McIlwraith v State of New South Wales [2000] NSWSC 533

New South Wales Supreme Court

CITATION : McIlwraith v State of New South Wales [2000] NSWSC 533 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12089 of 1989 HEARING DATE(S) : 22-26 May 2000 JUDGMENT DATE : 15 June 2000

Paul McIlwraith (Plaintiff) PARTIES : v State of New South Wales (Defendant) JUDGMENT OF : Master Malpass

COUNSEL : A Katzmann SC/W Moen (Plaintiff) Mr C O'Connor QC/Mr M Gilbert SOLICITORS : Geoffrey Edwards & Co (Plaintiff) Moray & Agnew (Defendant) CATCHWORDS : Assessment of damages - no question of principle LEGISLATION CITED : Supreme Court Rules 1970, Part 33 rule 8A. CASES CITED : Circosta v Falzon (1999) NSW CA 308. Sharman v Evans (1977) 138 CLR 563. DECISION : See paragraphs 52, 82-104.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 15 JUNE 2000

12089 OF 1989 PAUL McILWRAITH v STATE OF NEW SOUTH WALES JUDGMENT 1 The plaintiff claims damages arising out of personal injury suffered in an accident on 7 November 1986 (when he was 39 years of age). The question of liability has already been determined in favour of the plaintiff. The court is now required to assess the damages. 2 The plaintiff has given lengthy oral evidence. He was subjected to a long cross-examination. During that cross-examination he was shown film taken on three occasions (24 July 1993, 10 January 1998 and 1 April 2000). He has called Robert Mackie (Assistant Dean, School of Humanities, Newcastle University), Peter Korsche and Kathleen Butler (the plaintiff's present wife). 3 The parties have tendered considerable documentation (including reports from experts). The plaintiff has seen many doctors. Largely, there are no significant medical issues. The defendant has tendered videos of the film. It has not adduced any oral evidence. The plaintiff has tendered Exhibit Q (which deals with the extent of the video surveillance). 4 I have closely observed the demeanour of the witnesses during the giving of evidence. In assessing credibility, I have had regard both to demeanour and evidence. 5 The plaintiff was born on 18 August 1947 (now 52 years of age). He completed his Intermediate Certificate. He left school before doing the Leaving. 6 The plaintiff commenced with the Department of Youth and Community Services (the Department) as a permanent/casual in 1985. On 28 July 1986, the position became permanent. He was working at the Mt Penang Detention Centre as a youth worker. 7 The plaintiff's oral evidence provided a pre-accident work history. The information provided tended to be general in nature and in some instances little information was provided. 8 He first gained employment in about 1962. Initially, (until about 1965) he had worked in the accountancy field. He acquired certain qualifications. Later, he had other employment (including production costing and managerial work). It was largely of an administrative or clerical nature. He had progressed to a level of executive manager. He left that job in about 1977. 9 During this period between about 1962 and 1977, there were a number of jobs. Generally speaking, they were not of lengthy tenure (usually in the order of two or three years). 10 Lastly, there was a period between about 1977 and 1985. During this period he presented himself as being self employed (this may not accurately describe his situation). He gave evidence of self employment between 1977 and 1979. No other details were given. In 1979, there was an attempted reconciliation. They moved to the Central Coast and he did some work as a truck driver. In about August 1980, one of his children (Keedan) was found to have cerebral palsy. His wife was then working (probably with the Department). He said that she would not look after Keedan. There was a further separation. He said that he became a single parent looking after the children. He was unemployed. He said that he would do whatever work he could from home (what was in fact done remained largely unclear). The expression "odd jobs" appeared in the evidence. He received a sole supporting parents pension. In 1985, Keedan was admitted for residential care at the North Rocks School. 11 He has been married twice. He was first married in 1968. There were six daughters of that marriage. It seems to have been a troubled relationship. There were a number of separations. In 1994, this marriage was dissolved. 12 He married his present wife on 20 November 1998 (they had met in 1993). The wedding had been postponed on a couple of occasions because of his condition. She is now 27 years of age. She is a lecturer at University of Newcastle (in sociology and anthropology) on a nett salary of $27,000. On 12 December 1999, a daughter was born of that marriage. 13 At the time of the accident, he said that he intended to remain with the Department. He said that he enjoyed his work. He said that he looked forward to a promising career. He had in mind being put through university training and becoming a staff psychologist. 14 A description of the accident was given in the hearing before Allen J. The plaintiff fell through a storm drain opening. He was trapped by a concrete slab. He suffered injury to his left knee. After receiving first aid treatment, he remained on duty for the remainder of his shift. He continued working until 30 December 1986. Following the accident, he was assisted by a second officer. He said that he stopped working because of increasing problems. He had been suffering from inter alia instability, swelling and locking of the knee. 15 Prior to stopping work, he had been involved in an incident on 28 December 1986. He had been supervising a touch football game. A boy ran into him. He said that it made his knee pain worse. The problems from this impact later settled down. 16 Since 30 December 1986, he has not had other remunerative employment. In effect, apart from his 18 months with the Department, he has not had employment for any significant period since about 1977. 17 On 31 December 1986, he sought medical treatment (Dr Meulet). He was referred to an orthopaedic surgeon (Dr O'Malley). He was certified as unfit for work. An Arthroscopy was arranged by Dr O'Malley. This was performed on 13 March 1987. It revealed a torn medial meniscus on the left side. A left medial menisectomy was performed. 18 He developed a haemorthrosis. On 5 May 1987, fluid was drained from his left knee by Dr O'Malley. Wasting of the left quadriceps muscle was revealed on examination. He was prescribed exercises and physiotherapy. 19 He had been on voluntary workers compensation. The payments discontinued on 15 August 1987. In October 1989, he made application in the Compensation Court. On 6 March 1991, an award was entered in his favour. He has continued to receive compensation. 20 He was medically examined on behalf of the Department. By December 1989, he had been notified that it had been determined that he was not fit to discharge the duties of his position (Exhibit B). The plaintiff decided not to appeal against the determination. The December communication advised that, if there was no appeal, action for medical termination could proceed without delay. 21 He said that he had hoped to return to work on light duties. It is his evidence that he had been told by Dr Meulet, in mid 1988, that he could do light work. He was not successful in obtaining light work with the Department. It seems that at least by 1988 he may have been aware that the department would not have him back until he had "a 100% fitness certificate" (or was "totally fit"). He said that it was not until about 1991 that he became aware that he was no longer employed by the Department. There seems not to have been any formal notification of termination. He did not receive any pay after 30 December 1986. He said that he was of the understanding (which he later described as a misunderstanding) that he still had a future with the Department "through to 1993, 1994". 22 By 1994, his only attempts to obtain work were with the Department. He wanted to go to university. He said that in 1994 he determined that the best course was to obtain academic qualifications. In 1992, he had sought financial assistance in retraining from the defendant's insurer (in particular undertaking a course in applied psychology at university). These attempts were not successful. His wife encouraged him to pursue an open foundation course and he decided to enrol in a social studies course at the University of Newcastle. He presents this decision as an endeavour to create further qualifications and to find a position for himself. There was an unsuccessful attempt at work during last year. Largely, he has done little else to obtain employment. 23 The unsuccessful attempt took place in about October 1999. A friend (Mr Korshe of V W Performance Centre gave him a trial run. It was abandoned on the third day). Mr Korshe said that he was paid in cash (about $400) and that later, this money was returned by the plaintiff. This evidence had some curious features. 24 The job involved heavy work lifting spare parts (some were 10 - 15 kilograms) and being on his feet for long periods. It has been described as a demanding physical job. In the light of his complaints, it would seem to have been unsuitable employment which would not have been recommended by his medical advisers. 25 He has proffered explanations for his failure to seek work. I shall refer to some of them. There were reasons related to his having a future with the Department (see inter alia Transcript p.60 (40) ). He has said that the Department either told him or regarded him as unemployable (the other evidence merely suggests that it had no place for a worker who was only capable of performing light duties). Contrary to the medical evidence, there were periods when he regarded himself as unfit for work or incapable of seeking it (inter alia in 1993 and 1994). There was a period when he was the secretary of the local RSL Club (said to be on a voluntary basis). During this period he played snooker for the club and he accepted that he could be regarded as what was described as having a high profile within the club. He said that he discussed his situation with various members of the club and came to the view that he was unemployable. He has said that after making informal inquiries, he determined that the best course was to obtain academic qualifications with the end of making himself saleable. 26 In a report dated 18 February 1991, Dr Millons has recorded the following:- "He has not worked for four years. He has not yet made up his mind in which direction he will go. He will just take things as they come". 27 There was no specialist treatment or surgery after May 1987 until 1994. However, he did see many specialists (including Drs. O'Malley, Pillemer, Claxton, Middleton and Smyth). It appears that during 1990, he was referred inter alia to Drs. Claxton and Pillemer and ceased seeing Dr O'Malley. 28 He gave this evidence:- "Q. Well, what was your expectation after you'd had the meniscectomy back in 1987? A. That within a few weeks I'd be 100 percent. Q. And what, in fact, transpired? A. I had nothing but problems after that, the - it never got better. It continually had periods of when it was very bad, periods of when it was simply bad but nothing towards a cure had been achieved by the surgical procedure and the information I kept getting was that there was nothing more to be done, this is from Dr O'Malley, I had to bear it but it was becoming increasingly unmanageable and I wanted another opinion. Q. During the period from 1987 until 1994 when you came to see Dr Cross what problems were you having with your knee? A. Instability, varying levels of use from really uncomfortable to immoveable chronic knee locking, of crunching when you moved it, great feeling of instability when one tried to walk on it, especially over sloping or broken ground, great deal of difficulty going down stairs and tedious going up stairs; I had to take my time." 29 Apart from what he had been told in mid 1988, at least by 1990, his assessment of his capacity for employment was not consistent with the medical advice he was receiving inter alia from his own experts. The view of the doctors was that he was fit for light work (including work of an administrative or clerical nature). It was said that he could do a clerk's job without any difficulty. The restriction lay inter alia in the areas of heavy lifting and labour activities (mention has also been made of a lot of driving, walking or climbing). 30 On 28 August 1993, he said that he had a bad tumble. His knee suddenly gave away and he fell down stairs on to his back and left shoulder. He suffered other injuries in this incident. It appears that largely these injuries have recovered. 31 In 1994, he enrolled in a Bachelor of Social Sciences course at Newcastle University. It is a three year course. At the present time, he is part way through it. Exhibit E is a Student Online Transcript. As I understand the position, it sets out his progress up to the middle of 1999. If this is the case, it would seem that little was attempted in 1999. His evidence is that he is still doing the course. There is no further information as to what is being attempted this year. He has said that because of problems arising from his injuries, he has withdrawn from courses. He anticipates completion of the course towards the end of 2001. He said that he wants to work as a researcher and use his qualifications of anthropology and social sciences in relation to indigenous affairs in this country. He has in mind a Master's Degree and a PhD. He has aspirations to do some lecturing but realises this may be difficult because of his age. 32 In January 1994, because of lack of improvement in his knee, he was referred to Dr Cross. He said that he continued to have instability and locking problems. He described the pain as the worst that it had been. He underwent a further arthroscopy. It showed significant arthritis in the medial compartment and a tear of the medial meniscus. A partial medial menisectomy was performed. He was noted to have marked notch osteophytes and a notchplasty was performed in an attempt to regain a range of motion. Following these procedures, he said that there was initial improvement. He felt much better and enjoyed a vast reduction in pain and some increase in mobility. He was treated with physiotherapy and medication. 33 The plaintiff said that the condition of his knee deteriorated with time and the pain became unbearable. In April 1997, he was referred to Dr Caldwell. In February 1998, there was a further arthroscopy. He underwent a high tibial osteotomy. Following these procedures, there were complications (including a thrombosis). 34 Thereafter he was bedridden for about six weeks until the thrombosis had been resolved. 35 He said that he was delighted with his condition in May or early June 1998. Subsequently he had a fall. Dr Caldwell arranged for him to be seen by Dr Dalton. Dr Dalton referred the plaintiff to a physiotherapist and recommended lumbar stabilisation exercises. He regarded the plaintiff as making reasonable progress with treatment. 36 Since then, he has had physiotherapy on and off (for his back problems). He wears a wedge in his left shoe. 37 In September 1998, because of swelling and locking he once again saw Dr Caldwell. Dr Caldwell performed a further arthroscopy and removed loose bodies in October 1998. 38 He describes the present position of his knee as very painful. The pain is increasing. He said that it is progressing towards the end of the useful life of the osteotomy. His back is said to be a lot better (there has been improvement since the middle of 1998). He expects further improvement after the knee replacement. 39 The only contemporary reports are from Drs Dalton and Millons. There are reports prepared during the earlier part of 1999 (including reports from Drs Pillemer, Cross, Caldwell and Claxton). 40 He was seen by Dr Dalton on 17 May 2000. Dr Dalton expressed the opinion that the plaintiff's gait and the condition of inter alia his left knee had improved since May 1999. He was observed to have a mild limp. Apart from continuing with his exercise programme, he had received little in the way of treatment since May 1999. The history given to Dr Dalton was of episodic back pain. Apart from continuing with the exercise programme, little else was thought to be required by way of treatment for it. 41 He was seen by Dr Millons in April 2000 (and prior to that in May 1999). Dr Millons was qualified by the defendant, but the plaintiff tendered his reports. 42 In his report dated 7 April 2000, he said:- "There does not appear to have been a great deal of change in Mr McIlwraith's presentation since I saw him last. His left knee has perhaps deteriorated a little since then with some increasing stiffness. He is complaining of increasing pain through the knee and when pain becomes intolerable to him then he will have to contemplate undergoing a total knee replacement. From his statements that does not appear to be far away. Mr McIlwraith is known to have some constitutionally based attritional changes in the lower lumbar region which are being aggravated by his altered gait pattern. He claims his back pain is getting worse yet his back seems to exhibit a good range of movements and I would doubt whether there is much untoward going on there. He should keep up with a gentle regular exercise program. Swimming would be good for him. Clearly with some limited mobility and agility as a result of his left knee problems he would certainly have difficulty performing the home duties and his gardening and would need help with those. I noted before that perhaps two hours a week should cover that. That figure still seems appropriate." 43 It has been said that a full knee replacement will take place "sooner rather than later" (the plaintiff is anxious to have it as soon as possible, possibly next year). The plaintiff has given evidence as to his "expectation and hope" (Transcript p.39) in the following terms:- "Q. Do you have any hopes or expectations once the total knee replacement is effected? A. Yes, I do. Q. What are they? A. I hope for a vast easing of the back pain problem because my gait will never be perfect. I will have greater strength of the leg. I am advised a replacement knee will function as good as my remaining knee and therefore I will have straight legs and straight legs will eliminate some of my discomfort and pain and I will be able to move around. That is my expectation and hope."