Hart v Frost-Cornwall

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2024 00153

BLAKE HART	Plaintiff
v
MARCUS FROST-CORNWALL	Defendant

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	29, 30 April and 1, 2, 5, 6, 7, 8 May 2025
DATE OF JUDGMENT:	12 June 2025
CASE MAY BE CITED AS:	Hart v Frost-Cornwall
MEDIUM NEUTRAL CITATION:	[2025] VSC 330

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PERSONAL INJURIES – Liability admitted – Assessment of damages – Plaintiff seriously injured in motor vehicle accident in September 2017 – Plaintiff hospitalised, later discharged and underwent recovery – Plaintiff returned to work as a roof tiler – Plaintiff presented for treatment of left knee condition in February 2018 – Nature of left knee condition – Whether motor accident was a cause of the left knee condition – Other accident related injuries, including psychiatric injuries – Extent of past and future consequences in the nature of pain and suffering and economic loss – Loss of capacity to work as a roof tiler – Evaluation of lost chance of self-employment as a roof tiler – Evaluation of past and future residual capacity for employment – Vicissitudes and ‘buffers’ – Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Geelong Leather Pty Ltd v Delaney [2014] VSCA 98 considered – Damages assessed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	FC Spencer KC with K Karadimas	Harris Lieberman Solicitors
For the Defendant	CJ Blanden KC with S Pinkstone	Solicitor to the Transport Accident Commission

HIS HONOUR:

A Introduction

The plaintiff was born on 7 June 1995 and lived his early life in Geelong.

He had learning difficulties and left school without completing year 10. He subsequently completed the Victorian Certificate of Applied Learning.

The plaintiff lost direction during adolescence.[1] He had a marijuana addiction and mental struggles. He seems to have become estranged from his family and was effectively homeless for a period. He later undertook rehabilitation and a successful trial as a roof tiler, which led to him commencing a three year apprenticeship.
[1]Transcript (‘T’) 36.

The plaintiff started his apprenticeship with one company and then moved to another before transferring to a third company named Global Roofing. Part of his apprenticeship involved attending trade school (which the plaintiff found to be a struggle until assisted by medication). In 2017, the plaintiff was in the final year of his apprenticeship.[2]
[2]Cf T109-10.

At that time, the plaintiff seems to have been sharing a rental property with the woman who at some point became his partner, Maddison Rowland (‘Maddison’).

The plaintiff gave evidence that at that point his life was ‘perfect’. He had hobbies and activities including skateboarding and BMX riding.[3] In respect of his work as a roof tiler, the plaintiff gave evidence that —

I loved it. It was my lifestyle. A lot of people couldn’t do it. … It was something I wanted to continue to do and see myself setting myself up for a business later down the track once completion and yeah, I loved every second of it.[4]

[3]T41-2.

[4]T43.

On 5 September 2017, the plaintiff was a rear seat passenger in a vehicle being driven by the defendant at 80 or 100 km/h along the Western Freeway near Rockbank in Melbourne. The defendant swerved into the emergency lane and collided with the rear of a stationary bus.

The plaintiff lost consciousness and suffered injuries including a broken eye socket, cheekbone, jaw, nose and left wrist. He said that his left wrist ‘snapped’ after he braced himself because he ‘saw the bus coming’. When the plaintiff woke up his left knee was resting up against the side of the driver’s seat and centre console. The plaintiff said that the pain after the accident was the worst that he had ever felt and that he had pain in his ‘whole body’.[5] The vehicle was a ‘write off’.[6]
[5]T46-8.
[6]T61. See also Exhibit P1.

The plaintiff was taken to hospital by ambulance. He could ‘barely speak and barely eat’, had pain all over his body and was administered ‘high painkillers’.[7]
[7]T66-7.

After discharge from hospital, the plaintiff went home and continued to take strong painkillers for about a week and rest in bed or on the couch for about two weeks. He said that when he started to come off the pain medication he realised that he was ‘still sore all over’. He said that when he started to move around he had a lot of discomfort in his left knee.[8]
[8]T67-8.

The question of the plaintiff’s post-accident claims of knee pain and, more specifically, whether he suffered any and if so what left knee injury in the motor accident was the major contested issue at trial. The evidence relating to that issue will be examined in greater detail in due course.

The plaintiff was not cleared to return to work until mid-November 2017. The clearance related to his left arm or wrist.[9] He was supposed to return on light duties, although the duties he actually performed were heavy and no different to those that he had performed prior to the motor accident.[10] He said that he had been ‘very keen to get back to work’; roof tiling was his passion and he wanted to finish his apprenticeship. The plaintiff said that he struggled at work and that his knee was ‘quite sore’ and would occasionally lock.[11] He said that he rested up on the weekends.[12]
[9]Cf T126.
[10]T128, 131-4.
[11]T71.
[12]T72.

The plaintiff worked as a roof tiler between mid-November 2017 and 26 February 2018, save for a ‘closed-down period’ of a few weeks after Christmas.[13]
[13]T73.

During the period after the motor accident and until 26 February 2018, the plaintiff attended a hand therapist on four occasions[14] and a general practitioner on five occasions.[15] No mention of left knee difficulties is noted in respect of those attendances. In evidence, the plaintiff confirmed that he did not mention his knee to doctors at the time. That said, the plaintiff gave evidence that his knee pain worsened after he returned to work in January 2018 and that he was ‘taking a day off [each week] just to sort of rest up’.[16]
[14]Exhibit P4.
[15]Exhibit D8.
[16]T73-4.

On 26 February 2018, the plaintiff was lifting or carrying a tile elevator with a workmate when his knee ‘gave way’. He said that he had ‘excruciating, shooting pains’ and thought that there was ‘something wrong’. He was taken to Sunshine Hospital Emergency Department. He said that he was told that it was a ‘sprain’ and that he was to ice the knee and keep off it for a couple of days. He had some time off. The swelling subsided and the pain felt manageable.[17]
[17]T75-6. Cf T136.

It was essentially common ground that the incident on 26 February 2018 was not a cause of the plaintiff’s knee condition.[18]
[18]T56, 189.

The plaintiff later attempted to return to work. He worked one or two more days and his pain increased. His boss said that if the plaintiff could not work full days and full weeks then there was ‘no point’ in having him. The plaintiff did not complete his apprenticeship and felt ‘gutted’.[19]
[19]T77. Cf T153.

In about April 2018, the plaintiff and Maddison moved from Melbourne and commenced living with Maddison’s parents on a farm property outside Chiltern in northern Victoria. The plaintiff said that he had no income and could not ‘provide rent or pay bills or anything’.[20]
[20]T77-8.

From about that point the plaintiff felt worthless and slid into a depressive state. He said he ‘felt lost’ and ‘like a burden’ because he was unable to support himself and Maddison.

In late March/early April 2019 the plaintiff was an inpatient at Nolan House in Albury after attempting to take his own life. He was sedated, strapped to a bed and when describing the experience said that he had ‘lost all faith in mental health facilities’.[21]
[21]T81-2. Cf Exhibit P24.

He also had nightmares and flashbacks relating to the motor accident and it took him a long time to be able to drive in heavy traffic. He returned to driving in 2021 or 2022. The nightmares and flashbacks decreased in frequency over time and he would now be ‘lucky to call it once a month’.[22]
[22]T83-4.

There was a relatively minor issue at trial concerning the diagnosis and status of the plaintiff’s present psychiatric condition.

A sequence of surgical procedures came to be performed on the plaintiff’s left knee, particularly —

(a) arthroscopy and meniscal debridement at the Western Health Williamstown Hospital on 20 June 2018;[23]

(b) arthroscopy and partial lateral meniscectomy at Albury Wodonga Health on 11 February 2019;[24] and

(c) arthroscopy and partial lateral meniscectomy at Epworth Hospital in Melbourne on 12 September 2024.[25]

[23]Exhibit P5.

[24]Exhibit P9.

[25]Exhibit P21.

The surgeries have resulted in some slight and temporary improvements, including in respect of ‘clicking’ in the knee. However, it was not really in issue that the plaintiff has continued to experience left knee pain and restriction and is likely to do so into the foreseeable future.

In respect of work capacity, it was common ground that the plaintiff could not return to work as a roof tiler.[26]
[26]Cf T109.

The plaintiff has not been able to return to his hobbies of skateboarding and BMX riding.[27] He presently lives in a rental property in Corowa, New South Wales, with Maddison and their two very young children. He gave evidence of the effect of his knee upon various domestic and other activities.
[27]T85.

The plaintiff has had physiotherapy and seen a pain specialist. He said that a knee reconstruction has been mentioned, but that he did not see the point because ‘I’ve been so unsuccessful at the last three’.[28] He remains unbalanced on uneven ground.[29]
[28]T89. Whether or not there had been such a discussion with the surgeon was a subject in cross-examination: T137-8.
[29]T90.

The plaintiff uses Radox baths, Deep Heat and over the counter pain medication when required.[30]
[30]T90.

There was an issue at trial relating to an aspect of the pathology of the left knee condition as well as its likely future course. There was also an issue concerning the extent of the plaintiff’s retained capacity for employment.

In that connection, the plaintiff returned to work at a bottle shop in late 2019 or early 2020. He got the job via Maddison. He was ‘stocking shelves, serving customers, doing the drive through’. He struggled with some of the heavier duties. He left that job after about six months because of the pain in his knee.[31]
[31]T91.

In about August 2020, the plaintiff commenced working as a forklift driver with Circle R. The plaintiff struggled with stairs and standing for long periods and did that job until about late July 2021.[32]
[32]T91-2.

The plaintiff then worked for a day or so with an industrial concreter. It was very heavy work. He was ‘lifting rebar constantly, bending down’. The plaintiff said it was ‘terrible’.[33]
[33]T92-3.

In November 2021, the plaintiff obtained a job with Cargill Australia. He was driving machinery, building bunkers and storing grain. He said that he struggled a little getting in and out of the vehicles. At some point he took on a supervising role, but that ended up requiring more physical work as well as email and paperwork, which he struggled with. He persisted in that job until about October 2023.[34] In that connection, he gave evidence that —

It … just became too much. There wasn’t enough people out there. The workload kept increasing and I just … couldn’t do it anymore.[35]

[34]T93-4.

[35]T94.

In about November 2023, the plaintiff started driving machinery for Lawson’s Grains, but the job was seasonal. He said that he struggled, although the job was only for about a month.[36]
[36]T94-5.

In January 2024, the plaintiff commenced with Webb Industrial doing plastic welding and maintenance. He said that the job involved crawling in tight spaces. He said that he ended up ‘pulling the pin on that one’ in about May 2024 because he was unable to do it any longer.[37]
[37]T95-6.

In about July 2024, the plaintiff obtained a job with AgBoss doing manufacturing of plastic piping and other items. The job involved ‘a lot of … lifting and bending and standing for long periods of time’ as well as bending into cages. The plaintiff was unable to continue in that job and finished in about November 2024.[38]
[38]T96-7.

In about January 2025, the plaintiff obtained a casual job driving machinery for a company named Burgess. He did not complete the probationary period and was dismissed in about February 2025 (seemingly for having reversed a vehicle into a fence).[39]
[39]T97-8.

The plaintiff subsequently obtained a job with a company called Soilcon. His tasks include fencing, lifting posts and stakes and building rock revetments. The work involves ‘[a] bit of bending’ and walking on uneven ground. There is a lot of pulling and walking. He is ‘quite sore and stiff by the end of the day’. The plaintiff remains in that position with Soilcon, but said that he struggles and asks for help. He said that he did not see himself lasting in the job longer than about a month or two and is currently looking for other work.[40]
[40]T98-101.

The plaintiff said that he has had no choice but to get out and find work. When asked about whether he was suited to hard manual work because of his knee, the plaintiff said ‘[n]o … but it’s the only thing I know how to do’.[41]
[41]T101.

Broadly speaking, the present issue is the assessment of fair and reasonable compensation in respect of the plaintiff’s accident-related injuries.

In that regard, the particular heads of damage are —

(a) pain and suffering and loss of enjoyment of life; and

(b) past loss of earnings and future loss of earning capacity.

As I have indicated, the biggest issue at trial was whether the motor accident was a cause of the plaintiff’s left knee condition.

B The proceeding and evidence

Pre-trial

The plaintiff commenced proceedings by writ filed on 17 January 2024. The defendant filed a notice requiring trial by jury.

The defendant admitted negligence, but did not admit the nature, extent or consequences of injury. In substance, that put in issue the causation of the left knee condition as well as the other issues to which I have referred.

The trial commenced before a jury.

Lay witnesses
Plaintiff

The plaintiff gave oral evidence and was cross-examined extensively.

He was plainly an honest witness and gave evidence in a manner that was compliant and entirely without guile. He answered multiple questions against his own interest. He acknowledged freely, and repeatedly, that he had not mentioned his knee to ambulance officers or doctors prior to attending Sunshine Hospital on 26 February 2018.

As I have indicated, the plaintiff suffers from a learning disability (particularly, ADHD) and that may have affected his evidence at various points. More particularly, he appeared tired when answering questions towards the end of the first day of his evidence. I take that into account in respect of that part of his evidence.

The defendant did not submit that the plaintiff was a dishonest witness. As I have indicated, he was plainly honest and, in my view, did his best to give accurate evidence.

Notwithstanding the above, the defendant submitted that the plaintiff’s evidence concerning left knee pain after the motor accident was unreliable.[42] I will come to that submission in more detail in due course.
[42]T682.

I should say that the plaintiff was shown and cross-examined about a surveillance film taken on Saturday, 11 May 2024.[43] The film showed the plaintiff helping out a friend with a renovation for a driveway. The plaintiff was not in work at that time. The plaintiff was seen to move slowly and did some minor shovelling of gravel. In my view, the film merely showed the plaintiff to be doing that which he had said he was able to do if required. If anything, the film enhanced the likely reliability of his evidence.

Maddison and Denise Rowland

[43]Exhibit D1. Cf T173-6.

Maddison gave evidence, as did her mother, Mrs Denise Rowland (‘Denise’).

Maddison and Denise each gave evidence concerning the plaintiff’s condition before and after the motor accident. They were honest witnesses who did their best to give accurate evidence. Denise was particularly impressive.

The defendant submitted that the evidence of Maddison and Denise concerning the plaintiff’s knee condition after the motor accident had the ‘same problem’ as that of the plaintiff.[44] I will come to that submission when addressing the allied contention advanced in respect of the relevant evidence of the plaintiff.
[44]T683.

Expert witnesses

The plaintiff called —

(a) Mr Russell Miller, orthopaedic surgeon;

(b) Dr Matthew Tagkalidis, consultant psychiatrist; and

(c) Dr Dominic Yong, specialist occupational physician.

The defendant called —

(a) Associate Professor Peter Doherty, consultant psychiatrist; and

(b) Mr Michael Dooley, orthopaedic surgeon.

Each of the above saw the plaintiff for medico-legal purposes only.

The plaintiff also called Mr Michael Lee, forensic accountant.

Mr Miller

Mr Miller said that he operates on about ’10 knees a week’.[45] He examined the plaintiff on two occasions. He considered that there was (or, as the case may be, had been) slight wasting of the thigh muscle, a small knee effusion, knee tenderness, slight laxity of the anterior cruciate ligament (‘ACL’) and slight laxity of the medial ligament;[46] as well as a complex tear of the lateral meniscus with an associated meniscal cyst, synovitis and chondropathology.[47] He considered there to have been a ‘significant’ injury to the knee with a ‘significant risk of disease progression’, including further surgery.[48]
[45]T291.
[46]T295-6.
[47]T298-9, 306, 308.
[48]T308, 310-11, 319-20, 323-4.

As to causation, Mr Miller said —

I’ve considered a number of factors, that there was no evidence of pre-existing injury or symptoms. It is likely that there was significant trauma as a result of the accident, that he reported limping immediately after the accident, and that he represented with left knee symptoms shortly after the accident. And I felt it was likely that the motor vehicle accident was the cause of the left knee symptoms.[49]

[49]T307.

Mr Miller took issue with various contrary opinions expressed by Mr Dooley.

I should say that there were elements of Mr Miller’s evidence that, in some ways, stood contrary to the interests of the party that retained and called him. That seemed to me to stand as an additional reason why his evidence should be given serious consideration.

Dr Tagkalidis

Dr Tagkalidis examined the plaintiff on three occasions and gave evidence in a straightforward manner.

His first examination of the plaintiff was on 9 August 2023. It was a joint medical examination commissioned by the plaintiff and defendant.

Dr Tagkalidis’ diagnosis was major depressive disorder and post-traumatic stress disorder (‘PTSD’) related to the motor accident. In that connection, he gave evidence that —

… a major depressive disorder is … a very significant, prolonged depressive state involving a lowered mood, an inability to enjoy, poor energy, poor motivation and drive, reduced libido sex drive, reduced concentration, reduced multitasking, short-term memory functioning, poor outlook for the future and suicidal type of thinking entering people’s minds. There is a spectrum across that, but my overall feeling was that he had clearly satisfied the criteria for major depression. Post-traumatic stress disorder involves four major criteria, the first being a very substantial – significant traumatic event, where typically a person’s life is at risk and, in this case, obviously that was the case. Reliving or re-experiencing of that incident … typically through flashbacks or nightmares or a combination of both. Avoidance of similar potential for such an accident, and an increased state of general arousal, always being on the lookout for potential danger, et cetera, and I felt that he clearly also satisfied those criteria at the time.[50]

[50]T363.

Dr Tagkalidis stated that his subsequent examinations revealed the diagnosed conditions to have abated, partially. That said, he considered the diagnoses to remain applicable.[51]

Dr Yong

[51]T366-8.

Dr Yong was an impressive witness for reasons that included his qualifications and experience.

He examined the plaintiff on three occasions and addressed the capacity of the plaintiff to work.

In his opinion, the plaintiff could undertake tasks within the following restrictions —

… avoiding prolonged standing or walking, avoid[ing] repeated climbing duties, avoid[ing] repeated squatting and kneeling tasks, avoid[ing] repeated pushing and pulling tasks, and then trying to keep the weights low. So I’d set a 5 kilogram weight restriction on a repeated basis.[52]

[52]T394.

In his opinion, the plaintiff does not have the capacity to work as a roof tiler.[53]
[53]T395.

Dr Yong considered several of the roles undertaken by the plaintiff since the motor accident to have involved tasks beyond the stated restrictions.[54] He also gave evidence concerning the plaintiff’s likely future capacity for work.[55]

Mr Lee

[54]T416-7.

[55]T418-9.

The plaintiff also called Mr Michael Lee, forensic accountant, who gave evidence in a straightforward manner.

Mr Lee gave evidence concerning economic loss calculations performed by reference to assumed scenarios, particularly —

(a) without injury work to retirement age as an employed roof tiler or as an employed roof tiler with a transition to self-employment as a roof tiler from 1 January 2025; and

(b) with injury employment to 60 or 65 years of age as a factory hand working 30 or 38 hours per week for 40 weeks of the year.

In that connection, counsel for the plaintiff prepared the following aide memoire[56] later distributed to the jury —
[56]It may be noted that there are some minor arithmetical discrepancies in the figures stated in the table extracted. That said, nothing presently turns on those discrepancies. I should also note that, in address, senior counsel confirmed that multipliers had already been applied to certain figures in the table: T736.

ECONOMIC LOSS AS A RESULT OF LOSS OF CAREER IN ROOF TILING – AIDE MEMOIRE OF THE EVIDENCE OF MICHAEL LEE
Scenario 1 – employed roof tiler

Heads of Loss
Residual A

(Factory Hand – 30 hrs/wk 40 weeks/yr)

Residual B

(Factory hand – 38 hrs/wk 40 weeks/yr)

Residual Retirement at 60 years

Past Economic Loss 76,145 76,145

Past Loss of Superannuation 10,373 10,373

Future Economic Loss 504,073 401,665

Future Loss of Superannuation 76,057 63,099

TOTAL LOSSES $666,649 $551,282

Residual Retirement at 65 years

Past Economic [Loss] 76,145 76,145

Past Loss of Superannuation 10,373 10,373

Future Economic Loss 479,747 371,859

Future Loss of Superannuation 73,456 59,805

TOTAL LOSSES $639,721 $518,181

Scenario 2 – Employed roof tiler then self-employed roof tiler from 1 January 2025

Heads of Loss
Residual A

(Factory Hand – 30 hrs/wk 40 weeks/yr)

Residual B

(Factory hand – 38 hrs/wk 40 weeks/yr)

Notional Retirement at 60 years

Past Economic Loss 76,145 76,145

Past Loss of Superannuation 10,373 10,373

Future Economic Loss 762,101 659,692

Future Loss of Superannuation (51,115) (64,073)

TOTAL LOSSES $797,504 $682,137

Notional Retirement at 65 years

Past Economic Loss 76,145 76,145

Past Loss of Superannuation 10,373 10,373

Future Economic Loss 737,775 629,886

Future Loss of Superannuation (53,716) (67,368)

TOTAL LOSSES $770,576 $649,036

In final addresses, there was no real challenge to Mr Lee’s calculations in respect of employed roof tilers and only mild challenges by the defendant to an assumption relating to the scenario of self-employment as well as the rate adopted in respect of ‘with injury’ employment into the future.

In final address, senior counsel for the plaintiff submitted that the assumption of self-employment from 1 January 2025 was ‘way out of kilter’ with the plaintiff’s evidence.[57]

A/Prof Doherty

[57]T715.

A/Prof Doherty saw the plaintiff once, in October 2024, and was a relatively straightforward witness.

A/Prof Doherty explained the history that he took, including that the plaintiff had not experienced nightmares and dreams for a ‘couple of months’ and ‘feels normal now’.[58]
[58]T537. See also T539.

More broadly, A/Prof Doherty stated —

His thoughts showed no disturbance of the form of thought. The focus of his thoughts had to do with his mood state, social withdrawal, problems in his personal connections and community adjustment. There was mild residual features of traumatisation. He spoke of pessimism and a downturn in his mood. There were no signs or features of psychosis. His perceptions appeared to be of normal intensity, without being heightened. There was no evidence of hyperarousal. There were no abnormalities of perception witnessed or acknowledged. He appeared alert, aware, orientated and in clear consciousness. There were no signs of intoxication, drowsiness or sedation. I consider the plaintiff’s insight and judgement were unimpaired.[59]

[59]T543-4.

In that context, A/Prof Doherty diagnosed PTSD, now remitted, and an adjustment disorder of mild severity. He explained that remitted meant ‘lessened or abated’ and did not mean that ‘it’s totally gone away’. In his view, the plaintiff was ‘getting back to normal’.[60]
[60]T544-5.

In respect of the difference between his diagnosis and that of Dr Tagkalidis, A/Prof Doherty said that it was, in essence, ‘one of severity’ and that an adjustment disorder is a ‘lighter sort of thing’.[61]

Mr Dooley

[61]T548.

Mr Dooley examined the plaintiff once, in November 2024, in the course of which he took a history of the plaintiff having ‘smashed his left knee against the centre console’.[62]
[62]T576-9.

That aspect of the history emerged as important to Mr Dooley’s opinion that the motor accident had not been a cause of the plaintiff’s ongoing knee condition. In that regard, he explained that —

Clearly, direct impact blows can occur to a knee in a motor vehicle accident, i.e., Mr Hart could have banged his knee against the back of the seat, side, or back of the console. This type of injury can be associated with sustaining damage to the articular surfaces of the kneecap joint, patellofemoral joint. It is not the mechanism via which meniscal tearing occurs. If it is proposed that Mr Hart sustained a tear of the lateral meniscus in the motor vehicle accident, albeit by an unusual mechanism, then one would have expected him to have had specific left knee pain and for there to have been findings on physical examination with tenderness to palpation of the knee, and by the following day, obvious swelling of the knee. There were no such findings at that time. Mr Hart subsequently did not report left knee pain to his local doctor or to the physiotherapist [sic: hand therapist] treating him in relation to his left-hand injury.[63]

[63]T577.

Mr Dooley did not believe that the plaintiff had suffered an injury to the left knee resulting in a tear of the lateral meniscus in the motor accident or, for that matter, any injury to his ACL. Mr Dooley considered that the lateral meniscal tearing pre-dated the motor accident and that the episode of the left knee giving way on 26 February 2018 related to ‘this existing lateral meniscal tear’.[64]
[64]T578.

In that connection, although Mr Dooley acknowledged ‘three options’ — namely, that the meniscal tear was ‘there before the accident, due to the accident or occurred after the accident’ — it was his view, ‘on the balance of probabilities’, that it was ‘pre-existing, present before the accident, as part of degenerative-type tearing’.[65]
[65]T582.

As Mr Dooley’s evidence went on — particularly in cross-examination — he appeared a little self-conscious and seemed to reach for new elements in support of his main theory. In particular, he said that he had seen ‘a lot of patients in the years injured in this way … and very, very few … have had … a meniscal injury’[66] and that the plaintiff’s complaints of ‘intermittent’ knee pain after the accident might be explained by an ‘impact injury’.[67] Neither element seems to have been proffered with any clarity at an earlier point. Neither had been explored in the earlier cross examination of Mr Miller.
[66]T598.
[67]T600-02.

I do not wish to suggest that there was a problem with Mr Dooley’s demeanour when giving evidence. However, in the manner in which his evidence unfolded, I came to the view that his opinions — particularly his main theory of causation — would need to be examined very carefully before acceptance.

Documentary evidence, admissions and agreement

The documentary exhibits tended to complete the picture, particularly in respect of the management and treatment of the plaintiff following the motor accident and the knee surgeries that ultimately followed.

In that regard, the plaintiff tendered —

(a) photographs relating to the condition of the motor vehicle after the accident and the appearance of the plaintiff at the time of his discharge from hospital;[68]
[68]Exhibits P1 and P2.

(b) a photograph of Mr Miller’s sketches made on a whiteboard during his evidence;[69]
[69]Exhibit P3.

(c) records, including clinical notes, of Nick Antoniou, hand therapist;[70]
[70]Exhibit P4.

(d) records relating to the plaintiff’s first knee surgery at Western Health on 20 June 2018 and subsequent management;[71]
[71]Exhibits P5, P6, P7 and P8.

(e) records relating to the plaintiff’s second knee surgery at Albury Wodonga Health on 11 February 2019 and subsequent management and assessment;[72]
[72]Exhibits P9, P10, P12, P13, P15, P18, P19 and P20.

(f) records relating to the plaintiff’s psychiatric condition, including a report of A/Prof Varma in November 2021;[73]

(g) the operation report relating to the plaintiff’s third knee surgery at Epworth Hospital on 12 September 2024 and the subsequent reports of the operating surgeon, Dr Batty;[74] and

(h) reports of the plaintiff’s treating general practitioner.[75]

[73]Exhibits P11, P14 and P24.

[74]Exhibits P21, P22 and P23.

[75]Exhibits P16 and P17.

For his part, the defendant tendered —

(a) records relating to the earlier psychiatric condition of the plaintiff;[76]
[76]Exhibits D5 and D6.

(b) ambulance records from the day of the motor accident;[77]
[77]Exhibit D2.

(c) records relating to the plaintiff’s admission at the Western Hospital after the motor accident;[78]
[78]Exhibits D3 and D4.

(d) timesheet information relating to the period in which the plaintiff returned to work with Global Roofing after the motor accident;[79]

(e) clinical notes of the plaintiff’s general practitioners relating to the period after the motor accident and prior to 26 February 2018;[80] and

(f) surveillance film taken on 11 May 2024;[81]

[79]Exhibit D7.

[80]Exhibit D8.

[81]Exhibit D1.

The defendant made certain admissions concerning periods of video surveillance.[82]
[82]T511.

In final addresses, the parties agreed that, if necessary, reference may be made to identified parts of the report of Mr Lee.[83]
[83]Particularly, Court Book (‘CB’) 216-17, Appendix 3 (CB 278-9), Appendix 4 (CB 281-3) and Appendix 7 (CB 298): T742.

Jury questions

Prior to the commencement of final addresses, the jury was handed written questions in the following form —

1.In what sum do you assess the Plaintiff’s damages for pain and suffering and loss of enjoyment of life?
$________________________________________________
2.In what sum do you assess the Plaintiff’s damages for economic loss for:
a. past loss of earnings?
$ ________________________________________________
b. future loss of earning capacity?
$________________________________________________

Jury discharge

An issue arose during final addresses. Following argument, I ruled that the jury should be discharged for reasons delivered ex tempore.[84]
[84]Cf Smout v Smout [1989] VR 845; Baulch v Lyndoch Warrnambool Inc (2010) 27 VR 1; Li v Toyota Motor Corporation Australia Limited (Ruling No 3) [2010] VSC 448; Murray Valley Aboriginal Cooperative Limited v Havea [2020] VSCA 243.

At that point, it was evident that addresses could be completed within the day. The plaintiff submitted that I should proceed to determine the matter as a cause. The defendant did not oppose that course. I ruled that the proceeding should be determined as a cause.

Issues

I have referred to one major issue between the parties at trial, as well as some more minor issues.

The various issues may be determined within the following broad rubric —

(a) the nature of the plaintiff’s left knee condition and whether the motor accident was a cause of it;

(b) assessment of damages for pain and suffering and loss of enjoyment of life;

(c) assessment of damages for past loss of earnings and future loss of earning capacity.

C The Left Knee

I have earlier referred to the elements of the left knee condition identified in the evidence of Mr Miller.

It was common ground that the plaintiff’s knee condition had included meniscal tearing treated in a sequence of arthroscopic surgeries, most recently by Dr Batty at Epworth Hospital in September 2024.

Dr Batty’s reports refer to a complex lateral meniscus tear, a ‘quite large parameniscal cyst’, ‘chondral changes’, ‘mechanical-type symptoms’ as well as a ‘chronic pain syndrome’.[85]
[85]Exhibits P19, P20 and P22.

Post surgery, Dr Batty considered heavy manual work to have a ‘moderate to high chance of aggravating the underlying knee symptoms’ and that the incapacity would be indefinite. He also referred to ‘meniscal and early degenerative changes’ as well as an elevated risk of post-traumatic arthritis.[86]
[86]Exhibit P22.

At trial, Dr Yong referred to tenderness, mild swelling, mild wasting and ‘persisting dysfunction’.[87] I have already referred to his evidence concerning restrictions.
[87]T402-03. See also T392-3.

For his part, Mr Dooley said that —

The lateral meniscal tearing and subsequent surgeries for it … will result in Mr Hart noting some ongoing intermittent left knee pain. Lateral meniscal tearing and partial lateral meniscectomy surgeries may predispose Mr Hart to the development of a varying degree of lateral compartment osteoarthritis in 20 to 30 years’ time. Currently, his left knee condition would preclude him from engaging in active impact leisure and sporting pursuits. He would note difficulty with regular kneeling and squatting.[88]

[88]T579. See also Mr Miller at T309, 323.

Plainly, there is a degree of ongoing tenderness, wasting and mechanical dysfunction in and associated with the plaintiff’s left knee; and there may also be an element of chronic regional pain syndrome.[89]
[89]That element was explained in the evidence of Mr Miller: T316-17.

The more controversial issue, however, concerned the ACL, and whether the plaintiff might be likely to come to surgery in the nature of a corrective knee reconstruction.

In that regard, Mr Miller referred to the operation report relating to the first arthroscopy, a subsequent MRI, his own examinations of the knee and the fact that the plaintiff reported the knee giving way.[90] In his view, there was a ‘low grade injury’ to the ACL.[91] He thought that the grading could be open to dispute; however, he did not think that it ought to be a matter of dispute that there is an injury of some kind to the ACL.[92] Having regard to what I have earlier said about Mr Miller’s evidence, his opinions demand serious consideration.
[90]T332.
[91]T314.
[92]T332.

That said, Mr Dooley referred to his own examination of the knee and said that he had not been able to ‘elicit any laxity of the ligaments’.[93] Significantly, the relevant part of Dr Yong’s examination was briefly stated but to similar effect.[94]
[93]T571. Mr Dooley later acknowledged the possibility that the ACL might not be functioning correctly: T608.
[94]T402-03: ‘… his ligaments appeared – they were tight. There was no laxing of his cruciates or his collateral ligaments’.

Part of the relevant opinion of Mr Dooley was directed to the treating records subsequent to the first arthroscopy. As he noted, there were ‘variable findings and operative notes’.[95]
[95]T578.

Mr Dooley acknowledged that he had not personally reviewed the imaging, although he said that the knee giving way could relate to ‘a whole series of causes’ such as ‘patellofemoral pain, wasting of the quadriceps muscle … [and] meniscal pathology’.[96]
[96]T610.

As to the treating records and reports, I note that —

(a) after the first arthroscopy, an orthopaedic review on 5 December 2018 noted that there had been a ‘strong suspicion of ACL insufficiency’ on discharge and that a subsequent MRI demonstrated an ‘ACL strain’. It was said that a further knee arthroscopy had been booked in order that, among other things, there might be an examination under anaesthetic so as to get ‘a better idea of how his ACL is looking’;[97]
[97]Exhibit P8.

(b) the operation note relating to the second arthroscopy, on 11 February 2019, described the ACL as ‘intact & stable’;[98]
[98]Exhibit P9.

(c) subsequent examination, on 24 April 2019, again described the knee as ‘stable from a collateral and cruciate examination point of view’;[99]
[99]Exhibit P10.

(d) in August 2023, the plaintiff was referred for further review by Dr Batty;[100]
[100]Exhibit P15.

(e) in a report dated 7 September 2023, Dr Batty referred to the plaintiff’s knee symptoms, including the knee ‘giving way’, and stated, relevantly —

There is some lateral joint line tenderness and pseudolaxity. The ACL is intact clinically. I do not get the impression of any other instabilities. There is quadriceps atrophy.[101]
[101]Exhibit P18.

(f) in a subsequent letter dated 17 January 2024, Dr Batty referred to a follow-up telephone consultation with the plaintiff and stated —

I understand an independent medical examiner [redacted] has recommended “knee reconstruction”. The correspondence for this recommendation will be forwarded to my office as I am a little unclear if this is referring to an ACL reconstruction or further arthroscopic surgery on the lateral meniscus.[102]

(g) the operation report relating to the third arthroscopy on 12 September 2024 refers to ‘[e]xamination under anaesthesia’ and states ‘[s]table knee’;[103] and

(h) Dr Batty’s subsequent reports make no mention of the ACL and, indeed, indicate that ‘[t]here is no plan for any further orthopaedic intervention at this time’.[104]

[102]Exhibit P19. As I have noted, the name of the independent medical examiner is redacted. Having regard to the date of the letter, it is possible that the examiner referred to was Mr Miller. Mr Miller first saw the plaintiff on 31 October 2022 and in his report relating to that occasion referred to ‘slight laxity of the anterior cruciate ligament’: T296-7. After that, in early 2023, Mr Miller obtained a further MRI and expressed the view that it was likely that the plaintiff would come to reconstructive surgery to address the ‘ligament injury’: T310.

[103]Exhibit P21.

[104]Exhibits P22 and P23.

In short, while the surgeons who have assessed and treated the plaintiff since the first arthroscopy seem to have been alive to the issue of laxity or insufficiency of the ACL, subsequent examinations, including in the course of two further arthroscopic procedures, seem to have identified stability. At most, perhaps, there has been or is a degree of ‘pseudolaxity’.

In that context, while the plaintiff initially said that Dr Batty had suggested a ‘reconstruction’,[105] he later said that he did not really recall or remember the conversation.[106] In light of the letters and reports to which I have referred, it seems unlikely that Dr Batty has indicated that the plaintiff is facing a knee reconstruction.
[105]T90.
[106]T137-8

Although the examination and reasoning of Mr Miller must, of course, be afforded respect, in the circumstances I am not satisfied that the plaintiff is presently suffering from any laxity of the ACL such that he is facing a knee reconstruction.

That said, it probably matters little whether the plaintiff’s ACL is presently such that he does not face a knee reconstruction. At the very least, he is young, he has had three arthroscopies without substantial resolution of his symptoms, his knee remains vulnerable (in particular, there may be ‘pseudolaxity’ and his symptoms continue to include ‘giving way’) and he is likely to continue to undertake work requiring elements of physical activity. In that general context —

(a) as I have earlier noted, Dr Batty considered that there was a ‘moderate to high chance’ that the underlying knee symptoms could be aggravated; and

(b) similarly, Mr Dooley acknowledged that physical work could lead to further meniscal tearing.

In those circumstances, it seems to me that from whichever direction the issue might be approached, there must be a significant risk that, at the very least, the plaintiff faces further arthroscopic intervention,[107] if not the risk of an aggravating incident that might ultimately lead to a reconstruction being required.
[107]Cf T319.

In addition, of course, Dr Batty, Mr Miller and Mr Dooley each referred to the risk of progressive post-traumatic osteoarthritis. In the setting to which I have generally referred, I accept Mr Miller’s evidence that there must ultimately be a significant possibility of future surgery in the nature of total knee replacement.[108]
[108]T323-4. I necessarily do not accept the evidence of Mr Dooley that the risk is less than 5 per cent: T587-8.

That brings me to the major issue in the proceeding; namely, whether the motor accident was a cause of the plaintiff’s knee condition.

In that regard, the defendant emphasised the plaintiff’s onus as well as —

(a) the ambulance records relating to the attendance on the plaintiff on the day of the accident;

(b) the records relating to the plaintiff’s admission to the Western Hospital;

(c) the records relating to the plaintiff’s subsequent attendances for hand therapy and upon general practitioners;

(d) the plaintiff’s return to heavy work as a roof tiler from mid-November 2017 until 26 February 2018; and

(e) indirectly, perhaps, the alleged failure of the plaintiff to call his employer at the time, Paul Williams, to give evidence at trial.

None of the records referred to in the preceding paragraph include any reference to left knee pain or a left knee condition.

Allied with the above, the defendant relied on Mr Dooley’s main causation theory to the effect that meniscal tearing pre-dated the motor accident. That said, Mr Dooley acknowledged the possibility that the plaintiff sustained the left knee injury in the motor accident.[109] For his part, Mr Miller considered that to be probable.
[109]T575, 618-19.

Prior to the motor accident, the plaintiff was 22 years of age and did not have any knee symptoms. Whilst it is perhaps possible that he could have had a lateral meniscal tear at that time, without any incident of injury, or symptoms, and while also in full time heavy work as a roof tiler, it is a scenario that seems considerably less likely than likely.

That is particularly so, it seems to me, in circumstances where, as Mr Miller said —

The type of knee injury would require significant energy, significant trauma, and the available mechanism on offer is the motor vehicle accident.[110]

[110]T346-7.

Similarly, when asked in cross-examination about having ‘assumed’ that the left knee problem was caused by the motor accident, Dr Yong looked bemused. He said that it was a ‘high impact injury’ and that the motor accident ‘could reasonably lead to the left knee condition’.[111]
[111]T421-2. I note that Mr Dooley’s causation theory was not put to Dr Yong in cross-examination.

By contrast, Mr Dooley’s main causation theory was based in the history he originally took to the effect that the plaintiff ‘smashed’ his left knee against the seat or console.[112] However, at trial, the plaintiff acknowledged that he was rendered unconscious in the accident and therefore does not recall striking his knee.[113] During cross-examination, Mr Dooley acknowledged the difficulty.[114]
[112]T577, 596.
[113]See, in particular, T176-7.
[114]T597.

For his part, Mr Miller gave evidence, which I accept, that reconstructing the exact mechanism of such an event is not a useful way of evaluating injuries.[115] In his view, the energy transfer during the accident was such that there could have been a ‘loading event’ upon the knee.[116] As I have noted, Mr Dooley accepted the possibility, although he did not think it was probable.[117]
[115]T329-31.
[116]T329.
[117]T596-8. See, later, T619.

In that context, as I have noted, the defendant pointed to a sequence of records relating to the plaintiff’s treatment after the motor accident and emphasised that none of the records recorded any complaint of knee pain or symptoms (prior to 26 February 2018).

None of the authors of any of those documents were called to give evidence. In his evidence, Mr Miller highlighted the distinction between whether complaints were made and whether they might have been recorded.[118]
[118]T337-8.

More broadly, however, Mr Miller gave evidence of having seen a patient that morning who had other injuries and who was (now) complaining of shoulder symptoms ‘several months after the accident’. Mr Miller said that his treatment to date had been concentrating on ‘other things’. The shoulder having now been mentioned for the first time, Mr Miller thought that there was a frank tear. He explained that an injury can escape being recorded at the time of an accident. He said that it is ‘possible and frequent’.[119]
[119]T344. See also T350.

Mr Dooley accepted that a person can present with pain all over, be on strong painkillers, and that an injury can escape being reported until other injuries subside.[120] In a sense, that aspect of his evidence was similar to that of Mr Miller, although he had earlier said that he thought that in the present instance there should have been specific knee pain and swelling detectable on examination.[121]
[120]T605.
[121]T577.

For his part, the plaintiff said that at the time of the accident he had pain all over his body, was on ‘high painkillers’, could barely speak and eat, and ‘honestly didn’t know the extent of [his] injuries’.[122]
[122]T66-7.

In that setting, albeit that he was asked about the topic repeatedly during cross-examination, on each occasion the plaintiff freely acknowledged that he had not told the ambulance officers or staff at the Western Hospital (or, for that matter, the hand therapist and general practitioners) about any pain or injury to his left knee.

In the circumstances, I do not consider it to be of any great significance that the various records relating to the period immediately after the motor accident include no reference to knee pain or injury (or that a nursing note from the day after the accident states ‘[a]mbulating independently well’[123]).
[123]Which, I note, the plaintiff was unable to recall: T116. When the note was later put to Maddison, she initially replied to the effect that she did not recall the plaintiff ‘ambulating satisfactorily’ on the day after the accident. When the question was re-put, she said that she did not recall: T271-2.

I should, however, make mention of one aspect of the Western Health records, namely the survey of the plaintiff’s body upon his admission to the trauma department on the day of the accident.[124]
[124]Exhibit D3.

As with other such documents, the author or authors were not called. The plaintiff was also unable to recall having been ‘checked … literally from head to toe’, as was suggested in cross-examination.[125]
[125]T113.

In any event, the ‘body survey’ appears to have been directed to the identification of sites of swelling, bruising, pain and tenderness; which is hardly surprising in respect of a patient presenting by ambulance following severe road trauma.

In that connection, bruising and swelling of the face and pain in the left hand is noted; which is not altogether surprising as the photographs of the plaintiff taken at the time of his discharge from hospital show the facial swelling and bruising, in particular, to have been obvious.[126]
[126]Exhibit P2.

The point emphasised by the defendant, however, was that no pain, bruising or swelling of the left knee is noted on the ‘body survey’. As I have earlier noted, Mr Dooley thought that there should have been tenderness of the knee on palpation.[127]
[127]T577.

Mr Miller was, however, more circumspect. Whilst he accepted that in many cases there would be symptoms of knee swelling and discomfort ‘within a couple of days’, that would not be the position in all cases.[128]
[128]T344.

Of course, Mr Miller also gave evidence, which I accept, that it is ‘possible and frequent’ for injuries to be overlooked in a traumatic presentation. It follows that it cannot be uncommon for injuries of a less obvious kind to be overlooked in the course of such ‘body surveys’.

Further, the plaintiff’s evidence, which I also accept, is that after the motor accident he was in the worst pain that he had ever felt and had pain all over his body. Understandably, that did not lead to squiggles over the entirety of the ‘body survey’. Clearly, a degree of discrimination was required in order that the most pressing elements of such a presentation might be identified and given priority.

In that context, I can understand how it would be that trauma staff would immediately have seen and noted the plaintiff’s facial swelling and bruising as well as the other relatively obvious signs of trauma noted on the ‘body survey’. However, meniscal injury to the knee is both internal to the joint and usually more subtle. It is unlikely to give rise to bruising and even the form of the question posed to Mr Miller contemplates that symptoms can take some time to emerge (i.e., ‘… it would give rise to symptoms … within a couple of days’).

In the circumstances, the fact that no knee swelling or pain is recorded on the ‘body survey’ seemingly completed on the day of the accident certainly does not require or, in my view, even strongly support, a conclusion that the plaintiff did not suffer knee trauma, including meniscal disruption, in the motor accident.

To me, however, the ‘body survey’ is significant for another reason. If the plaintiff sustained a direct impact to his left knee in the course of the collision between a fast moving vehicle and the back of a stationary bus, it seems to me to be quite unlikely that no pain, bruising or swelling of the knee would have been sustained and subsequently noted. After all, there must have been direct impact that caused the bruising and swelling of the plaintiff’s face that, of course, was noted on the ‘body survey’.

In the circumstances, the fact that no pain, swelling or bruising of the knee is noted on the ‘body survey’ suggests that it is unlikely that the plaintiff sustained a direct impact to his left knee in the motor accident. That being so, Mr Dooley’s fallback theory directed to ‘intermittent’ symptoms of an ‘impact injury’ seems to me to be equally unlikely.[129]
[129]Cf T601-02. For completeness, I note that the absence of any bruising or swelling of the knee was a point made by the defendant in final address (for another reason). Perhaps for that reason, the final address did not emphasise Mr Dooley’s fallback theory: T633, 685.

That brings me to the period following the plaintiff’s discharge from the Western Hospital until his presentation at Sunshine Hospital on 26 February 2018.

The substance of the relevant evidence of the plaintiff was that he rested at home and rotated between the bed and the couch for about two weeks. He took strong painkillers for the first week and his face and wrist started to heal up. When he then started to move around he had ‘a lot of discomfort’ in his knee and told Maddison. He ‘started coming off the pain medication’ and realised that he was ‘still sore all over’. He thought that he would ‘heal up’. Denise brought him a knee brace and bandage when she came to drop off a relative, ‘Dakota’, to help out the plaintiff’s boss. That gave the plaintiff a little bit of assistance. He also used Ice Gel and Deep Heat, which was helpful.[130]
[130]T67-71. See also T143-4.

The plaintiff returned to work in mid-November 2017. He said that he wanted to finish his apprenticeship. However, he struggled and the pain made it difficult. He thought that he just needed to ‘build up some strength’ and ‘get fit again’ after being off work for such a long time. The plaintiff did not speak to a doctor about it. He continued to use the Ice Gel and brace and rested up on the weekends. His knee pain worsened after he returned to work after the Christmas holidays, and he was taking some time off ‘just to sort of rest up’. His boss was not impressed. On 26 February 2018, he was lifting or carrying a tile elevator with a workmate and his knee ‘gave way’.[131]
[131]T71-5.

Maddison and Denise corroborated the plaintiff’s evidence of post-accident knee symptoms —

(a) Maddison said that the plaintiff was unable to ‘speak a lot … due to his jaw’. He was still ‘drinking through a straw’. She could see that he was in a lot of discomfort and most of the time he was lying down. In the weeks after the accident he complained about knee pain and she could see that he was limping. She suggested that he go to a doctor, but he said ‘it’ll just be from the accident’ and ‘[i]t’ll come good’. He was using Ice Gel which had ‘the most awful smell’; and she remembered the bandage, which was blue and had come from her mother. She saw the plaintiff wearing it. The plaintiff returned to work before Christmas and was in ‘a lot of pain’. Again she mentioned going to the doctor, but he replied ‘people have injuries’ and they have ‘just got to keep on going’. Maddison remembered the smell of the Ice Gel ‘lingering around for … [a] few months after the accident’.[132]

(b) Denise said that she and her husband visited on the weekend after the accident and that the plaintiff was in a lot of pain and ‘not in a good way’. He was ‘bent over’ and ‘creeping around’. The following weekend, the plaintiff had spoken with Maddison about his knee and Denise visited with the brace and dark blue bandage. Denise had had her own knee problems. On that occasion, she took her grandson, Dakota, and his friend, ‘to do Blake’s job, labouring on the Monday’. The plaintiff was still ‘so extremely sore’ and she left the brace and bandage there.[133]

[132]T257-60.

[133]T232-4.

The defendant contended that the evidence of the plaintiff, Maddison and Denise concerning post-accident knee symptoms was unreliable, and also pointed to —

(a) the clinical notes relating to four attendances by the plaintiff on a hand therapist, Mr Antoniou, on 3, 9, 16 and 30 October 2017;[134]

(b) the clinical notes relating to five attendances by the plaintiff on general practitioners on 6, 9 and 28 November 2017 and 14-15 February 2018;[135] and

(c) the plaintiff’s return to work as a roof tiler in the period from mid-November 2017 to 26 February 2018 (bisected by about three weeks off for the Christmas holidays).

[134]Exhibit P4.

[135]Exhibit D8.

As to the relevant evidence of the plaintiff, the defendant submitted that it is unreliable because —

… the issue about [the] relationship of the knee to the accident doesn’t become an issue, in the legal sense, for some years after this initial six-month period. So it doesn’t become relevant to the plaintiff to cast his mind back to what occurred in that six months. And that’s reflected in the fact that there’s no history given to anybody about wearing bandages, and using Ice Gel, and any of that. Any of the treaters, I mean.[136]

[136]T682-3.

In respect of Maddison and Denise, it was submitted that their evidence could be taken into account, although it was also said to have ‘the same problem’ as that of the plaintiff. In that regard, senior counsel for the defendant submitted —

… it must have been revisited later on. In other words, it has not become an issue that needs any thought or recollection until some years after the event. And it may be that something along these lines happened, or it may not be, or it may be that a bandage was brought down and not used, or who knows? But we just say, the reliability, and the weight that Your Honour can place on those recollections, is pretty minimal in the circumstances.[137]

[137]T683.

It is not easy to know precisely what to make of the submissions to which I have referred. It was essentially being said that each of the three witnesses was unreliable at the same time and in exactly the same way. However, it was not being said that they had colluded, or were otherwise to be considered dishonest; indeed, in respect of the plaintiff, dishonesty was specifically disclaimed.[138] And it could not be that every witness that gives evidence concerning events in late 2017 and early 2018 should be considered unreliable merely because proceedings have been commenced more recently.
[138]T682.

In any event, the submission cannot be accepted in respect of any of the three witnesses —

(a) all three presented as honest witnesses who endeavoured to give accurate evidence;

(b) the evidence of each of them was given with reference to other incidents that must have taken place in the period immediately after the plaintiff’s discharge from hospital, such as the plaintiff being restricted to the bed and the couch, drinking through a straw and needing Dakota to fill in for him at work;

(c) in that regard, there was nothing about the relevant evidence of any of the three witnesses that struck me as likely to be unreliable;

(d) whilst it might be said that relevant recollections of the plaintiff were challenged in cross-examination indirectly,[139] both Maddison and Denise would have been perfectly justified in believing that their evidence concerning the bandage, in particular, was unchallenged.[140]
[139]See T143-51.
[140]See, in particular, T241-2, 272-6.

(e) it was not suggested to any of the three witnesses that they had only turned their mind to the matter ‘some years after the event’ — and, realistically, that is not likely to have been so;

(f) in particular, at the very least, it seems clear enough that the plaintiff turned his mind to the relationship between his knee symptoms and the motor accident when he attended Sunshine Hospital on 26 February 2018;[141] and

(g) contrary to the submission made, the evidence of the plaintiff and Maddison was pretty clearly to the effect that the bandage had been used.[142]

[141]T152.

[142]T70-1, 259.

That brings me to the further collections of clinical records as well as the plaintiff’s return to work in and after mid-November 2017.

The first collection comprises the clinical notes of the plaintiff’s four attendances in October 2017 upon the hand therapist, Mr Antoniou.

Perhaps prompted by an element of Mr Dooley’s reporting, senior counsel for the defendant was apt to refer to Mr Antoniou as a ‘physiotherapist’.[143] However, it is evident from the records that Mr Antoniou made no claims to being a physiotherapist. His letter identifies him as an ‘Occupational/Hand Therapist’ and the letterhead includes a graphic representation of three hands.[144]
[143]See, eg, T118-19, 127, 146-8. I place no weight upon the fact that, at T119, the plaintiff acceded to the suggestion that he saw a ‘physiotherapist’ about his wrist. That is an example of the compliant nature of the plaintiff as a witness; as is the fact that the plaintiff acceded to the suggestion that he had seen the ‘physiotherapist’ about his hand ‘something like 10 or 12 times’. As I have noted, the clinical notes of Mr Antoniou record four attendances: Exhibit P4.
[144]Exhibit P4.

In any event, as Mr Dooley ultimately acknowledged, some people would not complain to a hand therapist about problems in other parts of their body.[145] In re-examination, the plaintiff confirmed that he did not know whether Mr Antoniou could have given him advice or treatment concerning his knee.[146]
[145]T594-5.
[146]T197. See also T147.

In my view, there is no present significance in the fact that the clinical notes of the hand therapist, Mr Antoniou, include no reference to any claims of knee pain or disability.

The more substantial point concerned the plaintiff’s attendances on the general practitioners, three of which occurred while he was back at work as a roof tiler. In that sense, the defendant’s submissions concerning the clinical notes from the Medical One clinic in Sunshine and the plaintiff’s return to work presented as connected.

As to the clinical notes, none of the authors of the five notes were called to give evidence. However, the notes record, relevantly, as follows —

(a) on Monday, 6 November 2017 at 1:15pm, the plaintiff attended Dr Mehtari seeking a certificate to confirm his absence from work. Dr Mehtari explained that he should see his regular GP;

(b) on Thursday, 9 November 2017 at 12:58pm, the plaintiff attended Dr Vorlander. She spoke with Mr Antoniou, the hand therapist, and it seems to have been their combined opinion that the plaintiff return to work with a lifting limit of five kilograms;

(c) on Tuesday, 28 November 2017 at 2:55pm, the plaintiff attended Dr Vorlander concerning asthma. At that attendance it is also noted that the plaintiff was having ‘ongoing issues with back pain and struggling to keep up at work’. It is noted that the plaintiff sought a scan, but that he would need to come back. The notes do not suggest that such a scan ever occurred and the plaintiff is not recorded as having returned to the clinic in respect of back pain;

(d) on Wednesday, 14 February 2017 at 2:09pm, the plaintiff attended Dr Bahardeen in respect of a hand injury suffered in an altercation with two men when he was on his way home from work. He is recorded as having been ‘generally well’ on examination. He was referred for a hand x-ray; and

(e) on Thursday, 15 February 2017 at 3:25pm, the plaintiff attended Dr Mehtari in respect to the x-ray, which revealed no fracture or dislocation. Dr Mehtari diagnosed a soft tissue injury and prescribed Mobic.

The plaintiff was cross-examined about the above attendances. He had essentially no memory of at least the first three attendances, although he confirmed repeatedly that he did not complain to any doctor about his knee until the end of February 2018. The plaintiff was not asked about the part of the note dated 28 November 2017 which referred to back pain, struggling at work or a request for a scan. That said, he remembered the altercation which led to the x-ray of his hand in mid-February 2018 and recalled that it did not show a fracture.[147]
[147]T126-31.

As to work, the plaintiff confirmed that he returned in the week ending 15 November 2017. He said that there were no light duties, but that he was not on full duties. He confirmed a description of the duties performed — which included squatting, kneeling, climbing ladders, working on sloped rooves, lifting groups of fives tiles weighing three or four kilograms each and carrying a bucket of mortar weighing 30 kilograms. Again, the plaintiff readily confirmed that he had not presented to a doctor or hospital complaining of problems with his knee.[148]
[148]T131-6. See also T143-51.

Later, the plaintiff was asked again about the attendances on the general practitioners. He agreed that he had had ‘plenty of opportunity’ to say something about his knee, but had not done so.[149]
[149]T149-50.

It was clear enough that it was being suggested, indirectly, that if the plaintiff had knee symptoms during that period he would, or should, have raised them with the general practitioners. It may also have been suggested, again indirectly, that if he really had the knee symptoms described, he could not have performed roof tiling work.

Such propositions are, however, sensitive to context: there can be reasons why people persist in discomfort at work and do not mention conditions in consultation with a general practitioner.

For that matter, such propositions can also be influenced by hindsight: prior to 26 February 2018 it was not known that the plaintiff’s knee would give way and that he would proceed to three knee surgeries.

As I have earlier indicated, the plaintiff struck me as an honest witness who endeavoured to give accurate evidence.

In that regard, at the time at which he returned to work in mid-November 2017 and was later attending the general practitioners, he was 22 years of age and in the final year of his apprenticeship. In that context, the plaintiff said that he was ‘very keen’ to get back to work.[150]
[150]T71.

The plaintiff said that before returning to work his knee ‘got better’ and that he had stopped using the bandage. However, when he returned to work his symptoms increased, so he started wearing the bandage again.[151]
[151]T144.

The plaintiff’s knee symptoms seem then to have undulated. He gave evidence that —

(a) the pain would get worse towards the end of the week and he would use the weekend to recover;[152]
[152]T144. See also T146: ‘… midweek it starts to get the locking and the soreness, and by the end of Friday I’ve pretty much had enough’.

(b) as the weeks went by, his knee symptoms ‘progressively got worse’ — so his knee was worse by Christmas than it had been when he returned to work in November;[153]
[153]T145.

(c) he had time off at Christmas and his knee then ‘felt good’ and he was ‘ready to get back into the swing of work’;[154]

(d) when he returned to work in mid-January 2018, however, his knee then ‘slowly start[ed] to worsen’[155] until it gave way on 26 February 2018;[156] and

(e) when he attended Sunshine Hospital he said that he had injured his knee in the motor accident and had since experienced ‘intermittent mild pain for months’.[157]

[154]T145.

[155]Ibid.

[156]T151.

[157]T152.

Later, in re-examination, the plaintiff explained that it had been a struggle coping with his duties when he returned to roof tiling work, but that it had been ‘bearable at the time’ and that his colleagues had helped him with some of the particularly heavy duties. He also said that he had been ‘taking some time off during the week to rest up’.[158]
[158]T199-200.

In that context, it seems clear enough that even though the plaintiff was cleared to go back to work on light duties, once he got there he did his best to undertake heavy duties.

In so doing, the plaintiff evidently believed that it would take time to get ‘fully healed up and back to my old routine’. In that regard —

(a) he referred to having lost fitness and strength during the period of months in which he had been off work;[159]

(b) after the motor accident his ‘whole body’ had been sore[160] and he must have continued to carry a degree of bodily discomfort or infirmity when he returned to work — among other things, it was confirmed in cross-examination that the plaintiff’s face and wrist injuries did not resolve completely until roughly a year later;[161] and

(c) in any event, it was not uncommon to be ‘sore from work’ (as the plaintiff said, ‘[e]veryone’s sore from work’).[162]

[159]T72.

[160]T148.

[161]T137.

[162]T147.

The plaintiff explained as follows —

… I thought I was going to be able to shake it off. I honestly thought, ‘Yeah, keep going to work. It’s only getting this sore because I’m not used to the high demand[s] of my job because of the period I had off work’. And that I just needed a few more extra weeks to fully recover. And each time it got to the end of Friday, having those two days off, I felt right again until midweek, and then it decided to get sore again, so I honestly just thought it was my body adapting back to the job.[163]

[163]T152.

In that general connection, Mr Miller was asked about the plaintiff having performed roof tiling work while not having complained to the doctors, and described it as a ‘common scenario’.[164] Later, he explained that, in his experience —

It’s very common for people to try to [persevere with] symptoms, hoping they will get better, live in hope, which in this case failed.[165]

[164]T337-41. See also T348-9.

[165]T352-3.

More specifically, I have already referred to the substance of the following part of the notes of Dr Vorlander dated 28 November 2017 —

Having ongoing issues with back pain and struggling to keep up at work.
Wanting to have a scan done.
Will need to come back to have this assessed.[166]

[166]Exhibit D8.

As I have noted, the plaintiff was not asked about that aspect of the entry in the clinical notes. However, the notes do not suggest that he later returned for assessment or a scan.

At the same time, the time records of his employer, Global Roofing, indicate that in the week ended 29 November 2017 the plaintiff worked only 28 hours and that he worked only 28.5 hours in the subsequent week.

It follows that while the plaintiff might be thought to have had time to return to the clinic for assessment and a scan if he had been inclined to do so, the fact that he appears not to have done so might be thought to reflect his stated propensity to rest up and otherwise persevere through symptoms of an undulating kind.

More broadly, I should say that while it was suggested to the plaintiff in cross-examination that he had taken ‘no time off because of any injuries or incapacities or difficulties doing the job’ (to which he replied, ‘Ah, I’m not too sure on that one’),[167] it will be evident that during the period in question there were many weeks in which the plaintiff worked less than 38 hours, including every week in February 2018.[168]
[167]T136.
[168]Exhibit D7.

I should say that the inclination of the plaintiff to seek to rest up and otherwise stoically persevere through symptoms provoked by unsuitable work duties is also evident in his more recent work history.

Without reiterating every aspect of that evidence, the plaintiff said, for example, that he struggles in his current employment with Soilcon, which involves fencing and other duties. The plaintiff again said that he asks for help and is ‘quite sore and stiff by the end of the day’.[169]
[169]T100.

In that connection, Dr Yong expressed the following opinion —

… that role had, you know, working on uneven surfaces … . He was doing fencing, carrying, squatting, kneeling, working at low heights. He was on his feet all day, standing and walking. And again, my opinion was that … this would exceed the recommended restrictions. It would aggravate and exacerbate his left knee condition. And again, he would not have the capacity to do that particular role on an ongoing, consistent and reliable basis, and again, for the foreseeable future.[170]

[170]T417. I should say that Mr Dooley also gave evidence that the employment concerned was not sustainable for the plaintiff in the longer term: T617.

Notwithstanding that position, and his symptoms, the plaintiff confirmed that he had not had any treatment since his last arthroscopy in September 2024 and is not ‘on’ any medication (which I took to mean prescription medication).[171]
[171]T156.

In the circumstances, I do not accept that the failure of the plaintiff to mention knee symptoms to his general practitioners while working between mid-November 2017 and late February 2018 should be taken to indicate that he did not have knee symptoms during that period.

I also do not accept that any adverse inference should properly be drawn from the failure of the plaintiff to call his then employer, Mr Williams, to give evidence. Among other things —

(a) Mr Williams seems to have faded from the scene shortly after the plaintiff’s knee gave way in February 2018;

(b) there was certainly no evidence that Mr Williams was in the plaintiff’s ‘camp’; and

(c) it is not apparent that the plaintiff or his advisors could have appreciated what evidence Mr Williams would have given, if called, and determined not to call him.[172]

[172]Cayford v Let Danny Do It Pty Ltd [2021] VSC 707.

For completeness, I should address a remaining element of Mr Dooley’s opinion; namely, that a parameniscal cyst would have taken 12 months to develop, so the plaintiff’s meniscal pathology must have pre-dated the motor accident.

Of course, neither Mr Dooley nor Mr Miller, viewed the original cyst, and none of the treating material referred to it in respect of the issue of causation. That said, Dr Batty referred to the plaintiff’s ‘injuries from the transport accident’, without doubting that those injuries included the knee as well as, presumably, the original cyst.[173]
[173]Exhibit P22.

In any event, Mr Miller pointed to the period between the accident in September 2017 and the first MRI in March 2018 (in which the cyst was shown) and gave evidence, which I accept, that about six months was ‘more than sufficient time to develop a meniscal cyst’. He said that the general point made by Mr Dooley was valid, ‘but not the time frame’.[174]
[174]T328.

In summary —

(a) the plaintiff presently suffers from a left knee condition which has included surgical treatment in respect of meniscal tearing, but not laxity of the ACL;

(b) that said, the plaintiff’s left knee remains vulnerable to aggravation including further injury and is also at risk of post-traumatic degeneration leading to future surgery, including total knee replacement;

(c) prior to the motor accident, the plaintiff was young, fit and healthy, did not suffer from any left knee symptoms and there had been no incident of knee injury;

(d) the motor accident involved a high velocity impact that was capable of causing injury to the plaintiff’s left knee;

(e) it is unlikely that the plaintiff suffered any direct impact injury to the left knee during the motor accident;

(f) in broad terms, I prefer and accept the relevant opinion evidence of Mr Miller (and Dr Yong) in preference to that of Mr Dooley;

(g) in that context, it is of no real significance that the ambulance officers, staff at the Western Hospital and hand therapist, Mr Antoniou, did not detect and record any left knee symptoms in the period shortly after the accident;

(h) I reject the contention that the evidence of the plaintiff, Maddison and Denise concerning post-accident left knee symptoms and the use of the bandage and Ice Gel is unreliable;

(i) I accept that the plaintiff was keen to return to work in order to finish his apprenticeship and that by reference to his wrist condition, the plaintiff obtained clearance to return to light duties;

(j) I accept that by that point the plaintiff’s knee symptoms had settled;

(k) I accept that the plaintiff returned to relatively heavy roof tiling duties in and from mid-November 2017, in which he was helped by workmates;

(l) I accept that the plaintiff’s knee symptoms recurred shortly thereafter and progressively got worse, albeit that he sought to persevere through and otherwise manage those symptoms via the bandage, rest, time off and holidays;

(m) in that connection, I accept that the plaintiff believed that he needed to regain his fitness and that his soreness was just his body adjusting to the heavy duties while it was otherwise healing;

(n) in those circumstances, I reject the contention that the failure of the plaintiff to mention knee symptoms to his general practitioners should be taken to indicate that he did not have post-accident knee symptoms; and

(o) no adverse inference should be drawn from the failure of the plaintiff to call his then employer, Mr Williams, to give evidence.

In all the circumstances, I am satisfied, on the balance of probabilities, that the motor accident was a cause of the plaintiff’s knee condition.

D Pain and Suffering and Loss of Enjoyment of Life

It is unnecessary to repeat all of the aspects of the evidence to which I have earlier referred.

At 22 years of age, the plaintiff, who was previously fit and healthy and in full time employment as an apprentice roof tiler, suffered facial and wrist fractures in a severe motor accident in which he was a rear seat passenger, as well as the left knee condition to which I have referred in some detail. He said that it was the worst pain he had ever felt and that his whole body was in pain.

Since then he has continued to experience knee pain, including shooting pain in his leg, as well as other symptoms such as mild wasting of the quadriceps, knee swelling and giving way, as well as functional restrictions in terms of squatting, climbing stairs and the like.

In any event, the plaintiff was hospitalised after the accident, placed on strong pain medications and later discharged to recover at home over a period of a little over two months.

The plaintiff’s facial and wrist conditions resolved by the end of the following year, but his left knee condition came to interfere very significantly with his capacity for work and domestic activity. He did not return to his significant pre-injury pastimes.

The knee condition progressed to three arthroscopies and has never returned to anything like a pre-injury state. It precipitated the loss of the plaintiff’s roof tiling apprenticeship, which left him ‘gutted’.

He and Maddison were then required to move in with her parents outside Chiltern in northern Victoria. Later they moved into the town of Chiltern, again with Maddison’s parents. They now live together with their two very young children in a rental property in Corowa, New South Wales.

It is sufficient to say that the knee condition, in particular, has had a huge impact on the life of a man who was and still is young. That said, he has retained a relationship with Maddison and their two children, and he is also plainly connected positively with Denise.

In that context, it was not in dispute that the plaintiff’s knee condition is likely to have adverse consequences for him into the foreseeable future. That includes, as I have accepted, risks of further aggravation or injury, post traumatic degeneration and further surgery including future total knee replacement.

The knee condition has also had a very significant effect upon the plaintiff’s ability to hold down employment. Since returning to employment in late 2019 or early 2020, the plaintiff has held several essentially manual employments. He is unsuited to office-style or other such work. His knee condition has left him vulnerable in the only area of employment which seems available to him, and even within the relatively short period between late 2019/early 2020 and now he has had periods of unemployment.

The present point is that the plaintiff’s loss of his trade and his capacity to readily work full time has plainly affected him psychologically. That was quite apparent in his evidence. It is likely to affect him into the foreseeable future.

In that context, there was a relatively minor issue at trial concerning the plaintiff’s present psychological condition.

There was no dispute that the motor accident was severe, and that the plaintiff apprehended the impact with the rear of the stationery bus.[175] The plaintiff lost consciousness and recovered to find a frightening scene of blood, dust and destruction. Subsequently, he experienced accident related flashbacks and nightmares and did not resume driving until some years later.
[175]T46.

As I have indicated, the plaintiff also came to lose his apprenticeship, be required to move to Chiltern and slid into a significant depressive state that culminated in at least one suicide attempt and inpatient treatment at Nolan House in Albury in late March/early April 2019.

(d) by contrast, senior counsel for the defendant described the prospect that the plaintiff would have become a self-employed roof tiler as ‘fanciful’.

Notwithstanding the above, it seemed broadly to be accepted that the present issue involves the assessment of a lost opportunity.[232]
[232]T718, 741. Strictly speaking, the whole of the present assessment involves conjecture about hypotheticals: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 642-3 (‘Malec’). That said, in respect of the hypothetical involving employment as a roof tiler, the probabilities seem to me to be accounted for adequately by applying a discount for contingencies or vicissitudes to the underlying assessment. The position in respect to the hypothetical involving self-employment as a roof tiler is more speculative, and so needs to involve assessing an appropriate percentage and then further discounting for contingencies or vicissitudes. The percentage is, of course, to be arrived at mindful of the subsequently applied further discount and in order that there is not, in effect, undue discounting.

In that context, the plaintiff gave relatively brief evidence to the effect that —

(a) he had aspirations to set himself up in business ‘later down the track’ once he completed his apprenticeship;

(b) he would ‘start off small’, get ‘a name’ for himself and ‘hopefully get some sort of company up and running … to do brand new roofs’;

(c) he would continue to work for his boss and then ‘obviously start up my own business on the weekends’; and

(d) he had spoken with Maddison about it and ‘she would help me with the books and invoices and all of the rest of it’.[233]

[233]T43-4.

For her part, Maddison gave evidence that —

… we’d always discussed – well, not always, but we’d discussed, you know, in the future, he wanted to run his own crew, which mean[s], potentially, he would run his own business. And he asked me if I could do, like, the book work side of it because I’ve always been good with computers.[234]

[234]T253.

Thereafter, Maddison confirmed that she had been interested in helping the plaintiff ‘on the side’.[235]
[235]Ibid.

In that general connection, senior counsel for the plaintiff submitted that the aspiration of self-employment as a roof tiler had been ‘no pipe dream’ and, indeed, that he had been ‘on the cusp’ of embarking upon that course.

There was, however, much in the evidence to which I have referred which was no more than aspirational. In particular, the references to needing to get ‘a name’ for himself, ‘hopefully’ getting ‘some sort of company up and running’ and ‘potential’ did not suggest to me that the plaintiff’s aspiration was ‘on the cusp’ of immediate realisation when it was dashed by the accident. There was no evidence of concrete planning such as, for example, the identification of particular potential clients or members of the ‘crew’.

In the circumstances, I do not accept that the plaintiff had been ‘on the cusp’ of self-employment at the time of the motor accident. The flavour of his evidence, and that of Maddison, was that self-employment had been an aspiration for the medium term future, at best.

It follows that while senior counsel for the plaintiff sought to dismiss the assumption made by Mr Lee (presumably on instructions) as ‘out of kilter’ with the evidence, I tend to think that it was both generally supported by the evidence and realistic.

That said, there seems to me to be broader difficulties with the notion that the plaintiff would have transitioned to successful self-employment as a roof tiler.

In that regard, I accept the submission of the defendant that there is more to establishing and running such a business than wanting to do it and getting someone to do paperwork ‘on the side’. In that regard, senior counsel referred to —

… having to get the business, keep the business, manage the logistics, liaise with builders, buy equipment, attract and pay workers and keep that all going.[236]

[236]T741.

Perhaps in response to such a submission, senior counsel for the plaintiff described the plaintiff’s evidence concerning his aspirations as ‘unchallenged’. However, as I have noted, the evidence was pitched at the level of an aspiration of little more than the most abstract kind and did not indicate that the plaintiff’s thinking had engaged with such details. In that context, the fact that there was no cross-examination of the plaintiff concerning the details of his self-employment aspirations, about which he had said practically nothing in examination-in-chief, does not mean that the likelihood of such realities should be disregarded when evaluating the true quality of the evidence given.

Senior counsel for the defendant also referred to the plaintiff’s diagnosis of ADHD and history of learning difficulties. In that connection, I note that Dr Yong gave evidence that —

He [the plaintiff] said that he had reduced literacy skills, he struggled to read a newspaper. He said that his computer skills also are limited. He said he could surf the internet but couldn’t send emails.[237]

[237]T390.

I should not be taken to be suggesting that advanced skills in literacy and numeracy are essential pre-requisites to becoming a moderately successful self-employed roof tiler. However, there must be significant aspects of running such a business that would be assisted by those and other such skills. At the very least, such skills foster a degree of confidence in communications with clients, employees and others for which having a partner able to do bookwork ‘on the side’ is probably not a perfect substitute.

In the circumstances, I am not dismissing the prospect that the plaintiff could have transitioned to successful self-employment as a roof tiler. However, I would not have thought that it was probable. In my view, the prospect of that having occurred from 1 January 2025 is best considered to be less than 50%.[238]
[238]I should say, for completeness, that while the defendant was critical of Mr Lee’s approach to assessing the average earnings of self-employed roof tilers (particularly, the adoption of an ‘uplift’), I regard his explanation for having done so as a perfectly satisfactory and acceptable one: see, T485-8, 495-8, 500-1. I accept his figures in respect of employed and self-employed roof tilers.

That brings me to the position of the plaintiff ‘with injury’, which, in reality, was a more significant focus of the defendant’s attention. In that regard, the defendant submitted, in substance, that —

(a) the plaintiff is well qualified for work and has worked ‘essentially full-time’ since December 2019;

(b) the potential for the continuity of the plaintiff’s work to be interrupted now is ‘not substantially different from what it was in reality [prior to injury]’;

(c) the ‘overwhelming probability’ is that the plaintiff will continue to be employed full time in ‘machine operating’ or as a ‘loader operator’, which, it was said, attracts ‘the higher wages’; and

(d) in that event, which is probable, the plaintiff will in the future be ‘earning more than he would have been’ in roof tiling work.

The first two points can be dealt with together.

As I have noted, prior to the motor accident the plaintiff worked with three different employers in the course of seeking to complete his roof tiling apprenticeship. That was said to be the foundation for the proposition that there was probably ‘going to be some interruption to his employment at various times, in any event’.[239]
[239]T691.

However, there was no evidence of any interruption between the three employments. Indeed, the impression conveyed was that there was no interruption at all. If anything, the relevant evidence suggested that, prior to injury, it would have been relatively easy for the plaintiff to move between roof tiling employments.

By contrast, I have earlier outlined the evidence concerning the employments undertaken by the plaintiff between returning to work in about late 2019/early 2020 and the trial in April/May 2025. For present purposes, it is sufficient to observe that —

(a) there have been nine employments in a period of about four and a half years;

(b) the longest was with Cargill Australia between November 2021 and October 2023 and the shortest was one or two days with an industrial concreter;

(c) several of the employments have been for a matter of months only;

(d) while the evidence is not perfectly exact, the periods of employment seem to have been punctuated by various periods of unemployment (in substance, July 2020, August-October 2021, June 2024, December 2024 and possibly a period between the completion of the plaintiff’s employment with Burgess in February 2025 and the commencement of his present employment with Soilcon);[240]

(e) it follows that within the overall period of about four and a half years, the plaintiff seems to have spent at least six months of it unemployed; and

(f) perhaps consistently with the above, the summary of the plaintiff’s tax returns suggests that in the years ended 30 June 2020, 2021 and 2022 the plaintiff received $12,020, $6,120 and $5,383 in Australian Government allowances and payments, and in the year ended 30 June 2023 he received $1,624 from Centrelink.[241]

[240]In respect of the latter point, see also the evidence of Mr Lee at T487.

[241]Appendix 3 (CB 278-9).

I should add that the plaintiff seems to have been very motivated to work[242] and therefore to have made the most of his earning capacity during that period.
[242]See, e.g., T101: ‘I don’t have a choice’.

The evidence concerning the plaintiff’s periods of employment since injury is, of course, somewhat exiguous. However, it will be apparent that the defendant’s contention that since being able to resume work the plaintiff has worked ‘effectively full time’ cannot be accepted.

Further, there has been a relatively plain difference in the plaintiff’s pattern of employment before and after injury. In that regard, there is no evidence of periods of unemployment before injury and plenty of evidence of it since. It follows that the defendant’s further submission to the effect that the plaintiff’s potential for interrupted employment is now likely to be no different to what it was prior to injury also cannot be accepted.

The defendant’s other points concern the likely employments and earnings of the plaintiff into the future.

In large part, the defendant’s submission fastened upon the plaintiff’s apparent earnings as a loader operator with Cargill Australia and involved asserting that it is probable that the plaintiff will continue to achieve such earnings into the future and to retirement age.

In that regard, as I have noted, the defendant sought to suggest that the plaintiff earned ‘[$]84,335’ or ‘[$]85,000’ per annum as a loader operator with Cargill Australia.[243]
[243]T695.

As I have earlier noted, the plaintiff worked with Cargill Australia between about November 2021 and October 2023. However, the figure to which the defendant referred (and with which the plaintiff compliantly agreed in evidence[244]) is derived from Mr Lee’s calculation of the plaintiff’s taxable income for the financial year ended 30 June 2023.[245] It is plain enough from Mr Lee’s other summaries that that figure includes $1,642 in receipts from Centrelink.[246]
[244]T141.
[245]Table 3 (CB 216).
[246]Appendix 3 (CB 279).

In that connection, Mr Lee’s summaries indicate that the plaintiff’s wages and allowances in the year ended 30 June 2023 were, in fact, $82,893. However, in large part that is said to be comprised by receipts of —

(a) $71,685 from Programmed Skilled Workforce Pty Ltd; and

(b) $11,141 from Cargill Australia Ltd.[247]

[247]Ibid.

Senior counsel for the defendant speculated that the different sources of receipts were to be explained by ‘part of the job being organised through Programmed but then going direct to Cargill’. That said, he fairly acknowledged that that was only supposition and conceded that such a conclusion could not necessarily be reached on the evidence.[248]
[248]T697.

If anything, the position seems even more uncertain when one considers another summary prepared by Mr Lee which suggests that the plaintiff’s receipts from Cargill Australia in the year ended 30 June 2023 overlap with part of those received from Programmed Skilled Workforce. That is, the plaintiff appears to have been receiving payments from both sources in the period 8 May to 30 June 2023.[249]
[249]Appendix 4 (CB 283).

I should say that my doubts about the reliability of the asserted figures of $84,335 and $85,000, at least inasmuch as they are said to reflect readily achievable earnings as a loader operator, are not necessarily allayed by a consideration of the plaintiff’s receipts in the other years in which he was apparently working with Cargill Australia. In particular —

(a) in the year ended 30 June 2022, the plaintiff received no payments from Cargill Australia, but received $45,780 from Programmed Skilled Workforce in respect of the period 1 November 2021 to 30 June 2022; and

(b) in the year ended 30 June 2024, the plaintiff received $23,847 from Cargill Australia in respect of the period 1 July 2023 to 18 October 2023.

The figures in the second period seem to be broadly consistent with the plaintiff’s earnings during the financial year ended 30 June 2023, if it be assumed that in that year, he earned $82,893 with Cargill Australia. However, the figure in the first period suggests that the plaintiff was earning at least $1000 per month less, albeit that at that time he was seemingly also working with Cargill Australia.

It will be apparent that the evidence is in a somewhat unsatisfactory state and should not be thought to have been perfected by the plaintiff’s compliant acceptance of the proposition that his ‘taxable income’ in the year ended 30 June 2023 was ‘$84,335’.[250]
[250]T141.

In any event, the plaintiff’s earnings, excluding Cargill Australia and Programmed Skilled Workforce, in the other years of income identified by Mr Lee are as follows —

(a) in the year ended 30 June 2020: $5,363 from Woolworths Group and $11,812 from Endeavour Group;

(b) in the year ended 30 June 2021: $44,014 from Circle R;

(c) in the year ended 30 June 2022: $3,830 from Circle R and $621 from Richard Hocking (who, presumably, is the industrial concreter);

(d) in the year ended 30 June 2024: $16,197 from Webb Industrial, $9646 from Lawson’s Grains and $574 from Endeavour Group; and

(e) in the period from 1 July 2024 to 27 November 2024: $14,815 from AgBoss Group.[251]

[251]Appendix 3 (CB 278-9).

It follows that while the plaintiff was seeking to work and maximise his income throughout the period to which I have referred, none of his other employments in any of the other years identified have gone anywhere near earnings of $84,335 or $85,000 per annum.

Indeed, the plaintiff’s earnings in other employments for the period of about three years from late 2019 to late 2024 (excluding Cargill Australia and Programmed Skilled Workforce earnings), is, in total, $106,872; which is, on average, $35,624 per annum.

Further, and for completeness, Mr Lee considered the plaintiff’s earnings in the current financial year to be likely to amount to ‘approximately $41,500 before tax’.[252] That is, equally, nowhere near the defendant’s favoured figures.
[252]T488.

In the circumstances, neither $85,000 nor $84,335 seem to me to be fairly reflective of —

(a) the plaintiff’s earnings with Cargill Australia in the year ended 30 June 2023;

(b) the plaintiff’s average annual earnings during the period in which he was employed by Cargill Australia;

(c) the plaintiff’s average annual earnings during the period from late 2019/early 2020 to late 2024; or

(d) the plaintiff’s likely earnings in the current financial year.

The latter two points, at least, are also relevant to an assessment of the plaintiff’s earning capacity into the future, although such an estimation is, of course, not based simply on mathematics.

In that regard, I have noted that Mr Lee calculated residual scenarios by reference to assumptions that the plaintiff’s retained earning capacity into the future is best reflected by the earnings of a factory hand working either 30 or 38 hours per week for 40 weeks per year. Those calculations were, in turn, based on the hourly rate applicable to the plaintiff’s employment with AgBoss Group in the second half of 2024 (i.e., $30.13 per hour).

The defendant took aim at several aspects of Mr Lee’s assumptions. However, sensibly, the defendant did not take the point that the plaintiff had strictly not given evidence that he earned $30.13 per hour in his employment with AgBoss Group.[253] The defendant’s points seemed to be directed more to Mr Lee’s assumptions concerning hours and weeks of work as well as the overall contention that the plaintiff’s retained earning capacity is best reflected by his period of earning with Cargill Australia in the year ended 30 June 2023.
[253]In that connection, I note the reservation of position by senior counsel for the plaintiff at the conclusion of the plaintiff’s evidence in chief: T104-5.

I have earlier referred to the plaintiff’s various employments since late 2019/early 2020, as well as his evident periods of unemployment. It is unnecessary to repeat the whole of the substance of that evidence. However, it may be noted that —

(a) industrial concreting was plainly unsuitable and that stint lasted a day or two;

(b) he has otherwise had stints working in a bottle shop (BWS), forklift driving (Circle R), driving machinery then supervising (Cargill Australia), driving machinery (Lawson’s Grains), plastic welding and maintenance (Webb Industrial), manufacturing (AgBoss), driving machinery (Burgess) and fencing and related tasks (Soilcon);

(c) inasmuch as it can be discerned from the available material,[254] the plaintiff seems to have earned more than $30.13 per hour (i.e., $1205.20 per 40 hour week) in two of those employments (Lawson’s and probably Cargill Australia) and less than that in others (BWS, Circle R and Webb Industrial);[255]
[254]Appendix 4 (CB 282-3).
[255]Having regard to the relevant evidence of Mr Lee, the plaintiff might be said to have earned, or be on track to earn, slightly more than that in the current financial year: see, T487-88.

(d) his knee has impeded him significantly in practically all of those employments, particularly in respect of bending and lifting (BWS), stairs and standing for long periods (Circle R), bending and lifting rebar (industrial concreting), stairs and ultimately hard labour (Cargill Australia), occasional climbing (Lawson’s Grain), crawling (Webb Industrial), lifting and bending (AgBoss) and lifting, bending and uneven ground (Soilcon);

(e) further, his employment at Cargill Australia was seemingly sustainable until his tasks changed, his employment at Lawson’s Grain was seasonal only and he was dismissed from employment with Burgess;

(f) he has left most of the employments because of issues with his knee;

(g) in respect of his present employment with Soilcon, he said that although he had no choice other than to work, he struggles with the tasks required, did not see himself lasting more than ‘a month or two’ longer and is presently looking for other work (but had not yet managed to find anything); and

(h) as I have earlier noted, he has sought to rest up and otherwise persevere through symptoms provoked by unsuitable work duties.

In that context, as I have noted, it was uncontroversial that the plaintiff has ‘an ongoing problem with his knee…that restricts him’.

In that regard, Dr Yong, in particular, gave evidence concerning the restrictions limiting the plaintiff’s capacity for work.[256]
[256]T394, 415.

In that connection, Dr Yong said that —

(a) while the plaintiff had initially been able to work as a loader operator in duties involving minimal manual handling (Cargill Australia), his capacity to work in that position to normal retirement age would be affected if the duties were to change and involve ‘a higher manual handling component’, which is what had subsequently occurred;[257]
[257]T396, 399-400.. Later, in cross-examination, Dr Yong agreed that when the duties changed it was ‘really a totally different job to the one that he’d been doing for over a year’: T428.

(b) while the plaintiff subsequently obtained a position as a machine operator in a factory environment (AgBoss), which had initially involved lighter duties, he had later been moved to a different part of the factory where he had to operate two blow moulding machines.[258] In that regard, Dr Yong said –
[258]T401, 405-06, 410-11.. Later, in cross-examination, Dr Yong agreed that he had initially been ‘pretty positive’ about the plaintiff’s capacity to work in the ‘specific machine operator role’: T430.

… there was no seated positions at this particular workstation. He’s not provided with a chair. And ‘cause he was running two machines he’d have to walk between the two machines. He was doing more walking, he was doing more standing. He said sometimes that the machines would jam up and he’d have to unjam the machines. He might have to reach in and … he’d have awkward postures. [He] [s]aid he’d have to do some cleaning of the blow moulding machines. He said that could involve some working at low heights, such as kneeling or squatting. [He would] [h]ave to pick up the shavings off the floor. He said that he … was using tools such as air guns, brooms, dustpans, brushes, saws, power tools, deburrers. And he said he had worsening of [his] pain symptoms and he stopped that job … .[259]
[259]T410-11.

(c) after the nature of that role changed, it exceeded the plaintiff’s ‘functional tolerances’ and he did not have the capacity to do it on an ongoing, consistent and reliable basis;[260]
[260]T416.

(d) the plaintiff then obtained a job driving a dump truck at a quarry (Burgess) from which he had been terminated when there was a mechanical problem with the truck and it rolled back into a fence;[261]
[261]T411-12.

(e) in any event, the maintenance component of that role involved duties that were likely to aggravate or exacerbate the plaintiff’s knee condition and he would not have been able to perform that role on an ongoing, consistent or reliable basis;[262]
[262]T417.

(f) the plaintiff then obtained a contract job spraying weeds and fencing (Soilcon), which was a ‘short-term option’;[263]
[263]T412.

(g) in that regard, the duties would exceed the recommended restrictions and the plaintiff would not have the capacity to do it on an ongoing, consistent and reliable basis;[264] and
[264]T417.

(h) in summary —

… Mr Hart has been able to demonstrate doing some roles which … have complied with the restrictions, but those roles have been very specific, and they haven’t been very wide-ranging, and in both scenarios when the role has changed by the employer to a role with higher demands, he’s … demonstrated an incapacity for that work, and as his restrictions start to get tighter and tighter and become more onerous, then his ability to find a job with … those requirements diminish, the probability diminishes … .[265]

[265]T418-19.

Later, in cross-examination, Dr Yong confirmed that he would be positive about the plaintiff’s capacity to work in a machine operator or loader operator role that complied with the applicable restrictions.[266]
[266]T430. See also T436-8.

That said, junior counsel for the defendant thereafter sought to focus attention upon the plaintiff’s capacity to work in what was described as ‘the vast array of machine operator jobs around’, which prompted the following exchange with Dr Yong —

Well, in your experience, there are a lot of machine operator roles which don’t have particularly onerous manual handling requirements, aren’t there, and that enable sit-stand? - - - [I would] [p]robably argue the other way, that most of the machine operator roles, in fact, would not comply with these restrictions because of the [requirement] to do prolonged standing and cleaning out [of] machines and squatting and kneeling. And there would be a smaller number of machine operator roles which would comply with the restrictions.
Yes? - - - So I would say the majority wouldn’t comply, but some could.
Yes? - - - That’d be … my experience.[267]

[267]T434.

In the circumstances, I conclude that —

(a) with injury, the plaintiff has and will retain a capacity to work in machine operator or loader operator roles within his restrictions;

(b) theoretically, he will be able to work in such roles to normal retirement age;

(c) that said, he has plainly done his very best to obtain and remain in work since late 2019/early 2020;

(d) much of that work has not complied with the applicable restrictions;

(e) some of it has initially complied with restrictions (one loader operator role; one machine operator role), but in both instances that did not last;

(f) it follows that even at his presently young age, the plaintiff has repeatedly been shown to be vulnerable to alterations in his duties such that initially suitable employment can quickly become unsuitable and unsustainable;

(g) he will remain vulnerable to further injury and deterioration that could tighten his restrictions as well as diminish his ability to find a job within his requirements (and within a reasonable distance from where he lives); and

(h) accordingly, his capacity for employment has been and is likely to remain characterised by different, predominantly unskilled or manual, employments (some suitable; some unsuitable) managed by rest and punctuated by periods of unemployment and/or underemployment.

In that context, it seems to me to be appropriate to assess the plaintiff’s retained capacity for future work by reference to his evident earnings in initially suitable duties as a machine operator ($30.13 per hour).

In that regard, while he may have earnt more during the periods in which he worked as a loader operator with Cargill Australia (in particular), and might also end up earning slightly more than that in the current financial year, he seems to have earnt considerably less in other periods and with other employers. It follows that his future earnings are much more likely to balance out at a midpoint than to continue to retirement age at the very highest available level.

Further, it also seems appropriate to evaluate his future capacity for such employment on the basis that he is not likely to be able to sustain full time employment consistently until retirement at 67 or 70 years of age. It has simply not been the case that the plaintiff has sustained full time employment while he has been young and highly motivated to work. Even without further deterioration or risks of future injury, it is unlikely to be the position to 67 or 70 years of age.

In the circumstances, I accept that it is appropriate to assess the plaintiff’s retained capacity for future employment by reference to earnings in employment as a factory hand for 30 hours per week/40 weeks per year to 60 years of age.

It follows that while, of course, the issue is not purely one of mathematics, I accept that, in significant part, it is appropriate to assess the plaintiff’s past and future loss of earnings and earning capacity broadly by reference to Mr Lee’s scenario 1, residual A, directed to ‘residual retirement at 60 years’. That is —

(a) past loss of earnings and superannuation in the sum of $86,518;

(b) future economic loss and loss of superannuation in the sum of $580,130;

(c) a combined total of $666,648.

That said, I have earlier referred to the chance that the plaintiff would have transitioned to self-employment as a roof tiler. It will be evident that I do not consider that to have been a probability. However, it is appropriate to take account of the loss of the chance.[268]
[268]Malec (n 232).

The bottom lines relating to the figures calculated by Mr Lee in respect of employment as a roof tiler compared with the earnings of a self-employed roof tiler are not dramatically different. The treatment of superannuation is obviously different, as is the assumed retirement date. However, across a working life, the presently relevant difference is $130,856.

There is no perfect way of calculating the value of the lost chance, although I have indicated that it is a significant one, without rising to the loss of a probability. In my view, the lost value of the chance is best assessed by adding 40% of the difference, namely $52,342.40, to the figure assessed by Mr Lee for future loss of earnings and superannuation in employment. It follows that the overall starting point in respect of the plaintiff’s future economic loss should be considered to be $632,472.40.

That brings me to discounts for vicissitudes or contingencies and the issue of ‘buffers’.

In that regard, as I have earlier noted, senior counsel for the plaintiff submitted that a consideration of vicissitudes should ‘overall lead to an increase in the estimate of economic loss’. Passing (and essentially unexplained) reference was made to ‘indexation’. However, senior counsel primarily submitted that the loss should be assessed without any discount for vicissitudes and that a ‘buffer’ or Farlow allowance should, in fact, be added ‘on top of the loss’.[269] In respect of the scenario which I have primarily accepted to be appropriate, it was said that the ‘buffer’ should be $50,000.[270]
[269]T734-7.
[270]T737-8. Senior counsel identified other (higher) figures in respect of other scenarios. However, she acknowledged that the scenario which I have ultimately largely accepted ‘already [has] some buffering going on … [because] there’s only 30 hours a week, as opposed to full time, and 40 [weeks] per year’. The precise basis upon which the sum of $50,000 was calculated (or, for that matter, any of the other ‘buffer’ sums to which reference was made) was not identified in argument.

The rationale for that approach was said to be that whilst a consideration of vicissitudes would ordinarily lead to a discount, in the present case any positive vicissitudes are ‘vastly outweighed the other way’.[271] In that regard, senior counsel submitted that —
[271]T737.

… he’s only 29 years old. He’s already been struggling for many years with his knee, being unable to consistently and sustainably sustain alternative employment. He’s currently in employment but the evidence is it’s not sustainable. That’s his current job, his current status. He’s unable, he said in his evidence, to find anything else. The evidence is that it’s not going to improve, and it may well deteriorate. And, of course, Mr Miller thinks there’s a significant risk of this and further surgery.
The next matter … there are risks we would submit that Your Honour should have regard to into the future in relation to the risk of deterioration leading to greater incapacity, the risks of further surgery, the risks the surgery won’t improve his condition, that it could worsen it.

…

Another of the risks is that as he gets older, with a bung knee that may worsen, he will have increasing difficulty obtaining and sustaining the types of physically demanding types of employment that is the only type of employment he has the education and skills to do.
Another risk is that in that context, he will face greater periods of unemployment … and for greater periods of time – than he currently has. There’s also a risk that he will not be able to consistently find employment that is as remunerative as the work that he has done to this point in his life. And there is a risk that his knee injury will accelerate the end of his working life, as well.[272]

[272]T734-5. See also T738-9.

By contrast, senior counsel for the defendant submitted as follows —

… buffer amounts, we say, is just double-dipping in the circumstances. Your Honour shouldn’t be entertaining that. And vicissitudes are even more applicable, we say, in this case, not [least] because of his young age, because we’re talking about a lengthy period into the future.
And the plaintiff suffers, or is subject to, is probably a better way of putting it, the same vicissitudes as others when it comes to risks of illness, injury, unemployment, et cetera, that everybody would face, the only difference being he’s facing them for a longer period because we’re talking about a longer period. So rather than diminishing, in our submission, that increases the need to apply a deduction or reduction for vicissitudes in the circumstances.[273]

[273]T742.

It will be apparent that the above submissions were directed to the issue of future vicissitudes. Neither counsel specifically addressed the issue of discounts upon any damages assessed for the past.

Practically all of the risks referred to by senior counsel for the plaintiff may be acknowledged. However, to the extent that the vast majority of those risks might presently be regarded as particularly pronounced, save for a minor matter of rounding to which I will shortly come, I consider those risks to have been accommodated within the future work scenario which I have accepted to be most appropriate, namely factory work for 30 hours per week for 40 weeks per year to retirement at age 60.

It follows that, in my view, it is not appropriate to make, in effect, no discount for future vicissitudes and, indeed, to add a further ‘buffer’ to the assessment.

From that point, the matters referred to by senior counsel for the defendant may also be acknowledged. In that sense, the present case is otherwise much like many others.

Having regard to the general manner in which argument unfolded and the fact that nothing specific was said about past vicissitudes (presumably because, at this point, most such contingencies are now passed and therefore known rather than unknown), I would make no specific discount for the past other than the slight adjustment to which I will shortly come.

For the future, I will simply apply the usual discount of 15%.[274]
[274]In accordance with the standard directions, the jury would have been instructed that whilst, on the evidence, they might assess a higher or lower reduction, when decided by a judge ‘a reduction of 15 percent for the uncertainties of life is considered the usual figure’.

In light of the above, mathematically at least, the plaintiff’s losses may be assessed as follows —

(a) past: $76,145+10,373 = $86,518

(b) future: $632,472.40 x 0.85 = $537,601.54.

When assessing such damages, a jury would be directed, among other things, that —

(a) the task is to determine lump sums in damages that constitute a fair and reasonable award to take into account the effect of the plaintiff’s accident related injuries upon his capacity to work and earn income since injury and into the future;

(b) such an exercise is not a mathematical or scientific one;

(c) accordingly, the jury is not bound to accept the precision in the calculations proffered in evidence such as that given in the present case by Mr Lee; and

(d) once the jury has arrived at figures for the past and future, it is entitled to stand back and consider those figures and adjust them upwards or downwards in order that, in the judgement of the jury, the awards made amount to fair and reasonable compensation based on the evidence.

For a host of reasons — including that the majority of the present trial was heard before a jury — I should adopt the same approach.

As I have indicated, in my view the figure for the past is appropriate subject to rounding it down very slightly to take account of minor past contingencies.[275] For the past, I assess damages in the sum of $85,000.
[275]It necessarily follows that I reject the approach to the assessment of damages for past economic loss for which the defendant contended in address: T692.

For the future, it is hard to accept that, in all of the circumstances to which I have referred, a figure broken down to odd dollars and cents should stand as a fair and reasonable estimate for a period that extends so long into the future. The question is whether to round slightly up or slightly down. Having regard to the whole of the future risks which the plaintiff is likely to face, I consider it to be appropriate to round slightly up. For the future, I assess damages in the sum of $540,000.

F Conclusion

In summary, I assess the plaintiff’s damages as follows —

(a) Pain and suffering and loss of enjoyment of life: $400,000.00

(b) Past loss of earnings: $85,000.00

(c) Future loss of earning capacity: $540,000.00

(d) Total $1,025,000.00

There will be judgment for the plaintiff for the sums of damages assessed.

I will hear from the parties concerning any further or consequential orders, including in respect of interest and costs.

Heads of Loss	Residual A (Factory Hand – 30 hrs/wk 40 weeks/yr)	Residual B (Factory hand – 38 hrs/wk 40 weeks/yr)
Residual Retirement at 60 years
Past Economic Loss	76,145	76,145
Past Loss of Superannuation	10,373	10,373
Future Economic Loss	504,073	401,665
Future Loss of Superannuation	76,057	63,099
TOTAL LOSSES	$666,649	$551,282
Residual Retirement at 65 years
Past Economic [Loss]	76,145	76,145
Past Loss of Superannuation	10,373	10,373
Future Economic Loss	479,747	371,859
Future Loss of Superannuation	73,456	59,805
TOTAL LOSSES	$639,721	$518,181

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12 June 2025