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Thursday, 17 December 1992
Page: 5352


Senator ALSTON (3.23 p.m.) —Mr President, I would have thought that the matter raised by Senator Hill was of the utmost seriousness. It may even be a sufficient defence to preclude any payment. In those circumstances, I would ask you to very urgently consider what material ought to be made available publicly. For example, it was said that certain documents attract legal professional privilege, including one in respect of which I think you said it was claimed by the defendants. That is certainly not the usual understanding of the term. It is a privilege normally claimed by the plaintiff. In any event, I would have thought that both parties could waive that privilege; in other words, in the interests of the public and given that we are talking about public moneys, both parties ought to be prepared to make all relevant documents available, including the documentary evidence in support of the claim and the medical reports. On the basis of the evidence we have, certainly from the scant nature of the injuries as described by you—and I would have thought you would have been in a position to have at least tabled the writ, which is clearly a public document having been issued out of the Supreme Court—it is very hard indeed to see the basis of the claim. For example, did it contain a claim for future economic loss, for any loss of earnings or any other pecuniary loss? If not, is that all meant to constitute pain and suffering, loss of enjoyment of life, which is a very nebulous concept—one which Senator Cooney would well know, because he used to make these sorts of outrageous claims on a regular basis—which needs to be very carefully and independently assessed on the basis of expert evidence?

  We would want to know whether there was an independent investigator's report into the circumstances of the injury. For example, I note that you say that the bike was assembled by the Speaker. It may well be that he did not assemble it as he ought to have done. He may not have done up the nuts as tightly as they should have been done up. In those circumstances, it seems extraordinary that you can say that contributory negligence was not relevant. Indeed, the onus of proof being on him, I would have thought that there were considerable difficulties confronting any plaintiff in these circumstances to show that somehow it was the fault of those who did not bring certain matters to his attention. He ought to appreciate, presumably, what can and cannot be done in riding a bike of this sort; he ought to test it before he gets on board; and he generally ought to take account of his own physical condition.

  More importantly, it is absolutely impossible for anyone to make a judgment about the ultimate merits of the action without looking at all the relevant documentation. As an outsider, to me it seems an extraordinarily high pay-out. Certainly I would be amazed if it could be recovered in the normal course of negotiations for an injury such as this. We do not know, for example, whether the injuries had been substantially resolved or whether there is any permanent disability. Senator Herron, no doubt, is in a much better position to comment on this than others. But if we are talking about severe ulna nerve entrapment, I would have thought that that is simply a matter of an operation to clear the entrapment, and it does not necessarily follow that there would be any residual damage. Therefore, to merely say that there was a fracture of a right radial nerve does not tell us a thing. Was it an undisplaced fracture? If so, was there any continuing injury? Unless we know those matters, of course there is no basis for suggesting that it is a serious claim.

  A figure of $65,000, or $50,000, on the face of it, for pain and suffering, loss of enjoyment of life—as Senator Cooney would well know—is something that one would normally be looking at if one was permanently and severely disabled. None of us knows the extent to which Mr McLeay is disabled—other than in his conduct of proceedings in the House of Representatives—but presumably he does not need an elbow or a wrist to enforce order even if he was so minded.