Burton v Grocke

[2014] SADC 195

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

BURTON v GROCKE & ORS

[2014] SADC 195

Judgment of His Honour Judge Chivell

28 November 2014

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES

Assessment of damages for injury to plaintiff's right knee and consequential losses suffered in a netball game. Large proportion of claim for future medical treatment and future economic loss found not proved.

Damages assessed at $374,995.00.

Civil Liability Act 1936 (SA) s 52, s 53, s 56, s 58, referred to.
Medlin v SGIC (1994-1995) 182 CLR 1; Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594 (FC); Duffy v Salvation Army (Vic) Property Trust [2013] VSCA 253; Ford Motor Co of Australia v Mann [2001] VSCA 177; Salkeld v Cocca [2013] SASCFC 138; Gipson v Broken Hill Proprietary Co Ltd (1985) 120 LSJS 458; Garland v Clifford (1996) 67 SASR 47; Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649, considered.

BURTON v GROCKE & ORS
[2014] SADC 195

Introduction

1. This is a claim for damages for personal injuries and consequential losses suffered by the plaintiff on 5 May 2007.

2. It was alleged that the plaintiff’s injuries were caused by the negligence of the defendants. The third defendant admits negligence. The action has been discontinued against the first and second defendants (FDN 30). I will refer to the third defendant as ‘the defendant’ from here on. My task is therefore to assess the plaintiff’s damages.

3. The plaintiff’s claim is subject to Part 8 of the Civil Liability Act 1936 (SA), which came into operation on 1 December 2002.

   Nature of the Plaintiff’s Injuries

4. The plaintiff was born on 16 August 1984.  She was born into a sporting family.  Her mother played netball for Australia, as did her aunt.  Her father played State League football.  The plaintiff was interested in all sports, primarily netball, from an early age.

5. The plaintiff attended Henley High School because there was a successful netball program there (T 14).  She was, and remains, a motivated, dedicated, determined athlete.

6. When she left school, she studied for the degree of Bachelor of Nursing at the University of South Australia, completing it in 2006.  She became a registered nurse on 6 March 2007 (Exhibit P5, Document 2).

7. On 5 May 2007, the plaintiff was playing netball in the reserves team for the Newton Jaguars Netball Club.  The game was being played on Court 3 at ETSA Park, an outdoor netball venue in the West Parklands of Adelaide. The defendant was playing on an adjoining court. The defendant entered Court 3, while play was in progress, to retrieve a ball. There was a collision between the plaintiff and the defendant. As a result, the plaintiff suffered serious injuries to her right knee.

8. The plaintiff’s injuries included:

   ·dislocation of the patella;

   ·extensive fragmentation of the chondral surface (the surface of the cartilage which covers the articular surfaces of the bones of a joint);

   ·disruption or tear of the medial retinaculum (the band of fibrous tissue that, with the lateral retinaculum, locates the patella in its position in relation to the femur).

9. The plaintiff said that between the time of her injury and the first surgery, she suffered great pain. She could only move with the aid of crutches. The swelling was treated with ice. Her mother assisted her with all activities of daily living.

10. The plaintiff underwent surgery on 10 May 2007 (the ‘first surgery’), when chondroplasty (repair to the articular surface), removal of loose chondral fragments and repair of the medial retinaculum were performed.

11. About one week after the first surgery, the plaintiff developed a deep vein thrombosis (‘DVT’) in her right calf. She was treated for six months with self-administered injections of Clexane using a PICC (peripherally inserted central catheter) line. She also wore compression stockings. The thrombosis resolved in a few weeks.

12. The occurrence of this condition necessitated the use of Clexane at subsequent surgery to prevent further DVT. This increased the risk of haemorrhage into the knee joint during and after surgery. This ‘hindered normal satisfactory recovery’ (Report of Dr W G Cobain dated 31 May 2010, Exhibit P41).

13. The plaintiff continues to take folic acid medication to reduce the risk of further DVT.

14. The range of movement in the plaintiff’s right knee became very limited after the first surgery because fibrous adhesions developed in the joint. The plaintiff’s father assisted her by manually manipulating the joint to break these adhesions, putting his full weight on the joint in order to increase the range of movement. This caused the plaintiff ‘absolute agony’ (T 23).

15. There was a second surgery on 5 July 2007. The fibrous adhesions were divided, and a synovectomy (removal of inflamed joint tissue) and manipulation of the joint were performed. A satisfactory range of movement was thereby achieved.

16. After the injury, the plaintiff was prevented from working as a graduate nurse for four and a half months. She returned to her training placement in the Intensive Care Unit (‘ICU’) of the Royal Adelaide Hospital after the second surgery, on 22 August 2007.

17. The plaintiff required full assistance with daily living from her mother for the two weeks following the second surgery. She was unable to bear weight on her right leg during that period. The level of assistance provided by her mother steadily decreased over the ensuing period until she returned to work.

18. After each surgery, the plaintiff saw a physiotherapist up to three or four times per week. The exercises she performed after the second surgery, to improve her range of movement, caused significant pain.

19. The plaintiff said that after the second surgery, the range of movement in her right knee was much better. She tried to build up the strength in her quadriceps muscle and maintain that range of movement with exercise. She said that when she returned to work in August, her knee would give way, it made grinding and cracking noises, and she suffered pain under the kneecap (T 28).

20. The plaintiff continued to experience pain in the region of the patella. An MRI scan performed on 17 November 2007 showed that she had ongoing severe patellar dislocation with associated chondral damage.

21. The third surgery was performed on 7 February 2008. Distal patellar tendon transfer (in which the tendons attached to the patella are adjusted and fixed with screws to change the loading of the patella and improve its stability) and further chondroplasty were performed. A chondral biopsy was also performed to obtain cells for later chondral grafting.

22. The plaintiff’s recovery from this surgery was complicated by extensive bleeding into the knee joint, which spread into the rest of the right leg. The plaintiff said that she had extensive bruising from her hip to her ankle. This was caused by the anticoagulation medication, as described by Dr Cobain.

23. Following the third surgery, the plaintiff resigned from her employment at the Royal Adelaide Hospital as a graduate nurse. She said that she was unable to fulfil all of the requirements of the graduate program due to her incapacity for work during 2007. Even though she did not complete all of the training ‘rotations’, she was given status for having satisfactorily completed the course (Exhibit P5, Document 3). 

24. The plaintiff remained unemployed from 14 February 2008 until 21 September 2009. During this time, she applied for positions at ten different medical facilities, without success.

25. During this period, the plaintiff began using a rowing machine for exercise. She has been using the machine six days per week ever since (T 35).

26. On 11 March 2008, the fourth surgery consisted of MACI (matrix applied autologous chondrocyte implantation) grafting, using the cells harvested on 7 February 2008.

27. Following the third and fourth surgeries, the plaintiff was unable to bear weight on her right leg. She wore a brace, and did not recover a satisfactory range of movement until about six months later.

28. The plaintiff said that by late 2008, she had gained 13 kilograms in weight. She became obsessed with losing weight. She shed 22 kilograms during 2009, by careful dieting and intensive exercise.

29. The fifth surgery, on 17 September 2008, the sixth surgery, on 17 December 2008, and the seventh surgery, on 24 June 2009, involved procedures including division of adhesions, synovectomy and chondroplasty. The results of the chondral graft were seen to be good.

30. The plaintiff continued to experience pain, swelling and a ‘cracking’ noise in her right knee.

31. In September 2009, the plaintiff received an offer of employment in the Recovery Unit at the Royal Adelaide Hospital. She accepted, and commenced in that position on 21 September 2009. This was a full-time position. She was working 76 hours per fortnight plus overtime and allowances.

32. The eighth surgery was performed on 6 October 2010. Again, chondroplasty, synovectomy and debridement of chondral tissue were performed. Following discharge, the plaintiff was readmitted to hospital on 24 October 2010 suffering severe pain. It was found that she had developed a ‘golden staph’ (Staphylococcus aureus) infection in her right knee. Another PICC line was inserted so that high‑strength antibiotics could be administered intravenously.

33. The ninth surgery was performed on 25 October 2010. A ‘wash-out’ of the right knee and synovectomy to treat septic arthritis were carried out.

34. The development of the ‘golden staph’ infection was extremely worrying for the plaintiff. She was aware that unless it could be stopped, an amputation of the leg may have been required. She said that she suffered ‘horrendous’ pain during this period, pain of a similar level to that following the first to fourth surgeries (T 48).

35. As a result of the eighth and ninth surgeries, the plaintiff was absent from work from 6 October 2010 to 29 November 2010.

36. The tenth surgery was performed on 28 June 2012. A scan on 10 April 2012 had shown mild degenerative changes in the right knee, along with patellar tendinopathy/enthesopathy (inflammation of the tendon and of the muscular or ligamentous attachment to the bone).

37. At operation, a synovial biopsy (which was shown to be free of infection), chondroplasty, and a lateral retinacular release and removal of the two screws inserted in the earlier tendon transfer, were performed.

38. In summary, then, the plaintiff has undergone a total of ten surgical procedures, some of which required lengthy and sometimes stormy and complicated recovery periods. She has suffered severe, at times excruciating, pain in her right knee.

    Plaintiff’s Present Condition

39. The plaintiff gave evidence that her right knee had improved after the tenth surgery. For that reason, she had not been back to her surgeon, Dr Spriggins (T 182-3). This contradicted other evidence given by the plaintiff that her leg had not improved since 2010 (T 101).  The plaintiff said that her knee had deteriorated recently and she was considering going back to see Dr Spriggins again (T 65, T 184).

40. The plaintiff said her knee was sore all the time, particularly at the end of a shift.  She has been unable to run since the injury. She walks up stairs ‘one at a time’ (T 66).  She is unable to squat, kneel or bend to lift (T 54).  She said her knee is swollen and sore by morning tea time (T 29). As to going up and down stairs, it is no better than it was in 2010 (T 101).

41. In cross-examination, the plaintiff confirmed that in 2011, 2012 and 2013 she consistently reported to every doctor she had seen that she had difficulty going up and down stairs. If she has an option, she always takes a lift in preference (T 100). In circumstances where she does take the stairs, she does so in an altered fashion. She leads with her left leg, then brings her right leg up to the same step, and then goes to the next step with the left and so on (T 100). When going downstairs, she again always leads with her left leg (T 101).  She confirmed that this is still the case to the present time.

42. The plaintiff was examined by Dr J R Middleton, at the request of the defendant’s solicitors, on 9 March 2012. This was prior to the tenth surgery. She told him that she had ongoing pain under and around the patella, ‘grinding’ and ‘cracking’ sensations in the knee, aching discomfort and swelling. She was unable to run, kneel or squat. She was unable to use stairs normally, going up one stair at a time, leading with the left leg. She was coping ‘reasonably well’ at work, although her knee caused some problems in completing her duties.

43. Dr Middleton noted ‘obvious scarring’ on the plaintiff’s right knee. Her right quadriceps had wasted by two and a half centimetres when compared with the left. Flexion of the right leg was limited to about 130 degrees, which was consistent with other assessments. There was no evidence of any patellar instability. There was mild tenderness but no effusion.  Dr Middleton commented:

    Ms Burton has a substantial ongoing disability in her right knee. I would regard her current situation as reasonably stable for the foreseeable future, but in the longer term there is a substantial likelihood of further deterioration.

    (Report of 9 March 2012, Exhibit D45, page 5)

44. Dr Anthony Spriggins was the surgeon who performed all ten surgeries on the plaintiff’s right knee. The last time that the plaintiff was examined by Dr Spriggins was on 11 July 2012, shortly after the tenth surgery. Dr Spriggins commented:

    ·She was doing well to date. The swelling was resolving and physiotherapy with Patrick Custance has been arranged. I have not seen her since.

    ·My findings at her operation was that she had a full range of knee motion that was stable and my findings at arthroscopy demonstrated that she had chondral damage of Grade 2/4 of the lateral tibial plateau and Grade 3/3 of the patella and femoral trochlear.

    ·No further treatment at this stage is likely.

    (Report of 18 December 2012, Exhibit P44, page 1)

45. The plaintiff was examined by Dr J Meegan, an occupational physician, on 1 October 2013 at the request of her solicitors. She told Dr Meegan that she was troubled by pain in her right knee, particularly after standing or walking beyond an hour or so. She was unable to stand for an entire working day. She was unable to squat, kneel or run. She avoided walking up and down stairs. The knee pain was aggravated by heavy lifting. She had given up netball and other sports. 

46. Dr Meegan noted that the plaintiff had an antalgic (abnormal) gait. He noted scarring on her right knee. There was some hypermobility of the joints. She was able to fully extend her right knee, but flexion was limited to 130 degrees, compared with 150 degrees in the left knee. There was tenderness of the patella and patellar tendon. Tests of ligamentous and meniscal structures were otherwise normal. He noted some crepitus on movement, but no effusion (swelling).

47. Dr Meegan concluded that:

    Her condition has probably stabilised with the injury having occurred in May 2007 or nearly seven years ago. There will be gradual further deterioration with her suffering an accelerated degeneration in the right knee by virtue of the injury and subsequent procedures as well as the septic arthritis.

    (Report of 3 October 2013, Exhibit P46, page 4)

48. The plaintiff saw Ms Anne Morgan, an occupational therapist, at the request of her solicitors on 5 December 2012.

49. Ms Morgan said that the plaintiff complained of constant ache in the right knee.  She also complained of cracking, grinding and swelling if she was on her feet for more than two hours. She walked with a limp, she was unable to do heavy lifting and she found driving a vehicle difficult (Report, Exhibit D58). The plaintiff said she was unable to squat. She said she had pain under the right patella with ‘a very minimal semi-squat’. Ms Morgan therefore did not test the plaintiff in this area (Report, page 12).

50. The plaintiff denied telling Ms Morgan that she was unable to squat (T 247). I reject her denials. I accept Ms Morgan’s evidence about this. Ms Morgan made notes of the plaintiff’s complaints at the time.  The plaintiff had told Dr Middleton and Dr Meegan the same thing. I find it impossible to accept that all three clinicians could have either made the same mistake, or that they had all concocted the plaintiff’s complaint that she was unable to squat.

51. Ms Morgan’s assessment was that the plaintiff had a ‘mild’ disability of the right knee (Report, page 7).

    Use of the Gymnasium

52. The plaintiff said that she had been going to the gymnasium for a year-and- a-half to two years (T 185). She said she goes between three and six times per week.  This is in addition to the work she does on the rowing machine, which is six kilometres, six days per week.

53. In cross-examination, the plaintiff was careful to make it clear that her exercises in the gymnasium were limited to upper body exercises such as shoulder press, chest press, hand weights, rowing machine and pull-downs (T 195-204). Her counsel, Mr Walsh QC, also made this plain during his opening address:

    She also goes to the gym to do her weight training and she’s able to do these things because there’s no weight-bearing pressure on her knee and that’s why she can do the rowing machine and also why she can do her weight training.

    (T 7)

54. Counsel for the defendant, Mr Roder SC, cross-examined the plaintiff exhaustively about the extent of her exercising in the gymnasium, and her exercising at work doing sit-ups with a medicine ball and abdominal exercises involving leg lifts.  In none of her answers did she describe an exercise involving weight-bearing on the right knee.  She said:

    A.… That’s everything I recall.

    Q.That’s everything you do and everything you’ve done.

    A.Yes.

    (T 204)

    Plaintiff Observed in the Gymnasium

55. The plaintiff was covertly filmed at a gymnasium on 30 July 2014, the week before the trial commenced. The filming commenced at about 12.53 p.m.

56. By reference to the plaintiff’s employment records (Exhibit D36), she had worked an early shift, then two successive 10-hour night shifts, the latter concluding at 7.30 a.m. on 30 July 2014. The plaintiff conceded that, by that stage, her knee would have been at its worst (T 168).  A little over five hours after finishing work, the plaintiff was being filmed in the gymnasium.

57. The first thing to be noted on the video (Exhibit D59) is that as the plaintiff entered the building, she climbed a substantial set of stairs to gain entrance to the gymnasium. She did so without any apparent difficulty.  She climbed the stairs in a conventional manner, one at a time, and did not appear to favour either leg.

58. Included among the exercises being performed while the plaintiff was being filmed were leg presses, hamstring curls, leg extensions, back squats, box step-ups, static lunges, calf raises and walking lunges.

59. The plaintiff performed about four sets of each of these exercises, with between 12 and 20 repetitions in each set. She displayed great stamina and strength in both legs. Each set of exercises was performed, without a break, one after the other. Clearly, the exercises were well-practised. The plaintiff went from one exercise to the next without hesitation. She displayed no outward sign that she was experiencing pain in any of the exercises.

60. The plaintiff argued that the exercises were designed by her so that she would use her left leg more than her right (T 242-3, T 245-7).  That was plainly untrue, as I will shortly discuss. 

61. After the video was played, she explained her failure to mention the leg exercises during cross-examination the previous day in the following terms:

    Q.I asked you yesterday in exhaustive detail to set out to his Honour all of the exercises that you had ever done in the gym, you recall that.

    A.Well, so I thought it was all the exercises that I would normally do. I mean, I have only tried that a couple of times, so that was my mistake.

    (T 223-4)

1. I am satisfied that the plaintiff was being untruthful with this answer. I do not accept that her answers were a simple mistake.  I do not accept that Mr Roder’s questions were susceptible of such an interpretation. Nor do I accept the plaintiff’s assertion that she had only performed these exercises ‘a couple of times’. The plaintiff is an intelligent and well-educated person. She could not have been unaware of the forensic significance of such demanding leg exercises. I am satisfied that her failure to mention those leg exercises was deliberate and misleading.

   Experts’ Reactions to Gymnasium Video

   - Dr Spriggins

2. Remarkably, Dr Spriggins was not asked to review the plaintiff shortly prior to the trial. The last time he had seen her was on 11 July 2012.  After seeing the video of the plaintiff at the gymnasium the week prior to the hearing, Dr Spriggins commented that:

   ·during the leg lunges, the plaintiff may have been able to load the left leg to some extent, but in bending the right leg to 90 degrees she was placing pressure on the right patella and would have been in pain (T 294);

   ·in performing the leg curls and leg extensions, she may have been able to load the left leg more so than the right;

   ·as to the squats, he thought the plaintiff was loading the right leg less. There was no doubt she was loading it, but was protecting the right leg. He described the squats as a ‘bit more than half-squat … 110 to 120 (degrees)’ (T 299);

   ·as to the step-ups, the plaintiff was loading her right leg similarly to that of the left – she was pulling up her whole body weight on her right leg. This exercise indicates that the plaintiff would be able to walk up stairs;

   ·the exercises indicate that the plaintiff is fit and has strength in the right leg which has been built up over a period of time (T 298);

   ·as to the lunges, he thought that the plaintiff was not as strong on the right leg as she was on the left, but the right knee was bending almost to 90 degrees (T 301).

3. Dr Spriggins indicated that his initial optimism about the plaintiff’s prognosis was correct – ‘she’s doing all right’. He said that the last surgery had been a ‘success’ and there was no need to contemplate any further surgical procedures in the near future (T 302).  He said that she is in a better condition than she was in 2012, that the video evidence is consistent with her having a full range of movement and flexion, and that she may be strong enough to perform a full squat, although she still may have pain (T 303).

4. These are reasonable conclusions to be drawn from the video. However, they directly contradict the plaintiff’s evidence that:

   ·her leg is no better than it was in 2010;

   ·she is presently not able to squat, or climb stairs using both legs.

   - Dr Middleton

5. Having seen the video of the plaintiff’s gymnasium activities, Dr Middleton commented that he agreed with Dr Spriggins’ estimate that the plaintiff was able to squat to 120 degrees carrying a weight. He commented that the video demonstrated that the plaintiff had undergone ‘significant improvement’ since he saw her on 9 March 2012 (T 317).

6. Dr Middleton observed that the plaintiff was capable of going up and down stairs using both legs, she has significant strength in both legs. He thought that during the static lunges the plaintiff was using her right knee a little less than her left (T 321).  He observed that the plaintiff moved quickly between sets of exercises, and there was no evidence that the exercises were affecting her gait.  In general, he would encourage the plaintiff to continue exercising. If it were done sensibly, exercise would benefit her recovery. If she pushed the exercise too hard, she may aggravate her knee in the longer term (T 323).

   - Dr Meegan

7. After viewing the video, Dr Meegan accepted that the plaintiff was demonstrating ‘at least a half or modified squat’ (T 406).  He described the plaintiff’s movements on the film, compared with her presentation to him in October 2013, as ‘It’s a little inconsistent, yes. It’s somewhat inconsistent’ (T 407).

8. As to the video evidence, his comments were that there was ‘some protecting of the right knee’ in the leg lunges and ‘slightly reduced range of movement’ on the right (T 403-4). He noted no ‘pain behaviour’ during the plaintiff’s exercises (T 405). He said that ‘the performance on the video is different from the history and examination that she presented to me’ (T 412).

9. In many respects, the video evidence was completely inconsistent, indeed directly contradictory of the plaintiff’s evidence of her current condition.

   - Ms Morgan

10. After having seen the video, Ms Morgan commented that there had been ‘significant improvement’ since she saw the plaintiff in December 2012. Ms Morgan acknowledged that the plaintiff may have been favouring her right leg ‘a little’ when squatting, although she found it difficult to tell (T 744).

    Conclusions re Plaintiff’s Current Condition

11. There is no doubt, as Mr Walsh submitted, that the plaintiff suffered a serious injury to her right knee. I accept that she has suffered severe pain and discomfort as a result. She has undergone ten surgical procedures, and her progress and recovery have been complex and, at times, stormy.

12. However, I reject the plaintiff’s evidence that her knee has not improved since the tenth surgery in June 2012, indeed, in her words, since 2010. I find that the plaintiff was being deliberately untruthful about that. Her evidence was contradicted by the video evidence, and by the opinions of her treating surgeon, Dr Spriggins, and Drs Middleton and Meegan.

13. It is difficult to form a conclusion as to the extent to which the plaintiff’s knee has improved. She has not been recently assessed by any of the specialists. The only objective evidence is on the video. Her own evidence on the topic is unreliable.

14. I have concluded that the only method by which I can form any judgment on the topic is by considering the opinions of the doctors after they viewed the video evidence.

15. Dr Spriggins said that he would be unable to determine whether the plaintiff needed further treatment unless she consulted him again (T 292-3). The plaintiff’s knee was better than he observed in 2012 (T 303).  It seems unlikely that there is any need to contemplate surgery in the near future (T 302).

16. Dr Middleton’s reaction to the video was similar: ‘… there’s clearly been a significant improvement over that two and a bit year period’ (T 317). He said there was no indication for further surgical intervention ‘in the foreseeable future’ (T 324).

17. Dr Meegan said an assessment of permanent disability is made ‘on the day the person is seen’ (T 400). He assumed in October 2013 that the plaintiff’s condition was stable (ibid).  As to the plaintiff’s capacity for work, assuming she had worked three long shifts at work before her visit to the gymnasium, he said:

    It would appear that she is able to tolerate work for the number of hours she is saying she can, probably up to full time, and longer shifts than the eight hours, because I know they do some longer shifts there in intensive care, and able to tolerate some exercise outside of that.

    (T 413)

18. Ms Morgan said that the plaintiff’s condition had improved since she saw her on 5 December 2012. She said the video demonstrated that the plaintiff had greater capacity for work than she thought at that time. Like Dr Meegan, Ms Morgan thought that the plaintiff’s exercising at the gymnasium after three consecutive long shifts showed she had ‘activity tolerance’ with ‘no marked fatigue evident at the gym (or need for) long breaks between activities’ (T 735).

19. Much of the noted improvement is due to a combination of successful surgical intervention and the plaintiff’s dedication and determination to improve her condition through exercise. For this she deserves credit, indeed admiration. I have the strong impression from the evidence that she believes she also deserves reward for those efforts, in the form of damages. That is not possible. What she has done is mitigate her damages, as she is legally obliged to do. The damages I may award are limited to damages for the pain and suffering she has and will continue to endure, for the extent of her residual disability and resulting incapacity, and for any consequential losses.

20. I conclude that the plaintiff has a mild to moderate disability of the right leg in the form of weakness and pain. The evidence does not permit me to be any more precise than that.  The medical evidence is that the plaintiff is fit for full-time work.  There is some prospect that the condition of the plaintiff’s knee will deteriorate, but the rate at which, and the extent to which, this will occur is uncertain.  There is no need for further surgery in the foreseeable future.

    Future Surgery

21. Paragraph 14.6 of the Statement of Claim asserts that the plaintiff has ‘Incurred medical and like expenses and will continue to need treatment for her injuries including possible surgical revision and a possible knee replacement or knee replacements in the future’.

22. Mr Walsh submitted that the evidence is that despite Dr Spriggins’ counselling against such surgery, the plaintiff still proposes to have it and that, if the plaintiff is fully informed of and accepts the risks of surgery, Dr Spriggins will perform the operation.

23. The plaintiff’s evidence about this is:

    Q.Did you raise it or did he raise it.

    A.I think it was a bit of both or we, well, come to the realisation there is nothing left other than a knee replacement now I’ve had everything.

    Q.Has he warned you about having a replacement knee operation at too young an age.

    A.Yes.

    Q.What was the warning.

    A.The warning is that I’m too young and I have had second and third opinions on the matters as well, so the younger that you have a knee replacement, the likelihood is it’s not going to last. It may last about eight years depending on your activity level. You run a risk of infection and if it doesn’t take, that it will need to be revised and every time you need a revision, there is more risk of bleeding and infection as well.

    Q.Nevertheless have you continued to consider that as an option.

    A.Yes.

    Q.Why is that.

    A.To try and get rid of this pain, this constant pain that I’m in all day, every day.

    Q.So notwithstanding the risk, are you thinking now about a knee replacement.

    A.Yes.

    Q.If Dr Spriggins nevertheless explains the risk and repeats them [sic] as he has in the past, what do you think the likelihood is that you’ll choose a knee replacement in the relatively near future.

    A.Pretty high.

    (T 76)

24. Clearly, the plaintiff’s answers to Mr Walsh’s questions were based upon her belief that a knee replacement operation is the only effective way to deal with the ‘constant pain’.

25. In his report dated 26 February 2010, Dr Spriggins commented:

    Ms Burton’s condition is relatively stable at present. It is likely that the knee will gradually deteriorate over the years.

    As to future treatment, Dr Spriggins wrote:

    3.1.11The need for future treatment depends entirely on Ms Burton’s levels of symptoms and functional demands. It is possible that she will not require any further treatment. It is also possible that she may require further surgery in the form of patellectomy, patellofemoral arthroplasty, or total knee arthroplasty in the future. No further treatment is planned at this stage.

    3.1.12The prognosis is that of continual problems with the right knee, which are likely to continue for the long-term, and gradually deteriorate in the long-term.

26. In a later report, dated 9 May 2012, Dr Spriggins discussed knee replacement surgery in more detail:

    2.2.15It is likely that she will require further treatment over time with respect to her right knee. She has generalised degeneration within that right knee and she may require further physiotherapy, anti-inflammatory medication, possible further arthroscopic surgery and possible knee replacement some time in the future.

    2.2.16The nature and extent of further treatment likely to be required has already been outlined in Question 2.2.15.

    2.2.17It is possible that a knee replacement may be required at some stage with respect to the right knee.

    2.2.18I cannot predict when a knee replacement will be required. This will depend on the patient’s pathology, age, function and subjective symptoms.

    2.2.19The type of knee replacement that I would recommend will alter as knee replacement implants and the procedure of implantation of a knee replacement is changing over time and clearly this will depend on the technology that is available at the time. The lifespan of a knee replacement in current terms is approximately 85% of knee replacements are functioning well approximately 15 years after surgery.

    2.2.20The likely cost of a knee replacement on current terms is $30,000.

    2.2.21The period of time that Ms Burton is likely not to be able to work following the knee replacement is approximately 6 months.

    2.2.22The likely consequences of knee replacement surgery with respect to agility and ability to perform everyday activities is that she may have reduced pain. She should have a stable knee joint and she should have a range of motion in the functional range of 0° - 120°. This should allow her to participate in most activities of everyday living but she should clearly avoid impact loading activities.

    2.2.23It is difficult to predict the nature and likelihood and cost of further treatment required in respect to Ms Burton’s right knee. This clearly will depend on a patient’s symptoms, signs and pathology at the time.

    I have been looking after Ms Burton with respect to her right knee and therefore will not be commenting on her left knee or hip or back.

    I cannot comment with respect to how often she needs to see a general practitioner, a specialist, undergo hospitalisation, physiotherapy, occupational therapy, remedial therapy or have any other therapy discussed as this is unpredictable.

27. Dr Spriggins was asked about these matters by Mr Walsh at T 276 and following pages. I do not accept that Dr Spriggins would perform knee replacement surgery if he thought that the surgery was not indicated by the plaintiff’s symptoms. At T 277-8, the following passage occurred:

    Q.But if she, with full appreciation of the risk associated with it, all the risk that you’ve spoken of, said to you that her pain was intolerable to the extent that she wanted one, will you perform it.

    A.I’d be hesitant to offer her one because I think her expectations of what she wants out of a knee replacement and the expectations of what a knee replacement can deliver don’t marry.

    Q.Nevertheless hesitant, maybe prepared to ultimately as long as she was fully and properly informed, perform the operation.

    A.Yes, and the other consequence for her is that she’s had a past history of infection in the joint, so there is already a significant risk for her to develop a subsequent infection in a knee replacement in a young person is disastrous [sic].

28. After having outlined all of the factors which are against performing the surgery, I do not take Dr Spriggin’s answer ‘Yes’ in the last answer quoted to be agreement that he would perform the surgery whether the plaintiff’s condition warranted it or not. On the contrary, my interpretation of Dr Spriggin’s answer is that he would continue to advise the plaintiff against such surgery and, implicitly, decline to perform it, until he formed the professional judgment that the time was appropriate to perform it. He made it clear that the time had not yet been reached, nor is it likely to be reached in the near future (T 302).

29. Much of this discussion is somewhat academic in any event because Dr Spriggins was basing his opinions upon his assessment of the plaintiff’s condition when he last saw her on 11 July 2012.  The evidence is that she has improved substantially since then.

30. Dr Middleton said there was no need for a surgical procedure in the foreseeable future (T 324). There is no accurate way to predict when a knee replacement procedure might be appropriate (T 333).

31. Dr Spriggins was prepared to concede that the plaintiff may accelerate deterioration in her knee by, in Mr Walsh’s words, ‘fanatical exercise’, and thereby bring forward the time when a knee replacement procedure is required.  However, he said:

    It’s likely that her muscle function will improve as the result of the activities that she’s doing, and therefore able to do more with that joint and actually sort of overcome some of the other disability that she has.

    (T 276)

32. This was a prediction, made before Dr Spriggins saw the video, which would appear to have been proven correct. Dr Spriggins continued:

    It is – you know, the more she keeps pounding this knee, the quicker it’s going to deteriorate. The up side of it is that she maintains good function of her joint to participate in the activities that she wants to participate in.

    (T 276)

33. Dr Middleton, on the other hand, pointed out that exercise is good, even for damaged joints. He said, when asked whether he would put the risk of further damage as being higher than a possibility:

    Done sensibly no. Damaged joints in general benefit from exercise so long as the exercise is reasonable and within the capacity of the joint. If she pushes it too hard yes, she may aggravate the setup long-term.

    (T 323)

34. Later, in cross-examination, he added:

    Q.What you do know though, however – and this is not a criticism – you do know, however, that use of the right knee is going to cause wear and tear isn’t it.

    A.No, I think that’s a common misconception. Arthritic – osteoarthritis is a degenerative ageing process. It’s a disease. It’s not – it’s commonly called wear and tear which is a very poor term because it’s not actually what happens. There’s actually good evidence that if you don’t use a joint it wears out quicker than if you use it.

    (T 326)

35. Dr Middleton rejected the suggestion that the plaintiff was in severe pain when she was exercising in the video. The following exchange took place in cross-examination:

    Q.Nevertheless if she is a person who has a high pain threshold and ignores pain, and has been doing it for years, her facial expressions or otherwise wouldn’t give a true indicate [sic] would they.

    A.I think there’s some truth is [sic] what you’re proposing, but I see it as a very unlikely possibility.

    Q.Because you’re so confident are you about your assessment of her psychology and what you observed of her features and presentation in the video, over a short period of time.

    A.I guess that’s an observation of human nature and I agree, I don’t totally know the answer to that. But it seems unlikely to me that somebody would be going through all that regime in severe pain. It would seem to me to be an extremely unusual thing to be doing.

    Q.But if she’s an unusual person you may be being a bit unfair to her might you not.

    A.As I said I accept that it’s possible.

    (T 331)

36. The first thing to be noted about that is that the plaintiff did not give evidence as to whether she was in pain during the exercises, and if so to what degree. 

37. Further, as I have already noted, there is no evidence that there is anything in the plaintiff’s ‘psychology’ which might cause the plaintiff to behave in such a way. If she does behave in such a way, and thereby causes harm to herself, that would not sound in damages.

38. This is all hypothetical, in any event: the plaintiff’s conscientious and determined exercising has given her great benefits in terms of knee function. There is no evidence that she has caused herself harm.

39. I therefore reject the submission that the plaintiff’s exercise regime is likely to necessitate knee replacement surgery at an earlier time than would otherwise have been the case.

1. Dr Meegan predicted in his report dated 3 October 2013 that the plaintiff would require knee replacement surgery in the ‘medium to long term’ (page 5).

2. Before seeing the video, Dr Meegan thought the plaintiff was precluded from all but sedentary or semi-sedentary work and, in particular, from ‘unrestricted general nursing duties’ (page 4). After seeing the video, he observed that the plaintiff is now able to tolerate full-time work, including shifts longer than eight hours, and then some exercise outside of that (T 413).

3. Dr Meegan was not asked for his opinion about knee replacement surgery after seeing the video, but it seems appropriate to infer that his opinion about that would have been similar to those of Dr Spriggins and Dr Middleton.

4. I conclude that there is no likelihood, on present indications, that the plaintiff will require knee replacement surgery until the age of about 55 years. Although the evidence is vague, doing the best I can I am prepared to conclude in the plaintiff’s favour that, on the balance of probabilities, she will require such surgery by then. 

5. I accept Dr Spriggins’ evidence that such surgery involves the following considerations:

   ·85% of knee replacement prostheses are still functioning well 15 years after surgery (T 277);

   ·the plaintiff may have reduced pain after surgery (Report of 9 May 2012 [2.2.22]), but this does not occur in every patient (T 278);

   ·the plaintiff should have a stable knee joint and a functional range of about 0 to 120 degrees. This should allow her to participate in most activities of everyday living but she should clearly avoid impact-loading activities (Report of 9 May 2012 [2.2.22]);

   ·the plaintiff will be susceptible to further damage to her right knee if she should fall or otherwise injure it (T 279).

6. On this evidence, the plaintiff will only require one such procedure during the period when she will be working, and she will be prevented from working for six months.  There is no evidence that she would not be able to return to work, and work until retirement, after the knee replacement procedure.

   Hip, Back and Neck Symptoms

7. The plaintiff denied that she had any back symptoms prior to the injury:

   Q.Had you had any problem before the accident, the injury, with your left knee.

   A.No, before the accident I have never had any issues with either knee.

   Q.For that matter, while we are dealing with this, had you had any problems with your back or your spine or –

   A.No.

   (T 56)

8. She said she saw her chiropractor, Dr Kurt Gerecke, about once a month after the injury, ‘(b)ecause my hips and my neck and my back would be out of alignment’ (T 39).

9. The chronology prepared by the plaintiff’s solicitors and handed up by Mr Walsh at the start of the trial (Exhibit P43), does not mention an attendance by the plaintiff upon Dr Gerecke until 20 August 2007, three months after the injury. The entry for that date reads, ‘Candice first attends Dr Kurt Gerecke, Chiropractor’ (my underlining). That is clearly incorrect. A perusal of her treatment records (Exhibit D60) demonstrates this.

10. The report of Dr Gerecke, Exhibit P62 at page 1, states:

    Miss Candice Burton first presented to Atlas Chiropractic on March 24^th 2004 for a general spinal check up. She received occasional care for general symptoms approximately 3 times a year.

11. In cross-examination based upon Dr Gerecke’s records, the plaintiff acknowledged that she had been consulting Dr Gerecke since as early as 24 March 2004, when she was 19 years old, about lower back pain (T 87). Further, she acknowledged that she could have attended him on six occasions in the 15 months before her accident in May 2007 (T 87). She said that because she was playing netball, she would have seen Dr Gerecke for ‘maintenance’ (T 88). She acknowledged that she could have seen him as recently as a fortnight before her accident in 2007 (T 88). She also acknowledged that she had in fact seen Dr Gerecke only three times in 2013-14, which is less frequently than prior to her accident in 2007 (T 89). She said that she saw him about pain in her neck and in her lumbar and thoracic spines (T 88).

12. The plaintiff was asked by Mr Walsh about the future:

    Q.Is it your intention that you will continue to consult Mr Gerecke as needs –

    A.Yes.

    Q.- in future.

    A.Yes, I pretty much see him on a monthly basis, that’s how often everything slips out of place.

    (T 60)

    That is also clearly incorrect. As stated above, the plaintiff has only seen Dr Gerecke three times in the last two years.

13. Later in cross-examination, the plaintiff denied that she had said that she had had no back symptoms before the injury. That was also clearly incorrect and, in my view, constituted an attempt to repair damage done by the earlier cross-examination.

14. Dr Spriggins declined to comment on any condition of the plaintiff’s neck, hips or back on the basis that he was not treating her for those conditions (Report of 9 May 2012, page 3).

15. Dr Middleton commented:

    I would consider that a firm link between various symptoms in other areas [than her right knee] and Ms Burton’s initial injury is open to some debate. Furthermore I cannot identify any diagnosable injury in these other areas, and so I would not attribute any measurable permanent impairment to any of these other problems.

    (Exhibit D45, pages 5-6)

16. I am not satisfied on the balance of probabilities that the plaintiff has suffered any injury, whether in the collision on the netball court or subsequently, as a result of her body ‘going out of alignment’. Dr Middleton said this was not a medical concept (T 313).

17. Assuming that the plaintiff had such symptoms prior to the netball injury, the frequency of her consultations with Dr Gerecke indicates that she was certainly no worse, and probably in better condition, after 5 May 2007 than she was before it. There is no evidence that the injury on 5 May 2007 caused or aggravated any such condition, if it exists.

    Left Leg Injuries

18. The Particulars of the Plaintiff’s Injury, Loss and Damage include an allegation that she suffered ‘Varus mal-alignment of her left knee with probable patella-femoral chondritis and narrowing of the medial compartment of her left knee’.

19. The plaintiff’s chronology records that on 26 August 2008 an MRI scan was performed on her left knee. I am unable to find any reference to this investigation in the evidence.

20. On 10 April 2012, the plaintiff underwent a ‘bone scan’ which, according to her, showed a stress fracture of the left tibia and likely ‘stress response’ in the left lateral femoral condyle. She described this as a ‘compensation to the injury’ (T 56), implying that the weakness in her right leg had caused undue stress upon the left leg, causing this injury.

21. This contention is not supported by the expert medical evidence.

22. Dr Middleton said there was no evidence on the video of any disability in the plaintiff’s left leg (T 319). He was dismissive of the idea, saying that such complaints ‘almost usually universally occur(s) in compensation cases only’ (T 336-7).

23. Dr Spriggins declined to comment on the plaintiff’s left knee, on the basis that he was not treating her for that condition (Report of 9 May 2012, page 2).

24. Dr Meegan did not give any evidence about the plaintiff’s left leg.  In his report of 4 October 2013, Dr Meegan mentions mild pain in her left knee, but this was not explored in evidence.

25. I therefore find that there is no evidence upon which I can make a finding that any problem the plaintiff may have experienced with her left leg was caused, directly or indirectly, by the injury to her right leg.

    Psychological Condition

26. The Particulars of the Plaintiff’s Injury, Loss and Damage assert that she has suffered ‘Psychological injuries including anxiety, depression and an Adjustment Disorder with Depressed Mood’. The particulars also assert that she has suffered an eating disorder and amenorrhea arising from the subject injury to her right knee.

27. The plaintiff first saw a psychologist, Mr Dansie, in September 2008 (T 34). It is suggested that she was depressed and angry. She had put on weight and her response was to use the rowing machine, which ‘spiralled into an obsession’ (plaintiff’s written submissions, page 11; T 35).

28. The report of Mr Dansie is Exhibit P40. It is dated 2 February 2010. He describes the plaintiff’s ‘psychological injuries’ as ‘Adjustment Disorder (Depression)’. He treated her with cognitive behavioural therapy. He reports that the plaintiff had withdrawn from her friendship groups, and from netball, which had been a ‘very big part of her life’ (page 2). He concludes:

    Ms Burton presented as a young lady who was very passionate about the sport of Netball. She explained that she had worked very hard to get herself playing at a high level in the sport and that her knee injury has completely devastated her, as it has taken away her great passion. Ms Burton had very high aspirations for herself in the sport and she is having great difficulty in accepting that she will no longer be able to reach her aspirations due to her injury. I believe that she will need ongoing support whilst she comes to terms with what has happened to her.

29. It is noteworthy that there is no reference to an eating disorder or amenorrhea in Mr Dansie’s report.

30. The plaintiff has also consulted Dr Patrick Flynn, a psychiatrist. His reports (Exhibit P47) are dated 16 June 2011 and 15 February 2013.

31. Dr Flynn first saw the plaintiff on 15 June 2011, between the ninth and tenth surgeries. As I have already outlined, the condition of the plaintiff’s right leg has greatly improved since then.

32. As to an eating disorder, the plaintiff reported:

    After her injury Ms Burton’s weight increased by 13kg. She subsequently lost 20kg over the past two years. She felt that her weight increase was due to her inability to walk and exercise. She now gets up at 6am to row and she feels that she is now obsessed with her rowing machine. She is more conscious about her eating and her carbohydrate intake. She describes herself as being a healthy eater. She denied the presence of any other eating disorder issues such as purging, laxative abuse or diuretic use. She is still not very happy with her body image. She said that she would like to lose a further 5kg although her present weight is satisfactory. She is worried about how she will cope on an upcoming planned overseas holiday where she will not be able to row on a regular basis.

    (my underlining)

    Dr Flynn concluded:

    4.1.3…

    I agree with Mr Dansie that Ms Burton experienced an Adjustment Disorder with Depression after her injury that probably extended between 2007 and 2010 while she was undergoing extensive surgical intervention. She is very mindful of the losses that occurred in her life due to her injury and diminished functioning. She was highly focussed upon success in netball and the inability to meet her personal netball goals has been shattering for her. She also experienced considerable pain which added to the burden of depression. There was a distinct diminution in her ability to derive pleasure out of her life.

    Ms Burton has a strong sense of wanting to ensure that she functions independently. The improvement in her physical state to the point that she is now able to work, albeit with difficulty, has been a factor that has improved her emotional wellbeing and lessened features of depression. While she is realistic about some of her physical limitations, she continues to set high standards for herself, to the point that she harbours a wish to compete in Olympic rowing if possible. Ms Burton has adjusted as best she can to her current circumstances. She has some residual features of depression but these are not sufficient to currently warrant a psychiatric illness diagnosis.

    4.1.4  …

    4.1.5…

    I expect that Ms Burton will continue to harbour a sense of dissatisfaction at her life due to the injuries that she sustained. For the foreseeable future she will continue to resent not being able to fulfil her sporting potential. While a spontaneous recurrence of depression is unlikely, she remains at slightly higher risk due to the injury and her consequent depression of experiencing a depressive reaction in the future, especially if she is faced with further personal injury or severe loss.

    (Report of 16 June 2011)

33. The plaintiff consulted Dr Flynn again on 5 February 2013. This was after the tenth surgery. She reported that ‘her overall knee function has changed little since she was last seen’.

34. As to her psychological state, the plaintiff reported to Dr Flynn:

    ·a preoccupation with her weight, to the extent that she would binge-eat and then induce vomiting twice a month;

    ·her weight varied by up to five kilograms per day;

    ·she binged on alcohol every one or two weeks;

    ·she exercised daily;

    ·she had been amenorrheic for three and a half years, and this was being investigated;

    ·she was not severely depressed but became irritable when tired;

    ·she was preoccupied with her knee injury and the scarring was a constant reminder of it.

35. Dr Flynn’s opinion was:

    There has been an improvement in her mood stability and features of depression are no longer prominent. She is not receiving psychology treatment or any other psychoactive medications at this stage. Her Adjustment Disorder with Depressed Mood has largely resolved and she is left with some residual symptoms of dysphoria and irritability of mood from a psychiatric perspective.

    It is now more evident that Ms Burton has clinical features of an Eating Disorder of mild-moderate severity. Her symptoms of pre-occupation with her body image, dieting, bingeing and vomiting, over-exercise, pre-occupation with her weight and calorie restriction are consistent with the presence of an Eating Disorder. She has secondary amenorrhea which has probably been caused by her calorie restriction but this is being otherwise investigated. I note that there has not been a substantial weight loss despite her carbohydrate avoidance and low daily calorie intake. Apart from her amenorrhea there are no other physical complications that have emerged as a result of her under nutrition, binge eating and over-exercising. He condition impacts upon her life in that she devotes considerable time to maintaining her appearance and body weight each day. It is not directly affecting her employment but she leads a fairly restricted lifestyle at present and she has not yet felt able to engage in a serious personal relationship.

    As mentioned elsewhere Ms Burton has a driven, achievement-orientated personality style and the development of an Eating Disorder of this type is psycho-dynamically due to her attempt to exert some level of control over her everyday functioning by trying to optimise her physical appearance through Eating Disorder behaviour. Ms Burton has some insight into the problematic nature of behaviour associated with her Eating Disorder.

    (my underlining)

    (Report of 15 February 2013, page 5)

36. It is noted that Dr Flynn described the plaintiff’s amenorrhea as ‘secondary’ to the eating disorder, although this is ‘being otherwise investigated’. Dr Flynn conceded that the plaintiff’s amenorrhea could be due to a number of other causes. It is common in athletes who exercise at a high level (T 451).

37. The plaintiff has consulted a gynaecologist about this condition (T 77). There is no evidence as to whether or not there would or could be a gynaecological explanation for her condition.

38. There is no other expert evidence which provides a causal link between the plaintiff’s injury, her psychological condition and her amenorrhea. The onus is on the plaintiff to demonstrate that such a link exists on the balance of probabilities. I do not accept that Dr Flynn’s conditional observation provides such a link, not overlooking the fact that, on the plaintiff’s evidence, the condition first became apparent in 2009.

39. Dr Flynn described the plaintiff’s eating disorder as ‘atypical anorexia nervosa with normal weight’ (Report of 15 February 2013, page 5). He said that such a condition may persist, and be subject to ‘unpredictable developments’ (page 6). He suggested that the plaintiff receive treatment from a psychiatrist experienced in dealing with such disorders (page 6). He observed:

    She is not at immediate physical risk given her ability to maintain her weight at a satisfactory level and because of the relatively infrequent nature of her induced vomiting behaviour. The instigation of therapeutic interventions as soon as possible will help prevent the development of potentially chronic and dangerous illness.

    (page 7)

40. In cross-examination, Dr Flynn conceded that if the plaintiff was limiting her calorie intake to 800 per day, and exercising substantially, her weight would not have remained stable, it would have decreased substantially (T 450). He accepted that her calorie intake was likely to have been substantially more than 800 per day (T 450).

41. I have already found that the plaintiff’s evidence has been deliberately untruthful in several areas.  For that reason, I am reluctant to ascribe any weight to her evidence about any aspect of her condition.  However, Dr Flynn is an experienced psychiatrist, and I place reliance upon his experience in assessing such complaints in areas where he has clinical expertise.  I also note that the defendant did not specifically attack the plaintiff’s evidence in the areas within Dr Flynn’s expertise.

42. I accept that the evidence establishes that the plaintiff suffered an adjustment disorder as a result of her injury in 2007, although this had largely resolved by the time of Dr Flynn’s first report in June 2011.  I also accept that the plaintiff had contracted an eating disorder by February 2013, the likely duration and severity of which is presently unknown. She has yet to undergo treatment for it. I accept Dr Flynn’s opinion that the disorder is a psycho-dynamic attempt by the plaintiff to exercise some control over her everyday functioning, which she perceives as having been damaged by her knee injury. Such a reaction is a function of her ‘driven, achievement-oriented personality style’, but I accept that it is causally related to the injury in the way Dr Flynn postulates.

43. Mr Walsh’s written submissions refer on a number of occasions to other mental disorders. For example, at page 2 he refers to her ‘excessive compulsive personality’, which I assume is a typographical error and should be ‘obsessive compulsive’. I am aware of an obsessive compulsive disorder, but there is no evidence that the plaintiff has such a disorder. I am not aware of a particular personality of that type, and there is no evidence about that.

44. Specifically, Dr Flynn made it clear that the plaintiff is not delusional. He said there were no perceptual disturbances or gross cognitive abnormalities (Report of 16 June 2011, page 6). He made the same observation in February 2013.

45. I therefore reject any suggestion that the plaintiff’s attitude to, for example, knee replacement surgery, is a result of an injury-related psychological condition. I reject, for the same reasons, any suggestion that if it is established that the plaintiff exercises excessively and is damaging her knee, such behaviour is a manifestation of an injury-related psychological condition. Neither suggestion is supported by the expert evidence. 

    Conclusions re Psychological Condition

46. The plaintiff suffered an adjustment disorder as a result of her right leg injury in 2007.  This had largely resolved by June 2011.  I find that there is insufficient evidence to conclude that the plaintiff’s amenorrhea was caused by the injury.  I find that the plaintiff also contracted an eating disorder as a complication of the leg injury.  She has received no treatment for this condition.  The duration and severity of this condition is presently unknown.  There is no evidence that either the adjustment disorder or the eating disorder has resulted in economic loss, or is likely to do so in the future.

    Non-Economic Loss

    - Netball

1. The plaintiff said that she played netball for the under-19 South Australian State team. She said that she did not try out for the under-21 State team because she had issues with the coach (T 90). In 2004 she also played for the Contax State League team, mainly in the reserves (T 90). In 2005 she transferred to the Newton Jaguars. She played one league game and 19 reserves games in 2005, and five league games and 15 reserves games in 2006. In 2007 she had played three league games and the rest were reserves games. She was still playing in the reserves at the time of her injury. She was captain of the reserves team (T 478).

2. In examination-in-chief the plaintiff sought to draw parallels between herself and people who had also been in the State under-19 teams.  These included Natalie Medhurst and Natalie von Bertouch.  The plaintiff acknowledged, however, that these players had both gone almost directly from the under-19 team into the Thunderbirds, which is a National League team, and thence into the Commonwealth Games team.

3. The plaintiff’s mother, Sharon Burton, gave evidence. Both Mrs Burton and her sister-in-law were champion netballers. Both played for Australia. Mrs Burton was a member of netball’s ‘Team of the (20^th) Century’. She received a Centenary Medal for her contribution to netball (T 475). The plaintiff’s father played football for Port Adelaide in the South Australian National Football League.

4. Mrs Burton said that during the 2007 season, prior to the injury, the plaintiff was playing the best netball she had seen her play. Her prospects of making the league team in 2008 were ‘good’ (T 479).  She was in the State League squad (T 506). She had always wanted to play in the National League, and her drive would have held her in good stead (T 479).

5. I conclude from this that although the plaintiff was a competent netballer, and having seen and heard her evidence I have no doubt that she would have been a highly competitive and dedicated player, she had yet to establish herself, at the age of 22, at the State League level prior to her accident. I accept her mother’s evidence that she lost a good chance of playing State League netball in 2008. She has also lost a chance of fulfilling her dream of playing national and international netball.  It is virtually impossible to assess how good that chance was.  The sporting annals are replete with examples of athletes who have ‘blossomed’ later in their careers and proved the commentators wrong.  The plaintiff has lost the chance to do that.

6. The plaintiff is no longer able to play netball at all. This inability has obviously caused her great unhappiness. She has lost an amenity which was pivotal to her sense of self-worth and well-being.

7. The plaintiff told Dr Flynn that she has:

   … become frustrated because she believes that she might have done as well as some of her friends who reached international netball standard. She added that her mother and family members have been successful sports people and she feels that she has let them down by not being able to achieve her true sporting potential.

   (Report of 16 June 2011, page 5)

8. I accept, as Dr Flynn observed, that the plaintiff’s ‘inability to meet her personal netball goals has been shattering for her’ (Report of 16 June 2011, page 9). 

   - Social Activities

9. At the time of her injury, the plaintiff was still living at home with her parents and sister. Mr Walsh submitted that since the injury, the plaintiff’s life ‘consists predominantly of excessive exercise, pain and restriction, little social activity, eating disorder behaviours and dependence on her parents’.

10. As to the plaintiff’s social life, prior to the injury, while she was studying for her nursing degree, she worked at the Alberton Hotel while also playing sport and exercising rigorously. She said she was working ’16 hour days’ even then (T 18).

11. The plaintiff said little about her social life in her evidence-in-chief.  Obviously, her social life would have been severely curtailed during the period after the injury in 2007 until 2012, during which time she was having repeated surgery (T 38).  In cross-examination, the plaintiff said she went on a two-month overseas holiday to Europe in 2011. She took a Contiki tour and travelled extensively. She climbed up and down stairs regularly (T 180). She did not describe encountering any particular difficulties on that trip.

12. In his report dated 16 June 2011, at page 4, Dr Flynn records that the plaintiff told him:

    ·after her injury she did not go out and she lost some of her old friends who were not very supportive of her;

    ·she felt bitter and less tolerant of people;

    ·she still has contact with some old friends;

    ·she has met new people through her work;

    ·she has much less contact with her old netball friends;

    ·she was not in a close relationship at the time of her injury and she did not feel she could meet new people after her injury during her complicated recovery;

    ·she is somewhat bothered by not having a partner at present;

    ·she now has a reasonably active social life;

    ·she attends parties and goes to clubs;

    ·she needs to be careful about what she does when she is out;

    ·she does not back away from social situations she might enjoy;

    ·she drinks alcohol socially and on weekends (page 6);

    ·she tends to make friends quite easily (page 6);

    ·she now continues to socialise but much of what she does is restricted because of her knee injury.

13. In his report dated 15 February 2013, at page 2, Dr Flynn records that:

    ·the plaintiff has not had any serious personal relationships since she was last seen;

    ·she continues to live with her family;

    ·she goes out with girlfriends on the weekend;

    ·during the week she spends time watching television;

    ·she sometimes avoids going out to dinner so as not to eat too much.

14. It is not known whether the plaintiff’s situation has changed significantly since Dr Flynn saw her last. Her depressive symptoms had largely resolved by then. Her physical condition has improved markedly since then.

15. In my view, there is no evidence upon which I could base a finding that the injury has caused ongoing restrictions on the plaintiff’s social activities or personal relationships. No such restrictions have been evident since, at the latest, the plaintiff’s attendance upon Dr Flynn in June 2011.

    Conclusion re Non-Economic Loss

16. I have found that the plaintiff had a serious injury to her right knee. She has suffered severe, at times excruciating, pain and discomfort. She has undergone ten surgical procedures. On several occasions she has suffered serious complications which, if they were not life-threatening, presented a danger of serious disability or even the loss of a limb.

17. The plaintiff has been left with a mild to moderate disability of the right leg.  There is a likelihood that she will require a knee replacement procedure at the age of 55 years.  This will cause an exacerbation of pain and discomfort for a period of six months or so, with concomitant restrictions on physical and social activities.

18. The plaintiff developed an adjustment disorder which had largely resolved by 2010. More recently, she developed an eating disorder, although the present status of that is unknown.

19. The plaintiff became socially withdrawn during treatment, although since the tenth surgery she has resumed regular social activities.

20. By far the biggest loss for the plaintiff has been the inability to play vigorous sport. Prior to the injury, she was a dedicated and talented netballer who was mostly playing State League reserves netball, although she played a few league games. She had a good chance of playing regular State League netball. Her dreams of playing National League netball, and even international netball, have been shattered.

21. The plaintiff no longer plays any form of competitive sport. She exercises rigorously and uses a rowing machine.

22. There is a probability that the plaintiff’s knee function will deteriorate and that she will face further surgery, in the form of a knee replacement procedure. That may alleviate pain in the knee and provide useful but limited function.

23. Damages for the plaintiff’s non-economic loss are governed by s 52 of the Civil Liability Act. Section 52(1) provides:

    (1)     Damages may only be awarded for non-economic loss if—

    (a)   the injured person's ability to lead a normal life was significantly impaired by the injury for a period of at least 7 days; or

    (b)   medical expenses of at least the prescribed minimum have been reasonably incurred in connection with the injury.

24. There is no doubt that these threshold criteria have been met by the plaintiff.

25. Section 53 provides:

    53—Damages for mental harm

    (1)     Damages may only be awarded for mental harm if the injured person—

    (a)was physically injured in the accident or was present at the scene of the accident when the accident occurred; or

    (b)is a parent, spouse, domestic partner or child of a person killed, injured or endangered in the accident.

    (2)     Damages may only be awarded for pure mental harm if the harm consists of a recognised psychiatric illness.

    (3)     Damages may only be awarded for economic loss resulting from consequential mental harm if the harm consists of a recognised psychiatric illness.

26. Clearly, s 53(1)(a) is satisfied. As for s 53(2) and (3), there is no doubt that the adjustment disorder and eating disorder referred to by Dr Flynn are ‘recognised psychiatric illnesses’ for the purposes of that section.

27. Section 52(2)(a) provides:

    (2)If damages are to be awarded for non-economic loss, other than in relation to personal injury arising from an MVA motor accident, they must be assessed as follows:

    (a)   the injured person's total non-economic loss is to be assigned a numerical value (the scale value) on a scale running from 0 to 60 (the scale reflecting 60 equal gradations of non-economic loss, from a case in which the non‑economic loss is not severe enough to justify any award of damages to a case in which the injured person suffers non-economic loss of the gravest conceivable kind)

28. My conclusion is that this plaintiff’s entitlement to damages for non-economic loss should be assessed at 25, having regard to all of the matters to which I have referred.

29. Having regard to the provisions of s 52(2) of the Civil Liability Act, this results in an award of $58,760.00.

30. No interest is payable on that sum (Civil Liability Act, s 56).

    Loss of Earning Capacity

31. As I have already outlined, the plaintiff obtained the degree of Bachelor of Nursing in 2006. She was part-way through her graduate training program at the Royal Adelaide Hospital when she was injured on 5 May 2007. Although she did not complete all of the training program, she was given status for having done so.

32. The plaintiff resigned from her position at the Royal Adelaide Hospital on 14 February 2008. She was unemployed for about 19 months. After ten unsuccessful job applications, she was successful in obtaining a position in the Recovery Unit at the Royal Adelaide Hospital. She commenced in that position on 21 September 2009.

33. The plaintiff’s job in the Recovery Unit was full-time (76 hours per fortnight) plus overtime.

34. In early 2012, the plaintiff commenced a post-graduate course in critical care nursing.

35. The plaintiff reduced her hours to .84 of full-time equivalent (FTE) in September 2012. In evidence, she stated that she did so because of her difficulty in coping with full-time work because of her right knee. However, the plaintiff stated to the hospital administration that her request was motivated by the demands of studying. I will discuss this issue in more detail later in these reasons.

36. In March 2013, the plaintiff commenced a 12-month contract in the ICU at the Royal Adelaide Hospital as a registered nurse. The position had been advertised at .84 FTE.  The plaintiff applied for it on that basis.  That was the only job available in critical care (T 139).  

37. On 30 May 2014, the plaintiff was offered, and accepted, a permanent position in the ICU at .84 FTE.

38. It is the plaintiff’s contention that the reduction in her hours in September 2012, when she was still in the Recovery Unit, was a consequence of her injury. She gave evidence that had she not been injured, she would not have accepted a .84 position (T 364).

39. Apart from the period of unemployment, the cause of this reduction from full-time to .84 FTE is the major issue underlying the plaintiff’s claim for past and future loss of earning capacity.

40. The plaintiff explained why she applied to reduce her hours thus:

    I essentially did that because I was finding it too hard to be working at a full-time position with being on my feet, the swelling, the pain, and I also did – well, it worked out well with the study – the further study.

    (T 58)

41. The plaintiff asserted that she is still having trouble coping with .84 FTE and would like to reduce her hours further. However, she is concerned that:

    I think obviously if you reduce your number of hours it shows that you are struggling and sort of puts a target on your head, that, you know, if anything does happen or cuts need to be made, well, then, you are the first one that’s going to go.

    (T 63)

42. In cross-examination, the plaintiff asserted that her application to reduce to .84 FTE was ‘predominantly due to my injury’. She was studying 25 to 30 hours per week while she was doing the graduate diploma course, but that did not really influence her decision, as ‘(t)here are people that do the course that study full-time and work full-time as well’ (T 132).

43. In the document which the plaintiff submitted to the Royal Adelaide Hospital in which she applied to reduce her hours and which is marked as having been received on 26 October 2012 (Exhibit D19), she stated:

    Temporary contract to continue at reduced hours whilst studying then return to full time substantive as at 7/12/2013.

44. This is consistent with what the plaintiff told Ms Morgan, the occupational therapist. In her notes, Ms Morgan recorded that the plaintiff told her:

    She currently works 34 hours per week and dropped her hours about 2 months before this assessment, due to her study demands … She plans to remain on reduced hours while she completes her study.

45. The plaintiff denied that she told Ms Morgan that.  In cross-examination, she was asked:

    Q.You told Ms Morgan, didn’t you, that you had dropped your hours to 34 hours a week because of your study demands.

    A.I disagree, it would have been due to my knee and obviously I said ‘study’ as well.

    (T 188)

46. This was an issue which was highly relevant to Ms Morgan’s assessment of the plaintiff’s capacity for work. I reject the suggestion that Ms Morgan has made an erroneous note about such an important issue.

47. I accept that when dealing with an employer, there is a temptation to be less than frank about a physical disability if the employee fears that such a limitation may affect her future employment.  But there was no such temptation in relation to Ms Morgan.  This was highly relevant information for the purposes of Ms Morgan’s assessment, and the plaintiff well knew this.

48. In my view, the true situation is that the plaintiff was being frank with Ms Morgan and with her employer about her reasons for reducing her hours, but that has not been the case in her sworn evidence.

49. By this time, the plaintiff had worked successfully in the Recovery Unit since 21 September 2009. She was appointed a team leader in the Recovery Unit, only about six months after commencing there, because she had gained relevant experience and was highly regarded (T 108). She had obtained high honours in a cardiac monitoring course and by 2011 she was writing guidelines for managing renal transplant patients in Recovery (T 109).  She was appointed a Clinical Nurse after three years’ experience, which is the minimum qualification for that classification (T 109, Exhibit D20).

50. The plaintiff had good references from the managers in the Recovery Unit. As I have stated, she was successful in her application and commenced in the ICU on 23 April 2013 (Exhibit D24).

51. The plaintiff was paid allowances in addition to her basic salary and overtime by obtaining her Certificate in Critical Care Nursing at the end of 2012, and the Graduate Diploma in Critical Care Nursing at the end of 2013 (T 150).

52. In the event, the person holding the substantive position in the ICU did not return to that position in March 2014, and the plaintiff was offered a permanent position in the ICU at .84 of full time, which she accepted (T 153; Exhibit D32). This commenced on 22 March 2014. She commenced in that position as a Registered Nurse 1, Level 6, plus the allowance for a Graduate Diploma in Critical Care Nursing.

53. Since that time, the plaintiff has applied for a further reclassification to that of a Clinical Nurse Level 2, and she has been advised that her application will be granted.  When granted, her position will be at either increment 3 or 4 of Level 2 (T 154). This would be at a higher rate of pay than at present. The plaintiff acknowledged that according to the Enterprise Bargaining Agreement (Exhibit D35, Nursing/Midwifery (South Australian Public Sector) Enterprise Agreement 2013), this would result in a base salary of either $69,943.00 or $72,319.00. In addition, penalty allowances and an allowance of $3,361.00 for her graduate diploma would be payable (T 155).

54. The plaintiff acknowledged that in fact her penalty payments have increased since she has gone to the ICU because of weekend work. She said that she would expect her penalty payments would be as much as 50% higher in the ICU compared with previously (T 156).

55. Appraisal of the plaintiff’s pay slips for the period 4 May 2013 to 25 July 2014 (Exhibit D38), discloses that for the period ending 20 June 2014, her total gross wage was in excess of $77,000.00.

56. The plaintiff called Mr Ian Brown to give evidence. Mr Brown was formerly the managing director of a successful nursing employment agency. He was also a major sponsor of the Newton Jaguars Netball Club.

57. The plaintiff contacted Mr Brown for advice about part-time work and her employment prospects generally. He said he told her his clients could not offer her work if she could not perform full duties. He had the impression she was ‘struggling’ at the Royal Adelaide Hospital. He told her it would be hard for her to ‘go up the ladder’ because of her injuries (T 351).

58. There is no evidence, apart from the plaintiff’s, that she is ‘struggling’ at work. All indications are to the contrary.  The plaintiff has, at an early stage of her career, been reclassified and promoted to senior positions since her injury. She is able to work consecutive long shifts and have significant reserve capacity to perform rigorous exercise afterwards.

59. On the basis of all this evidence, I reject the plaintiff’s evidence that the reduction of her hours since September 2012 has been due to her knee injury. The medical evidence of Dr Spriggins was that in July of that year, following the tenth surgery, the function of the plaintiff’s right knee had improved significantly. Dr Middleton and Dr Meegan both said she had the capacity to work full time.  She had been working full time without apparent difficulty in performing her duties since 2009, when her knee was much worse.

60. For those reasons I find, on the balance of probabilities, that the reduction in the plaintiff’s hours of work was not due to the injury to her right knee in 2007, nor were her decisions to apply for a contract, then accept a permanent position in the ICU at .84 FTE, in any way causally related to that injury.  It follows that I also reject the plaintiff’s claim that she is unable to cope with working at .84 FTE, and is likely to reduce her hours to .6 FTE, for the reasons expressed above.

    - Past Loss of Earning Capacity

61. The plaintiff’s claim is for $82,639.00 under this heading. This figure, however, is based on an acceptance of the plaintiff’s assertion that the decision to reduce her hours to .84 FTE would not have occurred but for the injury. The plaintiff has failed to establish that causal connection on the balance of probabilities.

1. I accept the defendant’s submission that, disregarding the reduction to .84 FTE, a more appropriate award is $66,000.00. I award that sum.

   - Past Loss of Superannuation

2. The plaintiff claims $8,216.00 for loss of superannuation based on an assessment of past loss of earning capacity of $82,639.00.  Since I allow $66,000 under that heading, I allow $6,600 under this heading.

   - Future Loss of Earning Capacity

3. I have already found that the plaintiff is able to work full time for the foreseeable future. The onus is on the plaintiff to demonstrate on the balance of probabilities that she has suffered a loss of earning capacity, and this has resulted in financial loss. There is no evidence that the plaintiff has had a loss of earning capacity since she started work at the Royal Adelaide Hospital in 2009. There is no evidence that she has such a loss of earning capacity now, and there is no evidence upon which it can be asserted that she will suffer a loss of earning capacity at any predictable time in the future.

4. In Medlin v SGIC, [1] the High Court approved the passage in the judgment of the trial judge, Debelle J, as follows:

   "The plaintiff can only recover damages for the loss of four and a half years salary if he can prove that his earning capacity has been diminished ... Although the defendant must take the plaintiff as it finds him, including his commitment to high standards and to academic excellence, the plaintiff nevertheless has this burden to discharge. He will be entitled to recover only if he can prove a diminution in his earning capacity which has been or may be productive of financial loss. If, notwithstanding any impairment, his contract of employment and his right to draw a salary continue, his impairment has not resulted in any financial loss: see Graham v. Baker, per Dixon C.J, Kitto and Taylor JJ. " (Emphasis added.)

   [1] (1994-1995) 182 CLR 1 at 3-5

5. Mr Roder also referred to Victorian Stevedoring Pty Ltd v Farlow,[2] where Scholl J said:

   (Where a plaintiff has returned to work) unless there is evidence upon which they can find it likely that (the plaintiff) will earn less money, the most (the jury) can lawfully do is to compensate (the plaintiff) to the extent of a reasonable and moderate evaluation in money of the mere chance or risk of future unemployment or less remunerative employment. Even if the jury in the present case was entitled – as I think it was – to take the view that the plaintiff, if he had to find work off the wharves, might earn reduced wages and have periods of unemployment, there was simply no evidence that that was likely to be his situation at any foreseeable time. The jury was entitled to award something moderate by way of insurance against the chance of such a situation arising, but they were certainly not entitled, in my judgment, on the evidence in this case, to assess compensation merely for the plaintiff's being exposed to such an economic risk at the very high sum of £5600, or £5000, or even £4000.

   In my opinion, the award was far too high, and was such as no reasonable jury could properly award.

   [2] [1963] VR 594 (FC) at 599

6. This judgment has been followed in Duffy v Salvation Army (Vic) Property Trust[3] and Ford Motor Co of Australia v Mann.[4] See the discussion in Luntz, H Assessment of Damages for Personal Injury and Death,[5] [5.3.7] at page 328. See also Salkeld v Cocca[6] per Anderson J at [106] and cases cited there.

   [3] [2013] VSCA 253

   [4] [2001] VSCA 177

   [5] 4^th edition, Butterworths, Australia, 2002

   [6] [2013] SASCFC 138

7. So the principle is clear enough. The plaintiff may only recover damages for loss of earning capacity if it is productive of financial loss.  The plaintiff has not demonstrated an entitlement to damages under this heading.

8. I do not regard the plaintiff’s current employment as having been ‘tailored’ for her by a ‘beneficent’ employer (Gipson v Broken Hill Proprietary Co Ltd[7]). The plaintiff has earned her current position on her merits and has held it, and her previous position, without significant absenteeism since 2009 apart from the period immediately following surgery.  She gave the following evidence:

   [7] (1985) 120 LSJS 458

   Q. You told Ms Morgan that you didn’t regularly take time off work due to your [symptoms]. 

   A. Yes. 

   Q.You pretty much worked every day.  You would have few sick days, didn’t you. 

   A.Yes. 

   Q. And I take it occasionally you would have a cold or something like that, wouldn’t you. 

   A. Yes. 

   Q.You wouldn’t, looking back, you wouldn’t be able to tell whether a sick day was because your knee was hurting or because you had a minor cold or something like that. 

   A. No.

   (T 188)

9. The plaintiff would not be unemployable should she lose her current employment, for the reasons I have already outlined.  Her employer is a large public hospital, she performs an important role in a critical area of the hospital’s activities.  The skills she has are readily transferrable to other areas of employment.  However, it must be observed that she would be at a disadvantage on the open labour market should she lose her position for an unrelated reason.  The industrial reality is that an employer is less likely to employ a person who has a knee condition, however moderate, in preference to a person who does not.  I will make an allowance for such a disadvantage.

10. I accept that, on Dr Spriggins’ evidence, there is a risk, rather than a likelihood, that the plaintiff’s knee will deteriorate more quickly than presently predicted.  There is also a risk that the plaintiff’s knee might be damaged by reasonable exercise, or damaged accidentally in some other way which may accelerate deterioration in the joint.

11. It is therefore necessary to make allowance for that risk, the consequent further expenses which may be incurred if that deterioration were to eventuate, the risk that the plaintiff will suffer complications with further surgery, and the risk that she will lose earning capacity and superannuation as a result.

    Agency work

12. Mr Walsh submitted that had the plaintiff not been injured, she would have, in addition to a full-time salary and overtime, worked extra time through a nursing agency for not less than four hours per week and up to one day per week. The plaintiff said that because of the structure of Royal Adelaide Hospital rosters, this was feasible (T 51-2) and she would ‘definitely’ have done so. That is the only evidence on the subject, apart from the hypothetical evidence of Mr Brown.

13. Of course, had the plaintiff not been injured, she would also, on her evidence, have been playing competitive netball at a high level, with all the associated training that would have entailed, and would have been enjoying a full and active social life as well.

14. There is no evidence that the plaintiff has an incapacity which is productive of the loss claimed under this heading. It has been demonstrated that the plaintiff has the capacity to work full time, and a residual capacity to exercise vigorously after that. I am not satisfied that she has an incapacity to do extra agency work, whether or not that has been feasible under her present working arrangements, or will be into the future.  She is already working ‘overtime’, and earning penalty rates for weekend and shiftwork.

15. The plaintiff has not demonstrated an entitlement to damages under this heading.

    Early Retirement

16. Mr Walsh submitted that the plaintiff’s injury will cause her to retire earlier than she would otherwise have done.  He presented figures based upon the ‘loss’ she would suffer if she retires at 45, 50, 55 or 60, rather than 67 years.

17. The plaintiff has not demonstrated a likelihood, on the balance of probabilities, that she will be forced to retire at any of the postulated ages because of an incapacity for work which is productive of financial loss. Indeed, there is no evidence about the topic of retirement at all.  In his opening address, Mr Walsh described a ‘risk’ of significantly early retirement (T 12).  In his closing address, he submitted that although I could not find that she is going to retire at any particular age, there is a ‘risk’ that she will.  I accept that there is such a risk, and I will make an allowance for that under this heading.

    Future Medical Treatment

18. I have found that the plaintiff has established that she will probably require a knee replacement at age 55. Having regard to Dr Spriggins’ opinion about the longevity of these prostheses, at the present stage of their development, it is unlikely that she will require another one before retirement.

19. On the basis of one knee replacement operation being required for the plaintiff at age 55, using Mr Walsh’s figures based on the evidence of the forensic accountant, Mr Clifton (written submissions, page 70), the net present value of lost income for the six-month period of incapacity predicted by Dr Spriggins is $12,047.00.

20. Taking all these matters into account, having regard to the vagueness of some of the evidence and the difficulties in predicting the future progress of the plaintiff’s condition, doing the best I can on the figures available, I award a global sum of $75,000 for loss of future earning capacity.  This figure is inclusive of the plaintiff’s loss of earning capacity at the time of the postulated knee replacement surgery.

    Future Medical Expenses

21. The evidence of Dr Spriggins is that knee replacement surgery would cost, on 2012 figures, about $30,000.00.  I accept that evidence.  I have no evidence that it would cost more today.  The net present value of a payment of that sum when the plaintiff is 55 years old is $8,859.00 (plaintiff’s written submissions, page 56).  I accept that.

22. I have no evidence upon which to base an allowance for ‘other surgery’ as submitted by the plaintiff. 

23. I make an allowance for the risk that DVT treatment after the future knee replacement surgery will be required.  I assume that an allowance for DVT treatment prior to surgery was included in Dr Spriggins’ estimate of $30,000.00 for the surgery overall.

24. I make no allowance for future orthopaedic surgeon/general practitioner attendances apart from what has been allowed for.  Any evidence from Dr Blight and Dr Meegan referred to by Mr Walsh at page 50 of the written submissions is negated by the subsequent video evidence.  The evidence was clear that there is no need for further treatment in the ‘foreseeable future’.

25. I accept that the plaintiff should receive an allowance for fish oil capsules, folic acid and Voltaren as treatments for knee pain, to reduce the chances of a recurrent DVT, and to deal with any inflammation in the knee.  I allow $3,363.36 as claimed (plaintiff’s written submissions, page 53).

26. As to future limb x-rays (plaintiff’s written submissions, page 50), physiotherapy (written submissions, page 51), podiatrist (written submissions, page 52) and psychologist and counselling (ibid), the evidence about these topics is virtually non‑existent.  However, I accept that there is some likelihood that some or all of these services may be required.  I will make an allowance for the risk of that becoming necessary. 

27. I will make an allowance in relation to gymnasium membership (plaintiff’s written submissions, page 52).  I accept that the plaintiff’s exercising has resulted in significant improvement in her condition, and is likely to continue to do so.  I allow $9,391.10 as claimed (written submissions, page 55).

28. Assessing the quantifiable and non-quantifiable aspects of future medical expenses, and again taking a global approach, I allow $40,000.00 under this heading.

    Gratuitous Services

29. The plaintiff has received services and assistance from her mother since her injury. Section 58 of the Civil Liability Act provides:

    58—Damages in respect of gratuitous services

    (1) Damages are not to be awarded—

    (a) to allow for the recompense of gratuitous services except services of a parent, spouse, domestic partner or child of the injured person; or

    (b) to allow for the reimbursement of expenses, other than reasonable out-of-pocket expenses, voluntarily incurred, or to be voluntarily incurred, by a person rendering gratuitous services to the injured person.

    (2) Damages awarded to allow for the recompense of gratuitous services of a parent, spouse, domestic partner or child are not to exceed an amount equivalent to 4 times State average weekly earnings.

    (3) However, the court may make an award in excess of the limit prescribed by subsection (2) if satisfied that—

    (a) the gratuitous services are reasonably required by the injured person; and

    (b) it would be necessary, if the services were not provided gratuitously by a parent, spouse, domestic partner or child of the injured person to engage another person to provide the services for remuneration,

    but, in that event, the damages awarded are not to reflect a rate of remuneration for the person providing the services in excess of State average weekly earnings.

30. The plaintiff submits that s 58(3) has been satisfied. This is not disputed by the defendant. The plaintiff submits that the services provided by her mother are as set out in the Schedule, Exhibit P48. The plaintiff claims that, immediately following each operation, she required intensive levels of care (31 hours per week). When she returned to work after the second surgery, she required five hours per week, and since that time she has required 1.5 hours per week. She claims 52 weeks of intensive care, 24 weeks of care after the second surgery, and 195 weeks since then at the third level, 1.5 hours per week, until four weeks after the tenth surgery.

31. I reject the plaintiff’s claim that such voluntary services should be compensated at the rate of $43.68 per hour. I agree with the defendant that an allowance of $30 per hour is more appropriate for this level of care.  I do so for the following reasons:

    ·The plaintiff has led no evidence to establish:

    (a) the extent to which the provision of these services has saved the injured person the cost of engaging someone else to provide these services (see Garland v Clifford[8] per Lander J, and Civil Liability Act, s 58(3));

    (b)the extent to which the plaintiff would have engaged the services of another if she was ‘spending her own money’ (see Arthur Robinson (Grafton) Pty Ltd v Carter[9] per Barwick CJ);

    (c)the plaintiff’s use of an ‘agency rate’ does not distinguish between levels of care.  For example, room cleaning and clothes washing calls for a different rate than more specialised services such as wound dressing, assistance with showering and the like.

    ·Further, I agree with Mr Roder’s submission that no allowance is made for overheads charged for by agencies, such as travel costs, WorkCover premiums and the like, and that ‘Commercial services are likely to be rendered more efficiently and take considerably less time’.

    [8] (1996) 67 SASR 47 at 59

    [9] (1968) 122 CLR 649 at 661

32. I regard the claim for 31 hours per week (initially 38 hours per week) to be excessive. The evidence is that the plaintiff’s mother worked as a bar manager during this period. I consider an allowance of 21 hours per week (three hours per day) to be more appropriate. As to the time after the second surgery, five hours per week is reasonable. As to the rest of the time between then and four weeks after the tenth surgery, 1.5 hours per week is reasonable. Since then, no allowance is justified.

33. The defendant questioned other aspects of the plaintiff’s claim under this heading, but in my view, doing the best I can on the evidence, I should allow:

    - 52 weeks at 21 hours per week at $30 per hour:                  $32,760.00
               - 24 weeks at five hours per week at $30 per hour:                  $3,600.00
               - 195 weeks at 1.5 hours per week at $30 per hour:                 $8,775.00
      _________  

    Total:  $45,135.00

    Wilson v McLeay Damages

34. The plaintiff claims damages for her mother’s visits and support of her while she was in hospital as a result of the injury. She spent a total of 30 days and 19 nights in hospital altogether. The plaintiff also received visits from her aunt and sister, but no claim is made for those visits. The plaintiff’s father also visited. There is a claim for those visits. He did not give evidence. Mrs Burton gave evidence that he visited, but did not specify how many times or for how long those visits were. I make no allowance for her father’s visits.

35. The plaintiff says that 30 days for two to three hours per day at $43.68 per hour is a ‘guide’ to the appropriate amount (written submissions, page 42). However, I do not think that a commercial carer’s rate is the appropriate amount to be applied here. 

36. It must be shown that the visits for which damages are claimed have ‘definite therapeutic value’ (Luntz at [4.7.3] and cases cited there) and they are limited to out-of-pocket expenditure (Luntz at [4.7.4]). There is little evidence as to the first factor and there is no evidence as to the second. The defendant does not, however, oppose a modest award under this heading.

37. I allow $1,000 for Wilson v McLeay damages.

    Special Damages

38. These are agreed at $82,500. There is no evidence that the plaintiff has incurred interest on these charges. Accordingly, no interest is awarded on this amount.

    Conclusion

39. I assess the plaintiff’s damages as follows:

    - Non-economic loss  $58,760.00
             - Past loss of earning capacity  $66,000.00
             - Past loss of superannuation  $6,600.00
             - Future loss of earning capacity  $75,000.00
             - Future medical expenses  $40,000.00
             - Gratuitous services  $45,135.00
             - Wilson v McLeay  $1,000.00
             - Special damages  $82,500.00
                 __________

    Total:                 $374,995.00

40. There will be judgment for the plaintiff in the sum of $374,995.00.  I will hear the parties as to any consequential orders as to interest, in particular as to interest on past loss of earning capacity and on gratuitous services, and costs.