Altana Risteska v The Commonwealth of Australia [1999] ACTSC 56 (11 June 1999)

Last Updated: 6 October 1999

Altana Risteska v The Commonwealth of Australia

[1999] ACTSC 56 (11 June 1999)

CATCHWORDS

TORTS - personal injury - plaintiff injured when hit on head by lid of box - no matter of principle.

Romeo v Conservation Commission [1998] HCA 5; (1998) 192 CLR 431 applied

March v E & M H Stramare Pty Limited [1991] HCA 12; (1991) 171 CLR 506 applied

Watts v Rake [1960] HCA 58; (1980) 108 CLR 158 applied

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 applied

John James Memorial Hospital Limited v Keys [1999] FCA 678 considered

No SC 1409 of 1986

Judge: Miles CJ

Supreme Court of the ACT

Date: 11 June 1999

IN THE SUPREME COURT OF THE )

) No SC 1409 of 1986

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ALTANA RISTESKA

Plaintiff

AND: THE COMMONWEALTH OF AUSTRALIA

Defendant

ORDER

Judge: Miles CJ

Date: 11 June 1999

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $112,200.00.

2. There be a stay of proceedings and a stay of execution for 14 days.

1. This is an action for damages for personal injuries sustained by the plaintiff on 26 May 1983 in an incident at the Royal Australian Mint where she was employed as a packer.

2. It is hardly necessary to preface these reasons with a disclaimer as to the historical accuracy of findings of fact in dispute which occurred 16 years ago. However, the attitude of the defendant Commonwealth is that it is putting the plaintiff to proof on liability and that the "more serious issue in the case is quantum", quantum of damages that is.

3. The money-making process at the Mint was such that coins used to spill on the floor from a conveyer belt. An electrical machine that drove the belt was surrounded by a box-like metal structure and covered by a hinged lid on the top, also made of metal. The lid measured about 80 by 28 centimetres. The lid when closed was about waist height above the floor. According to Mr Bambic, a fellow worker, the lid weighed about two kilograms.

4. The plaintiff's case was that there was nothing to hold the lid up when it was opened. There was no evidence about the nature of the hinge or hinges which attached the lid to the box. I infer that the hinge or hinges were such as to allow the lid to be opened beyond an angle of 90º, that is to say, beyond the vertical plane. Otherwise the lid would never have stayed up. There was evidence, somewhat vague but uncontradicted, that the lid had fallen down on previous occasions, as such lids tend to do.

5. The sides of the box did not quite reach the floor, so that when coins spilled from the conveyer belt, some of them would roll under the outside of the box. In order to retrieve such coins employees used to open the lid (which had the effect of stopping the machine) and then reach down and through the machine to the floor. That was what the plaintiff did on this occasion. She raised the lid and reached down in a kneeling position. The lid fell down and hit her on the head. There is no question that the blow caused her injury, but the nature and extent of the injury are in dispute. Within a day or two those in charge at the Mint installed a latch or catch or key to keep the lid from falling down. Whether the box or the lid or the latch are still in existence is unknown. Some photographs of unknown date depict the general area and the machine and, to some extent, the box with the lid closed. They depict nothing of the hinge or hinges or the latch.

6. The occurrence was clearly foreseeable and there was a relatively simple means of obviating it on the part of the defendant. No issue in the case was pursued as to the practicability or cost to the defendant of ensuring that similar obviating means be taken in similar situations, as has been urged by Kirby J in Romeo v Conservation Commission [1998] HCA 5; (1998) 192 CLR 431 at 480.

7. Mr Boris Osman, a consulting engineer, provided a report in which he said that there are (or were) a number of restraints available to keep a lid on a box open, apart from ensuring that the lid goes over the centre of gravity when fully opened. Such restraints include an air strut of the kind one sees on tailgates of station wagons and similar motor vehicles, but, strangely enough, his report does not include mention of anything like the latch which the defendant, in fact, subsequently used. Mr Osman also suggested the provision of a second person to hold the lid open. I would not find the defendant negligent for failing to use one of the various methods recommended by Mr Osman. Nor do I find any negligence in the design of the conveyer belt or the sides of the box as suggested by Mr Osman.

8. The particulars of negligence pleaded include an allegation of "failure to provide any supporting arm or other mechanism to prevent the lid of the box falling shut when opened". I find that allegation proved as it relates to "other mechanism". The simplicity and, I infer, the relatively low cost of installing a latch of the type installed in response to the plaintiff's injury, measured against the degree of likelihood of the lid falling, unless secured, and the magnitude of possible injury to any person hit on the head by a falling metal object, amongst other factors, established a lack of reasonable care on the part of the defendant.

9. Clearly, if the plaintiff had been more careful and pushed the lid a little further back, she would have avoided injury altogether. However, contributory negligence was not pleaded or pursued.

10. The plaintiff was struck on the crown of the head. There was no bleeding. She felt dizzy and sat for a while. Mr Bambic drove her home. She was "shaky" and did not sleep well that night. The next day she saw her general practitioner, Dr Madew. She has had a lot of medical attention both for treatment and for medico-legal purposes. In recent years the psychological or psychiatric aspects have received emphasis. The plaintiff never returned to work at the Mint and has not sought other work outside the house.

11. It is necessary to go back into the plaintiff's history. She was born on 24 June 1946 into a Croatian family living on the land in Macedonia, then part of Yugoslavia. She became literate in Croatian, the language taught at school. She grew up on the family's small farm and helped work it. She married at age 20. She and her husband and two small children came to Australia in 1973. She worked for three years as a cleaner until she had a third child in 1977. She resumed work away from home in 1980 when she began at the Mint. At the time of the injury the family was living at Queanbeyan in relatively comfortable circumstances which were no doubt dependent on the joint income earned by the efforts of both the plaintiff and her husband.

12. Dr Madew prescribed physiotherapy and a cervical collar which she wore, according to her evidence, for about a year, but according to other material in the case, for some months. Dr Madew also prescribed physiotherapy which the plaintiff attended two or three times a week for about a year. There were indifferent results. In fact the plaintiff claimed that the cervical collar made her condition worse. She says that she suffered dizziness, headaches, pain in the shoulders and neck. She was prescribed pain-killing medication. The symptoms and medication varied from time to time, all continue to the present day. She also claims to have restricted head and arm movement. Her daughter-in-law, Anika, does most of the cooking. Anika or some other member of the family does most of the other housework. The plaintiff would love to go back to work as a cleaner, but no one has offered her a position. She expects, or expected the Mint to provide something for her, but it has not.

13. In cross-examination the plaintiff stated that she developed back pain soon after the accident. However, there is no record of her complaining of back pain to any of the doctors before her complaint to Dr Newcombe in 1987. She declined to submit to an operation to her lower spine. She still has lower back pain. In 1993, or thereabouts, it started to radiate down her legs and still does, sometimes manifesting itself as pins and needles. As cross-examination proceeded, the plaintiff's description of her symptoms intensified. In particular she said that she could not walk properly and had to stop after a few steps and rest.

14. The plaintiff appeared to approach and leave the witness box with a limp. She did not exhibit any physical problems in the witness box until she started to describe the condition in her back. She then made gestures appropriate to back pain. Cross-examination established that the plaintiff had a history of taking days off from work on sick leave. The records of the Mint show "headaches" on four occasions in the year before the injury. A statement from a fellow worker, who was not available for cross-examination, also stated that the plaintiff used to take time off for headaches before her injury. I conclude that she probably did have headaches on one or more of the occasions when she took sick leave and probably gave "headaches" as a convenient but inaccurate reason on one or more occasions. This is consistent with her presentation as a witness.

15. Video tapes taken of the plaintiff under surveillance in May and June 1987 and in 1990 do not support her allegations of being restricted in her ability to walk or turn her head. They show her walking, driving a car, carrying a shopping bag, loading and unloading the boot of the car, all without apparent difficulty. They also show her in her backyard at the clothes hoist, winding the hoist, pegging the clothes out and so forth without apparent difficulty. They show her talking to others and socialising cheerfully. The video tapes taken so long ago give a quite different picture of the plaintiff and her lifestyle from that presented by the plaintiff in the witness box and the doctors.

16. According to the plaintiff's husband, who said that he gave up work three years ago following heart surgery, the plaintiff was as healthy and as strong as a young girl 22 years of age at the time of her injury (she was in fact 37), but she is now sick and getting worse every day, crying at night, keeping everybody awake. She only drives the car once every three months. He claimed that he was the one who always had to take the clothes to the line and although she would try to do things, she was never able to. The plaintiff's husband denied that, after she went to hospital in about 1991 for a hysterectomy, it had any effect on her ability to do things around the house. I approach his evidence with caution.

17. The plaintiff's married daughter, Snesana Buseski, gave evidence. I found her a reliable witness and not simply because she gave her evidence in English. The evidence was, however, of a very general nature. She spoke of the extraordinary responsibilities she assumed after her mother's injury when she herself was 16 years of age. These responsibilities continued for about 11 years. Assistance came when her brother married and her sister-in-law, Anika, moved into the house. Snesana moved out when she herself married in 1991. She painted a convincing picture of the plaintiff as a very hard worker both in and away from the home, who had not done much to prepare the children for the responsibilities that they assumed after the injury. Snesana also observed a personal deterioration in the plaintiff in around 1991 and a growing dependence on medication. She said that the present problem in the plaintiff's leg followed hospitalization in 1993, but in the last five years or so there has been some improvement.

18. There is no shortage of medical and other expert evidence as to the plaintiff's physical and psychological condition. Reports were admitted into evidence from 18 medical practitioners and other persons. Some of them gave evidence as well. I think it appropriate to summarise the effect of that evidence briefly and then deal with the issues which arise from it.

19. The question of disabilities and symptoms is best approached by looking at it as at various historic stages or during successive periods. I acknowledge immediately that this division of the total time since injury into different periods is artificial and that other people may prefer to regard the whole as a continuum. However, the exercise is inevitably artificial in view of the complete lack of any physical or organic basis for the plaintiff's condition as it is now and as it has been for many years and also in view of what I find to be clear exaggeration on the part of the plaintiff of those symptoms and disabilities.

20. First the injury itself. It was not serious in the sense of terrifying, life-threatening or resulting in substantial physical or cosmetic injury. Although the plaintiff told Dr Knox in September 1998 that she thought "that she might have died if she hit her head on the sharper part of the box", that statement was made in the context of an interview with a psychiatrist who was considering whether or not a condition of post-traumatic stress disorder applied. It was the first record of the plaintiff saying any such thing in the period of more than 15 years since her injury. I do not think that she entertained any such fear. There was no bleeding. The x-rays taken the day after the injury of the cervical spine and of the skull disclosed nothing. Yet I accept that it must have been more than a glancing or light blow if the evidence of Mr Bambic, that the lid weighed about 2 kilograms, is to be believed. The Commonwealth was in a position to meet that evidence and did not do so. I accept it. Mr Osman's report made no mention of the arc described by the lid or the force involved in its fall. The evidence does not permit of a conclusion about where the hinge or hinges were. The plaintiff and her witness said nothing about whether or not she was pinned down by the lid or how she removed the weight of the lid from her head, whether by pushing against it or by using her hands. Probably nobody remembers anyway. It is consistent with the plaintiff's evidence that the blow pushed her head forward and down causing some disruption to the tissues and processes of the neck without causing immediate symptoms. It is also likely that the plaintiff was put in a mild state of shock which may have masked any immediate minor neck symptoms.

21. Although Dr Madew misunderstood what had happened, he noted that it had "caused her neck to be violently flexed", which, I think, is probably correct. He observed bruising of the scalp and tenderness of the neck muscles with movement limited by muscle spasm. He certified her as unfit for work as at 5 August 1983 and continuing.

22. Dr Madew referred the plaintiff to Dr Andrews, a consultant neurologist, but Dr Andrews was not supportive. He thought that the plaintiff was exaggerating her neck pain, headaches and dizziness and should return to work. I think he was right.

23. Although it appears that the plaintiff was being paid compensation by Comcare or its predecessor, she went to her solicitors by 27 July 1983 on which date they sought a report from Dr Madew. The writ was not issued until 20 August 1986. The role of litigation or possible litigation as a contributory factor in the plaintiff's condition began at a very early stage.

24. Dr Madew further referred the plaintiff to Dr Danta, another neurologist who saw her for the first time on 29 September 1983. He had a description of the continuing symptoms. He suggested to the plaintiff that she discontinue the medication and try alternatives including enrolment at the Pain Clinic at the Woden Valley Hospital.

25. Dr Danta's view at that early stage was:

"She obviously suffered soft tissue injury to the head and neck. Treatment so far had not helped. By and large symptoms tend to improve with time, but often pain lasts for a number of years. Treatment is entirely symptomatic.

...

Since there had been no improvement in the neck so far, I feel that the prognosis is poor and she is likely to continue with her pain for a number of years."

26. I take the last sentence to mean that the treating doctor should accept the patient's complaints as accurately reflecting the symptoms and should prescribe medication appropriate for such symptoms.

27. It appears that there was a 14 year delay before Dr Danta saw the plaintiff again. I note that on 8 July 1985 Dr Chandran, a neurosurgeon, reported to Dr Danta that the plaintiff's problems were arising from cervical disc injury. I have no idea why he chose to write the report and the matter was not taken further.

28. I do not think it accurate or realistic to regard Dr Danta as a "treating doctor", but there is no doubt that his prognosis was correct. The plaintiff did indeed "continue with her pain" for a number of years. Almost immediately after her injury, the plaintiff adopted the role of an invalid or near invalid. According to the evidence of her daughter Snesana, which I accept, there was a dramatic change in the household arrangements, which I have already described. Snesana was then 16, the other children 6 and 13 years. Snesana in effect became responsible for running the household. It is impossible to be confident about these matters, and it is risky even to mention them, but it seems to me that the plaintiff's reaction to her injury was a result of personal, social and cultural factors. The plaintiff, with little education and at an early age had left a relatively impoverished background and had come to a new country of opportunity with her husband and dependent children. Then unable to speak (and still unable to read) the common language of her new homeland, she and her husband through sheer effort on the part of both of them established a lifestyle for themselves which (particularly as seen in the video tapes) appears indistinguishable from the generally affluent lifestyle around them. That was a considerable achievement and one in which she was entitled to and probably did take pleasure and pride. She probably assumed, whether consciously or unconsciously, that as she grew older and the children grew independent, they would be in a position to contribute to her support if, for whatever reason, her income or that of her husband became limited. Strangely perhaps, the children were not being reared towards that eventuality, possibly because the plaintiff and her husband both had jobs at the Mint which were (in those days) secure and not over-demanding. But with her injury and its immediate consequences, it is likely that the plaintiff saw this comfortable world fall apart. Her self-esteem as a member of the workforce and as a household manager and parent appears to have deserted her almost immediately after the injury when she was cast into the image of an invalid with a variety of medications, a cervical collar, stuck at home with the children doing the work.

29. She might have stayed in that situation for only a few years, in accordance with Dr Danta's prognosis, grim as it was, if it had not been for other factors. It is likely that as the immediate and not very serious results of the injury wore off her concern for her future grew and she began to exaggerate her symptoms. Anger with the Mint also developed and fed upon itself when she was offered a job which she could not or thought she could not do. She considered then and still considers that the Mint owed her a job and never provided it and that it was not for her to do anything about getting any other sort of work.

30. Worse than simply being denied a job would have been the advice on 18 October 1984 from the Commonwealth that she was unfit for continuing employment and that she should seek redeployment. This advice would probably have increased her sense of insecurity and fears. But in one respect the fears were not realised for a long time. The Commonwealth continued to pay her weekly compensation and, I infer, on the basis that she was totally incapacitated for work. She became the beneficiary, perhaps in the end the victim, of the compensation scheme and later the medico-legal system.

31. In accordance with the above, I find that during the period from the time of the injury to the end of 1984, the plaintiff suffered symptoms of pain manifesting as headaches and neck pain resulting in depression and disabilities which should be taken to be genuine and due to the injury. From 1984 onward the condition which otherwise might have resolved, was maintained by additional factors, some of which may have been themselves due to the injury, but others of which were certainly not.

32. In December 1985 legal aid was granted to the plaintiff to pursue her present claim. The writ was issued on 20 August 1986 and on 15 June 1987 a notice of trial was filed.

33. In mid-1986 her solicitor sent her to Dr Corry, a medical specialist in diagnosis and rehabilitation. Her complaints by that time were bizarre. In addition to the usual symptoms, she described problems with hearing, blurred vision and excessive fatigue in the right arm. Dr Corry considered that her symptoms "would appear to relate to some form of post traumatic neurosis rather than specific injury", a provisional diagnosis which has some attraction. His final observation was more hopeful than realistic:

"... if she were able to gain greater insight into her condition and adopt better coping strategies, she should be employable in her former position."

34. The video tapes of 10 and 11 June 1987 were taken at about the time her solicitors were considering the filing of the notice of trial. They show a well-presented young looking woman (then 41 years). They are not entirely inconsistent with some continuing symptoms and an incapacity for some physical tasks, but they are quite inconsistent with the presentation of the plaintiff generally to the doctors from about 1992 onward and to the Court in 1999.

35. I observe here that one would have expected her solicitors to have advised her of the possibility that she would be placed under surveillance, but I do not make a positive finding to that effect and she was not asked whether she knew or expected that she was under surveillance.

36. The Commonwealth kept the situation under review in the ensuing years to the extent that she was examined by doctors on behalf of the Commonwealth at regular but lengthy intervals. Dr Robbie, a psychiatrist, saw her twice in 1987. He could see no reason why, from a psychiatric point of view, the plaintiff could not be back at work and he considered that her depression was only minor. He agreed also with Dr White, another neurologist, who could find no reason for the plaintiff's complaints in March 1987.

37. Similar views were expressed by Dr Truman, a psychiatrist who saw the plaintiff on 21 October 1987. Dr Bridger, an ear specialist, could find nothing on 21 January 1988 to support claims of dizziness or loss of hearing and found no evidence of damage to the ear or hearing mechanism.

38. In 1987 a new factor had emerged, namely complaints of pain in the lower back. Dr Newcombe, a neurosurgeon, saw the plaintiff at the request of Dr Maguire (presumably a Commonwealth Medical Officer) on 1 December 1987. She told him that she "noted some low back pain with extension of this towards the left leg, down that [and] .... paraesthesia in the hands" as well episodic blackouts resulting in falls. Myelography revealed L5/S1 disc protrusion. Dr Newcombe made a guarded suggestion of surgery but nothing came of it. Dr Newcombe's opinion that the plaintiff's symptoms of headache, neck and shoulder pain in 1987 were likely to be the result of aggravation by the injury is too tentative for me to accept. In any event, in a later report of 15 May 1998 he stated that he saw no connection between the injury and the low back pain.

39. It may be of significance that the plaintiff told Dr Robbie in April 1987 that her husband had been on compensation for a year following a work injury. At that stage she was receiving compensation of $480 a fortnight and her husband $550 after tax.

40. Dr White examined the plaintiff again in April 1990. She raised the matter of low back pain as well as the usual symptoms. Dr Robbie saw her again at about the same time. She told him that she had changed her local general practitioner (presumably Dr Madew) to Dr Niewadomski and was seeing him every six weeks as well as seeing Dr Bannister in Sydney for her low back pain. There is no report or other material from Dr Bannister or Dr Niewadomski.

41. On 4 December 1991, Dr Roarty, an orthopaedic surgeon, reported that the plaintiff had no serious disability in her spinal column and that she should undergo a rehabilitation course with a view to re-entering the work force for work not involving the lifting of heavy weights or repetitive bending.

42. On 2 January 1992 Dr Heathershaw, Senior Commonwealth Medical Officer, recommended cessation of compensation. Dr Heathershaw's opinion was based on the report of Dr Roarty just referred to and the report of Dr Roberts, a psychiatrist, which was not in evidence. Dr Heathershaw also recommended that the plaintiff be offered full duties in the proof packing area of the Mint where there was no heavy lifting or repetitive bending. It is not clear that the plaintiff was ever offered these duties and the onus on these issues are on the defendant. However, it is clear that the plaintiff did not believe that she was capable of carrying out such duties and did not intend to try. She still does not intend to do so.

43. Despite the absence of Dr Roberts' report, I find that Dr Heathershaw had every reason to conclude both that the plaintiff was fit for the sort of work recommended and that any continuing physical limitation was not due to the injury in 1983. That opinion was in accordance with the over-whelming opinion of other medical practitioners.

44. The Commonwealth wrote to the plaintiff on 15 July 1992 advising that it proposed to "cease liability ... on and from the current date" and invited a response from the plaintiff. There is no evidence of any response. The Commonwealth did not carry out its threat to redeploy her until 13 May 1998.

45. There was no evidence of any medical examination for the Commonwealth between that of Dr Roarty in December 1991 and that of Dr White on 6 November 1998.

46. Although it is likely that the plaintiff continued under the care of Dr Niewadomski, there was no report from that source either.

47. Dr Danta saw the plaintiff for the second time in over 13 years, namely on 17 April 1997. He thought that by that stage she had developed chronic pain syndrome and chronic disability syndrome. A psychologist, Mr Tom Sutton, saw her in late 1997, read all or most of the reports, performed tests and concluded that she was suffering clinical depression and anxiety, the cause of which was "nebulous". He thought that the accident "appears to have been a trigger" to a pre-disposed personality, but he could find nothing such as childhood or other emotional trauma which would have given rise to the predisposition.

48. The strength of the plaintiff's case as to her condition in recent years rested ultimately on the evidence of Dr Robert J Scott and Dr William Knox. Dr Scott is described as an occupational physician. His letterhead is sub-titled "Med Assessments Pty Ltd". He has a lot of letters after his name, but I do not really know where his experience and expertise lie. He saw the plaintiff on 21 December 1997. He concluded that, after an injury of no seriousness, the plaintiff "moved into a state of chronic pain and disability and severe depression", that she was not malingering, but that `her psychological state' allowed nothing else but exaggeration". There was, Dr Scott thought, "some degree of causal relationship between her condition and the 1983 head injury". I think, with respect, that this is a tentative and inconclusive opinion.

49. Dr Knox is an experienced practising psychiatrist who furnished a report and was cross-examined. It is clear that Dr Knox recognized and wrestled with the problem of the causal link between what he saw as the plaintiff's continuing condition and the injury some 14 years previously. He did not consider that the plaintiff was affected by post-traumatic stress disorder. He thought that immediately after her injury there had been an acute stress disorder and at the time he interviewed her that she was suffering from adjustment disorder with mixed anxiety and depressed mood with no prospect of improvement and sufficient to incapacitate her from work for the rest of her life.

50. Dr Knox said that his view was not changed by assuming that the plaintiff has exaggerated her symptoms and disabilities. He said that as a result of mood disturbance and chronic pain, the plaintiff believes that she is unable to work and thus has become dependent on family members, which is "partly a cultural thing" but still "largely a psychological condition similar to a conversion disorder where somehow psychological problems manifest in disability". In the plaintiff's case it manifests as pain.

51. In cross-examination Dr Knox summed up his position as follows:

"People can't understand this very typical scenario in migrants, and it's very frustrating to me and other people, because they don't get better, because there's something going on. They don't all just decide on one day to stop work and tell lies and sit reading the newspaper, there's something happening to them physically and mentally, and I think this lady did become (sic) to believe that she had seriously damaged herself in 1983. ... Sure she's not given me full details of her later history were - which, I think, aggravated and just prolonged and added to the difficulties which were already well established in the mid and late eighties."

52. There is no doubt substance in the view so expressed on the matter of causation viewed from a medical or scientific point of view. Moreover it allows for the legal principle that a defendant takes the plaintiff as found. However, ultimately I reject Dr Knox's view on the causal link. It is well accepted that causation in a scientific sense is different from causation for the purpose of determining legal liability In March v E & M H Stramare Pty Limited [1991] HCA 12; (1991) 171 CLR 506, Mason CJ said at 516:

"The cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations."

See also Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.

53. Where the defendant's conduct is accepted as causing the plaintiff's condition, the onus is on the defendant to show that other causes are responsible for the continuation of that condition and the defendant's conduct has ceased to operate as a cause: Watts v Rake [1960] HCA 58; (1980) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.

54. The question ultimately then becomes whether, according to ordinary standards of common sense and fairness, the defendant's conduct should be regarded as having caused, that is as having set in train a series of events which cast responsibility on it, for the plaintiff's condition as it persisted over the years. I think that the question must be answered in the negative. That is, as Mason CJ put it, a value judgment. As such it is not easily capable of explanation. However, in order to reinforce it I would point to the following findings which differ from the assumptions made by Dr Knox, findings upon which his opinion is partly dependent:

* The presentation of the plaintiff in the witness box was that of a person who was on some matters of importance not telling the truth. Dr Knox thought that she displayed genuine pain in the back. On the contrary, it appeared to me that it was only when her attention was directed to her back that she displayed pain and a conclusion that she was at least exaggerating, was inevitable.

* Dr Knox appeared to think that there was objective evidence of continuing soft tissue damage when he saw her in late 1988. That is contrary to the view of those with greater expertise in the field such as Dr Andrews, a neurologist, Dr Newcombe, a neurosurgeon and Dr Roarty, an orthopaedic surgeon. "Soft tissue damage" immediately after frank injury is understandable to a lay person. But as a medical diagnosis or scientific explanation 15 years after a minor injury which produced bruising but no bleeding or bony damage, it is unconvincing.

* Dr Knox thought that what was put to him about the content of the video tape was consistent with the plaintiff having good days and bad days or trying occasionally to do things which she could not do often. On the contrary, I thought that the video tapes filmed several years apart were more consistent with activities on the part of the plaintiff which were typical of her general condition and behaviour. The photographer was not called to suggest that there were other tapes or other days when the plaintiff was shown to be less active or that the photographer deliberately waited until the plaintiff could be shown to be performing a wider range of activities without apparent difficulty. The video tapes show the plaintiff enjoying a lifestyle which is quite contrary to her evidence.

55. I conclude that by mid 1987 it is probable that the ongoing effects of the injury had ceased in any real sense and that if the plaintiff "believed" herself to be ill and to suffer real pain, that is not a matter for which the defendant should be held responsible. From about the middle of June 1987 onward it is likely that her deteriorating low back condition assumed an increasing importance in her view of herself. This was aggravated, or likely to be aggravated, in 1991 or 1992 with her hysterectomy. The general situation is likely to have been further aggravated in 1997 or 1998 when the litigation was revived.

56. It may be that the continuing pattern of compensation by the Commonwealth until July 1992 may be construed as an admission on the part of the Commonwealth that it was responsible for the plaintiff's incapacity for work. However, the probative value of any such admission is another matter. It is certainly not conclusive or binding in any legal sense.

57. In the light of the above, the defendant should not be held liable for any loss occurring beyond about the middle of 1987.

58. The award for pain and suffering has regard to the recent decision of the Full Court of the Federal Court of Australia in John James Memorial Hospital Limited v Keys [1999] FCA 678 which serves as a benchmark to be observed by this Court in awards under that head of damage. Unlike in that case, there is no discount in the present case for a painful and debilitating condition suffered before injury and the likelihood that without injury the plaintiff would have suffered an aggravation of her condition in any event.

59. I award damages as follows:

Pain and suffering $40,000.00

Interest thereon $3,200.00

Loss of earning capacity to mid-1987

agreed at $260 per week $55,000.00

Out-of-pocket expenses (estimated to mid

1987 in proportion to claim as made) $4,000.00

Fox v Wood (also estimated to mid 1987) $10,000.00

Total: $112,200.00

60. I note the total as a global award and see no need to revise it in order to fit it into some sort of tariff or make it appear to accord with other awards in the Court.

61. The plaintiff is to have leave to enter judgment for the total sum of $112,200.00. However, I stay further proceedings and execution for a period of 14 days during which either party may apply under the slip rule in respect of the arithmetic.

62. Unless the parties wish to be heard, the defendant is to pay the plaintiff's costs.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, the Chief Justice.

Associate:

Date: 11 June 1999

Counsel for the plaintiff: Mr F J Purnell SC

Solicitor for the plaintiff: Vandenberg Reid

Counsel for the defendant: G J D Richardson SC

Solicitor for the defendant: Australian Government Solicitor

Dates of hearing: 9-11 March 1999

Date of judgment: 11 June 1999