jasc91003

IN SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 367 of 1985

BETWEEN:

TODD ANDREW McCARTHY

Plaintiff

AND:

ANTHONY NEWCASTLE

Defendant

CORAM:	ASCHE CJ

REASONS FOR JUDGMENT

(Delivered 15th day of March 1991)

The plaintiff is a young man now aged 26. On 24 December 1984 he was grievously injured in an accident. He was a pillion passenger on a motor cycle being driven north along the Stuart Highway towards Tennant Creek when it came into collision with a motor vehicle driven by the defendant. The plaintiff‟s friend, who was the driver of the motor cycle was killed.
The plaintiff‟s injuries were of such severity that it has taken some years before they could be said to have stabilised. During that t ime the plaintiff underwent frequent operations.
Liability has been admitted on behalf of the defendant.

The plaintiff was born on 5 February 1965. Hence at the time of the accident he was 19, nearly 20.
The plaintiff is the youngest of a  family of  three, having an  older brother and an older sister. He was born in Rockhampton but his parents moved to Gladstone where they still reside.  The plaintiff attended school at  Gladstone. He left at the end of 1980. He showed no interest at the time in obtaining any trade or academic qualifications although, as later tests have shown, he had a high IQ, and my own observation of him is that he is a very intelligent and articulate young man. But, even if he had known of his potential in 1980 (which I rather doubt), I am sure it would have made no difference to his decision. He was not interested in further education. He wanted to have a job and be independent. He was perfectly happy to seek employment, which he almost immediately obtained, in what was little more than unskilled labour with the Queensland Railways as a porter; although no doubt he might have expected some promotion in time. As he said in
evidence “the idea was to finish school and get out and get a job”. He

speaks of “peer pressure”, by which I take him to mean that was the general attitude of his friends at school.
Nothing of this can be in the slightest degree derogatory of him. It is not incumbent on a young boy of 16 of high intelligence to seek further
qualifications in some clerical field which he does not like rather than some sort of outdoor physical work which he prefers and which leaves him free

for other activities. The plaintiff was not a loafer. He wanted to work and I am sure he performed his work satisfactorily. His work history i s, however, and unfortunately, relevant to this case; because, whatever else he may now be able to do, one thing is clear; his injuries have rendered him totally   unable to return to the sort of unskilled occupation which was his only work experience at the time of the accident.
After about 18 months with the Railways the plaintiff did in fact move to employment which might ultimately have given him  a  trade  qualification. He became apprenticed, or so he thought, to a butchering firm. The firm went into liquidation and it was discovered that his indenture papers had not been submitted so he was unable to continue. He moved back to the
Railways and remained in employment there for another twenty months or so. He was then convicted of two offences relating to possessing and
supplying marijuana. These convictions did not result in gaol sentences; but they were considered sufficiently serious by his employers to warrant his dismissal. He was unable to find other employment in Gladstone. He had become very friendly with another young man, a Mr Humphries, who had employment in Tennant Creek in a gold refining plant. Mr Humphries told  him that there were jobs available either in Tennant Creek or other parts of the Territory in the mining or construction industry. He went to Tennant Creek with Mr Humphries. He did not find work immediately but the prospects seemed reasonable. It was at this stage that he accompanied

Mr Humphries as a pillion passenger on his motor bike on a journey out of Tennant Creek. It was on the return journey that the accident occurred.
Up to the time of the accident he had been a fit and healthy individual, enjoying sport of various kinds and enjoying the independence which his employment gave him. I do not think the criminal convictions or the dismissal from his employment in the Railways weighed too heavily upon him. In any event he was young enough to put those things behind him and young enough to make a new start in new surroundings. Whether he would have settled down immediately to permanent employment is doubtful. I  think he was still at the stage where he wanted adventure and new experiences; and he would probably have drifted from job to job for some
years. But there is no reason to doubt that he would have worked hard when  he was employed; and, although he would have had periods of
unemployment they would not have been of long duration. Subject to one

factor, he may ultimately have found his niche. The destabilising factor was his drinking. He admits to very heavy drinking on an average of about four days a week.
It is of course not unusual for young men to go through a period of fairly heavy drinking but gradually to moderate their intake as maturity or family or work responsibilities catch up with them – or their erstwhile drinking companions.  Nevertheless the drinking habits of  the plaintiff seem somewhat more excessive than this pattern, and whether he would ultimately

have mastered his problem is a question which I will later consider in

further detail. I turn first, however, to consider the injuries he sustained in the accident.
The plaintiff remembers nothing of the accident. He has some recollection  of events before the accident eg. stopping to help a motorist along the way. His last recollection however is no more than of being the pillion passenger as the motor bike driven by Mr Humphries proceeded to Tennant Creek.
Both he and Mr Humphries were wearing full face helmets. Since liability has been admitted there is no evidence as to the exact circumstances of the accident but it seems that the motor cycle was involved with what was apparently a head on collision with a vehicle travelling substantially on the wrong side of the road.
The plaintiff did not recover full consciousness until 2 January 1985.

According to his father, who was able to observe him from 26 December onwards, he had some brief periods of consciousness before 2 January when he spoke to his father or cried out, but the plaintiff‟s own recollection is a blank for those nine days after the accident. That may have been a mercy;
for his injuries were severe.

Before turning to the medical evidence, it is useful to give a layman‟s description of how the plaintiff appeared two days after the accident when

he was in the intensive care unit of the Royal Adelaide Hospital. The description is that of his father:
“He was in intensive care. He was naked on a bed with the sheet partially covering him. He had his right leg in traction from the knee. There was an apparatus around his – section of his leg just
above the ankle. He had his right arm elevated. It wasn‟t bandaged
– it was shrouded – draped in a cloth but it wasn‟t bandaged.
… He had a severe tear to his bottom lip; it appeared like someone had got the corner of his mouth and just ripped it down. His face was very swollen and his jaw obviously out of line. He was unconscious at the time; he had a drip in his left arm; a tube in his nose and a catheter.”
It is helpful to have this picture to put alongside the more clinical medical reports; although, when analysed, those reports speak more precisely of the serious and crippling range of the plaintiff‟s injuries.

Injuries and Medical Treatment

After a brief stay at Tennant Creek Hospital the plaintiff was taken to the Alice Springs Hospital on the same day the accident occurred. His injuries on arrival at Alice Springs are set out in the report of Dr Punitham:
“On arrival at this hospital his condition was reasonably stable considering the multiplicity of injuries.
The following injuries were noted on admission.
Head injury. He had loss of consciousness at the time of injury and was responding only to painful stimuli on arrival. There was bleeding along with CSF from the Rt ear, revealing that he had sustained a fracture of the base of the skull.

There was a laceration over the lower lip and fracture of the mandible.
Compound fractures of both bones of the right forearm.
Compound comminuted fracture of the shaft of the right femur.
Compound comminuted fracture of the lower shafts of the right tibia and fibula.
A laceration of the scrotum with herniation of the right testis.
He was admitted to the intensive care unit of this hospital and was transferred to the Royal Adelaide Hospital the same day.”

On the plaintiff‟s arrival at the Royal Adelaide Hospital the following injuries were noted in the report of Dr Tan:
“Examination showed his injuries to be as follows:

Compound fracture of the right tibia and fibula.
Compound fracture of the right femur.
Fracture of the mandible near the midline and also at the left angle.
Compound fracture of the right ulnar with degloving injury to the forearm.
Complete right brachial plexus injury.
Lacerations to the lower lip and chin.
Laceration to the right scrotum.”

The plaintiff remained at the Royal Adelaide Hospital until 16 February 1985. During that period he underwent four operations. Dr Tan‟s report sets them out:

“On 25/12/84 the compound fracture of the right tibia and fibula was reduced and fixed with an external fixature. The wounds of his right leg and right arm were cleaned, debrided and dressed.	On 28/12/84 open reduction of the fractured mandible, interosseous wiring and intermaxillary fixation were carried out. The lower left 2 nd and 3rd molars had to be removed as was the upper left first molar.
Lacerations on the lower lip and chin were debrided and sutured.  The orthopaedic surgeons inserted an intramedullary nail into the right femur for the midshaft fracture. They also put a Rush pin into the right ulna. Split skin graft taken from the left thigh was used to cover the areas of skin loss on the right forearm.
On 21/1/85, exploration of the right brachial plexus showed damage  to all the roots of the plexus. Nerve grafts were carried out using the ulnar nerve from the right forearm to reconstruct the upper and middle trunks.  On 14/2/85, the external fixature on the right tibia  was removed and a below the knee plaster of Paris case was applied.
He was given physiotherapy to his right arm and right leg, and the intermaxilary fixation of his mandible was removed on 12/2/85.
Antibiotics were given for about four weeks. He was discharged from hospital on 16/2/85, and returned to Queensland.”

The plaintiff was then admitted to the Princess Alexandra Hospital Brisbane on 18 February 1985.
That and subsequent admissions to the Princess Alexandra Hospital are recounted in the report of Dr Wall:
“He was admitted on this occasion for further care of  his right brachial plexus palsy and fractures of his mandible, right forearm, right femur and right tibia and right fibular.  At  the time of  admission it  was noted that this Kuntscher Nail in his right femur was bent due to weight bearing. He was therefore given a cast to absorb the weight. He was subsequently discharged on the 1st March 1985.
He was admitted again to Princess Alexandra Hospital on the 28th May, 1985 for care of brachial plexus palsy. At the time of
admission his splint was adjusted and further instructions regarding

physiotherapy were explained. He was returned to the care of his general practitioner, Dr C Warne of 14 Tank Street, Gladstone.
Mr McCarthy was readmitted on the 16th July, 1985 for further surgical management. On this occasion Dr Mackie carried out iliac– crest bone graft to the right tibia for management of  non–union of his fractured tibia.
He was discharged on 8th August, 1985.
He was seen by Dr Coleman on 24th June, 1986. At that time it was decided that he could have the screw from the right olecranon removed.
Examination of the right arm revealed 5/5 power of biceps, 0/ 5 power for triceps and 4/5 power for deltoid. There was no hand function at all.
At the hand clinic on 12th August, 1986 Mr McCarthy discussed with the surgeons the possibility of amputation of  his forearm. We have no further information however it is clear that there is much more to do for this man.”

This last sentence of that report is important, since the report was compiled on 15 September 1986, that is some 21 months after the accident, yet
Mr Wall is giving his opinion that there is “much more to do”.

There is a further report from the Princess Alexandra Hospital dated

20 February 1987 which recites that the plaintiff‟s right arm was amputated below the elbow on 19 November 1986. This was at the plaintiff‟s request and after consultation with his medical advisers. It seems to have been the sensible thing to do since the hand was functionless and got in the way of many of his activities. It also enabled a prosthesis to be fitted.

The plaintiff returned to the Princess Alexandra Hospital on various occasions in 1987 and 1988 and for various treatments and operations. This  is set out in the report of that Hospital on 5 September 1990.
“Since 20th February 1987 Mr McCarthy was admitted to Princess Alexandra Hospital on 28th July 1987 and discharged on 31st July 1987. On this occasion an intramedullary nail was removed from his right femur. There were no post operative complications.  However,  he was re–admitted on 11th August 1987 with pain in the fracture site and consequently was treated with a plaster cast brace to prevent the possibility of a re–fracture, and was discharged  on  12th  August 1987.
He was re–admitted on 14th March 1988 and discharged on 16th March 1988. On this occasion he underwent a diagnostic arthroscopy of the right knee which showed early osteoarthritis of the lateral compartment. No actual procedure was undertaken.
Subsequent to this he continued to have pain over the right femoral fracture site and X–rays showed an increase in deformity. He was therefore re–admitted on 11th July 1988 and discharged on 19th July 1988. X–rays revealed a hyper–trophic nonunion of the femur, and on 12th July 1988 he underwent a repeat internal fixation with a
further intramedullary nail and bone grafting which was harvested
from the iliac crest. Following this there were no complications and he has been seen as an outpatient on 9th September 1988, 25th November 1988, 31st March 1989. X–rays have shown progressive union of his fracture and he is now on the waiting list to have the intramedullary nail removed. This is likely to be performed within the next two years. He will require to be hospitalised for around
four days for this procedure to be undertaken and will then be partial weight bearing on crutches for a further six weeks.”

From about March 1985 the plaintiff, when he was not attending Queen Alexandra Hospital in Brisbane, remained in Gladstone either with his parents or at other addresses in circumstances I will later recount. He has

continued to live at Gladstone. He attended the Gladstone Hospital from time to time up to April 1986 as an out patient and for physiotherapy.
That is the account of the hospital treatment of  and operations to the plaintiff to date. In summary they present a picture of a man with extensive injuries to the right leg (tibia, fibula and femur), irreparable injuries to the right arm below the elbow (ultimately necessitating amputation), fracture of the jawbone with loss of teeth, lacerations of the lower lip and chin and of the right scrotum. There is a history of no less than nine operations with likelihood, (depending on circumstances which I will later discuss) of several more. During the course of treatment he refractured his right leg twice.
Leaving aside for the moment questions of pain, headaches and

psychological trauma, he now presents physically as a man with an amputated right arm, a right leg somewhat shorter than the left who walks with a limp which can be ameliorated to some extent by built–up shoes. I turn therefore to the medical prognosis.

Medical Assessment for the Future

Mr Johnston a general surgeon who examined the plaintiff on 5 November 1990 notes various complaints by the plaintiff as to aches at site of
fractures, knee aching all the time, dull ache in back and phantom pains in

right arm. These are consistent with the plaintiff‟s evidence which I accept, since my observation of the plaintiff is that he is by no means prone to exaggeration in this matters.
Mr Johnson makes further observations at 7 and 8:

“Although there is no current evidence of degenerative changes at potentially affected joints the possibility of osteoarthritis developing at the right ankle, right knee, right hip, right shoulder joint and the residual right elbow joint cannot be excluded. I cannot forecast the time of onset or the degree of adverse effects.
……

His percentage disablement would appear to be  100% of  the  right arm taking into consideration the right brachial plexus damage. This is  equal to  60% of the whole man. The disablement of the right leg is an empirical 15% of the leg or 6% of the whole man. His total disablement is probably 66% of the whole man. I have not taken into consideration any psychological effects as this does not enter my
field of activities.”
Mr Johnston also comments on the possibility of supervening osteoarthritis.

“Mr McCarthy is seriously disabled in that he has lost his right
forearm, has an inadequate stump and residual elbow joint, weakness of the upper arm and loss of movement of the shoulder joint. He also has shortening of the right leg and persistent backache.

Mr McCarthy‟s condition is probably static. It is not possible to forecast degenerative changes at this stage. The prognosis is guarded to good. He will not be able to return to his pre–accident
type of work activities and he will not be able to resume his sporting activities. He appears to be sufficiently intelligent that with application he could carve out a new career for himself away from a purely physical scenario.”

In evidence he said that he would expect over the years that degenerative changes of some condition would take place at all three joints, the ankle, the knee and the hip.
Mr Johnston does not see any real need for the removal of the wires in the mandible or the intra–medullary nail in the right femur. He does concede a possibility of removal of the wires in the mandible if infection ensues but, as I follow his evidence, he does not see this as a significant possibility.
Apart from those removals he sees no reason for further operative treatment but he considers that supportive treatment to back and right arm could be necessary.
As to the plaintiff‟s lower jaw there is also the report of Dr Djamshidi an oral and maxillo–fracture surgeon. This report is dated 1 October 1990. After observing that x–rays showed that the plaintiff‟s lower jaw had been fractured on both left and right sides and observing the loss of teeth he comments that:
“The fracture has been reduced to a reasonable and satisfactory position.”

He notes that the plaintiff still suffers from partial numbness of the lip due  to nerve damage and he does not believe there will be any further recovery. One further tooth will need to be removed and the plaintiff may suffer from

joint disturbances as a result of the loss of two posterior teeth in the lower jaw.
He seems a little more positive than Mr Johnston about the possible need to remove the wires in the jaw.
“It is possible that these wires will in the future cause trouble and may need to be removed.”

Dr Cameron neurologist made this comment:

“He appears to have recovered from the significant head injury without any problems. Nevertheless the period of amnesia and consciousness associated with the event was quite significant and as such I suspect he probably did suffer some mild brain injury at the time of impact. There is possibly a 2 to 3% chance that he might
subsequently develop epilepsy as a result of this injury.” He made these further comments:
“He is experiencing phantom pain which at times can be quite distressing and uncomfortable. It is very likely this discomfort will persist for the rest of his life.
…
I believe this man will have trouble performing manual activity in the future in view of the loss of the use of the right upper limb. I suspect he will be forced into a clerical position. He will have to complete high school to attain such a suitable position.”

Dr Cameron also arranged for an EEG study which showed no abnormality.

Mr Nurse an orthopaedic surgeon seems generally to agree with Mr Johnston save that Mr Nurse considers that he will require in future removal of the
femoral pin, and he is perhaps at some variance with Mr Johnston on the question of future degenerative changes. He considers that although there is minor degeneration about the dorso–lumbar region and evidence of mild congenital abnormality of his low lumbar spine essentially there is no evidence of any degeneration. He adds:
“With regards to his right distal tibia and fibula joint, although there is some degree of mal–union and the fracture lies in a degree of varus, the amount of deformity is acceptable and it is unlikely that during his working life he should develop any degenerative changes.
The degree of disability of his right lower limb will be mainly as a result of his shortening.”

He considers the disability of the right upper limb to be in the order of 90%.
Although there is really very little variance between Mr Nurse and

Mr Johnston I consider that insofar as there is any such variance I should prefer the evidence of Mr Johnston, – but only on the basis that he gave evidence and was cross–examined so that I was able to make a better assessment of his evidence overall. I therefore take into account the possibility of future degenerative changes.

Pain and Loss of Amenities

From any objective view the medical evidence would indicate that the plaintiff suffered considerable pain for many years and still suffers as a result of the accident. The plaintiff himself, however, plays down his experiences. He says he has a rather large threshold of pain. “It‟s there.
There‟s no sense worrying about it because it‟s not going to do it any good. I‟d rather just ignore it.” This is obviously part of a fiercely independent attitude which is an admirable trait in his character. Nevertheless he says enough to indicate some very painful episodes and some continuing aches which will always be with him. His very moderation makes me accept in
full what he says on this aspect and I must be careful to divorce from my assessment what I would expect him to suffer from that which he himself says. Even then, the picture is bad enough.
Nine days after the accident the plaintiff woke up in the Royal Adelaide

Hospital. I have already set out his father‟s description of what he looked like. The plaintiff himself describes a gradual realisation of the extent of his injuries. He found his jaw was wired together, he had no feeling in the right arm which was badly lacerated down the side where he has been skin grafted. Despite this his first feelings were not of pain but grief when he heard of the death of his friend Humphries. He said that took supremacy over all else at the time particularly because he was not able to attend the funeral. The opinion of Ms Britton the psychologist was that he has

projected a lot of the grief in relation to the loss of his arm to the loss of his friend.
The plaintiff endured four operations over the next six weeks. He describes being in “severe” pain for about three and a half days after one of these operations. In view of the general moderation of the plaintiff‟s evidence,
when he speaks of “severe” pain I take him to mean just that. He said it was “the first time I‟d ever had any pain like that”.  He says that ever since then  he has been getting phantom pains in the right arm. He says they vary from “lower mellow pins and needles like I get all the time to a sharp piercing
pain in sections of my right hand, which I can feel but it obviously isn‟t there”.
Some damage to the scrotum is still present but does not seem to concern him and there is no evidence of pain in that area.
He was very conscious of the writing of his jaw.

He experienced pain and discomfort from the steel pins in his legs and his walking was difficult when he first attempted it. As these pins were being removed he experienced severe pain, “nearly put me through the roof”, and he had to be put under a general anaesthetic. On first discharge from the
Princess Alexandra Hospital, he convalesced at Gladstone at his parent‟s home. His leg was still in plaster, he experienced discomfort from that and he had the phantom pains and he had headaches. The headaches gradually

decreased in frequency but he still gets them. “Wicked little creatures” he says, “I never used to get headaches like that before”.
After the plaster was removed from his leg he started some physical rehabilitation course but he refractured his leg in July 1985, when he slipped on wet concrete. He did not realise he had sustained a fracture but when the pain did not ease after a few days he went to hospital to get some pain relief and it was then that the fracture was discovered and he was put back into plaster. After some time that plaster was removed and he used his leg again.
In about July 1987 he had a pin removed from his leg.  At that time or  shortly after it he fractured the leg again. This was not realised by him and  he seems to have spent up to 12 months trying to walk on this broken leg.
This caused what he described as “an extreme dull ache with every step I took”. He said he just didn‟t want to believe it was broken. Eventually, however, in July 1988 the fracture was discovered and the leg reset.
He also describes intermittent arthritis pain in the right knee. This is still with him.
Meanwhile he eventually had the right arm amputated in November 1986. Before this the useless arm and hand caused him considerable discomfort. He would bump into things with it, the fingers had become clawed, and would hook on to objects.

There is fattening to his bottom lip which he still notices and which still embarrasses him somewhat although it is not particularly visible to others.
He has a great deal of scarring on his legs and body, some from the accident and some from operations, but he does not appear particularly upset by these.
On  the credit side he can now drive a car (specially fitted for him), though he gets tired after about 20 minutes and his back aches and he must rest. He can cook for himself and feed himself though he  needs a  special instrument   a “rocker knife” and a special cutting board. Using the rocker knife to cut meat can tire him and he has experiences when the knife slips and the food goes to the floor.  He  can walk reasonably well using built up shoes and has   a range of about 9–10 kilometres.
His physical condition does not seem to have hindered him in forming relationships with the other sex. He lived with one woman for about
18 months and with another for about 6–7 months. He could achieve sexual intercourse but felt frustrated and inadequate with some of the adjustments he had to make in its performance. That also led to feelings of jealousy and  he explains the breakdown in the first relationship to his feelings of
jealousy, inadequacy and self–doubt. However it seems plain that the most substantial reason for the failures to both relationships but particularly the second was his excessive drinking.

There is a substantial loss of enjoyment of life and amenities. Before the accident he was fit and healthy and enjoyed sport.  Between the ages of 12  and 17 he played hockey and represented Gladstone as a representative goal keeper. It became difficult for him to continue in a team after he became employed because he was required to do shift work. He enjoyed other sports, roller skating and karate and water skiing, although he seems to have also given them up about the time he became employed. He enjoyed fishing and continued that up to the time of the accident. He because interested in “eight ball” which he played at the local hotel.
I do not accept that, apart from “eight ball” and fishing, he had finished with sport at the time of the accident. I accept him as enjoying his physical
fitness and, had he settled down in a particular locality and had time outside work, I am satisfied that he would have found some form of sporting activity for his leisure. It may not necessarily have been any of the sports mentioned but my assessment is that he would have enjoyed some form of sport.
All that is virtually destroyed save for the “eight ball”. He has adapted himself to playing left–handed and is proud that is almost back to the standard he had earlier.
There are some other problems he now faces which I take as directly

affecting his enjoyment of life. One may seem trivial to a person who has not suffered some visible disfigurement but I am quite satisfied on the

plaintiff‟s evidence that it is a real problem.  It is the constant questioning  by strangers or new acquaintances as to how he came by his condition.  It is   a natural question to ask and I am sure that people how ask it are not prompted by unkindly motives.  They are just naturally curious and may  even look on it as a way of getting better acquainted or expressing
sympathy. Nevertheless I can well understand that plaintiff‟s exasperation.

Even persons who suffer some temporary physical impairment, say a black

eye or a fractured arm, find their patience somewhat tried after the twentieth enquiry. The plaintiff must have had the question asked hundreds of times.  He sometimes covers his irritation by making up tall stories; while that may relieve the monotony, it is often inimical to friendship. The plaintiff‟s independent character makes the situation more difficult for him because he is clearly rather desperately anxious to be treated in the same way as other people.
Clearly the plaintiff now finds personal relationships more difficult than before. Although his parents seem to have done all they could for him and
their home is still there for him, he found it impossible to live with them for long. He became irritated at any display of anxiety or any remark he interpreted as a criticism of him. On one occasion he left suddenly when his mother had, it seems with good cause, remonstrated with him about his drinking. He had made no plans to leave and left impulsively and hitch–
hiked to a friend‟s home. I am satisfied that he is now far more irritable and

prone to anger and frustration than before the accident and as a direct cause of the injuries he has sustained. This is borne out by the report of the
psychologist Ms Britton. She expresses the opinion that:

“He is suffering a moderate degree of depression as well as an increased level of anxiety. It is  probable considering psychometric test results that he had an anxious personality before the accident and that the accident has accentuated this tendency.”
She believes that he:

“needs to be taught methods of dealing with stress and anxiety which do not involve substance abuse.”
The substance abuse which Ms Britton speaks of is the excessive drinking.

In summary, I have a clear picture of a young man of 19 at the time of the accident who was in good health, physically fit, possibly with some moderate anxiety, but overall enjoying life as a young man with all his
faculties. He was presentable, well spoken and vigorous. He was drinking somewhat too much but at least the drinking was with his peers so it was not   a sign of social inadaptability and there was every likelihood that maturity would bring moderation. He enjoyed sport and outdoor recreations, albeit  that he found those things difficult to continue in an employment which required shift work. He had a sense of adventure, and I am satisfied that his desire to accompany Humphries to the Territory was as much prompted by  his desire to see the country and have new experiences as it was to find a     job. If he was somewhat feckless about his future he was no more so than

many of his peers and it is hardly a criticism to make of one of his age. In other words, he was enjoying life as much as any average person of his age and health.
The accident caused drastic and irreparable damage to his health, his body and his way of life. He totally lost the use of his right arm to the elbow. He sustained permanent damage to the right leg which is about one inch shorter than the left. He experienced a great deal of pain even within his stoic standards and sometimes that pain was intense.  His jaw was wired and he   had difficulty there for some time.  Until the useless right arm was   amputated he experienced serious discomfort from its presence. He experienced the pain and unpleasantness of no less than nine operations.
Within the first three or four years of the  accident he  refractured his right leg on two occasions. He is left permanently crippled and still with a strong sense of frustration because of it. He can no longer play sport save for eightball.  He can now walk reasonably well with built up shoes.  He can  drive but tires easily. He can generally care for himself but the general household chores and cooking and eating are slow matters and cause him to feel frustrated. He will, it seems, always, or at least for the foreseeable
future, have the phantom pains, headaches, and some backache. Nor can I rule out continuing depression and frustration although he may cope better after the sort of therapy suggested by Ms Britton. Leaving aside the obvious and permanent disabilities to the right arm and leg I am satisfied that he will

always have residual pain and suffering although it might slowly decrease. There is also, according to the evidence of Mr Johnston a real possibility of future degenerative changes including osteo–arthritis. In short the effects  on his health and happiness have been substantial.
In my view the pain and suffering and loss of amenities has been gross and significant and will continue. For both past and future damage of  this nature  a figure of $80,000 seems to me appropriate. Of that figure I consider
$50,000 should be apportioned to the past sufferings and loss of enjoyment of life of the plaintiff, since the first few years after the accident were the most traumatic characterised by nine operations, two refractures of the leg, gross discomfort generally, particularly during the time when he had the worse than useless right arm. Although the injuries may now in the broad sense be said to be stabilised he will always suffer some pain. There is a possibility of degenerative changes, and of course he will always be debarred from many activities which he would normally have enjoyed. I consider $30,000 should represent the future loss in this area.
On the question of interest I am content to follow the guidelines laid down by O‟Leary J in Volmer v NTEC (1985) 34 NTR 12 at 31–32 where, after discussing the principles his Honour says:
“Clearly, in my opinion, the course I should adopt is to follow the guidelines indicated by Gibbs J in Cullen v Trappell, and I propose to do so. I therefore approach the matter in a „broad and practical
way‟, bearing in mind the purpose for which interest is awarded, and

taking care not to over compensate the plaintiff or  to do an injustice to the defendant. Interest is awarded to compensate the plaintiff for being kept out of the money to which he has now been found to be entitled, in this case damages for pain,  suffering and  loss  of amenities up to the date of judgment. Apart from the first week or so after the accident when the plaintiff must have suffered acutely from his burns, I think the detriment suffered by him has been fairly
uniformly suffered from that time up  to the present. I therefore think I  should compensate him for being kept out of that money by allowing him interest on the sum of $20,000, being the amount apportioned to that detriment, at the rate of 6 per cent, that is, at half the commercial rate of 12 per cent. That amounts approximately to
the sum of $3600.”

In fixing interest at 12% overall his Honour was following Muirhead J in Lawrence v Mathison (1981) 11 NTR 1 and, although there have been obvious variations to the commercial rate of interest in the last decade, that percentage seems generally to have been adopted by the judges of this court.
Taking a broad view I think therefore I should award interest on $50,000

from the date of accident and for a period of 6 years ie., $18,000, making a total of $68,000 to judgment which, when added to the $30,000 for future damage under this head comes to $98,000.
Past Loss of Earnings

Mr Tishler, a union official of the Federated Miscellaneous Workers Union, has given evidence from extensive knowledge of the employment picture of the mining and construction industry in the Territory. In general terms he considers the plaintiff could have expected to earn at Tennant Creek and in the mining area and with available overtime and shiftwork about $25,000

per annum. However that assumes continuing employment and continued availability of  work for unskilled labourers.  Overall, and making allowances for fluctuations I would think a net of $20,000 before tax would be more realistic over the whole period. That would assume somewhat  lower earnings at the beginning and perhaps somewhat more by the end – overall $20,000 per annum. Deducting tax and medicare over the period
31 December 1984 – 31 December 1990 that would on my calculations come to something in the region of  $98,000.  But I  am satisfied that I  should reduce this somewhat further because I do not consider that the plaintiff was looking for or  would have maintained permanent employment –  at least not in the first few years. He had no set plans. I think the likelihood, having regard to his age and character, was that he would have had intermittent employment with periods of non–employment of his own choice. I don‟t  mean to suggest he is lazy. I  think when he did work he would have done a  fair day‟s work for a far day‟s pay. But it is plain he also wanted to look around and he was not unduly distressed by being unemployed. It is
significant that he came to the Territory in July 1984 and up to the time of   the accident he had not obtained employment. He was certainly looking for appropriate work but not with any sense of desperation and I think he would have moved around the Territory. Again, no criticism is intended. He was young with no dependants and with a roving tendency. I think his
philosophy was that he would work when he wanted to and take time off

when he wanted to. Nevertheless, when he worked and if it was available (and according to Mr Tishler it often was) he would have taken overtime.
These considerations lead me to fix on $75,000 as a fair assessment of loss of earnings up to this time.
Mr Reeves has put before me some interesting figures which I do not adopt but I think do assist the general enquiry. He has calculated the plaintiff‟s previous earnings. On that basis he extrapolates those earnings consistent with the CPI rises. Those calculations bring in a figure of something like
$65,000 which I consider a bit low but a useful basis of comparison.

Mr Reeves in those figures makes a point about the plaintiff being allowed time to continue his secondary education but I think that is more a matter to discuss in considering the question of future economic loss.

Future Economic Loss

In the course of considering future economic loss three particular questions have to be asked and, so far as possible, answered. The first of  these is in  my view the easiest. The other two are extremely difficult. The questions are:

Can the plaintiff return either immediately or in some fairly predictable future to the sort of unskilled employment he was capable of performing before the accident?
Can the plaintiff exceed his present level of education so as to achieve Year 12 and subsequently qualify in a tertiary academic or TAFE field; and, if he can, will his qualifications provide him with a reasonable opportunity for employment?
Can the plaintiff master his now considerable drinking problem to enable him to attend efficiently to such jobs as he can attain; or will his present rate of drinking continue or even increase so as to render him quite unfit for any employment? Coupled with this question is a question of causation: how far and to what effect, if  any, did the accident cause or contribute  to his present drinking problem.
As I have suggested the first question really poses no problem. The

plaintiff‟s physical condition, particularly the loss of his arm renders him totally unfit for any sort of job consisting of physical labour. But it goes further than that. It makes it highly unlikely that he could find any
unskilled job save by a combination of highly exceptional circumstances and the unlikely presence of an “odd lot” sort of employment.

Ms Coles an occupational therapist with considerable experience in rehabilitation work, put the plaintiff through a number of tests and notes these matters which she groups under the heading “Factors influencing operational performance”.
“The following disabilities handicaps or restrictions influencing Mr McCarthy‟s performance was identified by formal tests, simulated movement, systematic observation and verbal communication.
Mr McCarthy‟s upper limb operational efficiency would not be adequate for normal work requirements.
He was restricted from full utilization of his upper limb
facility by the overuse fatigue he experiences in his left arm and the slowness and effort of using his prosthesis.
He was variably restricted in his mobility and agility by the lower limb impairment.
He was restricted in his static positioning tolerance.
His handling capacity would be sufficient for the occasional handling of light to medium objects, his optimal range of load handling being through thigh to chest level.
His driving capability would be impeded, and he would be best advised to operate an automatic vehicle with power steering.”

She concludes, inter alia, that the plaintiff “would not be capable of

returning to his former employment in labouring industries”. She does add in two of the concluding paragraphs of her report:
“8.	Theoretically, with appropriate rehabilitation and/or suitable occupational opportunity, Mr McCarthy would be expected to have the capacity for work of an intermittent light handling nature, able to be performed by his left hand.

9.	He would, however, be disadvantaged in any job selection not only by his physical restrictions, but also by his protracted period of unemployment, and in his present status, for all practical purposes, Mr McCarthy will have difficulty obtaining and maintaining himself in commercial employment.”

In a later report she says:

“In his present status, although Mr McCarthy would have the
capacity to perform a range of tasks required of a clerical assistant or office assistant, his level of productivity and performance reliability would be reduced by his incapacity and one–handedness.
He is not suited to office work by prior training, transferable skill, expertise or other experience.
Although he could be taught one handed keyboard skills, his
performance efficiency would be considerably reduced and render him under normal circumstances non–competitive. His capacity to maintain himself in a „desk job‟ would also be impeded by his reduced sitting tolerance and fluctuating attention levels caused by pain intrusion. Although he could theoretically be expected at best to undertake „desk‟ work, his prospects for finding such work would be very limited.”

Ms Coles concedes that there would be certain jobs which could be done by the plaintiff such as stores work, bar tending, ticket collecting, but her opinion was that it would not be commercially practicable for an employer to engage him. “He is slow and not sufficiently productive to meet the
normal requirements”. She does not discount the possibility of what she

calls a “one–off” job if special allowances are made for him but it is plain that these would be unlikely.

I leave out of discussion here certain psychological factors which may

militate against the plaintiff‟s obtaining employment. I think those are best discussed in the next question. Even without those factors I assess the
plaintiff‟s chances of obtaining unskilled employment suitable to the physical capacities he now has as very low.
The second question is whether the plaintiff can obtain some further education which will better fit him for employment. That he has the potential is plain enough. Ms Britton, the psychologist, found his verbal capacity very high. His verbal IQ was 125 and in some of these tests he attained scores in the top 5% of individuals. Ms Britton comments that:
“Results on these tests indicate extremely superior capacity to think abstractly and to conceptualize and comprehend verbal material.
They reflect the ability to apply a high level of reasoning to theoretical social situations, logical, categorical thinking, excellent long term memory. All these tests are good tests of „general
intelligence‟.”

His tests on performance were merely average but that is probably explained by his physical difficulties in doing the tests. His full scale IQ is 117 which, Ms Britton says, put him within the top 25% of the population.
The difficulty is in the areas of persistence and will. One reason for this is obviously environmental. He had no desire for any form of academic attainment while at school. It is clear that he left willingly at Year 10, quite content to take unskilled jobs. Again I emphasise that this is not said in any

critical sense. It was simply that he preferred that sort of  future to anything of a sedentary or  clerical nature. Over the years, and as his physical strength declined, he may have worked up to something of a supervisory capacity, or commenced some business of his own based on the work skills he had acquired. But he did not envisage a  course of  training which  involved book study. It has not been easy for him to return for formal education.
Added to this is the fact that according to Ms Britton “he is suffering a moderate degree of depression as well as an increased level of anxiety”.
He has the potential.  Has he sufficient drive and desire to complete two   more years of school to bring him to Year 12, and then some three or four  more  years of  tertiary or technical education? In 1989 he went back to school to complete Year 11. He seems to have done reasonably well at first  but his injuries still required attention, he moved to another school and did not complete Year 11. He commenced again in 1990 and at the time he gave evidence he had not sat for his final years exams. He seemed a little pessimistic as to whether he would obtain appropriate qualifications in 1990 to attain tertiary entrance. He put this down to the disruption of the legal proceedings. But, asked whether he would continue to Year 12 in 1991, his answer was somewhat uncertain.
“No, I wasn‟t really planning on – well, since this has all come up, I wasn‟t planning on doing it. I was planning on rethinking what I‟m

going to do or what I‟d like to study in a tertiary situation and possibly may have to change a couple of my  subjects  to  get  entry into a certain line of – of work or a certain tertiary entrance and start at Grade 11 again next year and then do Grade 11 and 12 and straight through, hopefully to university in two years time.”

If he managed to get to the university his present desire is to do occupational therapy. He believes that his own experience would give him a much greater degree of empathy with injured persons than other therapists.
Regrettably, however, I feel that he is highly unlikely to attain this goal. Ms Coles was clear that he would find considerable handicaps in coping with much of the physical activity which this profession entails.
Furthermore she points out that the entrance score is very high – above engineering for instance. I consider it highly unlikely that he would attain such a score.
There are, of course, professions where physical ability is not required, at least to any substantial degree. Teaching, lecturing or counselling comes to mind. But all these require a fairly high score at university entrance level,
followed by several years of reasonably intense study. I do not discount entirely the possibility that the plaintiff might achieve this but it seems to me very unlikely. He is not the “academic type”.
On the other hand there is a  possibility that he may find something suitable in the TAFE area which is more practically oriented. The difficulty there would be again that many of those occupations require physical capacity eg.,

carpentering, plumbing, secretarial, motor or refrigeration mechanics etc. However there are areas such as welfare work, hospitality industries, perhaps some tourism areas etc. It is all highly conjectural because, apart from the desire to do occupational therapy, the plaintiff himself does not seem to have given any real thought to any of these areas. He would still need at least Year 12 qualification.
If he merely attained Year 12 Ms Coles feels that that in itself would not improve his prospects, though I would consider it would do a great deal for his confidence and self–esteem.
On the whole, and subject to the question of his drinking, I consider that there is a real chance that he might ultimately obtain some TAFE
qualification which would allow him reasonable employment. I would not, however, expect him to attain such a qualification under about seven years allowing for some repeats or extensions of course. He may  not always take  or complete all the subjects required for each year. The problem again is whether he has the desire and tenacity to face such a lengthy period of education. Ms Britton is reasonably optimistic. In her report she says:
“Intellectually Mr McCarthy is very bright and is in my opinion quite capable of eventually achieving success in any university course with an emphasis on verbal skills and reasoning, as long as his interest
levels are high.”

It is the last part of that assessment which in my view gives rise to some doubts. But I accept the assessment as  a  possibility and indeed probability if one uses the term “university” in its more recently extended meaning, ie. including TAFE.
Ms Britton also comments that,

“Careers in the welfare/counselling area would suit him if he can resolve any residual anger related to his accident.”

She suggests that he should be

“taught methods of dealing with stress and anxiety which do not involve substance abuse.”

It is also noteworthy that Ms Britton adds one very important rider to the opinion that he could ultimately achieve success in a university course.
“His drinking will have to be controlled if this is to occur.”

Overindulgence in alcohol is most certainly the plaintiff‟s problem and indeed freely admitted by him. The following passage from his evidence has the merit of complete candour:
“Well, since the accident I‟ve drank more, just – I tend now to – and have done since the accident tend to binge drink. Just drink myself into a drunken stupor for about three or four days, only stopping for momentary sleep and – oh well that‟s mainly just passing out and waking up a few hours later and getting straight back into it.  And  that sort of – sometimes it‟d be three or four days, sometimes more, you know – times people say „How long have you been going for?‟ and – or „When was the last time you had a sober night?‟ and I
seriously can‟t recall. You know, like I can trace it back to probably

maybe a week or maybe two weeks before that that I actually had a sober night.”

As I have observed he was rather a heavy drinker before the accident but the pattern was nothing like this and I am prepared to accept that in the normal course of events the plaintiff would, absent the accident, have moderated his drinking. One may also and very naturally feel much sympathy for the  tragedy of a young and previously active man  turning to  drink to  alleviate the pain and enforced boredom of the years after the accident. But, in assessing future employability, the question still remains as to what hope there is for the future in this respect.  As I  pointed out to counsel in   argument there seem to be three alternatives: he will continue in his present mode and become a hopeless alcoholic and equally, hopelessly
unemployable; or he may in the next few years  find the inner strength to  make a sudden and complete renunciation of alcohol; or he may over several years, and with a number of relapses, gradually overcome his addiction.
It is extraordinarily difficult to make any confident prediction at this stage  of his life. Five years from now I think one could see more clearly into the crystal ball; but one is not allowed that luxury in fixing the once and for all assessment that is required in these sort of proceedings.
On the whole, and with some hesitation I conclude that I should opt for the last of the three alternatives, which is also the conclusion which Mr Reeves urges upon me. In doing so I put considerable emphasis upon what

Mr Waters describes as the plaintiff‟s fiercely independent spirit. It appears clearly from the evidence that he detests being beholden to others. That has driven him to strive for a life apart from his parents who have always been ready to have him; albeit with some strain upon them caused by fits of   temper particularly when he thinks they are trying to govern his behaviour. This insistence upon independence seems to have played some part in his separation from the two substantial relationships he formed since the  accident – although his excessive drinking also played a  significant part there.
A permanent descent into chronic alcoholism would destroy that independence which he prizes and, coupled with his physical state, leave him to the mercies of hospitals and institutions. I think he has some realisation of that now and it is a future which I am sure he would contemplate with abhorrence. There is also the fact that, while he will always have some pain, he has passed the major operations entailed by the accident and his condition has stabilised as far as it can be stabilised. He does not have to contemplate further drastic operations. He does not therefore have the same understandable but dubious rationale to seek a dubious and destructive solace.
Furthermore he does seem now to have some insight into the problem. In March 1990 he attended the Rockhampton Base Hospital Drug & Alcohol Rehabilitation Unit. He says:

“It did seem to help. It cut me back from three or four days down to about two now, two days of heavy drinking. I still drink on the other days but not quite as heavy.”

The answer, itself, however indicates he has a long way to go and he understands that and has stated his willingness to undergo further therapy.
On balance therefore – and it is a fine balance – the conclusion I come to is this: that he will ultimately attain his Year 12 qualification and proceed to a qualification or at least competence in a field which does not require intense study and which also does not require very much physical activity.  But it  will be a slow process and he will not always succeed on the first attempt.
He will gradually overcome the alcohol problem but that will also be a slow process. I cannot see him reaching a position of employability for about  seven or eight years. Even then he will have limited opportunities for employment and may have to face several long periods of unemployment.
Ultimately he will find some permanent employment.

All this is admittedly conjectural but it steers a course between the highly optimistic view that he would complete a university course and find well paid employment and the highly pessimistic view that he will soon become discouraged, abandon any thoughts of further education and lapse into alcoholism. I think the middle course is the only appropriate choice on the evidence before me – allowing for the obstacles but recognising a

willingness and a probability that he will rise above them to the extent I have mentioned.
On the question of  quantum the imponderables are exceedingly difficult but  I think the best way to approach it is to take the view that while he will ultimately get employment that is still in the future and will be limited and I would assess that overall, in the remaining years of his working life he will earn about 75% of what he could have earned had he been physically fit. I think this recognises both the difficulties of attaining qualifications and the intermittent nature of employment he may get, particularly in the earlier
years, before he finds the appropriate placement and overcomes the drinking problem; but at the same time recognises his potential.  Putting it another  way it allows for periods out of work by say six to seven years to qualify for employment by study and some further three to four years in total in which  he will be out of work for various likely contingencies eg. not finding appropriate employment, finding unsatisfactory employment, finding
employment with which he cannot ultimately cope, or the likelihood that he would be one of the first dismissed from employment in times of economic stress. Thus out of a total working future of 40 years he would, in my view, be likely to lose at least 10 years – or 25% of  his future. I make no allowance for decreased expectation of  life as a  contingency since there is no medical evidence to that effect, and no evidence that his injuries, drastic as they are, are life–threatening.

I have already taken his capacity to earn up to this date as about $20,000 per annum before tax. For the future, the average weekly earnings for a full– time adult male is given in the Year Book extracts (Exhibit “M”) as
“Average Weekly Ordinary Time Earnings” as $521–90 for February 1989. Allowing for some increase to the present date but allowing for tax (Exhibit “L”) I take the plaintiff‟s capacity to earn overall in future would have been about $20,000 net per annum. I think it fair therefore to assess his future economic loss at $100 net per week (ie. 25% of $400 per week) over a
40 year period.  The latest multiplier for a man of 25 according to Lunz – 3rd Edition – is 1172; so that the figure is $117,200. In my view this  approach does not require a further allowance for contingencies since the contingencies have been built into the assessment of an overall loss of 25% earning capacity over the next 40 years.

Special Damages

Counsel have agreed on the following items of special damage set out in the first part of Exhibit „K‟.
SPECIAL DAMAGES

1.	14 Aug 1990	Commonwealth Department
of Vet Affairs – Prosthetic treatment	$2,500–11	

2.	28 Aug 1990	
South Brisbane Hospitals Board	
$11,818–00	

3.	24 Aug 1987	
Royal Adelaide Hospital	
$14,840–00	

4.	23 Aug 1990	
Commonwealth of Australia Department of Community Services and Health, Rehabilitation	
$4,203–54	

5.	11 Aug 1990	
H L Coles, Occupational Therapist Re: Special Equipment	
$320–00	

6.	9 Oct 1990	
Right Shoe build–up	
$255–00	

$33,936–65

The second part of Exhibit “K” contains these items under the heading “Future Medical Costs”.

	FUTURE MEDICAL COSTS		

1.	14 Aug 1990	
Estimated future Prosthetic costs	
$45,225–93	
2.	11 Sept 1990	South Brisbane Hospitals Board Removal of intra medullary nail	$1,360–00	
3.	26 Oct 1990	Dental Expenses, Dr Ron Petherick	$2,922–00	
4.	Future Shoe Costs	$2,950–00	
5.	Special Equipment	$2,915–00	
6.	6 Nov 1990	Behavioural Psychotherapy Unit	$10,566–00	
7.	31 Oct 1990	Denise M Britton
Grief and stress management	$1,170–00
 		
	TOTAL:	$67,108–93	

Items 1, 2 and 3 are not disputed. Item 4 is now agreed at $2,950 corrected from the original claim of $13,200. Item 5 “Special Equipment” is to some
extent disputed. It is supported by an itemised schedule which is attached to Exhibit “K”.  Mr Reeves submits that the items in the schedule are items  which the plaintiff would have to buy unaltered in any event. I think by this

he means that items such as kitchen trolleys and can openers would be purchased by the plaintiff had he not had the accident and that where certain items are specially altered for the plaintiff (eg. “one handers” vegetable  board) the cost of  the alteration but not the cost of the item should be  allowed. Although it is a very small matter I think there is some merit in the argument and taking a pragmatic approach and concentrating mainly on the kitchen trolley and its estimated replacements I think a  fair approach would be to deduct $1,000 from the amount of $2,915 claimed for these things.
The other two items 5 and 6 are of greater import and are disputed but I consider they are both amply justified. The first is a claim for $10,566 for attendance and treatment at a behavioural psychotherapy unit. Mrs Coles is quite positive that the plaintiff needs to be taught methods of dealing with stress and anxiety which do not involve substance abuse. Mr Reeves‟ point
is that the plaintiff‟s addiction to alcohol was present before the accident. I agree with this, but it is also plain, as I see it, that the excesses after the
accident resulted from the plaintiff‟s injuries and treatment, and that otherwise it is reasonable to assume that he would have moderated his drinking over the years. The  treatment will, it  is  hoped, assist the  plaintiff to settle down, overcome the alcohol habit and thereby be better suited for employment and facing life generally. I consider as is a proper consequence of the accident he should have this treatment.

Similarly Mrs Coles recommends a course in grief and stress management. She considers that he still has grief over the death of his friend and he still suffers stress which may be able to be controlled. Again, I consider that the necessity for this arises out of the accident and the plaintiff should have the right to improve his condition in this respect in the same way as he would have the right to have any further medical treatment properly arising from   his injuries.
I understand the quantum of these two items is not in dispute.

The total on Exhibit “K” comes to $101,045–58.

There will therefore be an award of $100,045–58 for special damages.

Conclusion

The damages will therefore be:

Pain, suffering and loss of amenities	$98,000–00 (including interest)

Past Economic Loss	$75,000–00 (loss of earnings)

Future Economic Loss	$117,200–00

Special Damages		$100,045–58 TOTAL:	$390,245–58

There will be judgment accordingly.