Gary Ronald Mortlock v Commonwealth of Australia [1992] ACTSC 119 (4 December 1992)

SUPREME COURT OF THE ACT

GARY RONALD MORTLOCK v. COMMONWEALTH OF AUSTRALIA
No. SC 1302 of 1988
Number of pages - 24
Employment Law - Negligence

COURT

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

CATCHWORDS

Employment Law - liability of employer for injury to employee - supervision and instruction - failure to advise of susceptibility to injury in performance of heavy duties - failure to restrict work activities accordingly.

Negligence - measure of damages - personal injuries - loss of earnings and earning capacity - re-employment of worker - discount for pre-existing degenerative condition.

Malec v. J.C. Hutton Pty. Ltd. [1990] HCA 20; (1990) 169 CLR 638

Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438

HEARING

CANBERRA
4:12:1992

Counsel for the plaintiff: Ms C. Simpson QC with Mr R. Crowe

Solicitors for the plaintiff: Pamela Coward and Associates

Counsel for the defendant: Mr I. Curlewis QC with Mr C. Erskine

Solicitors for the defendant: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. There be judgment for the plaintiff in the sum of $389,666.27.

DECISION

MILES C.J. This is an action for damages for personal injury by an employee against his employer. The nature of the injury and disability alleged is a back injury caused by lifting followed by inability to perform work involving heavy lifting or prolonged bending or stooping. The injury alleged occurred on 28 July 1984 whilst the plaintiff was lifting a filing cabinet. The injury is denied on the pleadings. However, the conduct of the case on behalf of the defendant made it obvious that the injury could never have been seriously in dispute. The dispute is really about the extent of injury and whether the defendant is liable in damages for its occurrence.

2. The statement of claim originally filed was deficient and the reader would have had only the vaguest notion of what the case was about. Paragraph 4 of the amended statement of claim identifies the cause or causes of action in a curious manner as "negligence and/or breach of duty and/or breach of the said contract of employment and/or breach of statutory duty". First, it is to be observed that there is in law no cause of action for "breach of duty". Next, there is nothing in the statement of claim (or in the evidence) to lay a foundation for anything constituting breach of statutory duty. As to negligence, the purported particulars of negligence in the statement of claim originally filed on 6 October 1988 do not provide particulars at all except in sub-para. 4(h), where there is reference to "requiring the plaintiff to carry out the duties of a storeman when it knew or ought to have known of the plaintiff's pre-existing back condition".

3. There was an application to further amend the statement of claim after the end of the evidence, but I refused the application on the ground that the defendant had not had the opportunity to meet the claim as it was sought to be reformulated.

4. Before dealing with the issues raised by further particulars furnished by amendment on 19 May 1989, it is appropriate to make some findings of fact.

5. The plaintiff was born on 15 December 1951 in Canberra and went to school in the area to third form. He worked as a motor vehicle parts salesman and in semi-skilled positions in the construction industry. In 1971 he worked at the provisional Parliament House as an attendant for a parliamentary session. He then accepted a temporary job in the Parliamentary Library. He carried out various tasks such as photocopying and stacking books. In about 1974 he was made a permanent public servant and worked as a courier and driver. In about 1984 he became a storeman and purchasing officer and was carrying out duty in that capacity at the time of his injury.

6. The plaintiff had suffered from back problems for many years prior to the injury. In 1972 he hurt his back whilst lifting a typewriter box unassisted. He was off work as a result for a week. He said in evidence that he suffered intermittent pain in the lower back (and probably the left leg) for the following year or two and sought treatment from a chiropractor, a matter to which I shall return. He came under the care of Dr Cooke of Queanbeyan, who referred him to Dr Kitchin, an orthopaedic surgeon. Dr Kitchin first examined the plaintiff on 8 February 1973. On 11 July 1973 Dr Kitchin reported to a Dr McGregor of the Department of Health, Canberra, that he had obtained a history of pain over a period of six months involving the left thigh, buttock and calf with numbness extending down into the foot, with some low back pain as well. On examination there was limited back friction, restricted straight leg elevation and absence of left ankle jerk. The diagnosis was a disc protrusion at L5-S1 which was confirmed by a myelogram although x-rays were normal. Dr Kitchin advised surgery by way of laminectomy and disc excision, but the plaintiff declined to submit to it. The plaintiff reported an improvement when next seen by Dr Kitchin on 16 March 1973 and was permitted to return to his work as a van driver. Dr Kitchin concluded in his report that he expected continuing trouble and would place the probability of surgery as high.

7. On 13 February 1974 a Commonwealth Medical Officer reported to the Administration Officer at the Parliamentary Library that the plaintiff had been examined after being deferred for six months because of his back. This appears to be a reference to the plaintiff's attempt to gain permanent appointment to the Australian Public Service. The Commonwealth Medical Officer advised that the then condition of the plaintiff's back was satisfactory, but in view of Dr Kitchin's report, the plaintiff's duties should not include heavy lifting, a lot of climbing, excessive bending and excessive driving, and that with such activities recurrence of back trouble was likely and the compensation risk high.

8. The plaintiff, despite inquiry on his part, was not told of the views expressed by Dr Kitchin and by the Commonwealth Medical Officer as to the limitation of his fitness for physical work. As a consequence of the advice that Dr Kitchin had already given about the likelihood of the need for an operation, which was conveyed by a Commonwealth Medical Officer to the Administrative Officer at the Parliamentary Library, the Commonwealth was on notice about the plaintiff's vulnerability to injury to his lower back in the event of heavy physical activities. The plaintiff himself, however, had no appreciation of this.

9. There is no evidence that the advice given by the Commonwealth Medical Officer to the Administration Officer at the Parliamentary Library was ever acted upon and I conclude that it was not. Nothing was done by those in charge of the plaintiff's work duties to restrict them in accordance with the medical advice.

10. The plaintiff continued as a courier and van driver following his permanent appointment to the Australian Public Service. During that time he lost little or no time from work because of his back. There were, however, two incidents which deserve mention. One was when he injured his left knee getting into the van. That caused him to lose time from work for about two months. There was another incident when he slipped and fell whilst entering the Hotel Canberra. That caused an injury to his right knee and he lost a few days from work. I find that neither of those two incidents was of any significance as far as his back condition or symptoms are concerned. Neither of them was caused by his back condition and neither of them caused any problems other than minor and temporary symptoms in his back.

11. In 1984 when the plaintiff became a storeman and purchasing officer, part of his work involved the movement of office furniture and the like when library staff were transferring from one office to another. Whether or not duties of that nature were required to be carried out between 1974 and 1984 is not clear. However, despite the likelihood that some of those activities would be outside the limitations prescribed by the Commonwealth Medical Officer in 1974, there was no incident of any significance during that period. The plaintiff continued to experience intermittent lower back pain which was treated satisfactorily by chiropractic intervention. It did not cause him to lose any time from work.

12. On 28 July 1984 whilst on leave the plaintiff was asked back to work to assist in the movement of furniture from an office in the provisional Parliament House to a store at Fyshwick. Two other men were there to assist him. The move involved getting four or five filing cabinets from the second floor of the parliamentary building onto the back of a utility truck. The equipment the men had to use was a hand trolley. The filing cabinets were placed onto the tray of the utility without incident and driven to the store. The men had to get the filing cabinet off the utility onto the trolley. As a preparatory measure, they lowered the tailgate of the utility and then "shuffled" the filing cabinet to the edge of the tailgate. The plaintiff then descended from the utility and with one of the other men tilted the filing cabinet and tried to slide it down with its rear against the edge of the tailgate. The plaintiff was on one side of the filing cabinet and the other man on the other side. Exactly how they held the filing cabinet is not clear, but the inference to be drawn is that as they began to slide the filing cabinet downwards, it was likely to gain momentum, placing increasing strain on the men. During this manoeuvre the plaintiff said he experienced a "fairly severe pain across his lower back". He said he mentioned this to his colleague, a Mr Arbanese, sat down for a while, stayed at work and eventually went home and resumed the period of leave. He went back to work about a week later when his leave expired, having had discomfort during the interim period. The following Friday he saw his local practitioner who gave him an injection, prescribed some sort of pills and apparently put him off work.

13. The plaintiff said in his evidence that during the time he had worked at the Parliamentary Library prior to the injury, he had seen hydraulic lifts at the National Library which were used to lift filing cabinets and trolleys. He said that he asked his boss "could we have one?" and "went so far as writing a submission to him, getting the prices for different ones", but none was made available. He said that he had been allowed to go over to the National Library to inspect the hydraulic lifts and how they worked.

14. The amendment to the statement of claim on 19 May 1989 added particulars of negligence which allege a failure on the part of the Commonwealth to warn the plaintiff of the risk of serious back injury in the event of carrying out heavy lifting or excessive bending, failing to instruct the plaintiff in safe methods of lifting and failing to draw the plaintiff's attention to the advice given by Dr Kitchin in 1973 and by the Commonwealth Medical Officer in 1974.

15. Further particulars were requested by the defendant and on 9 February 1989 the plaintiff's solicitor replied. In answer to a question regarding the allegation that the plant and equipment was not safe or adequate, the reply was simply that the plant was not safe or adequate "with respect to heavy lifting duties". There was never any allegation that the defendant failed to supply the type of hydraulic lift that the plaintiff described in his evidence as being available at the National Library, nor was there any allegation that the defendant had failed to heed any request by the plaintiff, oral or written, to be furnished with such a lift. In the absence of any such allegation prior to trial, one approaches the evidence on this aspect with circumspection. On the other hand, the plaintiff was not cross- examined on it and no evidence was called by the defendant to dispute the plaintiff's contentions, either to the existence of such equipment, or as to his requests to be supplied with it. The plaintiff's evidence on this aspect of his request occurred non-responsively and, when he said that he had made a written request for a hydraulic lift, his counsel did not take up the point. I expect that, if the plaintiff had given instructions to his solicitors along the lines of his evidence, there would have been a precise allegation in the particulars to that effect and that the plaintiff would have referred to the written request in an affidavit of discovery. Notice to produce could have been given and the document called for or made the subject of subpoena. As the plaintiff's evidence on some other matters was not convincing (the subject of comments below) the allegation relating to the request for an hydraulic lift would be a very unsatisfactory basis for a finding on liability in favour of the plaintiff if that failure to supply such a lift were the only particular of negligence relied upon.

16. However, the evidence as to the knowledge on the part of the Commonwealth of the susceptibility of the plaintiff to injury, the failure to inform the plaintiff of that susceptibility and the failure to restrict his work activities accordingly are, in my view, strong evidence of want of reasonable care on the part of the Commonwealth. Of course not every communication to any person in the employ of the Commonwealth is sufficient to establish knowledge on the part of the Commonwealth, but in this case the report of Dr Kitchin to another doctor in the Department of Health in Canberra alerted that doctor to the dangers of allowing the plaintiff to perform physical duties of a heavy nature. That doctor in turn informed the Administrative Officer, Parliamentary Library, on 13 February 1974 in the most specific terms that the plaintiff's back was at risk in the event of heavy physical work. That communication also makes reference to "the orthopaedic specialist's report dated 11 July 1973". I am satisfied on the probabilities that those responsible for monitoring the plaintiff's health and work activities as a Commonwealth employee were well aware of his susceptibility to back injury if required to carry out heavy lifting. Thus, in view of the fact that the plaintiff was not himself informed, on behalf of the Commonwealth, that he should not carry out duties of a heavy nature, and the further fact that he was not instructed on the adoption of safe lifting methods, the requirement that the plaintiff shift the filing cabinets on 28 July 1984 exposed him to an unreasonable risk of injury and amounted to breach of the duty to take reasonable care for the plaintiff's safety. The negligence was not in failing to supply a hydraulic lift but in requiring him to carry out that specific task.

17. In those circumstances, I find that the plaintiff has made out his claim in negligence against the Commonwealth. There is no allegation of contributory negligence, nor could there be, and the remaining question is the amount of damages which the plaintiff should recover.

18. I have already given a summary of the plaintiff's work history and relevant medical history prior to injury. I conclude that in view of the degenerative condition in the plaintiff's back, he was at risk of injury to his spine at all times for more than ten years prior to his injury on 28 July 1984. The risk was the greater according to the sort of activities in which he engaged. The heavier the task and the more prolonged and rigorous the bending, stooping or lifting, the greater the risk. If he had not been injured on 28 July 1984, he stood to suffer some similar injury at some time thereafter. When, where, and exactly how debilitating an injury he might have suffered, could not have been predicted nor can it be predicted now. It is possible but unlikely, that he would have continued throughout life without incapacity, or even without symptoms. There will, accordingly, have to be some discount for the damages awarded for past and future loss of earning capacity for the reasons propounded by the High Court in Malec v. J.C. Hutton Pty. Ltd. [1990] HCA 20; (1990) 169 CLR 638.

19. Ms Simpson, QC, for the plaintiff, submitted that the contingency should be disregarded and that the Malec decision did not apply, because it was likely that, if the plaintiff had subsequently suffered symptoms in his lower back without the injury on 28 July 1984, that would have been because of some other act or omission on the part of the defendant which constituted negligence. However, in my view, as a matter of hypothetical fact, any such symptom could have been precipitated by an incident away from the plaintiff's work (remembering that he has always been one for active, heavy work around the home, and a keen rider of heavy motorcycles) or even by a relatively minor incident at work which did not involve negligence on the part of the defendant. Furthermore, the onset of such symptoms could have occurred without any recognizable incident at all. However, to the extent that the contingency must be evaluated in the light of some other act or omission constituting negligence on the part of the defendant, that will be taken into account in reducing the discount on the sum awarded for loss of earning capacity both for past and future.

20. As already observed, immediately after his injury, the plaintiff continued on leave for a week, went back to work for a week and went off work again on medical advice. He remained off work until 20 August 1984. He resumed work on that date and lost no further time because of his back condition or symptoms in his back until 26 August 1986. During almost the whole of that period he continued to pursue a range of activities as extensive as he had pursued prior to the injury, both at work and away from work. However, the intermittent symptoms and incapacity which he had suffered in the decade 1974 to 1984 continued. He was not treated by way of chiropractic as he had been prior to April 1984, but by conventional medicine. I am not satisfied that the treatment was frequent. There was no evidence from his local practitioner, Dr Hutton, and nothing from Dr Hutton's file.

21. The plaintiff was referred to Dr Peter Morris, an orthopaedic surgeon, on 1 March 1985. Dr Morris reported that the plaintiff's history was one of continuing numbness and at times hypersensitivity at L5/S1 with mild pain on the medial side of the right thigh and numbness along the lateral border of the left foot. Dr Morris arranged for a CT scan on 12 March 1985 and saw the plaintiff again on 14 March 1985. The scan confirmed a suggestion on an earlier x-ray of lumbar degeneration and in particular mild bulging of the disc at L3/4, with diffuse bulging at L4/5 and, at L5/S1, protrusion of the disc into the spinal canal, impressing upon the theca, and also a small calcified disc fragment impinging upon the origin of the left S1 nerve root. Dr Morris advised that surgery might be warranted, but the plaintiff preferred to proceed on pre-arranged leave of a month. Upon returning to Dr Morris some six weeks later, the doctor formed the view that the plaintiff had marginally improved. The plaintiff declined to contemplate surgery. I note that at this stage the plaintiff was complaining of locking and swelling in the right knee, which had nothing to do with his injury, and that he declined the suggestion of arthroscopy. He was referred once more for physiotherapy. The plaintiff did not return to see Dr Morris in September as arranged and in fact he did not see Dr Morris at all until a year later on 16 June 1986. It appears that he underwent the physiotherapy recommended because he informed Dr Morris on the latter occasion that his back had improved with physiotherapy but that he had suffered a relapse of back pain and sciatica over the previous three months. Dr Morris commented that "this was consistent with recurrence of his original injury" and that the sequelae of what was essentially the same lesion had occurred intermittently over two years, that the disc prolapse was permanent and that surgery should be considered. In the meantime, Dr Morris reported to the Delegate of the Commissioner for Employees' Compensation on 1 July 1986 that although he had thought that the disc prolapse would gradually subside, he had come to doubt that the plaintiff would "get back to the heavy lifting that he was previously engaged in". This suggests that Dr Morris had a history of recent work activity which conflicts with the plaintiff's own evidence that he continued work unaltered until about November 1987. The plaintiff initially conceded in cross-examination that on 2 June 1986 a Mr Brady told him to restrict the amount of lifting he was doing because of his back, but when pressed in the witness box the plaintiff withdrew that concession. Dr Morris did not see the plaintiff again for treatment until he reviewed him on three later occasions for medico-legal assessment.

22. Although the plaintiff claimed he was never without pain in his back and leg from towards the end of 1976, it appears to be the case (and I find it to be proven on the probabilities) that in November 1987 the plaintiff's condition significantly deteriorated. On the recommendation of a colleague at work, he saw Dr Raymond Newcombe, a neurosurgeon. There was no evidence from Dr Newcombe, but it is common ground that the plaintiff was losing time from work, and in February 1988 Dr Newcombe operated to excise the disc at L5/S1. The plaintiff's condition improved somewhat after that until it reached what the plaintiff called, or agreed could be called, a "plateau" a couple of months later, at which level the pain and disability remained.

23. Although the details are scanty, the plaintiff participated in a rehabilitation programme in 1988 and 1989. At the end of August 1989, however, he said that he hurt his back during an eight week course on lifting weights. In the middle of 1988 he went back to work for a few days. In January 1989 he spent four and a half days back at work carrying out "light clerical and support functions", a job that was especially created for him at a salary equal to that of a storeman. He was permitted to stand or sit as he chose, sorting mail and using a chair and desk that were adjusted to suit him. He was given a break from this work every forty minutes and a bed in a restroom was provided for him. Still his condition became so painful during the day that this time he contacted Dr Howse from Woden Valley Hospital and was given a cortisone injection in the spine whilst at work.

24. During all this time, the plaintiff said he continued a variety of activities around his home, including landscaping, concreting and building a pergola. On these occasions he would usually have the assistance of friends to whom he would delegate all the heavy work. Nevertheless, he conceded in cross- examination that he was able to mix some of the cement and lift small stones and rocks. He also conceded that he had been able to continue his interest in the larger models of motorcycles. The general drift of his evidence was that there were really few heavy activities that he had not attempted and many that he continued to carry out occasionally, or selectively, almost always with the result that he paid for it that night or the next morning when he would not be able to get out of bed. There were occasions, he said, when he would be "off for weeks", lying around the house recuperating from such activities.

25. In 1989 Dr Howse referred the plaintiff to Dr Chandran, neurosurgeon, with a view to further surgery. There was, however, no evidence and no report from Dr Chandran in the trial.

26. A film taken of the plaintiff on 14 April 1989 and 20 April 1989 shows him performing a wide range of activities in his backyard without apparent discomfort. It was submitted that the overall effect of the film does not contradict the plaintiff's evidence. Whilst it is true that it is impossible to determine from the film the weight of the various objects that the plaintiff is seen to carry and move and to assess the exact amount of effort needed in each manoeuvre, the amount of bending and stooping in itself is sufficient, in my view, to cast considerable doubt on the plaintiff's descriptions of his continuing symptoms and incapacity.

27. It is likely that there is a psychological element in the case which may have something to do with his marriage, but there is no evidence about it and I will not speculate.

28. In 1990 the plaintiff took a trip to the west coast of the United States with friends. The trip was directed towards a proposed venture to import used motorcycles. The venture was frustrated by a government decision to impose or increase customs duty on used motorcycles. In 1991 the plaintiff visited Europe, again with friends, but this trip was for pleasure and not for business reasons. He claimed to have pain on both occasions, but obviously the pain of the first trip was not enough to dissuade him from taking the second.

29. None of the plaintiff's friends or colleagues were called to corroborate the plaintiff's evidence on matters upon which one expects there would have been corroboration if such persons had been examined in relation to complaints of pain, observations of restrictions of movement and activity, and the like.

30. The report of the Commonwealth Medical Officer, Dr Chipman, dated 22 February 1990, following a visit from the plaintiff, notes the view of Dr Chandran that a further disc excision might relieve the leg pain but the back pain may not be amenable to treatment. Despite Dr Chipman's view that it might be necessary to consider that the plaintiff was fit for light work without bending repeatedly or lifting anything heavy, Dr Chipman recommended retirement "on the basis of lumbar disc disruption, lumbar spine degeneration and left sided sciatica". He noted that the plaintiff walked with a limp, presented his symptoms in a straightforward manner and that he did not think the plaintiff was exaggerating.

31. Dr Gytis Danta saw the plaintiff on two occasions in 1991 on reference from his solicitor. He considered the plaintiff "probably unemployable" and that there was "no doubt that the condition of lumbar disc degeneration was caused by his work". I have difficulty in fully accepting Dr Danta's evidence as supportive of the plaintiff's case. I think it unlikely that the degeneration as such was caused by the work. What the work caused was symptoms in a degenerative spine. Dr Danta missed getting a history of the incident of 28 July 1984 in his first encounter with the plaintiff. In his second such interview he got a history of an initial injury in 1973 and linked that up with the two falls which the plaintiff suffered between 1974 and 1984. In an apparent effort to strengthen the doctor's evidence, the plaintiff's solicitors wrote to him in 1992 enlightening him about the 1984 incident. To a leading question put by counsel, Dr Danta expressed the view that if immediately before the 1984 injury the plaintiff had been employed in a job not involving heavy bending and lifting, there was no reason to believe that he would not have had a normal working life expectancy. He also said that, in his view, the film of 14 and 20 April 1989 which he had inspected, was not inconsistent with the history the plaintiff had given him. I reject Dr Danta's view on these two matters. I accept his opinion that the plaintiff is medically fit for work of a clerical nature, so long as he can move around.

32. In 1992 the plaintiff sold his house at Queanbeyan and moved to Mogo on the south coast of New South Wales where he lives in a caravan with his 9 year old son. He fills in his time walking up to the local shops and back (he has been told to lose weight) and does a little bit of fishing and lawnmowing. He has bought a block of land in the area and plans to build a house.

33. Dr Chipman, in evidence, having seen the film, said that if he had seen it previously he would have recommended the plaintiff for clerical work and not for retirement. Dr Morris also expressed the view, having seen the film, that in 1989 the plaintiff did not have the degree of pain that he described to Dr Morris in 1992. However, Dr Morris added that the 1988 operation itself may have contributed to the plaintiff's symptoms.

34. The medical evidence suggested that further surgery of the plaintiff's back may be of benefit. The evidence was very vague, however, as Dr Chandran, from whom there was no evidence, appears to be the source of opinion on this aspect of further surgery. The exact nature of any proposed operation, whether by way of fusion or further excision, is unclear. The chances of success, and extent of beneficial (or harmful) effect, are unknown. It remains a possibility and will be taken into account in assessing general damages. No precise amount will be calculated in respect of the cost of future operative treatment.

35. A curious feature of the case is that when it was part-heard to await some medical evidence (counsel had already addressed on liability), the solicitors for the plaintiff wrote to the Australian Government Solicitor on 16 July 1992 requesting advice as to "when and where the plaintiff may report for duty". The reply was that an examination by a Commonwealth Medical Officer was necessary and that it was up to the plaintiff to take the matter up with the relevant Commonwealth authority. The plaintiff's solicitors did take the matter up and were told that it would take some months for the various procedures to be completed. The solicitors wrote to the Australian Government Solicitor on 22 September 1992 recording these matters. However, the final paragraph of the letter states:
"... your client is well aware that Mr Mortlock is unfit for

any form of paid employment, or if Mr Mortlock does have any
residual capacity for paid employment .... your client would
be unable to place him in a suitable position."

36. The assertion that the plaintiff is "unfit for any form of paid employment" negates any suggestion that it was the intention of the writer of the letter dated 16 July 1992 to make a genuine offer on behalf of the plaintiff to return to work. The plaintiff's case is clearly that he is unemployable by reason of physical incapacity. Whether the Commonwealth or anybody else is willing or able to employ him, is not the same question.

37. From the above summary of the evidence and the issues that arose therefrom, I can state my conclusions quite shortly. The plaintiff suffered an injury to his lower back on 28 July 1984 which exacerbated a pre-existing degenerative condition in his spine. That condition may well have been symptomatic and even incapacitating at some time before the expected end of his working life, even without the subject injury. The low back pain and sciatica, mainly in the left side, has continued ever since. After initially settling during a matter of weeks, the plaintiff's symptoms continued at varying intensity depending on the activity undertaken by the plaintiff until about June 1987. In the meantime the plaintiff continued to follow a range of activities similar to but not quite as strenuous as before the injury. At some time in 1986 he was made aware by someone on behalf of the Commonwealth that he should not be involved in heavy lifting and it is likely that he restricted his activities somewhat after that, especially at work. Nevertheless, his condition became such that by early 1988 it was bad enough for him to submit to disc excision. He subsequently experienced a brief interlude of improvement which led to a levelling out by mid-1988. Since then his condition has remained much the same. In my view, he exaggerated his symptoms, the intensity of his symptoms and his incapacity. Nevertheless, he has a substantial incapacity for full-time heavy work and suffers from recurrent back and leg pain. He is physically fit for light clerical work, under suitable conditions, but is not well suited vocationally for such work. He is temperamentally quite unsuited for it. Continuing compensation and superannuation payments are likely to have robbed him of any motivation to go back to work and it is questionable whether the cessation of compensation after an award of damages will enliven such motivation. Whether the Commonwealth will ever have him back, I do not know. I do not expect that any other employer would take him on. If he does go back to the Commonwealth, I am quite sure that he will not last there and he will consider his incapacities such as to prevent him carrying on any work assigned to him for more than a short period. He is not a man who will ever work in any real sense as a clerk. Whilst for the purpose of damages a defendant must take a plaintiff as the defendant finds him, the defendant does not have to pay damages to a partially incapacitated plaintiff on the basis that the plaintiff is wholly incapacitated. Nor, in my view, can a plaintiff claim to be unable to work when he could do so if he wished. And how far can a plaintiff complain that the employer will not provide a job for him when it is obvious he would not persist in working at any job the employer might offer? Ms Simpson submitted that this was a "half million dollar case". I must say that that is not my impression. However, the initial exercise is to assess damages under the various conventional heads before reviewing the global figure.

38. For pain and suffering and loss of enjoyment of life, I award $35,000, which is intended to be in line with other awards in this Court and the Federal Court. For the purpose of interest I apportion $20,000 of that sum to the past. Interest will be calculated at 4 percent and reduced by half.

39. Out-of-pocket expenses are agreed at $7,789.94.

40. The total amount which the plaintiff would have earned for the whole of the period of absence from work from the date of injury until the hearing is agreed at $103,379.90. This sum should be discounted in respect of the factors to which I have already made reference to $75,000 and that is awarded for past loss of earning capacity.

41. For future loss of earning capacity, the rate the plaintiff would be earning if he had remained in employment in the Parliamentary Library is $421 per week. At a 3 percent discount to age 65, the loss has a present value of nearly $400,000. For the conventional vicissitudes like early retirement and the Malec factor, I would discount this sum to $250,000.

42. The Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438 component is $15,543.00

43. For future medical expenses I allow a nominal to moderate sum of $1,000, since even without the injury of July 1984 the plaintiff was likely to have consulted doctors for his spinal condition. Similarly, I award $2,000 for future medication. In the absence of evidence about how much the plaintiff received by way of Commonwealth employees' compensation, I decline to make any award for interest on past earning capacity. It is not unlikely that the compensation received exceeded, or was in the vicinity of, the sum awarded for past loss.

44. The total award is as follows:

Pain and suffering and loss of
enjoyment of life $ 35,000.00
Interest thereon $ 3,333.33
Past out-of-pocket expenses $ 7,789.94
Future out-of-pocket expenses $ 3,000.00
Past loss of earning capacity $ 75,000.00
Future loss of earning capacity $250,000.00
Fox v. Wood $ 15,543.00
Total: $389,666.27

45. This appears to be a generous sum for a man who sustained an injury to a degenerative back which put him off work for a few weeks and had little effect on him for the first couple of years, and who, while continuing to suffer moderate but recurrent back and leg pain, follows an active if modest lifestyle. It is likely that with the security of an award of damages behind him, the plaintiff's range of activities will widen, but it is unlikely that he will ever consider himself well enough to engage in paid employment in the restricted range of work for which he is physically capable. He might use his damages as working capital to set up some sort of business connected with motorcycles, as he once intended, but the use to which damages are put is normally regarded as falling outside the business of the Court and, in any event, this could not be put as more than a bare possibility. Viewed globally, the total of the amounts awarded under the various heads of damages should stand.

46. Unless the parties wish to be heard, I propose to order the defendant to pay the plaintiff's costs on a party-party basis.