Hunold v Twinn[2018] QDC 43

DISTRICT COURT OF QUEENSLAND

Introduction

2. [2]
   The plaintiff was partying into the early hours of the morning at various night clubs along the popular Orchid Avenue strip in Surfers Paradise on 22 August 2009. Around 4.00am, the plaintiff’s sister and his cousin became embroiled in an argument with two other females on the footpath. The plaintiff stepped in to assist. The police arrived and the plaintiff was arrested for public nuisance. The plaintiff alleges he was injured due to the manner in which he was arrested. He claims that the actions of the first defendant, who was the arresting officer, were an assault and battery and he seeks damages for a range of consequential injuries. Both liability and quantum are in dispute.

The pleadings

The plaintiff’s pleaded case

3. [3]
   The circumstances in which the injury is alleged to have occurred are pleaded in [3] of the plaintiff’s statement of claim filed 16 December 2014 (“statement of claim”) as follows:

[3]On or about 22^nd August 2009 at approximately 4:00 a.m. on Orchid Avenue at Surfers Paradise in the State of Queensland, whilst engaged in his duties as a police officer, the First Defendant:-

(a)Failed to identify himself to the Plaintiff as a police officer;

(b)Approached the Plaintiff from behind without warning;

(c)Grabbed the Plaintiff’s shoulders;

4. (d)
   Kneed or kicked the Plaintiff to the back of the Plaintiff’s knee/or hamstring;

5. (e)
   Dropped the Plaintiff to the ground;

6. (f)
   As the Plaintiff lay curled on the ground, kneed him heavily on his right hand flank;

7. (g)
   Forced the Plaintiff’s head into the ground.

4. [4]
   It is pleaded in [5] and [6] of the statement of claim that the acts referred to in [3] constituted a wrongful assault and battery of the plaintiff by the first defendant for which the second defendant is vicariously liable.

5. [5]
   By his amended reply filed 1 September 2015, the plaintiff pleads that:

1. (a)
   the first defendant gave a direction to the plaintiff to place his hands behind his back, but only after the first defendant had violently kneed the plaintiff in the back;

2. (b)
   the plaintiff was not aware of the presence (specifically) of a police officer before that direction was given;

3. (c)
   if the plaintiff held his arms above his head to any extent (considering he was lying quite flat on the ground), that was a result of the way he fell, or an instinctive attempt to protect his head from an unknown source of attack;

4. (d)
   once the direction to put his hands behind his back was given, the plaintiff realised a police officer was present, and complied immediately with the direction; and

5. (e)
   the plaintiff does not know whether, and if so at what point, the first defendant struck him with his right knee for a second time.^[1]

6. [6]
   In [4] of the statement of claim, the plaintiff alleges that as a result of the actions in [3], he sustained injuries particularised as follows:

1. (a)
   fracture of the right transverse process of L3 lumbar spine;

2. (b)
   bruising to the right forehead; and

3. (c)
   Adjustment Disorder with Mixed Anxiety and Depressed Mood.

7. [7]
   The plaintiff claims amounts for general damages, past economic loss with interest, future economic loss (and future superannuation), special damages and future medical, pharmaceutical and other expenses.^[2]

The defendants’ pleaded case

8. [8]
   By their defence filed 9 January 2015 (“defence”) the defendants admit [3](a), (b), (c), and (e), of the statement of claim but deny [3](d) and (g) as being contrary to fact and [3](f) on the grounds that the:

1. (a)
   plaintiff was not curled on the ground but was instead raising his arms above his head failing to comply with the direction to place his hands behind his back;

2. (b)
   first defendant was kneeling to the right of the plaintiff;

3. (c)
   first defendant struck out with his right knee towards the thigh area of the plaintiff to attempt to have him comply with the first defendant’s direction;

4. (d)
   plaintiff did not comply with the direction to place his hands behind his back;

5. (e)
   first defendant again struck the plaintiff with his right knee;

6. (f)
   plaintiff then complied with the direction to place his hands behind his back and was handcuffed.^[3]

9. [9]
   In relation to liability, the defendants deny [5] of the statement of claim on the grounds that:

1. (a)
   the first defendant reasonably suspected the plaintiff had committed and was committing an offence;

2. (b)
   pursuant to s 365, Police Powers and Responsibilities Act(2000) (“PPRA”), the first defendant was authorised to arrest the plaintiff;

3. (c)
   in effecting the arrest of the plaintiff, pursuant to s 615 of the PPRA, the first defendant was authorised to use the force reasonably necessary to effect the arrest; and

4. (d)
   the force used by the first defendant against the plaintiff was reasonably necessary.^[4]

10. [10]
    By their further and better particulars of the defence filed 11 May 2015, the defendants allege:

1. (a)
   the first defendant suspected that the plaintiff committed an offence in the following circumstances:

1. (i)
   he observed a group of persons fighting on Orchid Avenue;

2. (ii)
   the plaintiff was standing in the group with his back to the first defendant and was striking out with both arms into the crowd of people in a violent manner; and

3. (iii)
   the plaintiff’s conduct by behaving in a violent way caused the first defendant to suspect that the plaintiff was committing a public nuisance offence pursuant to s 6 of the Summary Offences Act 2005 (Qld).^[5]

2. (b)
   the suspicion was reasonable as the first defendant had personally observed the conduct which he considered constituted a public nuisance offence.^[6]

3. (c)
   the force used by the defendant as pleaded in [4](d) of the defence was reasonably necessary in the following circumstances:

1. (i)
   the first defendant observed the plaintiff had already displayed aggression by physical assault of persons in the crowd of people;

2. (ii)
   there were a number of potentially volatile persons involved in the fracas and the first defendant considered that the situation needed to be dealt with quickly;

3. (iii)
   the first defendant considered it reasonably necessary to act swiftly to prevent the plaintiff from engaging in further violent acts by placing the plaintiff on the ground;

4. (iv)
   as the first defendant took hold of the plaintiff, the plaintiff pulled away so that the first defendant considered it necessary to apply further force to the plaintiff to take him to the ground and shouted at the plaintiff to put his hands behind his back;

5. (v)
   as the plaintiff did not comply with the first defendant’s instruction and instead it appeared to the first defendant the plaintiff was attempting to stand, the first defendant considered it reasonably necessary to apply pressure to the plaintiff’s shoulder to prevent the plaintiff from standing and potentially continuing to act in a violent manner;

6. (vi)
   after the plaintiff again failed to comply with the request to place his hands behind his back and instead raised his arms above his head, the first defendant considered it reasonably necessary to strike the plaintiff with his right knee toward the thigh area of the plaintiff to attempt to have him comply with the first defendant’s direction; and

7. (vii)
   when the plaintiff still did not comply with the direction to place his hands behind his back, the first defendant considered it reasonably necessary to again strike the plaintiff with his right knee in a further attempt to have him comply with the first defendant’s direction.^[7]

11. [11]
    The defendants admit the plaintiff sustained personal injury as a result of the actions of the first defendant as pleaded in [2](c) of the defence but they do not plead [as they are not required to under the Uniform Civil Procedure Rules 1999(Qld)] to the specific injuries particularised by the plaintiff in [4] of the statement of claim.^[8]It is therefore not apparent on the pleadings what personal injury the defendants admit. I raised this issue with counsel for the defendants during the course of the trial. Counsel stated that the defendants admitted on the face of the medical evidence, the fracture of the right transverse process of L3 lumbar spine was sustained.^[9]

12. [12]
    In short, the defendants admit the plaintiff sustained a fracture of the right transverse process of L3 lumbar spine as a result of the actions of the first defendant on 22 August 2009 [but say the injury occurred in the manner pleaded by them in [2](c) of the defence]. As discussed below in these Reasons, there is a tension between this admission and the defendants’ pleadings and particulars of the first defendant’s actions.

13. [13]
    As far as quantum is concerned, the defendants admit (subject to it being on the basis of their pleaded case as to the manner of the arrest) that the plaintiff has:

1. (a)
   lost some amenities of life;^[10]and

2. (b)
   suffered and will continue to suffer pain, suffering, inconvenience and disability;^[11]and

3. (c)
   required medical and other similar treatment;^[12]and

4. (d)
   incurred special damages and other out-of-pocket expenses;^[13]and

5. (e)
   suffered in the past an impairment of his earning capacity.^[14]

14. [14]
    However, the defendants deny the plaintiff:

1. (a)
   will require further medical and such treatment as it is contrary to the medical evidence relied upon by the defendants;^[15]and

2. (b)
   will incur special damages and other out-of-pocket expenses in the future as it is contrary to the medical evidence;^[16]and

3. (c)
   has suffered any impairment of earning capacity that will cause in the future, economic loss, on the grounds that:

1. (i)
   the plaintiff suffered from back pain from 13 years of age;

2. (ii)
   on 25 May 2009, the plaintiff attended Dr Januwala, complaining of back pain when sitting or standing still for longer than 10 minutes;

3. (iii)
   the plaintiff suffered lower leg compartment syndrome precluding him from performing his duties as a storeman in the army.^[17]

15. [15]
    Overall, the defendants deny the plaintiff is entitled to an assessment in the amount claimed on the basis that it is excessive and contrary to the evidence.

Credibility

16. [16]
    The defendants submit that the plaintiff is not a witness of credit to such an extent that it is impossible to know what part, if any, of his allegations are true and upon which the Court may safely act in imposing liability or damages on the defendants.^[18]

17. [17]
    The defendants point to a number of authorities to support this submission.^[19]

18. [18]
    In my view, the following well-known passage about credibility by Lord Pearce in Onassis and Calogeropoulos v Vergottis is the most apposite to the present case:

‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken?  On  this  point  it  is  essential  that  the  balance  of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.^[20] [emphasis added]

19. [19]
    There are many aspects of the plaintiff’s evidence which are troubling. These are discussed in more detail where relevant later in these Reasons. Some of the matters I find reflect poorly on his credibility include:

1. (a)
   The evidence that the plaintiff requested Dr d’Arville, the medical examiner performing the plaintiff’s assessment for his discharge from the army on 30 September 2011, not to include other injuries that were not the subject of this claim in the examiner’s assessment “as they would potentially bias the outcome of civil proceedings”.

2. (b)
   The tendency of the plaintiff to downplay or ignore his pre-existing back pain and compartment syndrome.

3. (c)
   The extent of the plaintiff’s ongoing back pain is not consistent with many of the activities he undertook as evidenced from the extracts from his Facebook posts.

4. (d)
   The inconsistencies between the plaintiff’s evidence in chief and his evidence under cross-examination about the level of his incapacity immediately following the incident. For example:

1. (i)
   in respect of the initial four hours following the arrest, the plaintiff’s evidence in chief was:

As I started to calm down I started to get a lot of lower back pain and … my face was sore as well…. after a couple of hours in the cells … I was laying on the bench on my back because it started aching a fair bit…. I tried to get up. I couldn’t get up. They asked me what was wrong and I told them that I can’t move properly or I can’t move … so two officers came in and picked me up to carry me out to where my stuff was.^[21]

2. (ii)
   on the Monday morning following the injury:

I couldn’t do anything. I felt near paralysed. I couldn’t do my shoes. I couldn’t dress myself. My mate had to help me in out of the car, had to help me into the hospital. Yeah, just severe pain. I couldn’t move.^[22]

3. (iii)
   for the two weeks sick leave immediately following the incident:

It was hell. Couldn’t move. Couldn’t go to the toilet. Couldn’t dress myself. Just – yeah, needed help for everything.^[23]

4. (iv)
   initially in cross-examination, the plaintiff stated that on the day he was released from the watch house (being the early hours of Saturday morning) his activities were as follows:

Well, after I got back to the room, I had a hot bath, just thinking I’ve got muscle pain and I’ll try and relieve that. After I did that for a while, the pain dulled a little bit. I still had severe sharp pain and stuff in my back, but I couldn’t walk. So I continued to socialise and put up with the pain while I was down there because I couldn’t drive home … I ducked out for a little bit [to the Casino] to go see my sister before she left and then we headed back to the hotel room … We weren’t there for very long… I didn’t have any drinks there.

5. (v)
   later under cross-examination, the plaintiff admitted that his evidence that he stayed at home for the following two weeks after the incident, other than the 20 minutes that he went to the Casino on the Saturday evening, was false.^[24]

6. (vi)
   the plaintiff was clearly out drinking at a licensed establishment within three days of the incident. Whilst out drinking he was able to perform various dance manoeuvres and strike poses^[25] inconsistent with a person who was “near paralysed”.

20. [20]
    The plaintiff’s evidence at times was less than forthright and conveniently selective. However, it is too simple an approach to make a general conclusion that it is unsafe to accept any of his uncorroborated evidence. As Judge Bowskill QC (as she then was) observed in Rudd v Starbucks Coffee Company (Australia) Pty Ltd:^[26]

It may readily be observed that human beings, perhaps especially young ones, are fallible and can at times make poor choices, including in terms of truthfulness. That does not mean they are generally dishonest….

21. [21]
    Overall, I did not form the opinion that the plaintiff was a generally dishonest person such that his uncorroborated evidence should not be accepted at all. In my view, he was telling the truth as he saw it. His recollection was often distorted, having been altered by “unconscious bias or wishful thinking or by overmuch discussion of it with others”.^[27]

22. [22]
    It follows that a careful assessment of the plaintiff’s evidence is required.^[28]In carrying out such a task, his evidence has been objectively assessed having regard to the whole of the evidence before the Court, and a consideration of where the balance of probability lies on the basis of that analysis.^[29]Upon this assessment, as these Reasons reveal, I have rejected some, but not all, of the plaintiff’s evidence.

Liability

23. [23]
    The determination of the issue of liability involves a resolution of the following questions:

1. (a)
   What were the circumstances leading up to the plaintiff’s arrest on 22 August 2009? 

2. (b)
   Was the force used to effect the arrest reasonably necessary?

4. (d)
   If the force used was not reasonably necessary what injury did the plaintiff suffer as a result of the arrest?

5. (e)
   What impact did the injury suffered have on the plaintiff’s life?

6. (f)
   Has the plaintiff suffered a psychiatric injury?

7. (g)
   Are the defendants liable for any psychiatric injury suffered by the plaintiff?

24. [24]
    Before addressing these questions it is necessary to pause and consider briefly the [relatively uncontroversial] circumstances leading up to the plaintiff’s night out on the Gold Coast.

Plaintiff’s night out on the Gold Coast on 22 August 2009

25. [25]
    The plaintiff was a 22 year old private in the Australian Army based at Amberley at the time he was arrested on 22 August 2009.

26. [26]
    On Friday 21 August 2009, the plaintiff travelled to the Gold Coast with a few of his army mates, Michael Winter, Jeremy Crisp and Jordan Proud, to meet his sister, Amanda Hunold, for her 18^thbirthday. Ms Hunold travelled from Narrabri with some of her friends and a cousin, Whitney La Spina.

27. [27]
    The plaintiff was drinking from about 3.00pm in the afternoon until 3.00am the following morning. There were a number of inconsistencies in the evidence about the plaintiff’s drinking over the course of the night. At trial the plaintiff insisted that he was drinking “goldies”. Yet he told police when he made his complaint later the afternoon of the incident, that he had mostly been drinking rum for the 12 hour period. Nine months later, on 30 April 2010, the plaintiff signed a Notice of Claim in which he stated that he had consumed eight to 10 beers between 6.00pm and 3.00am. At trial, when confronted with the proposition that he deliberately stated in the Notice of Claim that he had been drinking beer as opposed to rum, because rum would make him sound more intoxicated, he said “full strength beer and rum are the same percentage of alcohol”. Nothing particular turns on the issue of what the plaintiff was drinking on the night. However, the plaintiff’s responses are instructive, as they are an example of the plaintiff’s propensity towards belligerent defensiveness when cornered and of his tendency to down play or reconstruct events where the facts may not have suited or advanced his case.

28. [28]
    To the extent it is necessary to resolve this issue, I prefer the plaintiff’s relatively contemporaneous version to the police on 22 August. I find the plaintiff had been drinking rum for a 12 hour period. It is not possible to make an assessment of the level of the plaintiff’s intoxication on the state of the evidence before me. The plaintiff did not deny he was affected by alcohol at 4.00am: his evidence being “I wouldn’t say I was completely intoxicated at that time”. I accept there must have been some level of intoxication given he was ultimately charged with being drunk in a public place (and fined three dollars) upon his release from the Southport Watch House on 22 August.

29. [29]
    Around 4.00am, the plaintiff and his entourage left a night club and were outside Players Showgirls Strip Club on Orchid Avenue. The plaintiff was sitting with his friends Mr Proud and Mr Crisp when he described two “random girls” approaching Mr Proud. After some conversation which the plaintiff did not hear, one of the females hit Mr Proud. The plaintiff’s sister and Ms La Spina then became involved in an argument with the two unknown females and a scuffle ensued between the four of them. The plaintiff’s sister was hit and had her hair pulled by one of the females. The plaintiff then put himself in between his sister and this female because he wanted to protect his sister. He pushed this female away from his sister and she stumbled and fell. The plaintiff told her to leave. The plaintiff then tried to hold his sister back as she was trying to intervene in a scuffle between Ms La Spina and the other female involving hair pulling and pushing, during which both females fell to the ground. At this point it seems that the plaintiff’s actions were misconstrued by some of the bystanders who tried to keep him away. In particular, the plaintiff was held back by a big, tall male wearing a checked shirt. This male told the plaintiff to leave. In response, the plaintiff told him on a number of occasions that he was trying to break up the fight because members of his family were involved.

30. [30]
    The plaintiff was located at the outer periphery of the disturbance. It was at this point, unbeknown to the plaintiff, the police arrived. The first defendant approached the plaintiff from behind. CCTV footage of the arrest was played and tendered into evidence at the trial.^[30]

What were the circumstances leading up tothe plaintiff’s arrest on 22 August 2009? 

31. [31]
    Issues of credit arise in relation to the two crucial witnesses to the arrest of the plaintiff on 22 August 2009. That is the evidence of the plaintiff and the first defendant.

Plaintiff’s version

32. [32]
    At trial, the plaintiff’s evidence was that he was grabbed suddenly from behind. He described a knee to his right leg which caused him to drop quickly on to his right hand side. He lay on the ground and adopted a foetal-like position. The plaintiff then received a heavy knee to his back which forced him on to his stomach. He was then pushed flat like a plank and put his hands out in front of him. At this point the plaintiff was kneed again in the lower back causing his head to lift off the ground. He was then told by the first defendant to put his head on the ground. At that point the plaintiff’s head was pushed into the concrete impacting with the right side of his face up on the forehead. The first defendant then asked the plaintiff to put his hands behind his back. It was at that point the plaintiff deduced that the person assaulting him was a police officer. The plaintiff was then handcuffed and told he was under arrest for public nuisance (or something similar).

33. [33]
    The take-down, subsequent knee to the back and forcing of the head into the ground are all pleaded as instances of assault and battery.^[31]The plaintiff submits that the immediate cause of the significant injuries was the knee to the back.^[32]

34. [34]
    The plaintiff agreed that in the Notice of Claim he gave the version that “the police threw the claimant to the ground, smashed his head into the ground, and kneeled on his back causing severe injury”. The plaintiff accepted that the version in the Notice of Claim “pretty much sums it up”.^[33]

First defendant’s version

35. [35]
    At trial, the first defendant’s evidence was that prior to his involvement, he was in the charging area at the Surfers Paradise Police Station which was located about 30m away from where the incident occurred. He walked outside and down the steps and with his high vantage point was able to see a large group of people with a smaller group of people to the centre. He observed that the people in the centre were very tightly packed and moving quickly. He said he would not describe it as a “wild west fight” but there was obviously a disturbance taking place.^[34]He continued to walk towards the disturbance to work out exactly what was happening and his attention was drawn to the plaintiff, apparently because he was displaying the most amount of energy. He described the plaintiff’s arms to be flailing and that he was moving rapidly from side to side and his body was moving backwards and forwards. He identified the plaintiff as the person the most agitated and who needed to be removed from the situation. He formed the view that open hand tactics was the best course of action. This involved a rear take-down, namely taking hold of someone’s shoulder, removing them to the side and taking them to the ground whilst maintaining control. The first defendant’s evidence was that the plaintiff was displaying aggression and was threatening and that he had decided he was going to arrest him for public nuisance, and threatening and disorderly behaviour.

36. [36]
    He then walked behind the plaintiff, placed his hands on his shoulder, identifying himself as a police officer stating “Police, stop, or something similar”.^[35]The first defendant described at this point the plaintiff’s body lunged away to the right and that using that momentum, he turned and spun his feet quickly causing the plaintiff to fall to the ground whilst maintaining contact with him. He described the plaintiff on the ground in a foetal position with his hands close into him. The first defendant then dropped his body level to the ground beside the plaintiff and used the force of his forearm across the plaintiff’s shoulder to cause him to lie flat on the ground whilst the plaintiff’s hands were still underneath him. He referred to his body weight being on his right knee with his left knee on the back of the plaintiff’s legs. The first defendant’s evidence was that:^[36]

My body weight is on my right knee, and my left knee was – was on the back of his legs. So what – what we try to do is to maintain control of the shoulders with our forearm across the shoulders and our knee across the rear part of his leg – the – the – the rear part of his quad, upper quads. Because if you can control somebody’s legs and control somebody’s shoulders, they find it very difficult to stand up. My consideration is Surfers Paradise is quite a volatile place. I don’t know who the crowd of people are behind me. Though there’s other officers with me, I want to expedite that arrest as quickly as I can. So I want to be dynamic. When – give direction – shouted put your hands behind your back. Hands behind your back. Police. I don’t wait for a second to – for him to say yes or no, I’m going to. If there’s no instant reaction I’d have to decide on the next course of action.  I believe the plaintiff put his hands above his head at that stage – or it – or not fully extended but sort of above his head, further away from me. I decided I was going to carry out a knee strike. I changed my body shape – I changed my body shape to allow me to strike to his quad. The reason I do that – I don’t want to strike to his hip. I don’t want to strike to his rib. I want to strike to his quad to cause distraction. So I distract to say hey, I’m here. Do as you’re told. I believe I – I struck twice, but it was a period of time ago, which resulted in me gaining control of the plaintiff. [Emphasis added]

Analysis

37. [37]
    The defendants submit that the plaintiff’s versions at trial and in the Notice of Claim differ significantly and ultimately the Court cannot be satisfied that the first defendant kneed the plaintiff heavily in his right hand flank or his lower back.

38. [38]
    I reject this submission for a number of reasons. First, in my view, the Notice of Claim is not a detailed statement of what occurred. It is an overview of what happened. In any event, I do not consider that there were relevant or major inconsistences. Crucially, the plaintiff has consistently maintained that the significant injury to his lower back was as a result of being kneed in the lower back. Finally, an analysis of the pleadings and particulars and the first defendant’s evidence in chief reveals a number of inconsistencies and anomalies in the first defendant’s case as to how the arrest was carried out. For the reasons outlined below, on balance, I prefer the version of events as recollected by the plaintiff.

39. [39]
    Relevantly:

1. (a)
   The first defendant contends that “the plaintiff was standing in the group with his back to the first plaintiff and was striking out with both arms into the crowd of people in a violent manner”.^[37]The CCTV footage does not support this claim. As the first defendant can be seen in the distance, it shows the plaintiff on the outskirts of the disturbance. In his evidence at trial the first defendant described the plaintiff as “displaying aggression”, and behaving in a threatening and disorderly manner.^[38]This does not equate to behaving in a violent manner. The plaintiff was one of a number of members of an audience. He cannot be seen to be striking out into the crowd. At the highest his actions could be described as disorderly and disruptive but certainly not violent.

2. (b)
   The first defendant’s assertion in his evidence that he said “police, stop, or something similar”^[39]is in direct conflict with the pleaded admission that the first defendant “failed to identify himself to the plaintiff as a police officer”.^[40]I do not accept the submissions of the first defendant that this is not an inconsistency.^[41]I consider it a significant discrepancy and of some importance in unravelling the facts and in determining the issue of the reasonableness of the first defendant’s conduct.

3. (c)
   The first defendant made a written entry in his notebook shortly after the arrest of the plaintiff. The first defendant submits these notes corroborate his version of events. I do not accept this submission. In my view, the first defendant’s notebook and the first defendant’s evidence at trial about his sequence of actions in the arrest are inconsistent on an important issue.^[42]The relevant entry in the notebook provides the following sequence: taken to ground, knee strike, refused to place hands behind back, knee strike, handcuffed.^[43]So, shortly after the arrest, the first defendant recalled the plaintiff refused to comply with an order that was made following a knee strike. Under cross examination at trial the first defendant said that the knee strike came first.^[44]The first defendant’s attempt to explain this inconsistency under cross-examination was not satisfactory. I accept the notebook entry is a more a reliable account due to it being made in close proximity in time to the arrest.^[45]

40. [40]
    In contrast with the first defendant, I accept that the plaintiff’s version of events has been largely consistent since the commencement of proceedings. I do not accept, as asserted by the defendants, that the plaintiff’s evidence at trial differed markedly from his earlier assertions. From the outset, the plaintiff has pleaded a strike to the right hand flank^[46][the side of a person’s body between the rib and the hip] and a violent knee to the back lower back,^[47]which the first defendant has denied. Although at  [2](c)(v) of the defence the first defendant does not specify where on the plaintiff’s body the second knee strike made contact. Crucially, the defendants admit that the plaintiff sustained an injury to his lower back as a result of force applied by the first defendant.

41. [41]
    This concession gives rise, in my view, to an anomaly in the defendants’ case. The injury to the plaintiff’s lower back is admitted to have occurred as a result of the first defendant’s actions on 22 August 2009. But it could not have occurred, if I was to accept the first defendant’s evidence, that he only ever kneed the plaintiff in the upper thigh.

42. [42]
    It was not put to the plaintiff that he was only kneed in the thigh. The defendants submit and I accept, that the rule in Browne v Dunn^[48]does not apply where the witness is on notice that the witness’ version is in contest. In this case the issue is raised squarely on the pleadings.^[49]The plaintiff submits that this is a non-issue, because of the state of the pleadings and evidence. There is some force to this submission. It is difficult to understand how the accepted injury could have been sustained unless I accept the plaintiff’s evidence that he was kneed in the lower back by the first defendant.

43. [43]
    In my view, the fracture to the plaintiff’s lower back is objectively established. There was no medical expert opinion that the fracture of the right transverse process of L3 lumbar spine could have occurred as a result of a knee strike to the thigh or in any other way. It follows that the first defendant’s evidence that his knee connected with the quad or thigh both times is mistaken. Objectively, the only logical conclusion to be drawn in the present case is that at least on one occasion the plaintiff was kneed in the lower back with significant force by the first defendant.

44. [44]
    The plaintiff maintained that his head was pushed into the ground intentionally by the first defendant.^[50]Consistent with the plaintiff’s case, photographs said to have been taken on 22 August showing the plaintiff with bruising and grazing to and above his right eye were tendered without objection.^[51]It was not suggested to the plaintiff that the injuries shown on the photographs were not sustained on the day in question.

45. [45]
    It was submitted by the defence that these injuries may have occurred at another time during the disturbance or at some other unidentified time.^[52]And that otherwise the facial injuries may have occurred by the plaintiff accidentally hitting his head on the ground. There was considerable cross examination of the plaintiff about other occasions he had received a black eye. I accept that this was not the first or indeed the last occasion in which he had sustained such an injury. However, there was no cogent evidence that the plaintiff had been punched in the eye earlier that night, or that he had made contact with the ground earlier during the disturbance. I accept these injuries were received during the course of his arrest.

46. [46]
    The plaintiff made a complaint to the Southport Police Station on the day of the incident. He admitted that part of his motivation for making the complaint was to avoid being reprimanded for being involved in a fight when he returned to the army base.^[53]The contemporaneous notes of what he told police record that he did not know how he got the black eye and the bruises on his face – but he was “pretty sure” the first defendant had pushed his face onto the ground. At the time, the plaintiff was not exactly sure how the injuries to his face were sustained. His certainty that it was because his face was intentionally pushed into the ground has increased with the passage of time due in my view to distorted recollection and an attempt to reconstruct events.

47. [47]
    On balance, I find that the plaintiff hit his head upon being forcefully taken to the ground by the first defendant, thus causing the bruising and grazing around his right eye. I do not accept that the plaintiff’s head was intentionally pushed or forced to the ground by the first defendant.

Failure to call relevant witnesses

48. [48]
    Both parties submit that in accordance with the well-known principles espoused in Jones v Dunkel,^[54]I ought to draw adverse inferences in relation to the other party’s failure to call relevant witnesses.

49. [49]
    The defendants point to the plaintiff’s failure to call Mr Crisp, Mr Winter and Mr Proud. The plaintiff points to the defendants’ failure to call the two other police officers who followed the first defendant into the disturbance, one at least of whom can be seen on the CCTV footage.

50. [50]
    In my view, no adverse inferences ought to be drawn from either party’s perspective in this case.

51. [51]
    It was apparent that the defendants had copies of the statement of Mr Crisp and he had been subpoenaed. The court was told without objection that both Mr Crisp and Mr Proud were serving soldiers away on exercises.^[55]

52. [52]
    In my view, the female police officer accompanying the first defendant at the commencement of the police intervention, as shown in the footage, may have been able to give some relevant evidence. But given the number of people at the scene, and that she was not involved in the arrest of the plaintiff, I am not willing to draw that inference.

53. [53]
    Given the nature of the disturbance as viewed from the CCTV footage, it was unlikely that any of the witnesses both sides lament not being called, would have been paying close enough attention to the actions of the plaintiff and first defendant to assist in any material way. Ms La Spina and the plaintiff’s sister were called by the plaintiff. Both had little if any relevant recollection of the plaintiff’s arrest.

Findings as to the circumstances of the plaintiff’s arrest on 22 August 2009

54. [54]
    On balance, upon the above analysis, I make the following relevant findings as to the circumstances of the plaintiff’s arrest on 22 August 2009:

1. (a)
   The plaintiff was not behaving in a violent manner prior to the first defendant approaching and arresting him. But I accept [and as is conceded by the plaintiff], the first defendant had grounds to form a reasonable suspicion that the plaintiff was at that point in time committing an act of public nuisance.

2. (b)
   The first defendant failed to identify himself as a police officer prior to approaching the plaintiff from behind and grabbing his shoulders.

3. (c)
   It is of little significance where the first defendant first struck the plaintiff with his knee. I accept that the plaintiff was struck and subsequently knocked to the ground.

4. (d)
   In the course of being taken to the ground, the plaintiff’s head made contact with the ground which caused bruising and minor grazing above and around his right eye.

5. (e)
   The plaintiff then lay curled on the ground, in a foetal like position. At this point, the plaintiff was struck with significant force in the lower back by the first defendant’s knee, causing the plaintiff to roll onto his stomach.  

6. (f)
   The first defendant then ordered the plaintiff to place his hands behind his back.

7. (g)
   The plaintiff remained outstretched on the ground, lying on his stomach, with his hands stretched out in front of his head.

8. (h)
   While kneeling on the plaintiff, the first defendant made an order requesting the plaintiff to place his hands behind his back.

1. (i)
   Upon the plaintiff’s failure to immediately comply, the first defendant struck the plaintiff again with his knee. Given the practicalities of how the plaintiff was lying and where the first defendant was positioned over him, I accept the first defendant’s evidence at trial that this strike was to the plaintiff’s quad or thigh.

10. (j)
    The plaintiff was then handcuffed and arrested by the first defendant.

Was the force used to effect the arrest reasonably necessary?

55. [55]
    The plaintiff pleads the take-down, knee to the back and forcing of the head into the ground are instances of assault and battery.^[56]For the reasons outlined above, I have rejected the plaintiff’s contention that his head was forced to the ground.

56. [56]
    The immediate cause of the significant injury in this case was the significant force of the first defendant’s knee to the plaintiff’s lower back.^[57]

57. [57]
    The form of trespass to the person known as battery has been defined as follows:

any act of the defendant which directly and either intentionally or negligently causes some physical contact with the person of the plaintiff without the plaintiff’s consent.^[58]

58. [58]
    No intention to cause injury is required. The tort is comprised merely of the intentional application of force.^[59]

59. [59]
    I am satisfied that there was an intentional application of force by the first defendant on the plaintiff without the plaintiff’s consent. I accept that in the circumstances an assault and battery occurred.

60. [60]
    The fact that the first defendant was a police officer, acting in the purported exercise of his duties, does not derogate from the nature of the assault and battery as a trespass to the person. The acts of the first defendant need to be justified, if at all, on specific grounds which might be available under the general law or (as in fact pleaded) under statute.

61. [61]
    The defendants plead that the first defendant was authorised to arrest the plaintiff (which is admitted). In my view, there was a basis for a reasonable belief that the plaintiff was committing an act of public nuisance, as defined under s 6 of the Summary Offences Act 2005(Qld).

62. [62]
    The issue on the pleadings and for my determination is whether “the force used by the first defendant against the plaintiff was reasonably necessary”.^[60]

63. [63]
    Section 615 of the PPRA relevantly states:

615Power to use force against individuals

1. (1)
   It is lawful for a police officer exercising or attempting to exercise a power under this or any other Act against an individual, and anyone helping the police officer, to use reasonably necessary force to exercise the power.

Example—

A police officer may use reasonable force to prevent a person evading arrest.

2. (2)
   Also, it is lawful for a police officer to use reasonably necessary force to prevent a person from escaping from lawful custody.
3. (3)
   The force a police officer may use under this section does not include force likely to cause grievous bodily harm to a person or the person’s death.

64. [64]
    Section 615 imposes a test of objective reasonable necessity.^[61]The onus lies on the first defendant to establish that this test is satisfied on the balance of probabilities.^[62]     But, the civil standard of proof may vary according to the gravity of the fact to be proved in accordance with the Briginshawprinciple.^[63]In my view, an application of force by a policeman, in a position of authority, on a member of the public, requires proof of reasonable necessity at the higher end of the ‘sliding scale’.

65. [65]
    In R v DBG[2013] QCA 370, the Court of Appeal considered whether what was ‘reasonable’ took into account “personal standards or prevailing community views”. At [31], the court observed that the jurors were to assess whether force was reasonable by reference to their own assessment of reasonableness, not via abstract community standards of reasonableness and then adopt it as the measure against which the reasonableness of the conduct was to be adjudged.

66. [66]
    The plaintiff submits that the force of the blow administered by the first defendant’s knee was, objectively, likely to cause grievous bodily harm and the force used was therefore, pursuant to s 615(3), beyond authority.

67. [67]
    Grievous bodily harm is defined under s 1 of the Criminal Code 1899(Qld) as “any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury or death”.

68. [68]
    The medical opinion of Dr Holborn referred to below was that a fracture of the right transverse process of L3 should spontaneously heal within six weeks.^[64]It follows that I do not accept that the injury sustained in this case falls within the definition of grievous bodily harm.

69. [69]
    It follows that the issue of whether the police acted beyond authority rests solely on the issue of reasonable necessity. In order to determine this issue, it is necessary to examine this legal justification in light of each application of force as opposed to the event as a whole.

70. [70]
    Mr Darren Robert Haworth, an AO4 Training Officer currently performing duties as an instructor trainer in the Operational Skills Section at the Queensland Police Academy, provided a report to the court at the request of the solicitors for the defendants. Mr Haworth was employed by the Queensland Police as a training officer for over 12 years and purported to give expert opinion evidence about the use of force by officers employed by the Queensland Police Force. His report was tendered without objection at trial and he was cross examined.^[65]

71. [71]
    Dr Terry Goldsworthy, a former police officer with over 28 years’ experience, provided a report to the solicitors for the plaintiff. Dr Goldsworthy is currently employed as an assistant professor in Criminology at Bond University and purported to give similar expert opinion evidence to that of Mr Haworth. His report was tendered without objection and he too was cross-examined at trial.^[66]

72. [72]
    This evidence was of some, but limited assistance to the court. Both reports were littered with non-expert commentary and opinion and based on unsubstantiated or hypothetical facts.

Grabbing the plaintiff’s shoulders

73. [73]
    The CCTV footage shows a significant group of people engaged in a disturbance and that the plaintiff was within the confines of that group, even if he was arguably not present in the main scuffle. The plaintiff accepts he became involved to protect his sister and cousin. As I have set out above, I do not accept that the first defendant observed the plaintiff displaying aggression by physical assault of persons in the crowd of people,^[67]or that the first defendant announced “police”to the plaintiff.

74. [74]
    However, I accept the undisputed evidence that there was a disturbance and that the actions of the plaintiff were disorderly. There was no evidence as to the level of noise on the night but I accept it may sometimes be difficult for a police officer to try to reason through verbal communication with a person involved in a disturbance outside a nightclub along a busy strip such as Orchid Avenue at 4.00am on a Saturday morning.

75. [75]
    In Mr Haworth’s opinion there was no reason to use verbal communication.^[68]He pointed to the advantage in the element of surprise. Dr Goldsworthy conceded that there is no specific guideline requiring police officers to announce their presence.^[69]The plaintiff relied on Dr Goldsworthy’s opinion that from the outset, open handed tactics by the first defendant “may have been effective”. In cross-examination, Dr Goldsworthy said that alternatives to force “could’ve been explored initially”, but agreed that police must prioritise getting the “situation under control quickly and easily”.^[70]   

76. [76]
    This view is consistent with the opinion of Mr Haworth that officers are required to undertake a threat assessment and tactical decision making process, the conclusions of which vary widely in outcomes dependent on circumstances.

77. [77]
    The first defendant made a relatively quick decision to take the plaintiff by surprise and grabbed his shoulders before taking him to the ground. It may not have been the most optimal tactic, but nonetheless this application of force was, in my view, reasonably necessary to effect an arrest in the circumstances.

78. [78]
    I find therefore that the first defendant’s grabbing of the plaintiff’s shoulders was justified in the circumstances.

First knee strike

79. [79]
    The grabbing of the shoulders and first knee strike occurred almost simultaneously and were in my view a continuing course of conduct. It was uncontroversial and indeed unsurprising that the plaintiff, not knowing that the first defendant was a police officer, tried to pull away from him. Mr Haworth accepted that a knee strike to the thigh is a common technique used to distract an arrestee and effect an arrest with minimal chance of injury.

80. [80]
    It follows, and I find (upon the above analysis), that the first knee strike which brought the plaintiff to the ground was reasonably necessary.

81. [81]
    While this strike was reasonable, I reject the defendants’ pleaded case that the plaintiff was placed on the ground in an effort to prevent him from engaging in further violent acts. It was uncontroversial that in the early stages of the disturbance the plaintiff had pushed an unknown female to the ground in an effort to break up the fight and protect his sister.^[71]It was also uncontroversial that the first defendant did not see the plaintiff do this. The defendants concede that the only violent act witnessed by the first defendant was the plaintiff’s “involvement in pulling and pushing people out of the fray”.^[72]    I find that the arrest of the plaintiff was made in an effort to prevent the plaintiff from committing an act of public nuisance, not from engaging in further violent acts.

Grazing and bruising above and around the right eye

82. [82]
    Upon my earlier analysis, this injury was sustained in the course of applying reasonable force. It is therefore largely irrelevant to the plaintiff’s claim.

Second strike to the lower back

83. [83]
    The first defendant struck the plaintiff in the lower back in order to force the plaintiff to lie on his stomach. This strike caused the significant fracture of the lower spine. Upon being brought to the ground, it is uncontroversial that the plaintiff was lying in a foetal-like position. At this stage, the first defendant had not told the plaintiff that he was being arrested nor that he was a police officer. I accept that the plaintiff was still unaware that the first defendant was a police officer or that he was being arrested.

84. [84]
    The onus is on the defendants to prove that this application of force was reasonably necessary to effect the arrest in the circumstances where the plaintiff was already lying on the ground.^[73]This would require a reasonable suspicion that the plaintiff, while lying in a foetal position on the ground, posed a continued risk of violence, or had an ability to evade arrest.

85. [85]
    In Coffey v State of Queensland & Ors[2012] QCA 368, the Court of Appeal was critical of officers for using excessive force against a prisoner in unwarranted circumstances. This matter involved an action against three Corrective Services Officers for breaches of common law and statutory duties of care, assault, battery, false imprisonment, and malicious prosecution. The claim arose out of the officers using excessive force to obtain DNA samples from the appellant. Holmes JA agreed with the learned trial judge’s assertion:

That in a room containing multiple police and Corrective Services Officers a handcuffed prisoner who did not behave violently could not be guided safely to lay on the floor speaks for itself. The exercise was carried out in a hurried, ill-prepared and excessively forceful way without any proper regard for the safety of Mr Coffey. It warrants strong disapproval.^[74]

86. [86]
    Of course, no case is on all fours. In my view, the conduct of the officers in Coffey is far more serious. But there are similarities, namely the lack of threat posed by the plaintiff in this case and the hurried and excessive manner in which he was manoeuvred into the desired position. The learned trial judge in Coffeywas particularly critical of the lack of “material forewarning” to the already handcuffed and vulnerable appellant.^[75]Similarly, a direction to the plaintiff to roll onto his stomach from the foetal position was not afforded to him before he was forcefully kneed in the back.

87. [87]
    In O'Connell v 1^st Class Security P/L[2012] QDC 100, a nightclub bouncer was not afforded protection under s 615 PPRA for his involvement in “assisting” police in an arrest. The plaintiff was offering a manageable degree of resistance while police had him over the bonnet of their car, with handcuffs about to be placed on the plaintiff. The bouncer decided to intervene, bumped the officers aside and took the plaintiff to the ground, and broke the plaintiff’s leg under the force of the bouncer’s weight.

88. [88]
    The arresting officers in O'Connellgave evidence that the plaintiff was mostly immobilised on the bonnet, and the officers were under no significant threat of violence. The arrest was largely routine, and did not require any extra force. Importantly, Andrews SC DCJ observed at [47] that:

Objectively: the constables were in control, the danger to be apprehended was minimal, the plaintiff’s final resistance was minimal, the only effect of the resistance was to delay the application of handcuffs.

89. [89]
    Consequently, the force applied by the bouncer was found not to be reasonably proportionate to the danger to be apprehended, meaning a defence under s 615 PPRA was not available for the causing of the personal injury.

90. [90]
    It is uncontroversial that the plaintiff was a considerably smaller man than the first defendant. The plaintiff is 170.3cm in height, and weighed approximately 65-70kg at the time. In contrast, the first defendant presented, both on the CCTV footage and at trial, as a considerably larger man.

91. [91]
    The CCTV footage shows that the plaintiff had his back to the police, and was unaware of their imminent presence. Upon being grabbed by the first defendant, and taken to the ground by the initial knee strike, the plaintiff appears to do nothing more than lie on the ground and move his arms about. It would appear that his arms were above his head. There is no cogent evidence that the plaintiff was attempting to stand back up, or actively struggle or resist arrest. The defendants contend that at one point, the plaintiff’s hands were under his body, and then outstretched above his head.

92. [92]
    I accept that some degree of force may have been reasonably necessary to move the plaintiff onto his stomach. However, in my view the significant strike to the lower back by the first defendant to achieve this was excessive, and not reasonably necessary in the circumstances. This view is supported by the observations of Dr Goldsworthy that the use of force by the first defendant was, on the balance, unjustified.

93. [93]
    I do not wish to speculate as to which arrest or compliance method a police officer should have used in the circumstances. Neither Mr Haworth nor Dr Goldsworthy were able to reach a concluded view.

94. [94]
    In my view, the first defendant was in control of the plaintiff at the point the plaintiff lay in the foetal position on the ground. The threat of danger posed by the plaintiff at the time of the second knee strike was minimal. The only apparent effect of his being in the foetal position as opposed to on his stomach was a delay in arrest. This in my view leaves little justification for s 615(1) to apply to the force used in the second knee strike.

95. [95]
    In light of the size difference between the plaintiff and first defendant, in conjunction with the difference in positions of strength, awareness of circumstances, and lack of a true attempt to resist arrest, I conclude that such a powerful strike was unnecessary and excessive.

96. [96]
    In the circumstances, I do not accept that this application of force was reasonably necessary to effect an arrest of the plaintiff for public nuisance.

Third knee strike to the plaintiff’s thigh

97. [97]
    The first defendant struck the plaintiff’s thigh to effect compliance with a direction to the plaintiff to place his hands behind his back. There is no suggestion that this third strike was excessive. But, in my view, it was not reasonably necessary.

98. [98]
    There is a conflict in the submissions as to whether the third knee strike occurred before or after a direction to place his hands behind his back. The plaintiff submits that the third strike was immediately after the second strike, prior to a direction to the plaintiff to place his hands behind his back. The first defendant, in his evidence, describes the third strike as following a failure by the plaintiff to immediately comply with the direction.^[76]His notebook corroborates this sequence.^[77]

99. [99]
    On balance, I find that it is unlikely the first defendant struck the plaintiff, once lying on his stomach, for no reason at all. In my view, the third strike must have occurred following a direction to the plaintiff to place his hands behind his back.

100. [100]
     In Dr Goldsworthy’s opinion, where a request for compliance is made, reasonable time must be given for the person to respond and comply. On one view in the present case, by the raising of his arms, the plaintiff could have been interpreted as attempting to comply with the direction of the first defendant. Regardless, this action hardly put the plaintiff in a stronger position of resistance.

101. [101]
     I accept that the plaintiff did not immediately comply with the direction to place his hands behind his back. However, this delay was reasonable in the circumstances. The plaintiff was taken by surprise, and forcibly taken to the ground by a person he could not see nor identify. I accept he had no idea at this point that a police officer was attempting to arrest him. The first defendant did not give the plaintiff any time to comply with his request. In these circumstances of surprise and confusion, it is reasonable for an arresting officer to allow some (and certainly more time than no time) to comply with a direction. At the very least the first defendant could have repeated the direction.

If the force used was not reasonably necessary what injury did the plaintiff suffer?

102. [102]
     It follows on the above analysis, that as a result of the first defendant’s actions on 22 August 2009, the plaintiff has proved on the balance of probabilities that he suffered a fracture of the right transverse process of L3 lumbar spine. The first defendant and second defendant [pursuant to s 10.5 of the Police Service Administration Act 1990 (Qld)] are therefore liable to the plaintiff for damages suffered as a result of this injury. For the Reasons outlined above, the plaintiff is not entitled to damages for the bruising to the right forehead.

103. [103]
     The question of whether the plaintiff suffered a causatively linked psychiatric injury, namely an Adjustment Disorder with Mixed Anxiety and Depressed Mood, can only be answered after the nature and extent of the fracture of the right transverse process of L3 lumbar spine has been determined together with the impact it had on the plaintiff’s life.

What impact did the injury suffered have on the plaintiff’s life?

104. [104]
     This issue is complicated and convoluted. It must be considered in the context of the plaintiff’s circumstances both before and after the injury.

Plaintiff’s circumstances before 22 August 2009 

105. [105]
     The plaintiff grew up in New South Wales completing his education until the end of Year 12 at Narrabri High School. He described himself as a good student enjoying outdoor activities such as football and cricket. After he finished school, the plaintiff was employed for three years as a general store hand and night packer at Woolworths in Narrabri.^[78]

106. [106]
     The plaintiff joined the army on 11 September 2007. His father had been an officer in the air force for 21 years and this was the impetus for him wanting to join the military. He was not ready “within himself” to join straight after school, although he recalled applying earlier, but never pursuing it. It was only after he worked at Woolworths for three years that he “sort of got the guts to re-apply and do what I’ve always wanted to do”.^[79]

107. [107]
     The plaintiff commenced his trained at Kapooka near Wagga Wagga, learning all aspects of becoming a soldier. He described, amongst other things, obstacle courses, running, shooting, drilling endurance and pack marching (with 20kg). There was a requirement to run 2.4km to pass the physical assessment for physical training.

108. [108]
     The plaintiff initially trained as a patrolling operator but he did not enjoy this role and subsequently trained as an operator supply. This was a storage warehousing role, which entailed amongst other things, stocking ammunition, clothing and car parts. During the course of the training for this job he continued with his physical training as “physical training never stops”.^[80]

109. [109]
     In around June 2008, the plaintiff was posted to Amberley as an operator supply. He continued his physical training. Not long after this posting the plaintiff started suffering from bilateral compartment syndrome. He described the symptoms of this condition to be that there was a lot of pressure in his legs, particularly his shins when he did pack marching, endurance marching and long distance running. This caused considerable pain. He also battled with physical training because of the boots issued for endurance marching. The bilateral compartment syndrome continued to be a problem for the plaintiff until he had surgery in 2011.

110. [110]
     The plaintiff said that the whole point of his joining the army was to be deployed overseas. However, this opportunity did not arise for him prior to August 2009 because he was only new to the unit and “they normally don’t deploy anyone within the first year of being posted to a unit”.^[81]Prior to his injury in August 2009, he had been on at least two major field exercises (it seems of approximately eight weeks) and a number of small ones in between. The plaintiff’s role out in the field was to set up ammunitions and storage for the ammunitions and to repack after everyone had left. He was also involved in the setting up of the kitchen and toilet facilities which took place two weeks prior and two weeks after the exercise had finished.^[82]

111. [111]
     His evidence was that prior to the injury he was the “fittest and fastest bloke there”.The plaintiff also enjoyed playing a variety of sport and he was in line for selection for the Australian Touch Football team - but the August 2009 injury made that no longer a possibility.

112. [112]
     Prior to 22 August 2009, the only other incident the plaintiff could recall where he sustained an injury to his back was when he was in Year 8 or 9. His evidence was it did not cause significant pain at the time.^[83]He recalled too that he had consulted a counsellor in relation to relationship problems, but other than that he had his dream job and dream car. The plaintiff’s evidence was that life was good. He was happy. ^[84]

113. [113]
     The plaintiff gave his evidence in chief in a measured and reasonably cogent way, painting a sympathetic picture of his life. Under cross-examination, he became frustrated and defensive, as it became abundantly apparent that he had understated or reconstructed a number of important aspects of evidence. In particular:

1. (a)
   The extent of the impact of the bilateral compartment syndrome on the plaintiff emerged. The plaintiff accepted that as at September 2008 [when he was advised that he was likely suffering from compartment syndrome] he was placed on restrictions – but curiously he was unable to recall what these restrictions were. The plaintiff accepted that running was an integral part of his physical training. He agreed that he had shin pain and ankle swelling which was aggravated when running on hard surfaces including cement. He accepted that in September 2008 he could only run 500m before he had to stop; and that this injury was significant enough to warrant a referral to an orthopaedic surgeon; and that he may need to consider a downgrade. The plaintiff’s evidence that he was the fittest bloke there is at odds with this evidence.

2. (b)
   The plaintiff maintained that the injury to his shins did not affect his ability to deploy as there was no active running on deployments. However, he eventually accepted that if there was active deployment, running would be involved and that an impediment to running might have a bearing on the duties he would be able to be carry out.

3. (c)
   Despite his evidence that the only other injury to his back had been in early high school, the plaintiff later accepted that he had been troubled with back pain since he was 13 years of age. He described aching between his shoulder blades^[85]and conceded that he had back pain while sitting still, standing for longer than 10 minutes and that he had to lean forward every so often to relieve this pain since he was about 13. He accepted that prior to August 2009, he had a loss of thoracic kyphosis (that is, difficulties with his flexion and extension). His existing back pain caused the plaintiff to see Dr Januwala, a doctor at the Amberley base, on 25 May 2009. And as a consequence of this visit he obtained x-rays which revealed some scoliosis in his spine.

4. (d)
   The plaintiff agreed that in June 2009 he was having relationship troubles which had resulted in anger issues. He accepted that these anger problems caused him to get into a fight in June 2009^[86]and he was going to seek some psychiatric support for his problems.^[87]

Plaintiff’s life post 22 August 2009

The immediate aftermath

114. [114]
     The plaintiff was initially taken to the Surfers Paradise Police Station and then transported to the Southport Watch House. He was released around 8.30am on the morning of 22 August 2009. No charges were ever laid. After his release, he described returning to his holiday apartment and taking a hot bath. Later that day he returned to the Southport Police Station to file a complaint about his treatment by police. He received a call approximately one month later advising him that his complaint was not going to be taken any further.

115. [115]
     On Monday morning 24 August 2009, the plaintiff reported to the Amberley base doctor complaining that he could not do anything, was near paralysed, could not do up his shoes or dress. He couldn’t move.^[88]He was prescribed medication [Panadeine-Forte], told he had a torn muscle and not to do anything. The plaintiff returned to the base doctor the next day and was put on two weeks leave which he described as hell. He could not move, go to the toilet or dress himself.^[89]

116. [116]
     Under cross-examination and contrary to the plaintiff’s earlier evidence about his limitations, it emerged that the plaintiff had conveniently forgotten that within three days of the incident on 22 August (as the relevant Facebook entries from that time revealed) he was, on various nights:

1. (a)
   out and about dancing on a dance floor;

2. (b)
   drinking Tequila shots with one of his friends with whom he had been out the evening the injury occurred; and

3. (c)
   at a nightclub called Players in Ipswich.

117. [117]
     The plaintiff’s explanation for overlooking his drinking, dancing and partying over his two weeks leave, that he was “unaware at the time that he had had a broken back”, is rather weak. But it does not diminish the fact that he did suffer an injury on 22 August 2009. In my view, the plaintiff’s answer is a good example of his tendency to distort his recollections as a result of his unconscious bias in this case.

118. [118]
     On 28 August 2009 the plaintiff obtained a scan which demonstrated an undisplaced fracture of the right transverse process of L3 and associated haematoma. The scan also revealed posterior disc bulges at the L4/L5 and L5/S1 levels.

119. [119]
     The plaintiff saw Dr Holborn, a medical officer at the Amberley Health Centre, on 31 August 2009. By this stage the plaintiff was considering taking legal action against the police. Dr Holborn noted no neurology on the plaintiff’s lower limbs; that his gait was much improved but there remained a decreased range of movement with slow transferring in and out of chairs. The plaintiff saw Dr Holborn again on 3 September 2009 and 15 September 2009. The plaintiff agreed that Dr Holborn told him [on 3 September] that he could expect spontaneous healing of the fracture of the right transverse process of L3 within six weeks.^[90]

Impact of army life

120. [120]
     After his two weeks leave, the plaintiff returned to work on sedentary duties, limited to mainly computer work. Although, he later managed to drive a forklift. Other military activities such as weapon training, pack marching and parade were severely affected or precluded. The plaintiff’s evidence was there were availabilities within his unit to be promoted and to be posted to another unit and promoted. Despite being medically downgraded, sometime in 2010/2011 the plaintiff was able to complete his sub-four course for advancement to the rank of corporal as there was no field or manual labour aspect to this course. According to the plaintiff, but for his medical downgrade he would have been promoted about a month after he completed this course.

121. [121]
     The plaintiff’s evidence was that the remainder of his unit was deployed to East Timor and Afghanistan at some stage after August 2009 and if you were a Class 1 Officer you were expected to deploy.

122. [122]
     The plaintiff was unable to be deployed to East Timor due to his medical downgrade. This deployment was for eight months and entailed an allowance for overseas travel estimated by the plaintiff to be in the vicinity of $30,000.^[91]The plaintiff’s unit was subsequently deployed to Afghanistan with similar payment arrangements. Again, the plaintiff said he would have been included in this deployment but for his medical downgrade. Documents described as the Defence Determination 2014/23 and the war-like and non-warlike deployments were tendered into evidence.^[92]

123. [123]
     The plaintiff was also unable to attend field exercises because of his medical downgrade. He had been on two major eight week exercises and a few minor ones prior to August 2009, for which he was paid an amount similar to deployment payments. No evidence of any such additional payments were adduced at trial.

124. [124]
     The plaintiff was required to see the army doctor nearly every week for a review. He was not allowed to do any physical training, participate in any team building activities, nor do any courses. He described being basically segregated from everyone, and that this was the position until he was discharged.

125. [125]
     During this time the plaintiff received physiotherapy and vigilantly carried out his prescribed exercises. This entailed attending the gym to build up muscles within his body, but not working on his “abs”, riding a bike with a backrest, swimming and hydrotherapy. The plaintiff eventually reached the point where he was allowed to run. He was fine with short distances, but could not run long distances. He was also able to do push-ups, but not the minimum of 40 push-ups. The plaintiff returned to playing some touch football in about August 2010, although he experienced some lower back pain from this activity. He described these symptoms as worse after long periods of standing more than sitting.

126. [126]
     At trial, the plaintiff’s evidence was that 12 months after the injury he was “getting pain in my bum, shooting pains, stuff like that. Yeah, a lot of – a lot of aching, a lot of pains.”^[93]He described such pain as a daily occurrence with some days the pain being more severe than others. Overall, he has always had a degree of back pain since the injury. When asked about how he managed to sleep despite the pain, the plaintiff said, “I sleep on and off. I do have disturbances a fair bit. I can get a good night’s sleep every now and then, but I do – I do struggle sometimes”.

127. [127]
     The nub of the plaintiff’s submission is that the injury the plaintiff sustained to his lower back on 22 August 2009 prevented him obtaining the necessary fitness levels required for active duty in the army.^[94]

128. [128]
     In my view this submission is not supported by the evidence.

The lower back injury – medical evidence 

129. [129]
     Dr Peter McCombe, an orthopaedic spinal surgeon, saw the plaintiff on 6 May 2010, at the request of one of the army doctors.^[95]His review of an MRI scan of the plaintiff’s lumbar spine was that it was normal. In Dr McCombe’s opinion, there was no significant injury to the plaintiff’s lumbar spine that prevented the plaintiff from carrying out any particular military activity. He noted that the plaintiff had sustained a transverse process fracture which is indicative of an underlying contraction injury of the para spinal muscles. In his view, it was common for this injury to take a long time to settle and cause significant pain during this time. He estimated that the residual symptoms could be present for up to 12 months. In Dr McCombe’s opinion there was no restriction to the plaintiff returning to normal duties, although they should be “introduced at a relatively rapid, though gradual, process”.^[96]He considered the likely outcome was that the plaintiff would be able to increase his activity levels without too much increase in pain, and if so, he could reintroduce full activities as soon as possible

130. [130]
     A review of the contemporaneous medical and physiotherapy notes from late 2009 reveal that the plaintiff’s symptoms were improving within three months of the incident. By November 2009, the plaintiff reported being virtually pain free. On 12 November 2009, the plaintiff attended the Amberley physiotherapy clinic and reported no real problems or pain and that he had been doing physical training and running with no concerns. The physiotherapy discharge summary of that date states “full resolved BP”.^[97]

131. [131]
     It was submitted on behalf of the plaintiff that the optimism expressed at times by the treating physiotherapist probably reflects the plaintiff’s own wish for the treatment to be successful and to be rehabilitated from his injuries.^[98]I do not accept this submission for a number of reasons. First, the physiotherapy evidence was not challenged at trial. Second, this submission is in direct conflict with the plaintiff’s acceptance at trial that he was reporting how he was in fact feeling at the time.

132. [132]
     Finally, as discussed in more detail below, the plaintiff’s reporting of how he was feeling at the time is consistent with the overwhelming majority of the medical evidence in this case. That is, the usual recovery time for a complete resolution of the symptoms associated with a fracture of the right transverse process of L3 lumbar spine is three to 12 months (with 12 months being a somewhat generous estimate).

133. [133]
     At his solicitor’s request, the plaintiff saw Dr Greg Gillett, an orthopaedic surgeon, on 6 September 2010 for the purpose of providing a medicolegal report.At this time, the plaintiff was medically classified by the army at grade 2 with restricted duties. Dr Gillett’s report is premised on self-reporting by the plaintiff of “pain and suffering of an acute nature and now chronic pain” and no pre-existing pathology or other injuries that he is aware of.

134. [134]
     By his written report, Dr Gillett opined as follows:^[99]

1. (a)
   The plaintiff sustained a facial injury^[100] and a fracture of the right transverse process of L3 lumbar spine;

2. (b)
   The plaintiff has a symptom complex and a fracture which was undisplaced and is now united;

3. (c)
   The plaintiff suffered no impairment assessable in respect of the lumbar spine under AMA5 but there is a 2% whole person impairment reflecting residual symptomatology under the pain chapter in AMA5;

4. (d)
   The plaintiff will be able to work in the army in the long term and will be able to undertake full duties;

5. (e)
   Simple analgesia will be required from time to time and in general the plaintiff needs to just continue to exercise and strengthen muscles supporting the injured area;

6. (f)
   The MRI report of 27 April 2010 shows a normal lumbar spine.

135. [135]
     From 29 November 2010 until 9 December 2010, the plaintiff attended a rehabilitation program at the Wesley Hospital. This was a multi-disciplinary program which included access to physiotherapists, occupational therapists and psychologists. The plaintiff described the purpose of the Wesley Hospital Back Clinic program was “to learn how to manage my pain for the rest of my life, basically”.^[101]The plaintiff’s written submissions refer to this programme being unsuccessful.^[102]I reject this submission. For a start, the plaintiff’s pain levels on admission were recorded as a 4 and on discharge a 1. Further, the army discharge notes of Dr d’Arville refer to the plaintiff having a good response to the program. The Wesley program records are instructive on a number of levels.

136. [136]
     On his admission, the plaintiff was asked to rate his back pain on a scale of 0 to 10 (with 10 being pain as bad as he could imagine). He described his pain at its worst in the last week [of November 2010] to be a “2” and his pain at its least in that week as a “1”. On average, his pain was a 3. Pain relief or medications provided him 100% “complete relief”.

137. [137]
     The plaintiff was also asked how much the pain had interfered with his life in the last week (0 meaning “does not interfere” with 10 meaning “completely interferes”). He reported as follows:

• General activity - 1

• Mood - 2

• Walking ability - 0

• Normal work (both outside the home and housework) - 6

• Relationships with other people - 0

• Sleep -1

• Enjoyment of life - 0

138. [138]
     The plaintiff also reported on 29 November 2010 that:

• He could tolerate the pain without having to use painkillers;

• He could look after himself normally without causing extra pain;

• He could lift heavy weights, but it caused extra pain;

• Pain does not prevent him from walking any distance;

• Pain prevents him from sitting for more than an hour;

• Pain prevents him from standing more than 30 minutes;

• Pain does not prevent him from sleeping well;

• His sex life is normal, but some extra pain;

• Social life normal, but increases the degree of pain; and

• He could travel anywhere, but it gives him extra pain.

139. [139]
     The plaintiff’s discharge records form the Wesley program of 9 December 2010 record that he had enjoyed the program; his pain was the same generally, although worse on that day. He was sleeping well and his medical classification was to be reviewed in February [2011] but that he may not be upgraded due to the impact of his compartment syndrome. It was noted that he was keen to continue working as a storeman in the army. The discharge records also state that the plaintiff had a healed undisplaced fracture L3; was committed to his rehabilitation; and approached the physical and psychological components of the program with a moderate degree of effort. The recommendations on discharge were for the plaintiff to:

• Maintain a self-managed exercise regime incorporating stretching, stability training, gym and cardiovascular exercise aimed at continuing to improve flexibility, postural stability, strength and fitness;

• Continue follow-up sessions with his current physiotherapist to help monitor and progress his physical rehabilitation;

• That he would benefit from some manual treatment (deep tissue release, dry needling) to his ITB and tibialis anterior to help reduce symptoms in these areas;

• Attend sessions supervised by a physiotherapist to ensure continued functional progressions.

140. [140]
     The plaintiff’s occupational therapy discharge recommendations from the Wesley program included recommendations for a regular exercise program to increase his functional tolerances for work and his activities of daily living. The notes state that the plaintiff could return to work on suitable duties following completion of the program, but that he should avoid lifting more than 23kg from floor to waist on an occasional basis and avoid lifting more than 20kg at above waist height on occasional basis.

141. [141]
     The psychology records provide that it was unlikely the plaintiff would need further psychological support to manage his condition. This is not surprising given the plaintiff reported to the psychologist at that time that he had no, or very little, issue with: sadness, pessimism, failure, loss of pleasure, guilty feelings, punishment feelings, self-dislike, self-criticalness, suicidal thoughts, crying, agitation, loss of interest, indecisiveness, worthlessness, loss of energy, sleeping patterns, irritability, changes in appetite, concentration difficulty, tiredness, fatigue, or a loss of interest in sex.

The disc bulge issue

142. [142]
     It is convenient at this point to address an issue that permeated the plaintiff’s evidence. That is the posterior disc bulges shown at the L4/L5 and L5/S1 levels of the August 2009 scan were caused by the first defendant.

143. [143]
     The starting point is the plaintiff’s pleaded case does not allege he suffered disc bulges at the L4/5 and L5/S1 levels as a result of the incident on 22 August 2009. Under cross examination the plaintiff was referred to the scan of the L4/L5 and L5/S1 posterior disc bulges. It was suggested to him that this entry had nothing to do with the 22 August incident. The plaintiff’s response was “it’s the same injury. The fracture and a bulged disc are related”.

144. [144]
     When he was asked about entries in the medical and physiotherapy records on 26 October 2009, the plaintiff asserted that while his pain may not have been emanating from on top of the fracture site, he had bulged discs in his lower lumbar spine which may have been causing the pain. The plaintiff insisted that the bulged discs were “directly related to the fracture” as per the specialist reports. After this exchange, Counsel for the defendants called for such reports. Counsel for the plaintiff responded as follows:^[103]

There was an early CT scan referred to in many of the reports, actually, your Honour, and it refers to L4 and L5 disc protrusion. That’s certainly true. Now, obviously, Mr Hunold has his own views about the significance of that, which aren’t necessarily backed up by any of his experts.

145. [145]
     Shortly after this exchange, Counsel for the plaintiff explained that:^[104]

…with the medical evidence in totality, we can’t possibly say anything about the disc protrusions, which have been noticed at various times, but they’re not part of our case.

146. [146]
     Unfortunately it is clear from his evidence that the plaintiff has convinced himself over the years that these disc bulges are related to the 22 August incident. For example, on 21 September 2014, the plaintiff posted on his Facebook as follows:^[105]

for anyone that knows me well knows that I broke my back in two spots, so working my lower back hard isn’t an option.

147. [147]
     The plaintiff explained his reference to breaking his back in two spots, to be that one was the broken vertebrae and the other was the two bulge discs. The plaintiff’s dogged determination to maintain the disc bulges are related to the L3 lumbar spine injury, despite legal and medical advice to the contrary, is another example of the plaintiff’s distortion of reality or wishful thinking in this case.

148. [148]
     In the resolve the written submissions on behalf of the plaintiff contend that the issue of possible sciatic type, or L5/S1 symptomatology is of no significance in the plaintiff’s assessment of damages.^[106]The defendants submit that any impairment arising from an L4/L5 and L5/S1 injury (unrelated to the right fracture of the right transverse process of L3 lumbar spine) needs to be borne in mind when assessing the plaintiff’s employability absent his injury.^[107]I accept this submission but in my view,   the evidence from the plaintiff and the medical records as to the ongoing problems with his lumbar spine [that are not referrable to the pleaded injury], infect a number of aspects of this case. Likewise, the issue of the plaintiff’s bilateral compartment syndrome cannot be ignored.

Bilateral compartment syndrome

149. [149]
     The written submissions on behalf of the plaintiff accept that the plaintiff had experienced bilateral compartment syndrome over a prolonged period of his army service. But the plaintiff argues that the evidence supports it being an “intermittent problem” with there being some difficulties in September 2008 (with no resultant medical downgrade) and that the problem did not reappear until well after the injury in August 2009.^[108]

150. [150]
     In August 2011, the plaintiff underwent surgery for his bilateral compartment syndrome. He said he did not suffer “directly” from the symptoms of this condition after the surgery. Consistent with this evidence, Consultant Occupational Physician Dr Douglas noted in his report of 5 September 2012, that there were no complaints indicative of ongoing compartment syndrome. Afterwards, the plaintiff was able to get back into running a “little bit” under supervision, but it aggravated his back pain.

151. [151]
     On these bases, it is submitted on behalf of the plaintiff that his history of compartment syndrome is not significant in the assessment of damages. I accept that since late 2011 the plaintiff has not suffered from the symptoms of this condition but I reject the submission that it is not relevant to the plaintiff’s assessment of damages in this case. The evidence clearly establishes that the plaintiff was suffering from bilateral compartment syndrome as at 22 August 2009. From September 2008 until the operation in August 2011, this condition clearly impeded the plaintiff’s ability to carry out his physical training and some of his army duties, such that he had been placed on restrictions. In my view, for the reasons discussed under that heading below, this condition has a direct bearing on the plaintiff’s claim for past economic loss.

Discharge from the army

152. [152]
     In 2011, Dr Asha Simon d’Arville was employed as a registered medical practitioner with the Australian Army and Air Force Base at Amberley.^[109]Dr d’Arville described a rather complicated process of medical employment classification (MEC), within the army, which included physical examinations by doctors. Such classifications were conducted for all defence personnel to establish fitness for duty. Dr d’Arville took a contemporaneous note of his examination of the  plaintiff on 30 September 2011. His notes record that:^[110]

The plaintiff was involved in an incident years ago that had left him in chronic pain and that he was unable to fulfil his duties in his role. In particular, ‘he appeared a bit ‘hopeless’ about this situation (or resigned to it perhaps) and was not interested in my offer to further investigate or treat the problem. Example, back clinic review, pain review alternative analgesics, etc. [emphasis added]

153. [153]
     It was during this meeting on 30 September 2011 that the plaintiff asked Dr d’Arville not to include his other medical conditions in the MEC, as they would potentially bias the outcome of civil legal proceedings. This request is relevant in a number of ways. As stated earlier in my discussion on credibility, it reflects poorly on the plaintiff, (although not to such an extent that I find him to be a dishonest witness).^[111]It exemplifies the plaintiff’s blinkered view that the injury to his back on 22 August 2009 is the cause of all his suffering. More importantly, it supports a finding (as does a proper analysis of the evidence in this case) that there were a number of factors that lead to the plaintiff’s discharge from the army and his current predicament, that are not relevant to the injury he sustained on 22 August 2009.

154. [154]
     In his MEC record of 5 October 2011, Dr d’Arville quite properly ignored the plaintiff’s request not to include his other medical conditions. Dr d’Arville noted that a CT scan on 26 August 2009 “demonstrated a posterior disc bulge at the L4/5 and L5/S1 levels…MRI conducted the following year demonstrated the fracture site healing, and made no comment on the previously noted L4/5 and L5/S1 discs”. Dr d’Arville commented on the plaintiff’s good response to the 10 day program at Wesley Hospital Back Rehabilitation program in late 2010.

155. [155]
     Dr d’Arville opined that the MRI scan of the plaintiff’s lumbar spine was “entirely normal”. He also observed no significant injury in the plaintiff’s lumbar spine that should prevent him from doing any particular military activity. He went so far as to say, “It is typical, in my experience, for residual symptoms to be present for up to 12 months”. Dr d’Arville remained concerned about further injury and the plaintiff’s ongoing inability to function fully within his posted position. He considered “he [the plaintiff] is unlikely to return to deployable status in the near future”.

156. [156]
     Dr d’Arville presented the plaintiff with options such as further review by Dr McCombe or a repeat referral to the Wesley Back Clinic, however this was met with the plaintiff voicing his depressed attitude toward his circumstances and a desire to leave the defence force. In light of these findings, Dr d’Arville suggested the plaintiff transfer to a less strenuous role, but this option was declined.

157. [157]
     Dr d’Arville also noted improvements in the plaintiff’s shin pain, while acknowledging a full assessment was impossible due to the restrictive back pain. Reference was also made to the right ankle and knee pain, which had symptomatically settled.

158. [158]
     As foreshadowed by Dr d’Arville, the discharge process took about a year and involved numerous doctor’s appointments. During this time, the plaintiff continued to receive physiotherapy treatment which he said did not improve his condition. He also saw the military psychologist as he was getting pretty down about losing his career and not knowing what he was going to do for a job. He lamented that “with all this pain and stuff like that and whether someone’s going to actually accept me for a job first”.^[112]His evidence was he did not know what the future held and that the sessions with the army psychologist did not resolve any of his concerns. He said as part of his plans for discharge he sold his car so he could pay off his debt.

159. [159]
     From 15 August 2012, the plaintiff was medically retired from the army on a pension of approximately $50,000 a year before tax.

Life after the army

160. [160]
     Upon his discharge, the plaintiff lived in Brisbane with three army mates who were on deployment. He received some limited occupational rehabilitation and training through the Department of Veterans’ Affairs. He recalled one or two sessions which helped him draft a resume. He applied for a job at Woolworths but was unsuccessful – he guessed that it may have been because of the disclosure about his back.

161. [161]
     Sometime in late 2012 or early 2013, the plaintiff relocated to Warnervale on the central coast of New South Wales, to take up a position as a car salesman trainee at a Northshore dealership nearby. He obtained this job through a lifelong friend, Mr Phillip Page, who was the manager of the business. The plaintiff lived with Mr and Mrs Page (who were second parents to him) at Warnervale which was a 30 minute drive from the dealership.

162. [162]
     The plaintiff found it difficult to adapt to this job and said he “couldn’t get his head right”. All he could think about was that he should be back in the military. He could not speak to customers, answer the phones, found discomfort with the travel and was stressed. This job lasted approximately two weeks. Between early 2013 and mid-2013 the plaintiff described himself as “just depressed basically”. Mr Page subsequently found the plaintiff another traineeship at a dealership located in Gosford. The plaintiff commenced working in this position in approximately June 2013. Again, the plaintiff became frustrated and depressed. He then transferred internally with the dealership into internet sales. The plaintiff was only able to do this work for approximately three months. He was fine at first, but then he started:^[113]

…losing my head again, thinking the same thing why am I here, why am I selling cars, why am I not in the military, sort of thing, like – I went and seen a psychologist to try and fix that. At the same time I was seeing a chiropractor because my back wasn’t all that great as well, and plus I was earning extra money, so that helped with those.

163. [163]
     The internet sales position was a desk job which necessitated sitting for long periods of time. The plaintiff tried to get up and walk around and stretch to alleviate his pain while sitting. He was told by the psychologist he was seeing to be more social, get out of the house, interact with people and join a team.^[114]The plaintiff said that he took the advice and joined a cricket team in Warnervale.

164. [164]
     The plaintiff described his time living in Warnervale as difficult. His relationship with his new partner Katie was good, but he was unable to leave the house for any reason. Suicidal thoughts crossed his mind. He did not know what to do with himself. From this time until the present, the plaintiff has been taking prescribed anti-depressants.

165. [165]
     The plaintiff and Katie moved to Newcastle around the end of 2013 after Katie secured a job at the Newcastle University Gym. The plaintiff continued to find it difficult to get out of the house. He was asked but did not join a cricket team. He watched television all day. He occasionally walked across the road (the house was on a lake with a jetty) if he felt like getting out. He was lonely and struggled without his close friends.

166. [166]
     The couple relocated to Brisbane in October 2014.^[115]All of his mates were still in the military in Brisbane, so he felt like he was coming home. On his return to Brisbane, the plaintiff tried to get back into sporting activities, such as cricket and touch football. He played four or five games of cricket, but quit due to his lower back pain. He also stopped playing touch football due to his lower back pain and the onset of pins and needles in his feet.

167. [167]
     The black and white picture of his life painted by the plaintiff became much more colourful under cross examination as he was taken to various extracts from his Facebook page.^[116]

168. [168]
     It is difficult of course to make any real assessment of how a person is truly feeling by looking at what they choose to present to the rest of the world on their Facebook page. In this case I accept the plaintiff had been told by psychologists and doctors to be active and to get on with his life. I am not critical of his attempts to do this. The relevance of the snapshot of the plaintiff’s life as revealed from the Facebook posts in evidence is that that they are another example of the tendency by the plaintiff to play down his life after 22 August 2009. This evidence shows in reality, he was still able to socialise to some extent, have big nights out with friends, go to the raceway, and attend music festivals. A clear example of the plaintiff’s resistance to transparency and defensiveness in this case is that when he was shown a photograph of himself on holidays in Thailand in October 2013, taken at a time when he had previously said he did not want to see anyone and was sitting around home, he said he was just trying to follow the psychologist’s recommendations to be active and there would have been times in October that he would have sat around not wanting to engage with people.

169. [169]
     More importantly in my view is that the relevant posts reveal that the plaintiff was not as physically restricted as he had maintained earlier in his evidence. For example, the posts included showed the plaintiff undertaking the following activities on various dates:

• April 2013 – squatting in a position akin to sitting on a toilet and remaining in a static position whilst posing for a photograph;^[117]

• December 2013 - climbing/traversing to the top of a cliff face and then jumping from a significant height into a creek;^[118]

• 18 April 2014 - playing ping pong;^[119]

• 24 July 2014 - “Getting thrown around like a ping pong ball in a washing machine” whilst on a boat;^[120]

• November 2014 - bending into such a position that he is able to sit within a plastic storage box long enough for his photo to be taken;^[121]

• 2013/2014 - playing at least 21 matches of cricket;^[122]

• January 2015 - hanging from his feet upside down from the top of a door and then able to remain hanging whilst flexing his back backwards;^[123]

• March 2015 - dancing on an esky;^[124]

• 24 January 2017 - riding a four wheel motorcycle at speed across rough terrain.^[125]

170. [170]
     The plaintiff remains in a stable relationship with his partner, Katie. Their son Ely was born in June 2017. He has not applied for any further work since November 2013. Although, he has carried out unpaid work for a mutual acquaintance who needed help around his house. This work was for three to four months, and involved working with hand tools but no lifting. The plaintiff also carried out a considerable amount of unpaid but useful work on Mr Page’s boat. It was not clear exactly what he did.

171. [171]
     At trial, the plaintiff was unable to identify the kind of work that he thought he might be suited to or would be able to complete. He accepted he could do desk work with time to stretch. He did not want to undertake this type of work because it would drive him insane - he is an “outdoor” person. He accepted there were plenty of outdoor jobs available, but his concern was that he may not be able to do them or he may not be accepted because of his injury which he would have to disclose.^[126]Under cross examination it emerged that in 2015 the plaintiff had a portfolio of photographs taken with a view to a modelling career. However, he decided to not pursue such work.  No real explanation was given by the plaintiff as to why he was not bothered to try and obtain any paid outdoor work. His evidence was that he had not really thought about it. Although he would like to be a stay at home dad in the future, once Katie goes back to work at the end of the year [November 2017].

Current back pain symptoms

172. [172]
     In early 2015, the plaintiff endured a particularly bad episode with his back. He recalled not being able to move for about a week or so and that he went to see a chiropractor. The plaintiff described these types of incidents [where his back is “bad”] as occurring regularly and on occasion for up to two weeks.

173. [173]
     Currently, the plaintiff experiences a degree of lower back pain all the time, on most days - even when just walking. This pain manifests itself through spasms which travel to his feet and make them numb. The pain is aggravated by standing too long (over 20 minutes),^[127]maintaining any prolonged position, shopping, mowing, bending over or holding weights for too long. He also experiences spasms and cramping when driving for long periods. The pain is eased by resting with legs up and chilling out. The plaintiff also experiences sleep disturbances “a fair bit”,^[128]although he can get a good night’s sleep every now and then. He currently takes Panadol, Nurofen Plus or Tramadol.

The medical evidence 

174. [174]
     Against this background the medical evidence addressing the L3 fracture must be considered.

Associate Professor Richard Williams

175. [175]
     Associate Professor Richard Williams, a consultant orthopaedic surgeon, examined the plaintiff at the request of the solicitors for the defendants on 28 November 2012. In his opinion:^[129]

1. (a)
   The plaintiff suffers from an L3 transverse process fracture – united and lumbar spinal pain of undetermined origin;

2. (b)
   The prognosis for an L3 vertebral injury of the type sustained by the plaintiff is for resolution of symptoms in under 12 months;

3. (c)
   There is a 5% whole person impairment referrable to the L3 transverse process injury as a result of the incident;

4. (d)
   There is no indication for further treatment by way of physical therapy or any other intervention and the plaintiff is not a candidate for surgical intervention;

5. (e)
   The plaintiff is capable of performing full active duty as a storeman in the army and has been since the incident;

6. (f)
   L3 transverse process fractures are commonly sustained by a direct blow to the lumbar spine, the mechanism described as the use of a knee in the back is typical;

7. (g)
   The plaintiff’s injuries are inconsistent with the nature of the original injury. His pain is bilateral and radiates into the thoracic region. The region of the right transverse process at L3 is non-tender and the chronicity of this injury (greater than three years) is not typical of persistent pain in the region;

8. (h)
   The plaintiff’s fractured L3 transverse process has not affected his capacity to work generally, to work in any occupation that he was engaged in at the time of the incident or to undertake self-care tasks and domiciliary activity;

1. (i)
   The plaintiff is able to pursue employment in which he has been engaged by nature of his training and experience – there is no requirement for restriction in respect of any observable spinal condition. The plaintiff is able to return to work in normal activity until normal retirement age;

10. (j)
    The spinal condition sustained by the plaintiff would not have been responsible for medical discharge.

176. [176]
     Under cross examination Dr Williams conceded that pain from such an injury “could” last longer than 12 months, although he had not experienced it personally.

Dr David Brook Douglas

177. [177]
     Dr David Brook Douglas, a consultant occupational physician, examined the plaintiff on 3 September 2012 also at the request of the solicitors for the defendants.^[130]He  saw the plaintiff again on 4 May 2016.^[131]Dr Douglas was a general practitioner for six years from 1965 to 1971 and accepted that his experience was not as extensive as a specialist orthopaedic surgeon. He relied on the contents of Dr McCombe and Dr Williams’ reports to form his opinion.

178. [178]
     In Dr Douglas’ opinion:^[132]

1. (a)
   The plaintiff sustained a contusion and haematoma of the right eyebrow and right peri-orbital region and a fracture of the right transverse process of the L3 vertebra with an associated para-spinal haematoma in the incident;

2. (b)
   The fracture was minimally displaced and subsequent radiological studies have shown a complete healing in a displaced position without any ongoing bone or soft tissue abnormality.

3. (c)
   At the time of the incident, the plaintiff was also suffering from bilateral compartment syndrome symptoms with restricted physical activities. That condition, plus the protective nature of his ongoing working conditions in the army, resulted in deconditioning of the para-spinal muscles and core strength and led to ongoing low back pains extending into his right para-spinal region in particular. These pains are particularly noticeable on static posture and when bending forward and lifting articles with his spine in a flexed position. The symptoms are not due to any permanent impairment and will improve with increasing physical activity including core-strengthening exercises;

4. (d)
   The symptoms are excessive compared to the natural history of the injury sustained;

5. (e)
   There is a 5% whole person impairment because of the minimally displaced fracture of the right transverse process of the L3 vertebra;

6. (f)
   The plaintiff has fully recovered from his spinal injury and right facial injury and has for some time been fully fit to resume full duties of his substantive position in the army;

7. (g)
   The plaintiff does not have any condition as a result of the incident which would prevent him from continuing work as a storeman until retirement age without modification of his duties;

8. (h)
   Prognosis is good provided the plaintiff returns to full core strengthening and physical conditioning exercises;

1. (i)
   There is no injury arising out of the incident which would prevent the plaintiff from working in an occupation for which he has training and experience until normal retirement age; and

10. (j)
    The plaintiff’s working life has not been reduced because of the incident.

Dr Malcom Wallace

179. [179]
     On 9 November 2015, the plaintiff saw Dr Malcom Wallace at the request of his solicitors. In Dr Wallace’s opinion:^[133]

1. (a)
   The fractured transverse process at L3 was caused by a direct blow to the lumbar spine;

2. (b)
   There would be significant pain and disability for a period of time [in the vicinity of 3 to 6 months] until the fracture healed, after which in the majority of cases there would be a full resolution of the pain and any disability associated with that;^[134]

3. (c)
   The plaintiff’s ongoing lower pain is a direct result of the incident;

4. (d)
   The plaintiff’s employability is adversely affected such that he is only fit for supervisory or sanitary work;

5. (e)
   The plaintiff has a DRE II category  impairment of the lumbar spine according to Table 15.3 of the AMA Guides which allows a range of impairment between 5% and 8%; and 

6. (f)
   The plaintiff has a 5% whole person impairment.

180. [180]
     Most of Dr Wallace’s conclusions are based on assumptions from the plaintiff’s self- reporting to him. For reasons discussed below, I do not accept Dr Wallace’s conclusion that the plaintiff has been left with ongoing lower back pain as result of the incident.

Other doctors

181. [181]
     Between 2015 and 2017 the plaintiff attended upon a number of other doctors in relation to the back pain he was experiencing. The qualifications of these doctors are not apparent but the medical records can be summarised [emphasis added] as follows:^[135]

Analysis of the medical evidence 

182. [182]
     The expert medical opinion relies to a great extent on the plaintiff’s reported symptoms and incapacities which are, on a review of all of the evidence, unreliable and difficult to reconcile.

183. [183]
     In his November 2012 assessment, Dr Williams referred to the plaintiff having bilateral pain which radiates into the thoracic region. He opined “The region of the right transverse process at L3 is non-tender and the chronicity of this injury (greater than three years) is not typical of persistent pain in the region.”^[147]After his review of the plaintiff on May 2016, Dr Williams considered that the plaintiff’s reported incapacity in relation to his lumbar symptoms was overstated. Further, that there was “some evidence of inorganic influence on pain perception during examination.”^[148]

184. [184]
     When Dr Douglas first saw the plaintiff on 3 September 2012 he examined the plaintiff’s back and spine and noted no spasm or guarding of the para-spinal muscles. He also noted that the plaintiff had a full range of flexion, extension, lateral flexion and rotation without obvious discomfort. In his opinion the plaintiff was fully recovered from the spinal injury he sustained on 22 August 2009.^[149]When Dr Douglas reassessed the plaintiff on 4 May 2016 the plaintiff reported sharp pains in his lower back extending into the right buttock intermittently. These pains occurred when walking, standing or bending forward. The plaintiff also reported being more comfortable sitting and that his sleep had deteriorated at night due to his lower back pain and thinking about the incident in August 2009. ^[150]

185. [185]
     When the plaintiff saw Dr Wallace on 9 November 2015 the plaintiff told him that his medical history was that he had surgical treatment for a lower limb compartment syndrome and he had previously suffered an injury to his thoracic spine. Under cross examination, Dr Wallace did not know the detail of the thoracic spine injury except that it was to an area unrelated to the fracture site and not sustained as a result of the incident on 22 August 2009. Conveniently and again evidencing the plaintiff’s tendency to attribute all of his back pain to the incident on 22 August 2009, he did not tell Dr Wallace or indeed any of the other specialists he saw for the purpose of this litigation, that three months earlier in May 2009 he attended upon a doctor complaining of continued pain while sitting still and standing still for longer than 10 minutes, having to lean forward every so often, and that he had a loss of thoracic kyphosis.

186. [186]
     The plaintiff reported ongoing lower back pain which Dr Wallace noted was mechanical in nature and worse with bending, lifting and twisting. He also reported that he could drive a car but has difficulties with running, prolonged sitting and house and garden maintenance. His lower back pain was said to radiate to both buttocks but Dr Wallace noted no reported history of any radiation of a sciatic nature in the plaintiff’s lower limbs. In his report, Dr Wallace also noted that an x-ray of the lumbar spine of 10 September 2015 revealed some minor narrowing at the L5/S1 disc with a slight scoliosis. In his opinion, an L5/S1 disc prolapse or a degenerative disc might produce sciatic type pain but sciatic type pain would not be expected from a transverse fracture of the L3.^[151]

Conclusion – is the injury ongoing?

187. [187]
     The plaintiff accepts that ordinarily an injury such as that sustained by the plaintiff in this case would be expected to have fully resolved within 12 months but submits the circumstances of this case are “unusual” in that the symptoms are ongoing.

188. [188]
     On an assessment of all of the evidence, I do not accept Dr Wallace’s conclusion that the plaintiff’s ongoing back issues are a direct result of the incident on 22 August 2009. His conclusion is based on assumptions which are not, in my view, made out or are contrary to the evidence. Dr Wallace was not told the full story by the plaintiff. For example, of his earlier back problems and that in the year following the incident the pain was minimal and at one point had resolved. In my view, the plaintiff’s self- reporting to Dr Wallace is unreliable. There are a variety of types of back pain and resultant incapacities reported by the plaintiff over the years. At various stages he has experienced all sorts of spasms (some as long as a week). He has described shooting pain, cramping, numbness, back pain not emanating from the fracture site, pain in his buttocks, down his legs, and into his feet. Sometimes it is more aggravated by sitting, at other times more by standing, sometimes when driving, other times not.

189. [189]
     It follows that I am not satisfied on the balance of probabilities that the injury to the plaintiff’s right transverse process of L3 lumbar spine is ongoing.

190. [190]
     I find on the balance of probabilities, that the injury to the plaintiff’s right transverse process of L3 lumbar spine, was fully resolved in just over 12 months of that injury having being sustained. That is, it was healed by 9 December 2010. This conclusion is supported by the following evidence (which I accept):

1. (a)
   The evidence of Dr Gillett, Dr Williams, Dr Douglas, Dr McCombe and Dr Wallace that the usual anticipated recovery period for the plaintiff’s injury of L3 lumbar spine is three to 12 months;

2. (b)
   The contemporaneous physiotherapy records of the plaintiff for the period September 2009 until December 2010 that the plaintiff reported no real problems or pain; that he had been doing physical training and  running with no concerns; and that his back pain had fully resolved;

3. (c)
   The evidence of Dr Douglas and Dr Williams that the plaintiff’s symptoms are not consistent with the nature of his physical injuries;

4. (d)
   The effects as reported by the plaintiff are overstated and inconsistent with the nature of the injury;

5. (e)
   The objective evidence of the plaintiff’s activities as set out above in paragraph [169];

6. (f)
   The other contemporaneous medical records that the plaintiff had a previous history of back pain, the variety of his ongoing symptoms (such as sciatica), and the existence of other injuries such as disc bulges, that are not referrable to the injury to the plaintiff’s right transverse process of L3 lumbar spine; and

7. (g)
   The evidence of Dr Wallace that sciatic type pain would not be expected from a transverse fracture of the L3.

AMA guidelines

191. [191]
     As an aside, the plaintiff submits that Dr Williams was unable to satisfactorily explain why the AMA guides assign a permanent impairment to such an injury, when on his view, it will heal with complete recovery [distinguishing Dr Wallace’s conclusion of the same assessment on the basis it was made with reference to the nature of the injury and resultant symptoms]. I accept that conceptually it is difficult to understand why a guideline would provide for a permanent impairment for a non-permanent injury. Although, I observe that in Dr Douglas’ opinion, whilst the AMA guidelines prescribe a 5% whole person impairment for the injury, this does not necessarily imply there would be ongoing symptoms. His explanation was that it was an injury of a certain type and that is why it was given a DRE Category II percentage impairment. I do not consider it necessary [nor am I able to on the evidence before me] to resolve this apparent anomaly because for the reasons summarised above, I have concluded that the L3 fracture suffered by the plaintiff healed completely by 9 December 2010.

Has the plaintiff suffered a psychiatric injury?

Dr Stephen Morgan

192. [192]
     The plaintiff attended upon Dr Stephen Morgan, a registered psychologist, for the purpose of a medico-legal examination on 28 January 2014 and 19 April 2017.^[152]Dr Morgan was not engaged in any treatment of the plaintiff. The Personality Assessment Inventory test was administered showing the clinical scale for depression to be significantly elevated. In his first report, Dr Morgan assessed the plaintiff as suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. The impairment was assessed according to the PIRS system at 5%.^[153]

193. [193]
     As with most psychiatric injuries, the diagnosis was based on the self- reporting of the plaintiff, including that since the 22 August 2009 injury:

• He was unable to sit for any extended period;

• He was limited in attending some social/leisure events, including festivals and concerts;

• His general socialising is restricted and often he goes home in pain;

• He is restricted in sport and recreational activities – although he resumed cricket for the 2013/14 season, but he needed to warm up;

• He had lost fitness and tone (previously taken pride in through his efforts with the army); and

• He was waking most nights due to pain – estimated 5 – 7 hours of sleep per night.

194. [194]
     The plaintiff also reported low moods, a loss of motivation, loss of energy, loss of confidence, pessimism, being less communicative, a preference to stay at home, decreased libido and capacity for intimacy.

195. [195]
     In his second meeting with Dr Morgan the plaintiff told him that he had been close to self-harm and suicide during 2013. Dr Morgan considered that this reported symptom met the criteria for Major Depressive Disorder. The impairment was assessed under PIRS at 6%.

196. [196]
     In my view, the weight to be afforded to Dr Morgan’s reports is diminished to a great extent due to the plaintiff’s failure to be transparent and his tendency to overstate his incapacities and understate his activities. For example:

1. (a)
   Contrary to other evidence, the plaintiff denied any pre-injury contact with any psychologist, psychiatrist or professional helping service;^[154]

2. (b)
   Under cross examination, Dr Morgan accepted that the plaintiff’s evidence that he was not sociable and did not enjoy human contact was inconsistent with attending a music festival, listening to bands, going to social clubs, and attending football games.^[155]

3. (c)
   Dr Morgan also accepted that he was not aware that when the plaintiff was living in the Warnervale area he was initiating contact with friends and drinking. He said more detail about such socialising may have changed his opinion. He did not consider he would change his assessment of a mild impairment because of the loss of libido and the plaintiff’s concern for the sustainability of his relationship;

4. (d)
   Dr Morgan did not have the opportunity to interview the plaintiff’s fiancée Katie about his reporting of loss of energy and irritability and loss of confidence and low mood; 

5. (e)
   Dr Morgan agreed that a loss of self-confidence would be inconsistent with the plaintiff having a modelling profile;

6. (f)
   Dr Morgan accepted that attending the gym for eight weeks to significantly change a body shape would suggest someone had a lot of energy, as opposed to a loss of energy, although he noted that those suffering from depression and injuries are often referred to gyms as part of rehabilitation.

Dr Jon Steinberg

197. [197]
     Dr Jon Samuel Steinberg, a consultant psychiatrist, gave evidence on behalf of the defendants. His report was prepared after consulting with the plaintiff for 90 minutes on 5 December 2016.^[156]

198. [198]
     The plaintiff told Dr Steinberg that he spent most of his time staring at a brick wall. That he watches television; cleans his house; spends time doing exercises with weights for strengthening. He enjoys the beach with his partner and spending time with his friends. And he has a good relationship with his girlfriend and brother.

199. [199]
     Dr Steinberg opined that there was no evidence that the plaintiff currently suffers from symptoms consistent with a psychiatric disorder.^[157]He described the plaintiff as having a bright mood, able to maintain a relationship with friends and family, including his girlfriend, who he met subsequent to the events of August 2009. He reviewed some extracts of the Facebook pages and considered this snapshot supported his view that the plaintiff was functioning reasonably well socially and in his relationships. In concluding that the plaintiff was not suffering from a psychiatric condition, Dr Steinberg opined that the plaintiff was upset about what happened with the police; that he thought the police mistreated him and had marked him in some way; that he felt persecuted by the police and he was angry about that. He did not consider that anger or misbelief about the police’s behaviour constituted a psychiatric illness.

200. [200]
     In Dr Steinberg’s opinion, the plaintiff did not show any signs of a Depressive Illness or a Major Depressive Disorder.

201. [201]
     The plaintiff told Dr Steinberg that he was suicidal in 2013 (although he had not carried out any suicidal acts) when he was living in Newcastle at which time he saw a counsellor who was of no help. The plaintiff also said that he had not experienced suicidal ideation since 2013.

202. [202]
     Relevantly, Dr Steinberg accepted that in 2013 the plaintiff may have been suffering from a stressful situation and transient episodes of depressed mood and that he may have been suicidal at that time. In his view, an adjustment disorder in response to the stress the plaintiff was going through in 2013 might have occurred, which could have been associated with suicidal thoughts.

Conclusion in relation to the plaintiff’s psychiatric injury 

203. [203]
     On the above analysis, I do not accept that on the balance of probabilities the plaintiff is suffering from a psychiatric injury. However, I find on the balance of probabilities the plaintiff was suffering transient episodes of depressed mood in 2013.

Are the defendants liable forany Psychiatric Injury?

204. [204]
     Given my finding that the injury suffered by the plaintiff was completely resolved by 9 December 2010, it follows that the transient episode of depressed mood the plaintiff suffered in 2013 is not causatively linked to this injury.

205. [205]
     I therefore find that the defendants are not liable for any psychiatric injury suffered by the plaintiff.

Quantum

206. [206]
     Given the conclusions I have reached on liability, the quantum of the plaintiff’s claim for damages is confined.

207. [207]
     The plaintiff was born on 24 February 1987. He was 22 at the time of the injury and he is now 30. He retired on a pension from the army on 15 August 2012. Apart from a relatively short period in 2013, he has not been in paid employment or attempted to obtain paid employment since that time. He is now engaged to Katie. Together they have a young son.

General damages

208. [208]
     The plaintiff claims a degree of permanent impairment in respect of his injury to the lumbar spine and psychiatric/psychological injuries.

209. [209]
     Damages for pain, suffering and loss of amenities of life (general damages) are to be assessed pursuant to s 61 of the Civil Liability Act2003(Qld) as in force at 22 August 2009 (Reprint 2B). This involves assigning a single Injury Scale Value (ISV) to the injury. The ISV is assigned by reference to Sch 4 to the repealed Civil Liability Regulation 2003 (Qld) as in force at 22 August 2009 (Reprint 1B) which prescribes an ISV range for individual injuries. The relevant items in the schedule are as follows:

item 12 ‘moderate mental disorder’, ISV range of 2-10

item 17, ‘minor facial injury’, ISV range of 0-5

item 92, ‘moderate thoracic or lumbar spine injury – fracture, disc prolapse or nerve root compression or damage’, ISV range of 5-15.

210. [210]
     Item 92 is relevant to the present assessment. The commentary to this item states:

An ISV at or near the bottom of the range will be appropriate for an uncomplicated fracture of a posterior element of 1 or more of the vertebral segments, for example spinous or transverse processes, without neurological impairment.

211. [211]
     The plaintiff contends an ISV of 10 corresponding to a general damages award of $11,000 is justified, taking into account the psychiatric injury (and to a small extent the facial injury). The defendants agree that an ISV of 10 and a general damages award of $11,000 is appropriate for the lower back injury alone. Given my findings, I would have assessed the ISV to be at the lower end of the range. However, the agreed ISV is in the middle of the range for a lumbar spine injury and in light of the defendants’ concession, I accept an IVS of 10 is appropriate. It follows that the plaintiff has made out his claim under this head. I assess general damages in the sum of $11,000.

Economic loss

212. [212]
     Section 55 of the Civil Liability Act2002(Qld) (Reprint 2A) (CLA) regulates the award of damages for economic loss in this case. This section provides:

55When earnings cannot be precisely calculated

3. (1)
   This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.

3. (2)
   The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.

3. (3)
   If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.

3. (4)
   The limitation mentioned in section54 (2) applies to an award of damages under this section.

213. [213]
     The plaintiff claims that the starting point for his claim for economic loss is that the subject injury caused his medical retirement from the army. That is, but for the injury he would have continued as a soldier. The plaintiff retired from the army on 15 August 2012. Given my findings that the injury was healed in 2010, there is no causative link between his retirement and the injury. Bearing in mind s 55(2) of the CLA, I am not satisfied that the plaintiff will suffer any future economic loss. With this provision in mind however, I am satisfied that a component of the plaintiff’s claim for past economic loss remains open on my findings.

Past economic loss

214. [214]
     The plaintiff’s claim for past economic loss is on the basis that due to his injury he lost the income-earning opportunity to engage in field exercise and overseas deployment. The plaintiff’s evidence was that Operation Talisman Sabre runs every two years and involved “tier 1” periods totalling four weeks, and “tier 2” periods of at least four weeks. Operation Swift Eagle runs for eight weeks and would have been a “tier 2” exercise for the plaintiff’s trade. In addition, the plaintiff referred to every year there being “Infantry Minor Tactics” which ran for two weeks classified as “tier 1” and a trade ammunition and explosives demolition which lasts for two weeks classified as “tier 2”. There was a general assertion that the amounts received on such exercises were similar to deployment pay. The plaintiff accepted that the calculation required an estimate. I accept that a plaintiff is not to be deprived of damages because the evidence does not permit a mathematical calculation.^[158]Further, any difficulty in calculation is not ordinarily taken as a ground for reducing or increasing the award.^[159]

215. [215]
     The plaintiff also submits that he lost the chance to deploy to East Timor and Afghanistan and earn extra allowances (taxfree). There was some evidence that deployments were worth an extra $30,000.

216. [216]
     The assessment of whether the plaintiff suffered a diminished capacity as a result of his injury in this case is complicated by the evidence that at the time of the injury, the plaintiff was suffering from bilateral compartment syndrome and was on restrictions. On the evidence, the plaintiff’s prospects of deployment until after his operation for compartment syndrome in 2011 were, in my view, rather limited.

217. [217]
     Having considered the principles espoused in the authorities such as Malec v JC HuttonPty Ltd,^[160] I accept that the possibility (amounting to less than a 50% likelihood) of diminished capacity leading to actual economic loss must be taken into account.

218. [218]
     In the present case, as difficult as it is, I accept that there is some possibility (well less than 50%) that the injury sustained by the plaintiff from 22 August 2009 until 9 December 2010, resulted in a diminished earning capacity because he lost the opportunity to be deployed overseas and attend some field exercises. Assuming the best possibility for the plaintiff is that he was deployed for 8 months and was able to do one exercise for 8 weeks, and allowing a discount for what I consider a well less than 50% prospect of that happening, and taking into account an amount for interest over 8 years, I assess damages for past economic loss in the sum of $15,000.

Special damages and out of pocket expenses

219. [219]
     The plaintiff claims the sum of $3,953.33 by way of special damages for pharmaceutical expenses between May 2014 and May 2017;^[161]travel expenses between 24 August 2009 and 22 May 2017;^[162]Notice of Past Benefits from Medicare^[163]and gap expenses. Of the amounts claimed, only some of the travel expenses and some Medicare and gap expenses (the exact amount is not clear on the evidence) were incurred during the period of the plaintiff’s injury. Doing the best I can on the material before me, I assess special damages in the sum of $1,500.

220. [220]
     The plaintiff claims a global sum of $10,000 for future pharmaceuticals and chiropractic treatment. Again, given my findings, there is no basis for such an award.

Summary of damages assessed

221. [221]
     In summary, damages are assessed as follows:

Orders

222. [222]
     There will be judgment for the plaintiff in the sum of $27,500.

223. [223]
     I will hear the parties as to costs and to that end I direct that any submissions in respect of costs, or alternatively a proposed draft order if the parties are agreed, be filed within twenty-one (21) days.