and was investigated by a cardiologist in case of some cardiac aspect or complication. He saw Dr Marinos on five further occasions up until the end of 1981 with complaints relating to chest pain and pain in the mid or upper back. The exact location of the latter is not clear, but in 1980-81 a determination was made for the purposes of Commonwealth employees' compensation that the plaintiff was suffering from thoracic pain problems relating to the bicycle accident on 30 September 1980.

7. The plaintiff's problems in this regard did not stand in the way of his promotion to the rank of Sergeant on 30 September 1982. He said in his evidence, however, that he was still having continuous pain at this time and was concerned whether his condition might be a heart problem. His concern, according to his evidence, led to tension headaches which he asserted were not associated with any pain in the neck region.

8. The question whether the plaintiff had any neck symptoms or headaches associated with his neck, is an important issue in the case. On 18 January 1982 Dr Marinos noted "mid posterior chest pain radiates up into neck muscle and into shoulder". The plaintiff was referred to Dr Chandran, a neurosurgeon. In addition to his complaints of pain in the mid-dorsal region, the plaintiff told Dr Chandran also of "pain in the neck extending into the head" which he attributed to tension over the previous few months. The back pain was described as not debilitating.

9. The plaintiff continued to see Dr Marinos who prescribed physiotherapy in January 1982. However, by 5 October 1982 the plaintiff was complaining again of recurring back pain and tension and agitation rising from pressure at work which exacerbated the back problem. On examination the plaintiff was found to be tender over the lower thoracic region. There was some improvement after more physiotherapy, manipulations, swimming and exercises and the plaintiff was prescribed the drug Tryptanol. It may be observed that the plaintiff later told Dr Saboisky, a psychiatrist, that during 1982 there was a serious altercation between him and his brother relating to the family property which had its repercussions in tension and anxiety. On 11 February 1983 Dr Marinos noted increased back pain and "nerves" relating to family problems. The plaintiff's condition did not improve through the year and arrangements were made for him to see Dr Newcombe, another neurosurgeon. Dr Newcombe examined the plaintiff on 12 March 1983 and concluded that the plaintiff's back pain was likely to be due to a thoracic disc injury. The plaintiff submitted to a myelogram and radiculogram. The myelogram revealed indentation at the C4/5, C5/6 and C6/7 levels due to cervical spondylosis, but nothing abnormal was detected in the upper thoracic spine. The cervical spine x-rays were within normal limits.

10. Without reference to the rest of the medical evidence at this stage I interpolate that I am satisfied that when the plaintiff suffered the subject injury on 31 May 1983, he was already suffering from a degenerative condition in his spine. The condition in the thoracic spine was aggravated by the bicycle fall on 30 September 1980 and that aggravation persisted as at May 1983. I am also of the view that there was a degenerative condition in the cervical spine which, however, had not given rise to severe symptoms. The plaintiff insisted in his evidence that the sort of headaches he suffered before 31 May 1983 were different in kind from those he suffered afterwards because they were at the front of the head rather than at the back. As already noted, he claimed to Dr Chandran even in 1982 that they were tension headaches and that there was some pain in the neck which Dr Chandran noted extended into the head. That and the fact that the plaintiff told Dr Chandran that the neck pain increased whilst riding his bicycle convinces me that there was neck pain to some extent prior to the injury of 31 May 1983 although it was overshadowed by the pain in the thoracic area. There is no question that the plaintiff was predisposed to spinal injury of all kinds at the time of the motor vehicle accident.

11. The plaintiff's evidence, which was supported by that of his wife, was that on the night of the injury, 31 May 1983, he had trouble sleeping with pain in the base of his neck radiating to the shoulders. He was rostered off the next day in any event, and he went back to work on 2 June. He did not consult Dr Marinos until a week later. He repeated his complaints. On examination Dr Marinos found a full range of neck movements with no spinal tenderness. The plaintiff declined the suggestion that he wear a cervical collar and recommence Tryptanol medication. The plaintiff said in his evidence that during the week prior to seeing Dr Marinos he had difficulty at work with headaches precipitated by leaning forward over his desk.

12. Dr Marinos gave him a certificate to stay off work for two days. Over the next few months the plaintiff continued work but with neck pain and headaches. The plaintiff was not greatly limited in his activities, but he found difficulty with clerical work, driving a car with his arms elevated on the steering-wheel for more than two hours or so and riding his racing bicycle. He returned to Dr Marinos on 28 September 1983 complaining then, as he did in his evidence, that by that stage he was having difficulty with his neck upon rising in the mornings. Again Dr Marinos recommended a cervical collar and prescribed Tryptanol and Naprosyn. Again the plaintiff was given a certificate for absence off work for some five days, and he was referred to Dr Newcombe. He commenced wearing the collar.

13. The complaints to Dr Newcombe on 10 November 1983 were as already indicated and upon examination Dr Newcombe found some restriction of the lateral flexion of the neck to 30 degrees on each side and some occipital tenderness. Dr Newcombe formed the view that there was aggravation of pre-existing cervical spondylosis with a positive finding of no aggravation of the previous thoracic condition.

14. Over the next two years the plaintiff's condition appears to have been reasonably stable. Significantly there was no loss of time from work. However, there were further visits to Dr Newcombe on 22 December 1983, 30 May 1984, 20 December 1984 and 2 January 1985. By the end of 1984 Dr Newcombe considered that the plaintiff's thoracic pain was still present but considerably improved, that his residual neck and shoulder pain was improved but the plaintiff still needed to be careful playing sport or when driving long distances. There were visits to Dr Marinos at varying intervals, sometimes several months apart, when the complaints were similar and when Dr Marinos prescribed Sinequan and later Clinoril. The complaints included neck pain radiating to the back of the head and both shoulders, and also thoracic or back pain. The plaintiff said in his evidence that he exacerbated his thoracic condition on several occasions during 1985.

15. Up to 19 December 1985 the plaintiff's condition, with the neck pain and headaches on the one hand and thoracic condition on the other both contributing to his symptoms, caused no loss of time from work. However, in September 1985 the plaintiff applied for promotion to the position of Senior Sergeant (he had been acting as Sergeant in charge of the Accident Squad) and although his promotion was recommended, it did not come about. Particularly in the light of the evidence of Dr Saboisky, to which I will refer in a moment, I think there can be no question that this helped set the scene for subsequent events in late 1985 and early 1986.

16. In October 1985 the plaintiff spent a week in Melbourne at a conference which he said aggravated his neck condition because of the need to bend over the conference table for several hours per day. Upon his return to Canberra the work had collected on his desk and he had to spend longer hours working at it, with consequent further aggravation to the neck condition.

17. On 22 November 1985 the plaintiff aggravated his thoracic spinal condition whilst bowling a cricket ball to his son. He saw Dr Marinos the following day who noted "usual soreness in mid-thoracic spine", prescribed Clinoral and Sinequan and referred the plaintiff for physiotherapy and exercises. The plaintiff attended for physiotherapy on 5 and 10 December 1985. However, in the week following he was trying hard to finish some renovations on his house before Christmas. The work involved building or extending a deck with the need to saw timber and use a pick and shovel. There was further aggravation to the thoracic spine. On 19 December 1985 Dr Marinos gave the plaintiff a certificate for two days off work, but he did not inform his employer of the reason for the aggravation. He was keen, according to his evidence, to finish his roster duty, but on 24 December he collapsed or nearly collapsed whilst driving a police vehicle. He had to go to a nearby house of a colleague and lie there for several hours until he could be taken to see Dr Smyth, the police doctor. He was subsequently taken home by ambulance. Dr Smyth referred him to Dr Saboisky. Dr Smyth also placed the plaintiff on sick leave, although the plaintiff had already planned to take a two or three week vacation commencing 27 December 1985. Despite the recent aggravations of his back condition, the plaintiff nevertheless embarked with his family on a car trip to Queensland. The trip turned out to be something of a nightmare for all concerned. He had to stop driving every couple of hours for prolonged periods in order to recover from the pain he was experiencing and from shortness of breath. His sons had been given sailboards for Christmas and whilst on the holiday the plaintiff attempted to use a sailboard (he had never used one before). His inability to do so, which he blamed on his back condition, caused him particular frustration. He had been advised by the physiotherapist to try swimming in order to relieve the pain and muscle tension, but he said that when he tried to swim during the holiday it only made the pain in the neck worse. He found the use of the cervical collar uncomfortable in the heat, and did not use it at all times.

18. On the return journey the plaintiff drove nonstop from the Gold Coast to just south of Bulahdelah. By then he was in such a condition that he had to lie down at a roadside rest area for one and a half hours. He had not until then been wearing his cervical collar but put it on when he resumed the journey. On resumption of the journey he drove his car into another vehicle whilst crossing the bridge at Karuah. According to his evidence and that of his wife, however, there was no aggravation of either the cervical or thoracic condition caused by that incident. The evidence on the point, however, is rather limited and it is not clear how they got back to Canberra. What is clear is that the plaintiff never resumed active duties in the police force. There were further visits to Dr Smyth and Dr Newcombe and further physiotherapy in January and February 1986. On 20 February 1986 Dr Marinos noted "usual back pain" in the neck and between the shoulders associated with nervous problems. The plaintiff's medication was increased. He commenced an acupuncture course.

19. On 10 March 1986 the plaintiff saw Dr Saboisky for the first time and hypnotherapy was prescribed. There were visits to Dr Saboisky thereafter at approximately monthly intervals until July 1986. In the meantime the plaintiff had again seen Dr Newcombe, who formed the view on 2 May 1986 that the plaintiff was unfit for prolonged desk work and that the plaintiff's thoracic pain was still continuing. On 13 June 1986 Dr Saboisky thought that the plaintiff had started to come to terms with his condition as a result of the hypnotherapy, but when there was an incident involving loss of control of a shopping trolley and the plaintiff had received "a sudden jolt" to his back, he was, according to Dr Saboisky, "back to square one". When last seen by Dr Saboisky on 5 August 1986 Dr Saboisky took the view that the plaintiff was suffering a serious depression triggered by the motor vehicle injury of 31 May 1983. Dr Saboisky also noticed, however, other factors referred to at length in his report which led him to the conclusion that the plaintiff was predisposed to depressive reactions, and even without the injury of 31 May 1983 may have suffered depressive episodes in any event. During 1986 the plaintiff was also seen by Dr Chandran, Dr Andrews and Dr Mann, all of whom took the view that the plaintiff's condition was not as severe as he believed or made out. Dr Andrews and Dr Mann thought that the thoracic condition and the cervical condition were contributing equally to whatever disability he had whilst Dr Chandran thought that there was very little in the nature of any persisting injury in the neck and whatever there was was as likely to be a natural progression of degeneration as the result of any aggravation in the 1983 injury. As far as the lower lumbar or dorsal region was concerned, Dr Chandran thought the symptoms were minimal although it was possible that the underlying depression made the plaintiff feel his pain more severely.

20. On 13 August 1986 the plaintiff was examined by Dr Blum, a consultant neurosurgeon, who took a view not previously considered by any of the other doctors, namely that the plaintiff's thoracic condition was due to intercostal neuralgia and for that purpose Dr Bloom performed an intercostal steroid injection on 13 October 1986. However, that did not appear to have any lasting effect and by the beginning of November 1986 the plaintiff was back before Dr Marinos complaining of "continuing thoracic backache" and "usual back pain worse last few days". Dr Marinos noted also that the plaintiff, although apparently very tense, considered that he had controlled his anxiety symptoms to some extent. On 18 March 1987 the plaintiff was compulsorily retired from the Australian Federal Police on medical grounds. According to the departmental records, there was a "percentage apportionment" as follows:

"Traumatic spondylopathic cervical and thoracic - 85%
Reactive depression - 15%"

21. The reasons given did not distinguish the proportion attributed to the cervical condition as contrasted with the thoracic condition.

22. What happened during the rest of 1987 is not clear and the only visit to a doctor which is recorded is that to Dr Blum on 1 April 1987 (see interrogatories paragraph 5.2). The plaintiff said in his evidence that between 1980 and 1987 his brother did the work on the family farm but when the property was split up by his father, the plaintiff received sixty-nine hectares, including the old homestead and the plaintiff then commenced doing work restoring the fences and developing the property. When exactly this commenced is not clear, however, by February 1988 the evidence indicates that there were significant changes in the plaintiff's lifestyle. When seen by Dr Keiller on 12 February 1988, the plaintiff stated that he was trying to develop the property at Bega and that he had recovered from his depression. He still complained of headaches and Dr Keiller found some tenderness at the C4-5-6 levels, extreme tenderness in the mid-thoracic area. Dr Keiller thought that the plaintiff's symptoms at that stage were from the degenerative spondylosis with some contribution from the injury of 31 May 1983 still contributing to the overall picture.

23. Video films taken of the plaintiff on his property on 19 February 1988 show the plaintiff working in a cattle crush, well able to handle the beasts, able to climb the fence and showing no signs of restriction of movement or continuing symptoms of any kind.

24. The plaintiff was also seen by Dr Andrea on 25 May 1988 on behalf of the defendant and there was a further examination by Dr Chandran on 25 July 1988. Dr Andrea and Dr Chandran shared the view that whatever the situation in the thoracic spine, any aggravation to the cervical area had ceased and the symptoms and disabilities in that area, if any, were due to degenerative processes.

25. On 10 November 1988 the plaintiff made application to the Commissioner, Commonwealth Employees' Compensation for a redemption in the form of a lump sum of his rights to periodic payments of compensation. The application was set out at considerable length. In particular, the plaintiff purported to give an "historical summary" of relevant events. It was essential for the purpose of that application for the plaintiff to show the exact extent of his capacity for work. In seeking to make out his case that he was sufficiently fit to justify the redemption of his rights to periodic payments, the plaintiff states in the application as follows:

"During the time that I have been in Canberra I have
continually returned to Bega to visit and work on the
family property, so I have not lost touch with farm
practises.
Because of my upbring (sic), education, farm experience
and management training, I am competent of carrying out a
small scale primary production given my current medical
condition."

There is a passing reference to the 1983 motor vehicle collision where the plaintiff states that he includes a copy of a report from Dr Keiller "in respect to an injury to my neck as a result of a motor vehicle collision in 1983". Obviously the plaintiff was aware that Dr Keiller considered him fit for work on the farm, and he was relying on Dr Keiller's view to support his application for a redemption. The application for a redemption concludes with a statement by the plaintiff that:

"I believe that I have shown by my willness (sic) to
attempt to obtain employment and secondly I have worked
on my property for over 12 months without undue
aggravation of my injuries."

26. Although nothing seems to turn on it, it appears that the application for redemption has not been successful at least to date. The plaintiff supports himself by continuing payments of periodic compensation and superannuation. However, his motivation to take on paid employment must be affected by the fact that anything he might earn on the farm or elsewhere in this respect reduces his superannuation payments.

27. Some time in 1988 the plaintiff became the Secretary of the Australian Federal Police Association Retired Members Branch, an honorary position which involves him in clerical work, writing newsletters and making submissions and representations on behalf of members mainly with regard to compensation and superannuation. He is able to work hours which suit him. Some of the work is done from his home where he has a computer and some from the Association headquarters.

28. Further video films taken on 6, 8 and 9 November 1989 show the plaintiff in his backyard squatting and bending and using a trowel to finish the edge of a newly laid concrete garden edge, shovelling dirt, laying timber for formwork and hammering in stakes, loading a utility with rubbish and depositing it later at the rubbish tip. The plaintiff was also shown getting on and off the vehicle to clean it and sweep it and to load and unload "For Sale" signs. When questioned about this latter activity he said that he sometimes assisted his wife, who works full-time during the week and in real estate sales promotion at weekends.

29. A number of the medical witnesses were shown the video film during the course of the hearing and all expressed the view that the activities shown therein were inconsistent with any complaint of continuing substantial disability either in the thoracic or cervical areas.

30. I have considered and reconsidered the evidence. It is unnecessary to come to any conclusion whether the plaintiff has tried deliberately to mislead the Court about his symptoms and disabilities over the last two years or so because in the end I think it unnecessary to decide the extent of his disabilities during that period. I think on the medical evidence the conclusion has to be drawn on the balance of probabilities, bearing in mind that the onus is on the defendant to show when the pre-existing degenerative condition took over from the effects of the injury on 31 May 1983, that once the plaintiff was retired from the Australian Federal Police, his condition improved significantly. For the reasons set out in Dr Saboisky's reports, he was, in my view, under considerable stress whilst he remained in the police force and this reacted upon and extended the effect of the undoubted cervical injury that he sustained on 31 May 1983. However, it is in my view established that by the beginning of 1988 the plaintiff's degenerative condition in the cervical spine was likely to have incapacitated him in any event, particularly when taken into account in conjunction with the thoracic condition which was aggravated on several occasions during 1985. Since the middle of February 1988 he has been able to engage in a wide range of physical activities such as those he conducts on his farm, in his work as the Secretary of the AFP Association Retired Officers Branch and around his home. To the extent that there has been any incapacity since February 1988, in my view, it is from a combination of the thoracic condition and the degenerative cervical condition. I conclude that somewhere between mid-March 1987 and mid-February 1988 the defendant ceased to be responsible for the plaintiff's symptoms and disabilities. I accept, however, that during the period up till then it is impossible to separate which aspects of the plaintiff's condition were due to the aggravation of the cervical condition and which were due to the thoracic condition. The depression flowed from the combination of both thoracic and cervical aspects, and the defendant is to be held responsible for that. There was a substantial interruption of the plaintiff's capacity to enjoy his daily life during the period for which he is entitled to be compensated, but even here I think that there has been a degree of over statement in his evidence compared with what he has had to say to the doctors and from what the doctors have found on examination. The medical opinion is on the whole quite guarded and the doctors acknowledge that they are of course dependent upon accepting the genuineness of the plaintiff's expression of the extent of his pains and troubles.

31. The plaintiff is therefore entitled to damages flowing from the 31 May 1983 injury. That injury ceased to have effect at a date which I fix at 30 September 1987. Out-of-pocket expenses for his cervical condition and depression calculated from the documents tendered in evidence amount to $270.60. These have in fact been paid by the defendant and interest will not be awarded on that sum.

32. There is also a claim that the plaintiff would but for the 1983 injury have been promoted to a higher rank, then senior sergeant and beyond. This has not been proved to my satisfaction on the balance of probabilities. The effects of the 1980 injury and the aspects of the plaintiff's personality stand in the way of such a finding. Nevertheless, a modest figure for the loss of a chance of being promoted will be built into the award for pain and suffering and loss of enjoyment of life.

33. Pain and suffering and loss of enjoyment of life I assess at $22,500 and as the whole of that is in the past I find that the plaintiff is entitled to interest on the whole. Interest is calculated on the rates set out in the practice direction No. 3 of 1990 and reduced by 25 percent because the loss did not all occur at the beginning of the period.

34. There will of course be no award for future loss of earning capacity or future out-of-pocket expenses.

35. I now turn to the plaintiff's past loss of earnings. The plaintiff was absent from work as a result of the subject injury for a total of about nine days in 1983 and he received sick pay which is not refundable from any proceeds of this case. His absence from work in 1983 did not, in my view, result in actual loss of earnings. There were no further absences until 19 December 1985. Thereafter, the plaintiff did not resume duties with the Australian Federal Police. He was retired on 18 March 1987.

36. Between 19 December 1985 and 18 March 1987 the plaintiff received compensation payments under the Compensation (Commonwealth Government Employees) Act 1971. Those payments are not refundable in the event of the plaintiff receiving damages in this action because the plaintiff was awarded compensation on the basis that his incapacity was the result of the injury on 30 September 1980. For that injury the defendant is not responsible. The compensation payments have continued following his retirement at the rate of $265.30 per week.

37. The amended statement of claim dated 14 December 1989 sets out a claim for past loss of earnings as follows:

"Loss of income from 8 June 1983 to 12 December 1989-
$85,204.50."

389. The particulars dated 12 October 1989 claim "loss of wages" for the several days in 1983, for the period 19 December 1985 to 20 December 1985 and for the period 24 December 1985 to 12 December 1989.

39. Counsel for the plaintiff, in his closing address, stated that the plaintiff "does not really have a wage loss in the past that can be specifically identified as attributable to the motor vehicle accident". Nonetheless, in the light of the amended statement of claim and of the particulars, I do not regard the claim of past loss of earnings as abandoned.

40. If the plaintiff recovers his loss of earnings for the period 19 December 1985 to 30 September 1987 it might appear on the face of it that he has recovered twice. However, the subvention that flows to the plaintiff by way of the compensation payments is for an injury quite independent of the injury for which he sues the defendant. I do not see that the defendant is entitled to a reduction of damages by way of this additional payment to the plaintiff.

41. I am persuaded that this is the proper approach because it flows as a matter of law from cases such as The National Insurance Company of New Zealand Limited v. Espagne [1961] HCA 15; (1960-1961) 105 CLR 569 and Redding v. Lee [1983] HCA 16; (1982-1983) 151 CLR 117 that the compensation payments received by the plaintiff for another injury should be disregarded when assessing the plaintiff's damages for the subject injury.

42. The figures provided by the Australian Federal Police show that the plaintiff's net earnings but for injury from 19 December 1985 to 30 September 1987 would have totalled about $33,000.00. However, in the exercise of discretion I do not think that on top of his compensation, superannuation and damages for loss of earnings the plaintiff should be awarded interest on that total sum, or any part of it.

43. In summary the figures are as follows:

Past loss of earning capacity $33,000.00
Pain and suffering and loss of
enjoyment of life $22,500.00
Out-of-pocket expenses $ 270.60
Interest $19,760.00
Total: $75,530.60

44. Looking at the damages globally I think that they represent an appropriate sum for the plaintiff in the circumstances.

45. Unless the parties wish to be heard I propose to order the defendant to pay the plaintiff's costs, usual order as to interest running on judgment sum and costs.