Christodoulakis v Aly - [2009] WASCA 136

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CHRISTODOULAKIS -v- ALY [2009] WASCA 136

CORAM: PULLIN JA
MILLER JA
NEWNES JA

HEARD: 7 MAY 2009

DELIVERED : 7 MAY 2009

PUBLISHED : 6 AUGUST 2009

FILE NO/S: CACV 81 of 2008

BETWEEN: NAPOLEON CHRISTODOULAKIS
Appellant
AND
MAHMOUD HASAN ABBAS ALY
First Respondent
MAREE-CARMEL MESTICHELLI
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :EATON DCJ
Citation  :CHRISTODOULAKIS -v- ALY & ANOR [2008] WADC 107
File No  :CIV 428 of 2006

Catchwords:

Appeal - Assessment of damages for personal injuries - Extent to which injuries caused or aggravated by two motor vehicle accidents - Whether removal of portion of meniscus in knee would aggravate degeneration in knee joint - Whether trial judge gave adequate reasons for preferring one medical opinion over another

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C(3)

Result:

Appeal allowed on grounds 1 and 2
Cross-appeal dismissed
Judgment set aside
Order for retrial before a different judge

Category: B

Representation:

Counsel:

Appellant:     Mr K J Bradford
First Respondent           :     Mr J R Brooksby
Second Respondent      :     Mr J R Brooksby

Solicitors:

Appellant:     Bradford & Co
First Respondent           :     Williams Handcock
Second Respondent      :     Williams Handcock

Case(s) referred to in judgment(s):

Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Christodoulakis v Aly [2008] WADC 107
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273

JUDGMENT OF THE COURT: At the hearing of this appeal, the court allowed the appeal on grounds 1 and 2 of the grounds of appeal, dismissed the cross‑appeal, set aside the judgment below and ordered a retrial before a different judge of the District Court.
The court undertook to give brief reasons if required. Those reasons have been required and these are the reasons.

Nature of the proceedings

The appellant brought an action for personal injuries sustained in two motor vehicle accidents which occurred on 8 August 2001 and 12 August 2004. The first and second respondents were, respectively, the driver of a vehicle which collided with a bus in which the appellant was travelling on 8 August 2001, and the driver of a vehicle which collided with the Daihatsu sedan which the appellant was driving on 12 August 2004. Each of the first and second respondents admitted at trial that they had driven negligently. Each denied that the appellant had sustained any injury, loss or damage in the motor vehicle accidents. The first respondent denied absolutely that the appellant had suffered any injury, loss or damage as a result of the first motor vehicle accident. The second respondent made the same denial and pleaded that there was neither any injury sustained by the appellant in the second motor vehicle accident, nor any aggravation of an underlying injury, with the consequence that the appellant was not entitled to the relief claimed, or any relief.
The appellant's actions against both respondents were tried in the District Court at Perth, between 10 and 13 March 2008. The trial judge concluded in his reasons (Christodoulakis v Aly [2008] WADC 107), delivered on 23 July 2008, that the appellant had established an entitlement to damages against each of the respondents, and awarded him $35,080 by way of damages against the first respondent and $22,310 by way of damages against the second respondent.
The appellant appeals against the adequacy of the awards of damages against each of the respondents. The respondents cross‑appeal in relation to the awards for general damages and economic loss.

Grounds of appeal

There are seven grounds of appeal, six of which are particularised in considerable detail. Without particulars, the grounds are in the following terms:
1.The Learned Trial Judge erred in fact and in law in concluding that in the bus accident of 8 August 2001, the Appellant suffered a soft tissue injury to the left knee which resolved in months rather than years.
...
2.The finding by the Learned Trial Judge that there was no causal relationship between existing left knee symptoms and either accident was erroneous and amounted to a misapprehension of Mr Kagi's evidence which had been accepted by the Learned Trial Judge.
...
3.The Learned Trial Judge having correctly found that the Appellant had suffered a soft tissue injury to the neck and right shoulder and an aggravation of a pre‑existing right shoulder injury in the bus accident (R64), erroneously concluded (R91) that such injuries resolved over a 'fairly short period of time'. Such conclusion was against the weight of the evidence.
...
4.The Learned Trial Judge, having found that the Appellant had aggravated a pre‑existing right shoulder injury in the bus accident erred in failing to find both the extent and duration of such aggravation and the extent to which it deprived the Appellant of the chance of recovery from the pre‑existing shoulder injury. (R86)
...
5.The Learned Trial Judge erred in fact and law in finding that the pre‑existing should injury was the principle [sic principal], if not the only cause of the Appellant's loss of earning capacity.
...
6.The awards for past economic loss of earning capacity were manifestly inadequate and substantially below the limits of sound discretionary judgment.
...
7.The award for general damages for the bus accident caused injuries (12%) was manifestly inadequate and substantially below the limit of sound discretionary judgment.
...

Grounds of cross‑appeal

There are two grounds of cross‑appeal. They, too, are particularised. Without particulars, they read as follows:
1.His Honour erred in fact and in law in awarding general damages at the level he did having regard to His Honour's findings of fact and are in each case beyond the range of a sound discretionary judgment.
...
2.The Learned Trial Judge erred in fact and in law in awarding the Plaintiff special damages by way of economic loss in relation to each of the motor vehicle accidents in which the Appellant was involved.
...

Background and motor vehicle accidents

The following summary of the background circumstances of the case is taken from the trial judge's reasons.
The appellant was born in Greece, on the island of Rhodes, on 21 February 1948. He was educated until the age of 12 years and, at the age of 17 years, he emigrated to Australia. He arrived in Fremantle on 21 May 1965. Thereafter, he remained in Western Australia, working in a number of occupations.
The appellant's first occupation was in a sawmill. Thereafter, he worked for a construction company, purchased a fish and chip business and then, upon the sale of that business, obtained work with a number of seafood companies. One of these seafood companies was New West Foods and it traded from premises at Malaga. There the appellant was engaged initially as a driver and then as a fish filleter.
On 12 July 2000, whilst filleting fish, the appellant suffered an injury at work. He was attempting to hang a shark which weighed in excess of 16 kg. The shark slipped from the hook upon which it had been placed and the appellant took the shark's weight. He injured his right shoulder. This injury required surgical treatment, which was performed on 27 September 2000 by Mr Kon Kozak. There was a period of physiotherapy, medication and attempts at rehabilitation which followed.
On 8 August 2001, the appellant sustained injuries whilst travelling as a passenger in a bus. The bus collided with a vehicle, causing the appellant injuries which were contended to be a neck injury, a right shoulder injury, aggravation of the pre‑existing injury to the right shoulder, an injury to the left knee and an injury to the lower back.
The bus accident occurred when an oncoming vehicle turned into the bus' path. The bus was travelling at approximately 60 km per hour and, although the driver braked, was estimated to be travelling at 49 km per hour when the collision occurred. The appellant had been sitting on the left‑hand side, in the middle of the bus. He was just behind the central door and in front of him there was a sheet of glass or plastic. He was not wearing a seatbelt, as no belt was provided. He was thrown from his seat and he said in evidence that he hit his knees on the glass or plastic partition between his seat and the doorway. He managed to avoid being thrown to the floor by putting out his hand. He was taken to Royal Perth Hospital by ambulance and observed there for several hours before discharge.
In the second accident, the appellant was driving on Wood Street, Inglewood, when a vehicle driven by the second respondent emerged from a shopping centre carpark and collided with the appellant's vehicle. The appellant had been travelling at between 25 and 30 km per hour and he collided with the middle of the second respondent's vehicle. The appellant's vehicle was described as having been 'written off'.

The appellant's claims in relation to injury

The work injury

The first medical practitioner to see the appellant in relation to his work injury was Dr Ray Cibulskis. He found the appellant to have suffered a 'large full thickness tear of the supraspinatus muscle of the right shoulder'. For this injury, the appellant was referred to Mr Kozak, who reported on 15 August 2000 that an MRI scan showed a full thickness tear of the supraspinatus and the top half of the infraspinatus muscles. An arthroscopic acromioplasty and rotator cuff repair were recommended and it seems that these procedures were conducted by Mr Kozak in late September 2000. The surgery involved the repair of a 5 cm tear in the supraspinatus muscle. There was also an arthroscopic excision at the other end of the clavicle.
Mr Kozak was initially of the view that the appellant might recover his pre‑accident occupation as a fish filleter. However, in January 2001, there was some swelling of the arm and shoulder pain. Pain and weakness continued until the middle of the year, though there was improvement in motion in terms of both elevation and rotation. By 5 July 2001, the appellant was considered suitable for light duties and sedentary work. He was engaged in a rehabilitation programme.

The first motor vehicle accident

The injuries claimed to have been sustained by the appellant in the first motor vehicle accident included a neck injury, an injury to the right shoulder, an aggravation of the pre‑existing right shoulder injury, an injury to the left knee and an injury to the lower back. The appellant saw Dr Cibulskis on the day following the accident (9 August 2001). He was complaining of right shoulder pain, swelling in his right hand and pain in both knees.
It was not until December 2001 that Dr Cibulskis reported to the workers' compensation insurer that the appellant's left knee had been twisted during his fall in the bus. Dr Cibulskis then listed the left knee injury, together with injuries to the neck and aggravation of the injury to the right shoulder.
There was an issue at trial about the twisting of the left knee. The trial judge accepted that, on the balance of probabilities, there had been a violent twisting of the left knee in the course of the bus accident and that this, in turn, had caused injury. There is no challenge to that conclusion. There is, however, a challenge to the conclusion of the trial judge that the injury to the left knee resolved 'in months rather than years'.
In September 2001, Mr Kozak concluded that the appellant was suffering from neck and shoulder pain which was consequential upon a whiplash injury sustained in the bus accident. Mr Kozak thought that it would resolve. In a report dated 3 December 2002, Mr Kozak expressed the view that the bus accident had aggravated the pre‑existing right shoulder injury. He assessed a permanent residual disability of 10% in the right shoulder.
In November 2001, the appellant was referred to Mr Michael Alexeeff, a consultant orthopaedic surgeon. Mr Alexeeff concluded that the appellant had aggravated pre‑existing degenerative change in the neck and his prognosis was that any neck symptoms were likely to settle down. He suspected that there had been an intra‑articular derangement and a meniscal tear in the left knee, for which an arthroscope would be required. He considered that the right shoulder had been well repaired by Mr Kozak, but because the appellant complained of pain and restricted motion in the shoulder, he suggested examination under anaesthetic.
Two procedures were undertaken. The first was manipulation under general anaesthetic of the right shoulder. This resulted in the freeing of the shoulder from adhesions which had made movement difficult. The second was the arthroscope of the left knee, which confirmed a complex tear of the medial meniscus with concomitant chondromalacia in the medial femoral condyle. The meniscus was resected. Mr Alexeeff expected that the knee would settle 'quickly'.
It is unnecessary to review all of the procedures which the appellant underwent. During the years 2002 and 2003, the appellant continued to be treated by Mr Alexeeff. Mr Alexeeff was able to say, by August 2002, that the 'left knee [was] no longer an issue'. By that stage, there were complaints of pain and stiffness in the right hand. A number of measures were undertaken in an attempt to alleviate the problems with the right hand, but an actual diagnosis was difficult to make. In any event, by 4 November 2002, Mr Alexeeff considered that the problem was not amenable to any further treatment and it was his view that the appellant was unfit to return to his previous duties. The appellant was able to manage only light duties.
The appellant continued to see Mr Alexeeff through 2002 and 2003, complaining, from late 2002, of problems with the left knee and, from mid 2003, of continuing problems in the knee, pain in the shoulder and recurrent hand swelling. Mr Alexeeff was unable to afford any explanation for the problems in the left knee and right shoulder. He reported on 26 February 2008 that the effect of the first motor vehicle accident on the right shoulder was negligible and that the accident had (1) aggravated pre‑existing degenerative change in the cervical spine and (2) had only negligible consequences for the left knee, where the problems reflected known degenerative change.

Injuries in the second motor vehicle accident

Following the second motor vehicle accident, the appellant attended at the surgery of Dr Cibulskis. He was assessed by a different doctor in the practice.
In a report dated 25 March 2005, Dr Cibulskis (relying upon the notes of Dr Malathy Sivapalan, in addition to his own) expressed the view that the symptoms resultant upon the bus accident had largely settled by the time of the second motor vehicle accident. Dr Cibulskis also reported that, following the second accident, the appellant complained of pain and tenderness over the para‑cervical muscles on the right‑hand side, with minor discomfort on the left; discomfort in the right upper trapezius muscle, radiating into the shoulder; right anterior chest pain; neck pain; mild discomfort in the back; and minor discomfort in the lumbar spine.
By March 2005, the appellant's major complaints related to pain in the cervical spine. The pain in the chest wall had settled and the discomfort in the right shoulder was thought by Dr Cibulskis to be unchanged since the surgery conducted by Mr Kozak in September 2000. Discomfort in the thoracic and low lumbar spine had largely settled and it was thought by Dr Cibulskis that the appellant would make a full recovery from injuries sustained in the second motor vehicle accident. As far as the neck was concerned, Dr Cibulskis thought that there had been an aggravation of the earlier injury and expressed the opinion that it had also been contributed to by underlying osteoarthritic change. He likewise thought that any pain and discomfort in the right upper trapezius muscle in the right shoulder were an aggravation of the previous injury. The only new injury that he could discern was that in relation to the right anterior chest wall, which had settled within two to three weeks after the accident.
Other doctors now entered the picture. Mr Barrie Slinger expressed the view that the second motor vehicle accident had resulted in soft tissue injuries to the lumbar spine, the cervical spine and the anterior chest. He thought that the appellant had reached maximum medical improvement. He expressed the opinion that in the absence of the two motor vehicle accidents the appellant would have been restricted in his employment because of the injury to the right shoulder, but would have been capable of performing part‑time work as a fork‑lift driver, courier, light process worker or factory hand. He said that the injuries sustained in the motor vehicle accidents had provided 'an additional incapacity' to the appellant.
It was some months after the second motor vehicle accident that the appellant saw Mr Alexeeff again. Of note is the fact that Mr Alexeeff said that he received no complaint from the appellant of any back injury as a result of any motor vehicle accident.
The trial judge concluded that, in relation to the second motor vehicle accident, the appellant had suffered soft tissue injuries to the lumbar spine, cervical spine and anterior chest, but that they were of a relatively minor nature and that the chest injury had resolved within weeks.

Findings of the trial judge

First motor vehicle accident

Knee injury

The trial judge concluded that there had been a violent twisting of the appellant's knee in the course of the first motor vehicle accident. This, in turn, had caused a knee injury with consequential disability. There was a dispute as to whether or not there were pre‑existing degenerative changes in the knee and the extent to which the changes had been aggravated by either or both motor vehicle accidents.
The trial judge made reference to Mr Slinger's opinion that the first motor vehicle accident may have aggravated previously asymptomatic changes in the left knee, but relied upon Mr Slinger's prognosis that any progression in symptoms in the left knee would be due to progression in degenerative change unrelated to the motor vehicle accidents. The trial judge also took account of Mr Alexeeff's view that the first motor vehicle accident had made only a negligible contribution to disability in the left knee. His Honour referred to the opinion of Dr John Kagi, which was to the effect that the motor vehicle accident had quite a significant impact upon the appellant's left knee disability, but that in time degenerative change would overtake that disability and any symptoms arising from the left knee injury would be alleviated over a year or two. The trial judge did note, however, that Dr Kagi was of the opinion that the current knee symptoms would prevent the appellant from standing for 40 hours per week in full‑time work.
The ultimate conclusion reached by the trial judge was that the appellant had, in the first motor vehicle accident, suffered a soft tissue injury of the left knee which resolved in months rather than years.

The shoulder injury

The trial judge placed reliance upon Mr Alexeeff's assessment, in February 2008, that the bus accident had only a negligible effect on the appellant's right shoulder condition. His Honour referred also to a report of Mr Slinger, dated 4 March 2008, in which Mr Slinger concluded that there had been a soft tissue injury to the right shoulder in the bus accident and that this injury had aggravated pre‑existing symptoms which were present in consequence of the work accident in 2000. Finally, his Honour referred to Dr Kagi's assessment, in a report of 6 March 2008, that all disabilities had settled, apart from that to the right shoulder, which had been severely injured at work in July 2000 and continued to prevent the appellant doing full‑time work. Dr Kagi concluded, however, that he did not believe that the right shoulder condition (as at March 2008) was 'the result of any aggravation sustained in the bus accident'.

The trial judge concluded that the bus accident clearly had an impact on the pathology of the appellant's right shoulder. His Honour was satisfied that, in the bus accident, there had been a soft tissue injury to the right shoulder (and to the neck) and an aggravation of the pre‑existing injury which had been the subject of repair by Mr Kozak. He thought, however, that the injury to the neck was more significant than that to the shoulder.

Neck injury

Mr Alexeeff considered that the bus accident had merely aggravated pre‑existing degenerative change in the cervical spine. Dr Kagi thought that the symptoms in the neck had settled. Mr Slinger was of the view that the bus accident had caused a soft tissue injury to the cervical spine.
The trial judge's conclusion was that there had been a more significant injury to the neck than there had been to the right shoulder. His Honour concluded that the bus accident had caused a soft tissue injury to the neck.

Second motor vehicle accident

I have already mentioned that the trial judge concluded, in relation to the second motor vehicle accident, that the appellant had suffered soft tissue injuries to the lumbar spine, cervical spine and anterior chest, all of a relatively minor nature. The chest injury resolved within weeks, but there were ongoing complaints of neck pain and right shoulder pain.

Economic loss

Following his work injury, the appellant was unable to return to his employment as a fish filleter. It appears that employment as a fish filleter with New West Foods required the appellant to work at least 48 hours per week, with work involving constant repetitive bilateral upper limb use, handling fish weighing up to 15 kg each during filleting. In addition, there was occasional floor‑to‑waist lifting and bilateral carrying of up to 35 kg. There was occasional pushing/pulling of tubs on wheels weighing up to 200 kg.
Although the appellant was keen to return to his duties at New West Foods, by November 2000, it was apparent that he would be unable to do so. A rehabilitation programme was then initiated to redeploy the appellant in a new position with a new employer. A number of prospective places of employment were targeted, but, in each instance, the appellant was considered unfit for the work in question. At the time he gave evidence (10 March 2008), he was employed by Swansea Street Quality Markets, in East Victoria Park. He was a delivery driver and gave evidence that he worked three days a week, from 6.30 am until 9.30 am. He managed this work despite complaints of difficulty with his left knee whilst driving or standing for long periods of time. He gave evidence that he was able to carry bags of vegetables which weighed up to 10 kg and that he was able to work up to 14 or 15 hours per week during summer periods. His work involved driving a manual Mercedes van. He made regular deliveries of fruit and vegetables to hospitality outlets. He was paid $15 per hour (cash in hand) and for 10 hours work per week he received $150.
It appears that the appellant remained on workers' compensation payments until February 2005. He testified that he did not have any other employment until that time.

The trial judge's conclusion on economic loss

The trial judge concluded that the injury to the right shoulder occasioned at work on 12 July 2000 was the principal 'if not the only cause' of the appellant's loss of earning capacity. The injury rendered the appellant unfit for work until at least February 2005, when workers' compensation payments ceased. To the extent that he was compensated in full for loss of income during that period, he suffered no actual loss of income.
To the extent that the appellant had aggravated pre‑existing injuries in the shoulder, the neck and the knee, any impact upon his earning capacity was considered to be either short‑lived, minimal or both. The trial judge concluded that the knee injury alone would not have deprived the appellant of earning capacity.
The trial judge concluded that the appellant had found work which was exercising the full extent of his earning capacity. The appellant's employment seemed reasonably settled. Although there had been some employment between February 2005, when workers' compensation payments ceased, and early 2007, when he began his employment with Swansea Street Quality Markets, the details were 'not apparent'.
The trial judge made reference to an income tax return for the year ended 30 June 2006, which revealed a taxable income of $14,852, including a contribution from the rental of an investment property.
The trial judge's findings about earnings between February 2005 and early 2007 appear inconclusive.
The trial judge did conclude that, prior to the first motor vehicle accident, the appellant had not recovered his lost earning capacity consequent upon the injury at work and the surgery which had followed it. His Honour thought it difficult on the evidence to even attempt to attribute a proportion of the appellant's lost earning capacity to an aggravation of the pre‑existing shoulder injury.
In the end, the trial judge decided to allow damages for past loss of earning capacity 'in a global way'. His Honour found no basis for an award of future economic loss.
The methodology employed by the trial judge was to look at the appellant's income tax return for the year ended 30 June 2000, which revealed the appellant's net income to have been $26,933. His Honour then awarded, in a 'somewhat arbitrary' manner, $13,500 for past economic loss in respect of the first motor vehicle accident and $10,000 in respect of past economic loss for the second motor vehicle accident. The awards were said to reflect his finding that:
[I]n the case of each accident … the soft tissue injuries suffered by the [appellant] in each case would have resolved in a matter of months rather than years and the injuries suffered in the second motor vehicle accident would have resolved more quickly than those suffered in the first.
His Honour concluded that there was no current loss of earning capacity attributable to either of the motor vehicle accidents. He concluded also that the appellant had obtained work which suited his present circumstances and age and any problems that were occasioned by his disabilities were not attributable to either of the motor vehicle accidents.

General damages

For general damages, the trial judge awarded $21,580 in respect of the first motor vehicle accident and $12,310 in respect of the second motor vehicle accident. Those sums were calculation in accordance with s 3C(5) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA).

Grounds of appeal

At the hearing of the appeal, it became apparent that grounds 1 and 2 of the grounds of appeal had to be allowed. It was unnecessary to consider the other grounds. It was necessary, in the circumstances of the case, to dismiss the cross‑appeal.
The issue which arose in relation to grounds 1 and 2 related to the trial judge's assessment of the medical evidence relating to the effect on degeneration within the knee joint of removal of a portion of the meniscus. It became apparent during argument that the trial judge had failed in his reasons to resolve differences in the respective opinions of Mr Alexeeff and Dr Kagi in relation to the cause of degenerative change in the left knee.
There was much evidence from the different doctors in relation to the significance of the cartilage injury in the left knee and its long term effect upon degenerative change in that knee. Mr Alexeeff was firmly of the opinion that the removal of only a small portion of the meniscus would be insufficient to stress the underlying cartilage such that it caused wear and therefore degenerative change. He said that only a small portion of meniscus had been removed from the appellant's left knee. His evidence on the issue, under cross‑examination, was in the following terms:
The meniscus, as you know, is a triangular structure, so if you remove a significant aspect of that meniscus out to its periphery, then I would agree with the statement that you are putting cartilage under stress. If you're removing the inner half of the meniscus where there is the bulk of the meniscus remaining, then I'd actually disagree with that statement.
So you would disagree that by removing, say, half of the inner part of the meniscus, and thereby exposing the articular surface, it will not promote any change, or won't do anything to that articular surface?‑‑‑I would disagree with that. I don't think there is any literature evidence that would support that notion either.
So you disagree with - Mr Kagi says it's a very well known thing in orthopaedic surgery, that you expose the articular surface and it goes on to make changes over time. You completely disagree with that?‑‑‑Well, I'm disagreeing with the notion that if you remove a small portion of meniscus that you stress the underlying cartilage such that it wears. The proposition that he's put to you, and I'm sure - and hopefully you have interpreted it the correct way, but the proposition that he's put to you may be that - and as I said, if you remove the whole cartilage - and that's where most of the medical literature is - then that notion is correct, but where you're removing a small piece of meniscal tissue, leaving 70, 80 per cent of the meniscus behind, there is no evidence in the medical literature that that exposes the joint to premature ageing.
Well, do we know from any of the documents that this was a very small portion of meniscus removed?‑‑‑Well, I'm telling you it was. I can show you a photograph that prove that it was.
Because - yes, I was going to ‑ ‑ ‑?‑‑‑And there's an MRI post‑operatively which confirms that it was. (ts 220 ‑ 221)
Dr Kagi had delivered a detailed written report on the appellant on 6 March 2008, in which he expressed two opinions. One of those opinions was adopted by the trial judge. It was to the following effect:
I also agree with Dr Alexeeff in regard to the degenerative change of the medial femoral condylar articular surface having been present prior to the injury in the bus. This is now in my opinion the cause for his symptoms in the left knee, ie I believe his symptoms are due to degenerative change affecting principally the medial compartment and principally the medial femoral condylar weight bearing articular surface. I do not believe his symptoms are arising from the rim of the medial meniscus which appeared stable after having been trimmed back to the extent where it is unlikely to be symptomatic.
However, within the same report, Dr Kagi qualified his initial observation by saying:
Nevertheless, I do believe that the meniscal injury has aggravated the pre‑existing degenerative change. It is extremely common for patients with a meniscal tear in the presence of degenerative change in the usual area, the medial compartment, to complain of ongoing symptoms in this region and often to complain of not being relieved by arthroscopic meniscal surgery just as Mr Christodoulakis does.
This written opinion was consistent with Dr Kagi's oral evidence, and it presented a conflict between the evidence of Mr Alexeeff on the one hand and that of Dr Kagi on the other.
In addition, there was the evidence of Mr Barrie Slinger. His testimony supported that of Dr Kagi. Mr Slinger said:
Can you tell us that when you have some cartilage removal of the knee, what happens to the knee joint over time?---I should have qualified that, your Honour, when I wrote that. It's true that the motor vehicle accident itself would not promote degenerative change, but when a part or all of the medial meniscus is removed that in itself; the fact that you have lost part of the meniscus, does promote and accelerate degenerative change.
EATON DCJ: I see?---Particularly in a man of mature years as this man, and I can speak from personal experience.
The trimming of the meniscus?---Just the trimming will accelerate that degenerative change, yes, or maybe. I shouldn't say will, maybe. (ts 142)
In a written report dated 4 March 2008, Mr Slinger said of the knee injury:
The injury to the left knee has been associated with symptoms which may well relate to the degenerative change at that knee, associated with a tear of the medial meniscus, those changes, which were previously asymptomatic, in the absence of that motor vehicle accident, may well have continued asymptomatic.
Mr Slinger then added:
I confirm that his present symptoms are likely to continue, that he has reached maximum medical improvement, however, I would make it clear that it is the motor vehicle accidents of 2001 and 2004 are most unlikely to produce any additional problems in the future, and that any progression in symptoms about the left knee relate to progression in the degenerative change, which progression is unrelated to the motor vehicle accidents.
The evidence thus presented a conflict between a number of medical specialists. That conflict was related to the extent to which degenerative changes in the left knee were consequential upon removal of a portion of the meniscus. Mr Alexeeff was firmly of the view that removal of only a portion of the meniscus could not have effected degenerative changes in the knee joint, but that was not the position taken by Dr Kagi and Mr Slinger.
Unfortunately, the trial judge did not resolve these differences. Having reviewed what each of the specialists said, the trial judge simply concluded that in the first motor vehicle accident the appellant had suffered a soft tissue injury to the left knee which had resolved in months rather than years.
It was a fundamental obligation of the trial judge to resolve the conflict in evidence between the various medical specialists. Where one set of significant evidence is preferred over another, a trial judge must set out findings sufficient to explain why: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [28]; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, 443.
Although inadequacy of reasons will not necessarily amount to an appealable error, this court is required to intervene when the inadequacy of reasons is such as to give rise to a miscarriage of justice: Mount Lawley [29].
In the present case, the court resolved at the hearing of the appeal that the trial judge had failed to resolve the difference in testimony in relation to the issue of degenerative change in the left knee occasioned by the trimming of the meniscus. This failure was such to give rise to a miscarriage of justice. It necessitated that grounds 1 and 2 of the grounds of appeal should be allowed and the judgment below should be quashed. It was not possible for the court to resolve the matter and a retrial before a different judge was ordered.
In these circumstances, it was unnecessary for the court to consider grounds 3 ‑ 7 of the grounds of appeal. In the circumstances of the case, it was necessary to dismiss the cross‑appeal.
The parties to the proceedings agreed that, in the circumstances, it was inevitable that a retrial would have to be ordered. Various orders were made in relation to costs, and the court directed that the orders of the court not be sealed for a period of 14 days, with liberty to the parties to recall the orders and substitute other orders if the parties reached a settlement.
As events transpired, no settlement was reached and on 21 May 2009 the orders were sealed. The orders were that the appeal be allowed on grounds 1 and 2, the cross‑appeal be dismissed, the judgment of the trial judge be set aside and there be a retrial before a different judge.