Fabbri v Masters Home Improvement Australia Pty Ltd - [2023] WADC 97

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   FABBRI -v- MASTERS HOME IMPROVEMENT AUSTRALIA PTY LTD [2023] WADC 97
CORAM:   STAUDE DCJ
HEARD:   11-14 & 18 APRIL 2023
DELIVERED          :   22 AUGUST 2023
FILE NO/S:   CIV 3571 of 2018
BETWEEN:   MASSIMO JAMES FABBRI
Plaintiff
AND
MASTERS HOME IMPROVEMENT AUSTRALIA PTY LTD
Defendant

Catchwords:

Civil liability - Assessment of damages for personal injury - Causation of loss – Failure to mitigate loss - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA)

Result:

Damages assessed

Representation:

Counsel:

Plaintiff	:	Mr G T Stubbs
Defendant	:	Ms R Young SC

Solicitors:

Plaintiff	:	Lian Hall Injury Law
Defendant	:	HBA Legal

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

Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538
Amaca Pty Ltd v Booth [2011] HCA 53; (2011) 246 CLR 36
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
East Metropolitan Health Service v (by his next friend Christopher Graham Ellis [2020] WASCA 147
Fazlic v Milingimbi Community Inc (1982) 159 CLR 345
Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190
Plenty v Argus [1975] WAR 155
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
State Government Insurance Commission v Oakley (1990) Aust Torts Reports 81-003
Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375

STAUDE DCJ:

Introduction

The plaintiff suffered an injury to his left knee when he slipped on some spilled liquid on the floor of the defendant's retail store in Butler on 26 November 2016. The incident was captured by an in-store security camera. The video recording reveals that as the plaintiff was passing a service desk his left foot slipped on some liquid causing his left leg to extend forwards suddenly. He did not fall over. The incident was momentary. He can be seen after the incident briefly rubbing his knee but otherwise the video footage shows no signs of any discomfort (Exhibit 1). The plaintiff continued to shop. I will call this the Masters incident.
The plaintiff claims damages for negligence and breach of statutory duty of care under the Occupiers' Liability Act 1985 (WA). The defendant admits liability. The plaintiff's claim thus comes to court as an assessment of damages.
The plaintiff's injury is simply pleaded as an injury to the left knee. It is further alleged, however, that as a consequence of this injury the plaintiff suffered further injury in an incident on 13 September 2017 when his knee gave way causing him to fall and strike his head on the strut of a garage door, injuring his neck, back and left shoulder and aggravating his pre-existing depression. I call this the second incident.
It is also alleged as a consequence of the Masters incident that the plaintiff suffered further injury on 2 May 2020 when his left knee became painful causing him to fall as he was alighting from the passenger side of a motor vehicle. As a result of this incident the plaintiff claims that he suffered a right knee injury and an aggravation of his back injury and neck injury caused by the incident on 13 September 2017 and an aggravation of the left knee injury suffered on 26 November 2016. I call this the third incident.
The defendant admits that the plaintiff suffered a left knee injury in the form of a soft tissue sprain and effusion, aggravating pre-existing advanced osteoarthritis, but denies that the second and third incidents were caused by the injury caused by the Masters incident and pleads in the alternative that any injuries suffered in those further incidents were not a foreseeable consequence of the defendant's admitted breach of duty. The defendant has also pleaded that the injuries, loss and damage alleged by the plaintiff would have been suffered in any event by reason of the plaintiff's pre-existing medical conditions and further that the plaintiff has failed to mitigate his loss by unreasonably failing to undergo a total left knee replacement as advised.

Issues

The trial was heard over five days. The plaintiff gave evidence and called two expert medical witnesses, Professor Bryant Stokes, consultant neurosurgeon, and Mr Gerard Hardisty, orthopaedic surgeon. The defendant called Mr David Wright, and Mr Philip Hardcastle, both orthopaedic consultants. None of the expert witnesses had treated the plaintiff. There were 148 exhibits. All but three exhibits were comprised in a book of documents that ran to 814 pages. Apart from the reports of the expert witnesses, the exhibits were tendered by consent or without objection pursuant to s 79C of the Evidence Act 1906 (WA).
In order to assess the damages for which the defendant is liable, the court is required to determine the following issues:
(a)What was the plaintiff's physical and mental health status at the time of the Masters incident?
(b)What injury was caused by the Masters incident?
(c)Did the injury caused by the Masters incident cause the second incident and, if so, what injuries were caused by that incident?
(d)Did the injury caused by the Masters incident cause the third incident and, if so, what injuries were caused by that incident?
(e)Subject to whatever findings are made with respect to (a) ‑ (d), what loss was suffered by the plaintiff as a result of any injury for which the defendant is liable?
(f)Did the plaintiff fail to mitigate his loss by not undergoing a total left knee replacement on 22 March 2017, or in any event, earlier than he did?

Chronology

Pre-Masters incident

The plaintiff was born in April 1960. After leaving school the plaintiff did a number of jobs before commencing an apprenticeship with Lionel Connor Pty Ltd as an electrician in 1978. In that year, he injured his left knee while digging a trench. He was off work for two to three months and underwent an open medial meniscectomy by Mr Barrie Slinger, orthopaedic surgeon. While he was recovering, he attended TAFE where he suffered a further injury to the left knee for which he underwent arthroscopic surgery in 1979.
The plaintiff completed his apprenticeship in 1983 and then commenced work as an electrician with JJ Johnston Electrical contractors for whom he worked until 1985. He was then employed by North Beach Electrical. In that employment he suffered a number of injuries. In early 1988 he hurt his lower back while lifting a manhole cover and in October that year he hurt his shoulder and upper arm while carrying a toolbox. In May 1989 he suffered a further injury to his shoulder and upper arm, again while carrying a toolbox. In May 1990 the plaintiff was injured at work when he was struck in the eye by a piece of metal.
In February 1991 the plaintiff commenced work with a firm called Interior Electrics that later became KLM Electrical Services. His work involved lifting, carrying ladders, scaling ladders, chasing walls for electrical conduit, digging trenches and pulling cables. He was required to work in confined spaces. He did not have any problems with his knees at that time and was able to carry out all his work duties.
In July 1991 he fell off a scaffold onto the roof of a van injuring his neck and lower back. For about two years he was mostly unfit to work even as a supervisor. He did not return to his employment. In 1994 he commenced his own business, Fabbri Electrical Services Pty Ltd, subcontracting to KLM Electrical Services and others. He remained unfit to do heavy duties such as pulling cables and carrying ladders and other items. He was not able to scale ladders or move in confined spaces and had a limited ability to work on uneven ground. He employed others to do the physical work.
On 26 March 1996, Dr A Carbone reported to his then solicitors that the plaintiff was being treated for soft tissue injuries to his cervical spine and musculature and lumbar spine. He had been referred for facet joint rhizotomies and had been prescribed anti-inflammatory medication and physiotherapy. He was fit to perform supervisory duties only. He had a permanent disability in his cervical and lumbar spine (Exhibit 3).
On 2 October 1996, Mr Michael Lee, neurosurgeon, wrote to the review officer at Conciliation and Review WorkCover, stating that the plaintiff was not able to work in a part-time capacity as an electrical supervisor (Exhibit 5). In a longer report to Friedman Lurie Singh, dated 10 October 1996, Mr Lee said that the plaintiff was still experiencing significant left-sided low back pain, as well as cervico‑dorsal pain that could extend into both shoulders and to the cervical region and was associated with severe headaches. He thought the plaintiff was at least 30% disabled in his spine. He was unfit for work and settlement of his claim (with respect to the 1991 fall) was recommended (Exhibit 6).
In a report dated 1 November 1996, Dr Carbone said that the plaintiff was wholly incapable of returning to pre-accident employment. He estimated that his permanent disability was 35%. He was not likely to improve and could deteriorate over time (Exhibit 7). At that time though, the plaintiff was continuing to work on his own account as a subcontract electrician.
On 1 February 2001, he was referred by Dr Philip Finch for magnetic resonance imaging (MRI) of his lumbosacral spine. The radiologist noted a history of an old injury to the L5/S1 level with a recent increase in low back pain radiating to the right lower leg. The scan depicted an L4/L5 disc protrusion resulting in probable L5 nerve root impingement and a central/left paracentral disc protrusion L3/4 without neural impingement (Exhibit 8). The plaintiff said he went to see Dr Finch because he re-injured his back when he fell into a hole concealed by cardboard (ts 28).
In a referral letter of 17 May 2001 (Exhibit 9), the plaintiff's then general practitioner Dr Rod Moore recited the history as follows:
He has had problems with his lumbar spine since a fall from a ladder back in 1991. Since Christmas he has been seriously troubled by non‑remitting back and right leg pain. The recent MR confirms multi‑level disease most significant I suspect at the L4/5 level.
The plaintiff was then seen by Mr Peter Watson, neurosurgeon, who reported on 25 May 2001, noting a history of long term back pain for over 10 years that was aggravated by a slight jarring injury that caused pain to radiate down the right leg. Mr Watson observed that the right leg pain followed a classical L5 nerve root distribution from the buttocks to the posterior thigh and the lateral calf as far as the left malleolus. He offered surgery in the form of decompression and discectomy at the L5 level (Exhibit 11).
The plaintiff subsequently underwent decompressive laminectomy and removal of the L4/5 disc by Mr Richard Vaughan on 20 June 2001. Dr Moore reported that he saw the plaintiff on 26 July 2001, some five weeks after surgery and supervised his rehabilitation for his return to work about one week later (Exhibit 12). He saw the plaintiff again on 7 September 2001 because of an intermittent catching feeling in his back. He was treated with an injection of a trigger spot in his lumbar spine. When reviewed on 24 January 2002 he was prescribed anti‑inflammatories and analgesics.
According to Dr Moore's report dated 11 August 2003 (Exhibit 15), the plaintiff told him on 21 March 2002 of an incident that occurred on 1 February 2001 when he stepped back and fell through a cardboard cover over a hole in the floor. He had experienced right leg pain immediately. Dr Moore reported that the plaintiff had been seen on 3 September 2002 for central lumbar spine pain and again on 16 January 2003 due to intermittent stabbing pain in his low back. Dr Moore thought the plaintiff would continue to have back pain due to longstanding multi-level degenerative disc disease and would require ongoing anti-inflammatory and analgesic medication. He would have difficulty with tasks that involved prolonged bending and heavy lifting.
Mr Vaughan reported to the plaintiff's solicitors on 4 March 2003 (Exhibit 13). He expected the plaintiff would return to his electrical practice primarily in a supervisory role. Digging, carrying heavy weights, twisting, bending, being confined to work in tight situations, climbing ladders with a weight or being exposed to unusual bending forces were contraindicated and could precipitate further damage.
An MRI report dated 29 November 2003 indicated spondylotic change with narrowing of the intervertebral foramina at C5/6 on both sides, particularly on the left (Exhibit 17).
In February 2004 Dr Moore again referred the plaintiff to Mr Vaughan (Exhibit 18). The referral stated:
A CT scan a few weeks ago showed a large left C6/7 disc protrusion with a major C5/6 disc osteophyte complex. He has had two C7 root sleeve injections, with some initial improvement but eventual relapse.
Mr Vaughan recommended an anterior discectomy and stabilisation of C6/7 (Exhibit 22).
Dr Moore wrote to Mr Vaughan on 5 April 2004 stating that the plaintiff reported an incident at work on 19 November 2003 when he was lifting a ladder at a worksite and felt left arm and shoulder pain (Exhibit 22). The plaintiff underwent surgery on 19 May 2004.
Mr Vaughan wrote to CGU Insurance on 14 June 2004. He said the plaintiff had a long history of spinal problems and had undergone decompression and fusion at the C5/6 and C6/7 levels with clinical improvement. He expected a return to supervisory work on a part-time basis in three to four weeks and full-time work in four to six weeks. He assessed permanent disability of 25% loss of function of the cervical spine and 5% loss of function of the lumbar spine (Exhibit 29).
The plaintiff underwent a worksite evaluation by Southern Rehabilitation on 23 June 2004. The plaintiff, though unfit to return to work, was highly motivated and eager to return to normal duties as a self-employed electrician (Exhibit 30).
On 10 December 2004, Mr Vaughan reported to the workers' compensation insurer that the plaintiff was capable of part‑time restricted work (Exhibit 38).
In 2005 the plaintiff wound up his business of Fabbri Electrical Services and in August that year commenced a retail business called Go West Street and Surf. The plaintiff was finding electrical work difficult and was looking for lighter work (ts 50). His work in the business required him to go up and down stairs. He did not have any knee problems (ts 53).
On 4 January 2006, Mr Vaughan reported to the workers' compensation insurer that the plaintiff's cervical and lumbar spines had stabilised (Exhibit 43). He was unable to return to his pre‑accident employment as an electrician but was able to work in his retail business. Mr Vaughan thought that the plaintiff could give advice in electrical contracting but would not be able to return to that occupation full‑time and appeared well suited to run the Go West Street and Surf store with his family. He assessed a 20% permanent loss of function of the thoracolumbar spine and a 25% permanent loss of function of the cervical spine. He said that the processes of degeneration were due to underlying genetic factors aggravated by work injuries. The plaintiff's working life as an electrical contractor was likely to be reduced by 10 years. He did not think that the plaintiff would have been able to continue working as an electrician full‑time but for the incident in November 2003 as he had problems in his lower back as well as his neck from 1991 onwards with a significant exacerbation in February 2001 which would have reduced his working capacity. That capacity was further reduced by the incident in 2003. Mr Vaughan did not think that Mr Fabbri would have continued in a full‑time working capacity as an electrical contractor much beyond 55 years of age, perhaps even less based on his position in 2001. He stated:
It must be realised he had significant symptomatology in the 1990s from which he had ongoing symptomatology and so I believe he would have retired earlier than may have been the position prior to 1990.
Mr Vaughan thought he was fit to work at least 20 hours per week in his retail business but probably not up to 40 hours a week on a constant basis (Exhibit 44).
On 24 December 2006 the plaintiff had a quad bike accident and suffered a laceration of his calf. He had no problem at that time with riding a quad bike off-road (ts 53).
Dr Frederick Ng, psychiatrist, reported to the plaintiff's solicitors on 25 January 2007 (Exhibit 45). Dr Ng diagnosed an adjustment disorder with depressed mood following the 2003 incident until about six months earlier, from which time he developed a major depressive disorder. From a psychiatric perspective he thought that the plaintiff was fit to work 20 ‑ 25 hours per week. He assessed a permanent psychiatric impairment of 15% due to:
Ongoing tiredness, irritability, mild to moderately depressed mood, some degree of social withdrawal, sleep difficulties, lowered libido, lowered concentration and memory, some lowered general motivation and drive, and a reduced capacity to enjoy his life, and ongoing frustration with his pain and physical functional restrictions.
In evidence the plaintiff said that when he saw Dr Ng in 2007 he had been very moody, unhappy and discontented with life in general. He had been prescribed anti‑depressant medication from 2004. He had relationship issues with his then wife. He had sleep problems (ts 116).
The plaintiff was able to work as the managing director of Go West Street and Surf from August 2005 until it was wound up in 2012. He had been able to get back to surfing by 2010. He was able to surf and go fishing without any knee problems. By that time he was also doing electrical work on what he described as a domestic basis, for friends and family (ts 55). He had no knee problems.
In March 2011 after passing a medical examination the plaintiff commenced working for Compass Group. He obtained a job at the Redmond construction site in the Pilbara on a fly-in/fly-out basis maintaining the camp accommodation and facilities and constructing a rail camp.
On 31 May 2011 he was injured when he fell while alighting from a Toyota Hilux. He said he had a couple of weeks, perhaps a month off work before being cleared for light duties. He suffered no injury to either knee. After undergoing nerve root sleeve injections for his right leg pain he returned to work for Compass Group on restricted duties.
On 6 October 2011 Mr Watson reported to Dr B Readhead of OSH Group, a rehabilitation service (Exhibit 48). At that time the plaintiff was back working as an electrician. His retail business was continuing. Mr Watson reported the following history:
Massimo was well until May 2011. In his work he was getting out of a car when apparently his right leg got caught in the car, left leg slipped on a little build up of gravel at the edge of the car and road and the end result was that he slipped as he was getting out of the car and actually ended up twisting and slipping his left leg underneath the car. The end result was that his back twisted. He developed low back pain and right leg pain. The low back pain settled but the right leg pain did not.
The plaintiff's complaint was of leg pain on the right in the L5 distribution. Mr Watson recommended a nerve root sleeve injection.
An MRI scan on 28 May 2012 showed multi-level lumbar intervertebral disc degeneration.
On 12 September 2012, Dr Evan Jenkins conducted a medical assessment at the request of the plaintiff's solicitors (Exhibit 51). His assessment related to the incident on 31 May 2011 when he said the plaintiff twisted and strained his lower back and subsequently developed persisting low back and right leg pain. The plaintiff had reported that after his L4/5 laminectomy in 2001 he had not had any significant low back symptoms prior to the further injury in May 2011. Dr Jenkins considered the plaintiff was partially incapacitated. He recommended that he lift no more than 10 kg and avoid repetitive bending and lifting. If he returned to electrical work he was encouraged to consider supervisory roles that involved less physical activity. Dr Jenkins stated that the plaintiff had moderately severe multi-level lumbosacral degenerative disease, an irreversible condition that was known to deteriorate with time. He remained at risk of acute exacerbation. The condition would affect his work for the remainder of his life.

On 7 November 2012, Mr Paul Taylor, orthopaedic surgeon, reported to GIO General Ltd, the insurer of Compass Group for the purpose of an assessment of a lump sum payment to the plaintiff with respect to the injury he suffered on 31 May 2011. The plaintiff told Mr Taylor that he had not been able to go fishing or do surfing since the incident. He thought that the plaintiff had suffered a flare up of his L5 radiculopathy as a result of the fall and had achieved maximum medical improvement. He assessed a 10% permanent impairment of the lumbar spine. He thought 80 ‑ 90% of his ongoing symptoms were caused by epidural fibrosis (from previous surgery), but according to the plaintiff this condition had been asymptomatic (Exhibit 52). The plaintiff had a capacity for full-time work as an electrician with some restrictions with respect to confined spaces, working at heights, crawling, holding posture for long periods and lifting.
The plaintiff's employment by Compass Group ceased in September 2012.
On 19 December 2012, Dr Moore referred the plaintiff to Mr Peter Woodland, orthopaedic surgeon, stating that he had 'now reached the point where he essentially cannot function in the workplace and has been put off site by his employer' (Exhibit 52).
In February 2013 the plaintiff had commenced work with Spotless Group at Pannawonica as an electrician doing construction and maintenance work. He experienced no problems with his knees.
On 18 March 2013 the plaintiff was prescribed anti-depressant medication by Dr Liston (Exhibit 111). A mental health care plan was made on 21 March 2013.
On 26 March 2013 Dr Michael Beinart did an impairment assessment with respect to the 31 May 2011 low back injury. The plaintiff was to consult Mr Woodland with a view to having a fusion procedure. Dr Beinart observed that the plaintiff demonstrated a willingness and capacity to return to work as an electrician (Exhibit 55). He assessed a whole person impairment of 11% due to a left L5 radiculopathy.
Mr Woodland reported on 17 April 2013 (Exhibit 56). He described him as continuing to work but struggling. He was trying to keep fit by swimming. He had given up fishing and boating but could walk a few hundred metres. Mr Woodland considered that the only surgical treatment that would give the plaintiff any chance of improvement would be a fusion from L4 to S1.
On 25 April 2013 the plaintiff suffered a myocardial infarction at work and was flown to Royal Perth Hospital where he had a stent inserted.
He continued to work until December 2015 when he experienced severe chest pain and underwent further treatment including an angioplasty and more stents. He returned to work but in February 2016 had further heart related problems.
Mr Woodland reported to Dr Moore on 19 August 2013 stating that he had been advised by Mr Richard Clugston, cardiologist, that lumbar spine surgery should be delayed until 12 months after post‑myocardial infarction treatment (Exhibit 58).
A letter from Perth Cardiovascular Institute dated 11 September 2013 indicates that coronary angiography revealed triple vessel disease with ongoing pain. Multi‑vessel stenting was required over two procedures. The plaintiff had returned to work without chest pain or shortness of breath on exertion (Exhibit 59).
The plaintiff ceased working for Spotless Group in September 2014. He then worked for Pan Process from November 2014 to April 2015, and then for UGL at Darwin for three months.
In July 2015 he obtained a three‑month contract with Southern Cross Electrical Engineering at the Roy Hill Project.
In December 2015 the plaintiff commenced work for Kiewit Australia at the Wheatstone Project. He described this as heavy physical work. It involved trenching and pulling heavy cables. He had no problems with his left knee. This job ended in August 2016.
On 18 October 2016 the plaintiff underwent a pre‑placement medical assessment for a job as an electrician with Primero Group. The assessment form contained a statement by the plaintiff that he had 'nil present issues' and 'nil present restrictions' in terms of his previous neck and back injuries and had no difficulty with any physical activities (Exhibit 63). The assessment form consisted of a pro forma completed in part by the plaintiff by way of responses to a series of yes/no questions, and in part by the examiner also by yes/no responses. Relevantly, in the musculoskeletal system section a normal range of movement was found throughout. The plaintiff described his regular exercise as 'swimming and walking'. He stated that his admitted depression/anxiety was 'stable on medication'.
The employment was described as casual, the plaintiff being paid for each hour of work at rates of $60 for work outside the metropolitan area and $40 for work at Perth (Exhibit 129). The work involved installing a portable power station for the Port Hedland Port Authority and included trenching, conduit work and pulling cables (ts 71).
The Primero Group job came to an end on 8 November 2016 when he was dismissed for displaying an unsatisfactory attitude (Exhibit 132). According to the plaintiff it was rather due to a personality clash with his supervisor (ts 71). He took action for unlawful dismissal but did not pursue it.

Masters incident

The Masters incident occurred two weeks later. He was not working at the time. He was experiencing no problems with his knees and had in fact surfed for a couple of hours the previous day. The plaintiff described the incident as follows (ts 73):
I had entered the store … and pretty much my left foot slipped and as I found out it was water on the ground. And from that slip I would say I moved on a sideways movement 100 mm that I probably travelled and a sudden stop and that's where I felt some pain and felt like something had given way.
He saw his general practitioner Dr Martin Liston on 6 December 2016, some 10 days later. He complained that his left knee had been sore and swollen. There was pain medially and at the back of the knee. Dr Liston noted that the knee was not locking, catching or giving way, but felt unstable. On examination there was tenderness over the medial joint line and a positive grind test. He referred the plaintiff for an MRI scan which was reported on 8 December 2016 (Exhibit 64) as showing a ruptured anterior cruciate ligament, extensive chondral loss involving the medial femoral articulating surface and moderately severe medial and lateral joint compartment degenerative osteoarthritis. (The radiologist also described a bucket handle tear of the meniscus, but this is an error as the plaintiff's meniscus was removed when he was 18.)
On 9 December 2016 Dr Liston noted that the plaintiff was on leave and due to return to work on 28 December. The plaintiff's evidence was that he had spoken to someone at UGL about work in Darwin at that time (ts 79). He said that but for the incident at Masters he would have returned to work either at Wheatstone or the LNG plant at Darwin (ts 72).
Dr Liston noted also that a cardiology review would be required before any surgery. Mood was described as 'ok'.
The plaintiff was referred to Dr Michael Ledger orthopaedic surgeon who reported to Dr Liston on 14 December 2016 (Exhibit 65). The plaintiff told Mr Ledger that the Masters incident involved a 'twisting and pivoting type injury'. Mr Ledger recommended an arthroscopy under anaesthesia. He enquired as to whether it was safe for him to come off anti‑coagulant medication for surgery. A total knee replacement was indicated.
On the same day Dr Liston recorded that swelling was down and no analgesics were required. The plaintiff, although he continued to take Duloxetine for depression as he had since November 2014 (Exhibit 146), was not prescribed any analgesic or anti-inflammatory medication following the Masters incident until after the second incident. The plaintiff said in evidence that at that time he had pain on walking and the knee felt unstable (ts 78).
On 3 February 2017, just over two months after the Masters incident Mr Taylor reported again to GIO with respect to the plaintiff's low back injury on 31 May 2011 (Exhibit 67). The plaintiff told Mr Taylor that he had resigned his job on the Wheatstone project due to back pain. He said he had no left leg pain and only intermittent and relatively mild right leg pain. His back pain had improved since he stopped working. He said he had occasional right leg pain when driving eased by changing position. His back pain however was constant. He could walk for a few kilometres but not run due to back pain. His day was filled by simple household tasks. He swam most days and walked his dog on the beach. He could cut his own lawn and do his own gardening.
Mr Taylor said that the plaintiff did not declare any substantial change in his personal history. He said he had not returned to surfing due to back pain. This was mentioned twice (pages three and four of the report).
Mr Taylor said the plaintiff presented his history in a forthright and straight forward manner. On examination he could walk on heels and toes without difficulty and rise from a squat. He had a normal gait. There was no muscle wasting, tremor or fasciculation. The knees moved through a normal range. Mr Taylor observed that the plaintiff's clinical position had not substantially changed since November 2012.
Mr Taylor diagnosed lumbosacral spondylosis and mild right L5 radiculopathy. He attributed most of his symptoms to epidural fibrosis resulting from surgery in 2001. Nothing is recorded in that report of the Masters incident or any injury to the left knee.
On 8 February 2017 the plaintiff saw Professor David Wood for a second orthopaedic opinion. Professor Wood reported that the plaintiff had 'end stage osteoarthritis in a cruciate deficient knee'. He recommended a total knee replacement (Exhibit 68).
In a letter dated 21 February 2017 Dr Alex Willson the plaintiff's cardiologist said he was 'happy with him proceeding with orthopaedic surgery'.
On 28 February 2017 Dr Liston noted that the plaintiff had no pain when sitting, but had pain when he started to walk, when walking on uneven surfaces, and when walking up and down hills. He was not taking analgesics. He noted that the plaintiff was not working and needed to be able to climb ladders and get in and out of ceilings. His mood was again 'ok'. He also noted that he had back issues as well. He was advised that he could cease Brilinta (blood thinning medication).
Mr Ledger in a letter to Dr Liston dated 22 March 2017 acknowledged the second opinion of Professor Wood and the cardiologist's approval of surgery and indicated that the plaintiff wished to proceed (Exhibit 71).
On 19 April 2017 the plaintiff saw Dr Liston for excision of a cyst on his back. He told him that he wanted to delay the knee replacement. Dr Liston noted that he 'did not like anaesthetist's attitude'.
The plaintiff's evidence was that he had a pre‑surgery consultation with the anaesthetist who had advised him that as he had had seven stents implanted surgery was dangerous and he could die under general anaesthetic. He said there was discussion as to whether surgery could be done under an epidural block. The plaintiff said he was afraid of both options and wanted to have a further conversation with his cardiologist (ts 83).
On 2 May 2017 Mr Ledger reported to Dr Liston that the plaintiff had failed to attend for his scheduled left knee replacement that day and had informed him by telephone that he did not want to proceed with the surgery. The plaintiff said in evidence that Mr Ledger had called him. He had apologised to him. He thought that Dr Liston was going to contact Mr Ledger and postpone the surgery (ts 84).
When cross‑examined about his decision not to proceed with a total knee replacement in 2017, the plaintiff accepted that he had been given approval by his cardiologist, Dr Willson, to proceed (ts 219). When he completed the pre-surgery patient health questionnaire he indicated no concerns about undergoing a general anaesthetic (ts 220). The anaesthetist having informed him that because of his cardiac history he could have a heart attack during surgery and surgery under epidural anaesthetic proposed as an alternative, he decided to cancel the surgery and see his cardiologist to get further advice (ts 226). He was concerned about the risk. He denied that he put off the surgery because he did not get along with the anaesthetist. He thought his general practitioner's note to the effect that he had an issue with the anaesthetist's attitude involved a poor choice of words on his doctor's part (ts 227). When he eventually came to have his knee replacement in June 2021, he was advised that his cardiac issues could be managed during surgery. He agreed that his left knee replacement was successful. He was able to walk unimpeded and without pain. Within six months he was able to crouch and squat (ts 233).
The plaintiff saw Dr Liston on 3 May 2017 for removal of sutures from his back. Back pain was continuing.
In evidence, the plaintiff said that from this time he experienced instability in his left knee with pain and swelling (ts 85). On three occasions when he went to the beach to walk, he experienced extreme pain and his knee 'retracted' causing him to fall over. He said he was no longer able to work and occupied himself with projects at home including building a caravan and a boat. He worked slowly due to his left knee problem (ts 86).
The plaintiff saw Dr Liston again on 4 July 2017. There is no mention in the notes of knee symptoms. Medications and pathology tests were prescribed for other conditions.
On 22 August 2017 Dr Liston noted: 'Pain in back, knee, neck. Keeping occupied in shed. Left hand pain. Wears knee brace'.

Second incident

The plaintiff said that on 13 September 2017 he had been working in his garage. He had experienced pain in the left knee during the day. As he was leaving the garage, he turned left thinking he had left something in the workshop. He experienced a sharp pain in the back of his knee and in the medial compartment of the knee and there was an involuntary 'retraction'. This caused him to fall. He struck the left side of his head on the strut of the garage tilt door. His next memory was being under a pergola some distance away. The left side of his face was very sore and he had pain in his neck and lower back. He took some analgesics, had something to eat and went to bed. The next day he contacted his doctor who recommended a CT scan of his head. The plaintiff said his brain was his 'main concern' (ts 88 ‑ ts 90).
Dr Kim Yeoh (of the same practice as Dr Liston) noted on 14 September 2017:
4.00 pm yesterday … working in garage
left knee gave way
slipped and hit left forehead against garage door ledge
might have lost consciousness for a few seconds
no other injury
The notes also recorded slightly blurred vision, headache and sore neck. The plaintiff accepted that Dr Yeoh's notes recorded what he told him and were accurate. He said he was not sure that he had mentioned his back (ts 92). On 15 September 2017, Dr Yeoh noted that the plaintiff was feeling better. The plaintiff recalled speaking to Dr Yeoh about double vision.
The plaintiff did not see a doctor between 15 September 2017 and 15 November 2017. In that period, he said his neck and back pains became more acute. The neck pain radiated to his shoulders and arms and was constant and associated with headaches (ts 93). Pain was more intense with activity, particularly raising his head, and he experienced tingling in his fingers. It varied from three to ten on a scale of ten. He had pain in his low back that he demonstrated as being at waist level that radiated down his legs. It was very intense with any movement such as walking or bending (ts 95). The left knee became more painful in this time, but he did not consult his doctor about it.
On 15 November 2017 the plaintiff saw Dr Liston who noted that his main exercise is walking and he requested a knee brace. The plaintiff said in evidence that he obtained an elasticised brace from a chemist after the Masters incident and was later given a brace that had metal pieces either side of the knee (ts 97). He did not say whether he was wearing a brace of any kind on any of the occasions where he described his knee retracting involuntarily.
On 24 November 2017 Dr Liston noted that the plaintiff could walk 500 m on flat ground but was limited by pain. He also noted 'low back pain comes and goes'.
On 8 December 2017 Dr Liston noted 'Pan[adeine] Osteo is improving back and left knee'. When Dr Liston saw the plaintiff on 18 December 2017 he noted 're pain - knee ok. still groin and back pain impacted on by activity, mental health ok'.
On 4 January 2018, Dr Mark Rivera noted:
usual GP is Dr Liston.
med cert for knee pain. Surgery was cancelled due to risk of anaesthesia. Still c/o knee pain on daily basis. He's not on any analgesia atm … discussed options for pain management of knees
On 27 February 2018, Dr Liston noted right-sided low back pain with radiation to right foot. On 19 June 2018, Dr Liston noted:
knee
Pan Osteo
requesting physio for pain
for GPMP/TCA for chronic LBP
right knee pain
CV disease
depression.
The plaintiff saw Dr Liston on 7 August 2018 for high cholesterol, osteoarthritis of knee and low back pain. On 30 October 2018 he complained of neck pain and headaches. On 27 November 2018 the plaintiff saw Dr Liston about his back injury from 2011, wanting to re‑open his workers' compensation claim.
Dr Willson reported to Dr Liston on 14 January 2019 (Exhibit 78). He said that having knee replacement surgery would place the plaintiff at risk of an acute myocardial infarction but based on a 'fairly normal' myocardial perfusion scan he thought the risk was relatively low.
On 5 February 2019 he told Dr Liston that he had hurt his back getting out of a car on 31 May 2011 (a reference to the work-related accident on that date). He also felt he had done something to his neck at that time.
On 16 April 2019 the plaintiff complained of neck pain. On 14 May 2019 he told Dr Liston that his 'knee popped out while gardening'. He also complained of neck pain.
Mr Arul Bala, neurosurgeon, reported to the plaintiff's new general practitioner, Dr Kathleen Mulholland, on 18 December 2019 (Exhibit 85), having seen the plaintiff with respect to his cervical spine symptoms. He noted that the plaintiff had been experiencing aching down his right arm for about two years associated with a significant foraminal stenosis of the right C8 nerve. He suggested a foraminotomy.
The plaintiff said in evidence that at that time his left knee, neck and low back pain continued. He said he changed doctors because he was not getting the treatment he was promised. He mentioned pain injections at Sir Charles Gairdner Hospital (ts 103). The plaintiff thought he would be better off with a new general practitioner.
Mr Geoff Cooper, orthopaedic surgeon, reported to Dr Mulholland on 20 December 2019 (Exhibit 86), having reviewed the plaintiff with respect to his left shoulder. The plaintiff had undergone MRI on 26 November 2019. He told Mr Cooper he hit his left shoulder on the ground when he fell at the time of the second incident and that since that fall he had pain in the shoulder and biceps and some pain in the ulnar three fingers on the left. Mr Cooper thought that the plaintiff's symptoms could be originating at the cervical spine or elsewhere, or could be due to him using an elbow crutch with his left arm. The MRI scan indicated the shoulder to be in good condition.
The plaintiff's evidence was that he understood that his shoulder pain had been coming from his neck. He assumed his shoulder hit the ground when he fell over (ts 105).
Mr Cooper reported again on 13 February 2020 (Exhibit 87), following a glenohumeral joint injection that he said had given about one month's relief of the left anterior shoulder pain. He noted that the plaintiff was on a waiting list for a right C8 foraminotomy by Mr Bala and was also due to be seen at the pain clinic at Sir Charles Gairdner Hospital. He noted that the plaintiff was also having problems with his right arm with pain radiating down his biceps. Mr Cooper observed that the plaintiff presented with a difficult clinical picture with combined neurological and musculoskeletal features. He referred him for nerve conduction studies to Dr Peter Silbert, neurologist.

Dr Silbert reported on 18 February 2020 (Exhibit 88). His findings were:
1.Bilateral electro physiologically mild - moderate in severity median neuropathies at the wrist (carpal tunnel syndrome).
2.A chronic right C8 radiculopathy. There was no electrophysiological evidence of active denervation. The prominent denervation in the right triceps (innervated by C6, C7 and C8) suggests that there is also a mild chronic right C6 and/or C7 radiculopathy.
On 12 March 2020, Dr Mulholland referred the plaintiff to a psychologist on a mental health care plan.
On 18 March 2020, the plaintiff underwent bilateral facet joint injections at the C2/3, C3/4, C4/5, and C5/6 levels (Exhibit 90).
On 26 March 2020, Mr Cooper reported that a left subacromial injection of the shoulder did not give the plaintiff any benefit. He still had pain in the front of his left shoulder. He had no strength in his hands and they were often numb. Mr Cooper recommended a left arthroscopic acromioplasty and a left carpal tunnel release at the same time.

Third incident

The plaintiff described the third incident as follows. He was alighting from the passenger side of a vehicle at his house. As he did so he experienced severe pain in his left knee. He said the knee 'actually retracted' and he fell to the ground hitting the right side of his buttocks on what he described as the sill, being the bottom of the doorframe. His right leg was trapped 'inside the car between the firewall and the seat' (ts 108). He said that he suffered a lot of pain from head to toe, and in his right knee. He said that when he struck the sill of the frame with his buttocks it sent shockwaves through his spine. His pre-existing lower back was made worse. He also had pain down the front of his legs extending to his feet. Previously the pain had been down his 'glutes and hamstrings'. He suffered severe pain in his neck.
On 22 May 2020, the plaintiff underwent an MRI of his right knee due to persistent swelling and tenderness. The MRI showed an extensive horizontal tear of the posterior horn of the medial meniscus extending into the junction of the body with inferior articular surface involvement. This was described as a grade 1 sprain injury of the medial cruciate ligament (Exhibit 92).
The plaintiff underwent a right knee arthroscopy and medial meniscectomy and chondroplasty on 22 December 2020 (Exhibit 101).
On 3 December 2020, Dr Ng, reported to the plaintiff's solicitors (Exhibit 102) noting that he had previously assessed the plaintiff on 25 January 2007 in relation to a different claim. The plaintiff told him he was taking antidepressant medication at the time of the Masters incident but his depressive symptoms did not prevent him from working. On examination Dr Ng thought that the plaintiff was suffering from a moderately severe major depressive disorder that was partially treated, persistent and problematic. He considered that this condition would have been exacerbated by the Masters incident.
The plaintiff gave evidence that he was taking anti-depressant medication at the time of the Masters incident. He remained on the same dosage after the incident (ts 118). He said that after 2007 he was affected by the decline of his retail business and the break‑up of his marriage. He said he had to work to keep things going (ts 119). He was asked about the period after the Masters incident in terms of his appetite, personal grooming, sexual function, social life, activities, memory and motivation. He seemed unprepared for these questions and his responses were hard to make sense of.
On 30 March 2021, the plaintiff underwent a right carpal tunnel release by Mr Cooper (Exhibit 104).
On 14 May 2021, the plaintiff's cardiologist, Dr Athula Karu, wrote to Dr Mulholland stating that the plaintiff was able to undergo surgery (Exhibit 105). The plaintiff subsequently underwent a total left knee replacement by Mr Cooper on 15 June 2021 (Exhibit 106). The plaintiff gave evidence that the knee surgery was a huge success. He had very little pain to speak of and no instability (ts 125 ‑ ts 126).
On 2 July 2021, the plaintiff was admitted to Joondalup Health Campus complaining of nausea and dizziness. He was discharged the same day (Exhibit 107).
From 25 July 2022 the plaintiff spent four days in hospital at Joondalup Health Campus, apparently for observation of his cardiac condition (Exhibit 108). From 15 September 2022, the plaintiff spent three days in hospital at Joondalup Health Campus for treatment of diverticulitis (Exhibit 109). He spent a further two days in hospital from 31 October 2022 for treatment of the same condition.
Mr Cooper reported to Dr Mulholland on 22 June 2022 stating that the plaintiff was delighted with his knee replacement. X-rays were fine. No further follow-up was required.
The plaintiff gave evidence that he did not go back to work after the Masters incident because he was in pain and would not have passed a medical test (ts 127). He said instability in his knee prevented him from working as an electrician. After the other incidents pain in the neck and low back combined with the left knee meant that it would be very difficult to climb ladders, work in confined spaces, dig trenches, or pull cables (ts 128 ‑ ts 129).
The plaintiff said that at the time of trial he was taking Duloxetine for depression, anxiety and pain control, Tramadol for pain in his neck and legs, Temazepam (he could not say why) and Panadol Osteo, and seeing his general practitioner monthly. He was also seeing a psychologist who helped him 'cope with life'. He was seeing Mr Bala for a cervical foraminectomy and Mr Cooper with a view to left shoulder surgery and a right carpal tunnel release (ts 135).
Since the Masters incident the plaintiff said he had assistance from his former wife and a couple of women friends with activities such as making his bed, doing laundry, and gardening, and from a male friend with heavier activities. Counsel acknowledged however that no particulars of gratuitous services had been given and there was no expert evidence in plaintiff's case with respect to injury-caused needs for services of care.

Medical evidence at trial

Emeritus Professor Stokes

Professor Bryant Stokes, consultant neurosurgeon, provided medicolegal reports to the plaintiff's solicitors on 26 July 2019 and August 2019 (Exhibits 81 and 83). His opinion was sought in relation to the cervical and lumbar symptoms that the plaintiff alleges were aggravated by the second incident.
When the reports were tendered through the plaintiff he was asked if he agreed with the contents of the history set out in the first report. He was asked to point out anything he did not agree with (ts 99). He was unsure why Professor Stokes stated that he denied any motor vehicle accident when he could recall a minor one. Everything else he said was true and correct.
He also told Professor Stokes that when he slipped on water at Masters he fell awkwardly and twisted his left knee. He also told Professor Stokes that in September 2017 his left knee 'gave way' in the garage, the reason for the fall being that 'the knee just gave way suddenly under him'.
The plaintiff described painful cervical movement with radiation of pain to the left arm (that Professor Stokes thought was probably in the left C5 distribution), and pain in his back radiating down the right leg (that he thought was in the L5 distribution). On MRI Professor Stokes noted significant joint degeneration at C3/4 and C4/5 which he thought may account for some of his upper neck pain. At C7/T1 there was some potential impingement on the exiting right C8 nerve root, but the pain was on the left rather than the right. In the lumbar spine there was a small disc protrusion with annular tear at L4/5 abutting the descending L5 nerve root bilaterally.
Professor Stokes thought that he should be referred to a pain specialist for a left C8 nerve root sleeve injection, a left C7/T1 facet joint injection and possibly bilateral L5 root sleeve injections. He considered that his symptoms probably related to degenerative changes in his cervical spine with some ligamentous injury following the second incident.
As to the cause of the fall, Professor Stokes said in evidence that an anterior cruciate ligament injury could cause the knee to give way (ts 174). He gave that answer in response to the question, 'Is the giving way of his knee consistent with his description of the injury he had at Masters?' There was no anterior cruciate ligament injury as a result of the Masters incident.
Professor Stokes thought that the plaintiff's cervical symptoms were compatible with pre-existing degenerative changes. He thought that his neck pain was due to that rather than anything else (ts 177). He noted the surgery by Mr Vaughan. He said it was common for such surgery to cause degeneration of the spine above and below the fused vertebrae. Those degenerative changes may have been made symptomatic by the second incident. The plaintiff may also have suffered ligamentous injury to his neck.
As to the lumbar spine, Professor Stokes said that he had observed on X-ray a small lumbar disc protrusion at L4/5 where the previous surgery was done. He could not say whether it was caused by the second incident, but it could be responsible for his pain and his right leg symptoms. He thought the plaintiff was incapacitated for work as an electrician mainly because of his left knee, but also his neck. He thought it would be difficult for him to look up in the course of his work due to his neck condition. He did not think that the plaintiff's lumbar symptoms necessarily incapacitated him.

Mr Hardisty

The plaintiff's solicitors referred him to Mr Gerard Hardisty, orthopaedic surgeon who reported on 3 May 2018. Mr Hardisty had seen the CCTV footage of the Masters incident to which he referred as 'the accident'. He observed that his left leg appeared to slip forward a few centimetres and to go into slight extension. He stated:
In the background of an osteoarthritic medial compartment as well as patellofemoral compartment your client sustained an exacerbation with further chondral damage. It appears on the MRI that he has had an anterior cruciate ligament rupture and although reported as a medial meniscus bucket handle tear I do not believe this to be the case given he would have had a complete almost total meniscectomy at the age of 18.
As stated above your client did sustain an injury in the Masters hardware store on a background of a fairly arthritic left knee. His MRI has shown that he has got severe arthritis with full thickness losses. There appears to be an old anterior cruciate rupture and I do not believe that his single injury caused all the changes on the MRI scan which appeared to be chronic in nature and related to osteoarthritis. He has quite severe arthritis with full thickness losses.
Mr Hardisty noted that the plaintiff complained of pain in the medial side of his knee and also anteriorly. The plaintiff reported constant aching and intermittent swelling. Contrary to what he told Professor Stokes, the plaintiff told Mr Hardisty that he was surfing at least two to three times a week. He was not working due to pain and discomfort in the knee. He said that his knee had given him no problems at work previously. The plaintiff was wearing a brace. The plaintiff described 'four episodes where his knee has given way in the last year or so'.
Mr Hardisty considered that without joint replacement surgery the plaintiff's ability to work would be very limited. He would not be able to 'do a lot of crouching, squatting or lifting anything greater than 5 kg, walking any great distance or standing for long periods of time on his knee'. If the plaintiff returned to work he would likely sustain further injury to his knee. Mr Hardisty concluded:
I believe your client has a very arthritic knee and that degree of arthritis was present prior to his accident. As is often seen in many of these cases people have coped very well with an arthritic knee in their job with a combination of certain task avoidance, bracing and care to attitude and position of the knee in a working environment.
Sometimes this equilibrium which controls symptoms is disturbed by an accident. Certainly, the accident did not cause all of the degenerative changes in his knee but it has exacerbated his symptoms and caused further degeneration. It is unlikely that this is going to improve without a total knee replacement.
In a further report dated 5 July 2018 (Exhibit 76), Mr Hardisty said that at the time of the Masters incident the plaintiff had 'old ligamentous tears and chondromalacia with degeneration and areas of full thickness cartilage loss in his knee'. He considered the incident had caused some worsening of the chondromalacia and had indirectly caused a large effusion. The pre‑existing damage to the left knee would have become symptomatic regardless of the Masters incident.
In Mr Hardisty's opinion as the plaintiff had been able to work as an electrician and had maintained that he never had any difficulties or problems with his knee apart from an occasional ache, his knee may not have become symptomatic for a number of years, but 'given the nature of his job compared to the nature of his injury he sustained in the hardware store it is hard to fathom that he would not sustain similar injuries in his workplace rather than a slip as he did' (sic).
In a letter dated 31 July 2018 (Exhibit 77), Mr Hardisty said:
While it is hard to say for sure if the incident has accelerated your client's knee symptomology and requirement to undergo a total knee replacement I believe that given his symptomology it has accelerated the requirement for a total knee replacement by 2+ years.
Mr Hardisty made a further report on 13 August 2020 (Exhibit 99) in which he expressed concurrence with Professor Wood's opinion that there was no bucket handle tear of the meniscus as reported by Dr Kumar (Exhibit 64), the plaintiff having had a total meniscectomy when he was 18.
In evidence Mr Hardisty confirmed his opinion that he thought that the Masters incident had brought forward the plaintiff's need for a total left knee replacement by about two years. The plaintiff may have come to it even sooner (ts 243). He said the onset of pain was a symptom of arthritis. He agreed that the osteoarthritic degeneration in the left knee commenced with the plaintiff's knee injuries in 1978 and 1979. He explained what he meant by the Masters incident causing 'an exacerbation of chondral damage', saying that where injury occurs in the presence of arthritis 'often there's flaps and tears of cartilage … and if you slip and you catch some of that you may pull a little bit more and then you may get an inflammation, swelling, and that is further degeneration' (ts 245). He agreed that at the time of the Masters incident he had end‑stage arthritis meaning that there was not much more to be done apart from a knee replacement.
Mr Hardisty agreed that the degeneration in the plaintiff's left knee could have become symptomatic at any time. He explained that the damage to the knee shown on the December 2016 MRI scan was pre‑existing. He saw no evidence of structural damage resulting from the Masters incident. He agreed that if there was recent structural damage one would normally see bone marrow bruising on MRI.
In Mr Hardisty's opinion the plaintiff's left knee symptoms were due to progressive arthritis (ts 241). They had been brought on by the Masters incident. He accepted in cross-examination that such an exacerbation could occur simply by the activities of daily living (ts 242). He said that if the plaintiff underwent a successful total knee reconstruction, he would be able to return to work after six months.
Mr Hardisty was not asked to express an opinion on the cause or effect of the second and third incidents.

Mr Wright

Mr David Wright, orthopaedic consultant, reported to the defendant's solicitors on 19 February 2019 (Exhibit 80). He noted the history of the Masters incident and the second incident. The plaintiff's account of the first incident was that 'he stepped in liquid with his left foot which slipped forward and then caught on the flooring which was dry … His knee was wrenched and he felt it give way'.
The plaintiff told Mr Wright that the second incident occurred 'when he was walking out of his garage at home when his knee gave way causing him to fall to the left and hit his head on the garage door supports'. The plaintiff said he was temporarily unconscious and suffered a recurrence of neck pain with headaches. There was no intracranial injury.
The plaintiff told him he had been working in a construction job and that he was a regular surfer until the Masters incident. He had not previously had any symptoms of left knee instability. He said he was not able to work as an electrician because he could not climb ladders and could not look up for prolonged periods.
The plaintiff said the level of pain fluctuated, and his symptoms tended to be aggravated by movement of the knee. It was uncomfortable to walk on uneven ground and to walk down slopes. It was also very uncomfortable to climb up or down steps or stairs and extremely difficult to squat on the left knee. He no longer had swelling or effusion The plaintiff was still experiencing neck pain and frequent occipito-frontal headaches. He was taking anti-inflammatory, analgesic and antidepressant medications. He was limited in his activities.
Mr Wright found that the plaintiff's left knee stiffness and pain was consistent with his significant degenerative change. The second incident had aggravated his neck symptoms but his current condition was significantly if not exclusively related to his pre-existing cervical condition. The osteoarthritis of the left knee was due to the injury the plaintiff had when he was 19. The Masters incident caused a soft tissue sprain and effusion but did not cause any further structural damage. Mr Wright considered that had there been a significant injury to a ligament or joint surface then bone marrow bruising would have been apparent on the MRI scan on 6 December 2016.
The plaintiff's subsequent fall had caused a soft tissue sprain to the cervical spine which aggravated his pre‑existing cervical pathology. Mr Wright said that the absence of any episodes of instability of the left knee before the Masters incident was surprising but not impossible. The plaintiff appeared to have good function in the knee before that incident. He agreed with Mr Hardisty that it was likely that his left knee would have become significantly symptomatic in two or more years even without the effect of the Masters incident. He thought that the plaintiff's pre-existing degeneration contributed 75% to his current condition. As to the neck, he thought that the symptoms were almost entirely due to the pre-existing condition. Mr Wright thought that the plaintiff's inability to work was due to a combination of his neck, lumbar spine and left knee conditions.
Mr Wright reported again on 29 October 2020 (Exhibit 100). He said he had re-questioned the plaintiff about the second incident and was told that he had been walking out of his garage when he turned to the left pivoting on his left foot. His left knee collapsed or gave way causing him to fall.
He obtained a history of the third incident. The plaintiff said that as he stepped out of the car his left knee gave way causing him to slip down with his right leg still in the car. The plaintiff said he developed increased back and left knee pain as well as right knee pain.
In Mr Wright's opinion the second incident was caused by the plaintiff's left knee giving way due to anterior cruciate deficiency. He said knees with cruciate laxity were prone to giving way or collapsing when the patient attempted to pivot on them. His left knee instability was more likely to be due to the cruciate deficiency than weakness due to L5 radiculopathy.

The offer contained in the letter is clearly expressed to be for $300,000 plus the costs of the action less the costs claimed for the adjourned pre‑trial conference. There is no ambiguity or uncertainty in its terms. The potential costs consequence is stated, the defendant reserving the right to rely on the offer in the event that the outcome of the trial is less favourable in support of an application for indemnity costs if the offer is not accepted. A reasonable time was allowed, if one includes the extensions granted by the defendant at the plaintiff's request, for consideration of the offer. The offer involved a significant compromise of the defendant's position in relation to the plaintiff's claim.
On 14 December 2020 the matter was listed for trial for six days commencing 15 December 2021. On 14 January 2021 the defendant filed a further re-amended defence in which it expressly admitted liability leaving quantum as the only issue to be resolved.
The Calderbank offer was reinstated by email on 17 March 2021. It was expressed to be open for acceptance until 14 April 2021. The plaintiff underwent a carpal tunnel release procedure on 30 March 2021 and a total left knee replacement on 15 June that year.
The consensus of expert evidence was that he would have come to a total left knee replacement within one - two years of the Masters incident. (The plaintiff had been offered that procedure immediately after the Masters incident, but had declined it in circumstances that I found did not amount to a failure to mitigate his loss.)
The December 2021 trial dates were vacated due to the plaintiff undergoing knee surgery on the basis that the outcome would potentially affect the merits of the claim in terms of quantum. It was the plaintiff's position at trial however that he remained incapacitated for work after the knee replacement because of other injuries that resulted from the second and third incidents.
I consider that the prospect of undergoing knee replacement surgery that would potentially affect the quantum of his claim is likely to have pre-occupied the plaintiff about the time of the reinstated Calderbank offer. It is reasonable that he would have wanted to await the outcome of that procedure before giving further consideration to the resolution of his claim. Therefore, I am not satisfied that he unreasonably failed to accept that offer.
The plaintiff's evidence was that the surgery was a 'huge success', such that he had very little knee pain to speak of and no instability (ts 125 ‑ ts 126).
On 11 April 2022 the action was re-listed for trial for seven days from 11 April 2023.

Fifth offer

A formal O 24A offer to compromise for $300,000 was made on 31 October 2022.
The critical finding as to the merits of the plaintiff's claim as a whole is at [234] ‑ [235] of the reasons for decision:
234I have looked for but been unable to find expert medical evidence that would support the inference on which the plaintiff's case depends. No medical evidence was elicited that acknowledged that there was even a possible causal connection between the aggravation of the plaintiff's knee by the Masters incident and the fall involved in the second incident. It would be a matter of conjecture not inference to find a nexus that is not supported by expert evidence and which the preponderance of such evidence excludes. This is not a case where the medical evidence admits a possible connection that the court in the light of all the evidence can conclude is probable, or where, as Barwick CJ observed in Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720, at 721, 'other circumstances unite to warrant a conclusion that what the medical evidence established as a possible cause was the probable cause'. In this case the expert evidence going to the question of causation, specifically that of Mr Wright and Mr Hardcastle (Mr Hardisty expressing no opinion), regards an inference of causation as unjustified.
235In any event, I have found as a matter of fact that the second incident was not caused by a retraction of the left knee in response to pain as described but by the knee giving way due to pre‑existing anterior cruciate deficiency. That condition was unaffected by the Masters incident.
It seems to me that by the time of the final offer, which was in the same terms as the third and fourth offers, it would have been apparent that the defendant was unlikely to offer more, yet that possibility could not be ruled out.
The letter was accompanied by a letter (Burrows affidavit, Annexure CJB-20) that set out the risk the plaintiff faced in establishing causation. By that point in the proceedings the plaintiff had no expert evidence to support the necessary inferences that the second and third incidents of injury to the left knee were causally related to the Masters incident and there was evidence to the contrary effect to be adduced by the defendant. From a legal point of view, one might observe the plaintiff at that time to have had no reasonable basis for an expectation that he would succeed in proving that the injury caused by the Masters incident resulted in any loss and damage beyond the occurrence of the second incident which, on the findings was effectively in the nature of a novus actus interveniens.
Unreasonableness is not to be found on other than clear grounds.
While his case may have been deficient in terms of supportive medical evidence, as it appeared at trial, the plaintiff possessed a strong conviction that his left knee, having been asymptomatic prior to the Masters incident had been injured in a way that resulted in the falls that occurred in the second and third incidents. While his evidence to the effect that he experienced pain and instability in his left knee after the Masters incident that caused his later falls was rejected as unreliable, I am far from satisfied that exercising his choice to have his day in court in those circumstances amounted to conduct sufficiently blameworthy to put himself at risk of indemnity costs for doing so.
I am therefore not satisfied that his failure to accept the defendant's final offer was unreasonable having regard to the principles referred to.
The plaintiff should have his costs to the date of the first offer and thereafter the plaintiff should pay the defendant's costs on a party and party basis. Both sets of costs are to be taxed on a party and party basis. There is no need to order the set-off of the costs of the adjourned pre-trial conference. The plaintiff's costs follow the event and the defendant's costs are awarded by virtue of O 24A r 10(5).
As the defendant's application for its costs to be taxed on an indemnity basis has not been granted, there should be no order for costs with respect to that application.
The orders will be:
1.The defendant do pay the plaintiff's costs of the action up to 26 November 2019 to be taxed on a party and party basis.
2.The plaintiff do pay the defendant's costs of the action after 26 November 2019 to be taxed on a party and party basis.
3.There be no order for costs with respect to the defendant's application for costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

DC
Associate to Judge Staude

31 JANUARY 2024