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Thursday, 17 December 1992
Page: 5507


Senator ALSTON (4.43 a.m.) —I think we are all anxious to avoid prejudging this matter. Quite clearly it is a matter of public interest and concern because public moneys are involved. As Senator Hill has just pointed out, in considering whether concerns were conveyed to a staff member of Mr McLeay, it is also very important to know whether those concerns were then relayed by the staff member to Mr McLeay himself because that would materially affect his knowledge, his awareness of the condition of the bike, and the circumstances under which it should be ridden. It would therefore be a material circumstance to be taken into account in assessing the way in which any settlement might be negotiated.

  Once again, as Senator Cooney would be aware, the plaintiff has to prove his case. If there are evidentiary deficiencies or suggestions that somehow he was aware that there were problems with the bike in question, then that obviously must affect the prospects of success or even the chances of a reduction for contributory negligence. That would then be reflected in any offer made.

  I stress that the only material that has been made available is the file provided by the Joint House Department. The Speaker has made it clear that he regards himself as having nothing to hide and he wants all the documents made publicly available. Therefore, we are awaiting further material from the Australian Government Solicitor.

  If one simply looks at the material that is contained in the file kept by the Joint House Department, all that one finds in relation to the measure of damages is a single medical report and a single legal opinion. The medical report is one from an orthopaedic surgeon who examined the plaintiff on a couple of occasions prior to an operation conducted by a neurosurgeon. We do not know whether the orthopaedic surgeon examined him subsequently, but certainly there is no medical report to that effect. There is certainly no opinion from the neurosurgeon.

  Those are critical matters in making any sensible judgment as to the extent of any injury or any continuing disability and certainly any residual consequences from the operation. One would clearly need to be in possession of a series of medical reports, not only from the plaintiff but, of course, independent medical assessments made by doctors commissioned on behalf of the defendant. None of those medical reports are available.

  If one then looks at the legal opinion, one finds that that does not even refer to a medical report. It simply makes some very scanty references to the plaintiff's alleged state of health and then proceeds to suggest that somehow this claim is worth $30,000 to $50,000. As we know, the matter was settled for approximately $50,000 for general damages, plus medical expenses, plus legal costs. It was settled right at the top of the range.

  The material also indicates that at all times the defendant was bending over backwards to settle the matter as quickly as possible. There was never any serious attempt to investigate the question of liability and there was certainly no attempt to negotiate in the normal sense, which means making a lower offer than one ultimately expects to be able to resolve the matter for. The Department simply took a figure, offered it, and then paid it into court, and Mr McLeay took it.

  If one reads the final correspondence, one finds the absolutely laughable proposition that, because Mr McLeay had asked for $100,000 and the Department got out of it for $50,000, it got a very good settlement. One might as well say that if McLeay had asked for half a million and we only gave him $200,000 we would have done even better because we would have got more than a 50 per cent discount. Quite clearly, there is very scant material available to justify anything like a $50,000 payout for general damages. After all, as Senator Herron, who knows a lot more about this than I do, would confirm, on the face of it the medical evidence suggests that there was only a very limited disability in terms of limitation of movement of the arm. Mr McLeay chose not to pursue physiotherapy on more than four occasions. Quite clearly, that exercise would have assisted his cause.


Senator Bolkus —Not always.


Senator ALSTON —Not always, but what one usually does is try to see how it goes. If it does not do any good, that supports one's case. But when one does not even bother, it suggests that somehow one is not really serious about remedying the matter.

  Another thing I find quite extraordinary is that this accident happened on Anzac Day. Mr McLeay went to see his general practitioner, a Dr Rosemary Crowley, on the same day, was referred to the specialist and saw the specialist the following day, by which time he had been to see his solicitor, who had written a letter to the gymnasium section of this House, asking them to hold on to the bike as evidence. In other words, Mr McLeay was incredibly speedy in pursuing his legal rights but not so speedy in pursuing any attempt to resolve his medical condition to the extent that he had a capacity to do that by undertaking physiotherapy.

  He claims that he cannot play tennis and he was not able to pursue his intention to take up golf. Do honourable senators like that one? In other words, it was not as if he was a champion sportsman cut down in mid-stride. All that he was denied was the opportunity to take up golf. One might as well say he was denied the opportunity to pursue a career as a league footballer or anything else that he turned his mind to. That is another matter. He lost his seat and he has got another one which has about a 4 or 5 per cent safety margin, so he is not doing too badly. To a certain extent that would affect the question of future economic loss and, of course, they were trotting out arguments about whether he would be able to resume his position as an organiser, as though that is some sort of honourable profession. I would have thought his chances were limited as a Telecom technician. But that was not pursued. This matter was resolved on the basis of general damages for pain and suffering and loss of enjoyment of life. All I can say is if I had been acting for the plaintiff, on that medical evidence I would have grabbed $10,000. Indeed, there are people in this place who would not have even made a claim.

  The important thing is that we need a lot more material and I think the public does too in order to be in any way satisfied or persuaded that this claim was worth anything like $50,000. In those circumstances it is a matter of very real concern to us that the President did not become involved. Quite clearly, the Speaker is not able to effectively give instructions to the Crown Solicitor or the Government Solicitor and therefore he should not only have stood aside but someone else should have been in there conducting the matter on his behalf.

  As Senator Crichton-Browne pointed out earlier today, it puts the head of the Department, Mr Bolton, in a very invidious position. It is almost impossible for him to make a sensible judgment. Certainly, if he was so minded to make an offer on the low side, or to try to pursue genuine compromise, he would be exposed to enormous indirect pressure. That is why I think we need to know more about why the President, who presumably was aware at a fairly early stage that Mr McLeay had been injured, and that he was bringing proceedings, did not then intervene to ensure that the matter was conducted very much at arms length. By that I mean in such a way that someone was able to give sensible instructions. As it turned out, Mr Bolton simply handed it over, washed his hands of the matter, and I suppose one can understand that. It was then left on the implied basis that they would get out of this as quickly and as expensively as possible. That is not in the public interest.

  Senator Bolkus interjecting—


Senator ALSTON —I do not know. In the case of Senator Bolkus, I suppose it is money. He would have settled for a lot less. All I can say is that there is a lot further to go before any public concerns are assuaged. I trust that we will be provided with much more material in the very near future, so that proper judgments can be made on the matter.