Hodges v Hicks
[2025] WADC 8
•24 FEBRUARY 2025
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HODGES -v- HICKS [2025] WADC 8
CORAM: PALMER DCJ
HEARD: 18-22, 25-26, 28 NOVEMBER & 16 DECEMBER 2024
DELIVERED : 24 FEBRUARY 2025
FILE NO/S: CIV 3450 of 2018
BETWEEN: SUSAN MICHELLE HODGES
Plaintiff
AND
MARILYN EDWINA HICKS
Defendant
Catchwords:
Negligence - Motor vehicle accident - Nature of injuries caused by the accident - Pre-existing injuries - Assessment of damages
Legislation:
Civil Liability Act 2002 (WA)
Result:
Damages assessed
Representation:
Counsel:
| Plaintiff | : | Ms B E Rogers |
| Defendant | : | Mr D R Clyne |
Solicitors:
| Plaintiff | : | Soul Legal |
| Defendant | : | Hall & Wilcox (Perth) |
Case(s) referred to in decision(s):
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281
City of Stirling v Tremeer (2006) 32 WAR 155
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
East Metropolitan Health Service v Ellis (by his Next Friend Christopher Graham Ellis) [2020] WASCA 147
Ellis (by his Next Friend Christopher Graham Ellis) v East Metropolitan Health Service [2018] WADC 36
Footscray Football Club Ltd (ACN 005 226 595) v Adam Kneale [2024] VSCA 314
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85
Purkess v Crittenden (1965) 114 CLR 164
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Stojceska v Muharemovic [2017] WADC 9
Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182
The Bishop of the Roman Catholic Diocese of Wagga Wagga v TJ (a pseudonym) [2024] VSCA 262; (2004) 74 VR 612
Van der Velde v Halloran [2011] WASCA 252
Veitch v Connor [2023] WADC 38
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Watts v Rake (1960) 108 CLR 158
Table of Contents
Introduction
The injuries that the plaintiff alleged she sustained in the accident
The plaintiff's health prior to the accident
The medical treatment that the plaintiff received after the accident
Causation
The lay evidence regarding the accident and its effect on the plaintiff
The medical opinion regarding the cause of the plaintiff's knee injury
The plaintiff's case on the cause of the plaintiff's knee injury
The defendant's case on the right knee
The reliability of the plaintiff's evidence
Conclusion: the accident made a material contribution to the plaintiff's knee injury
The medical opinion regarding the cause of the plaintiff's back, neck and shoulder injuries
The plaintiff's case on causation of the plaintiff's neck, right shoulder and back injuries
The defendant's case on the plaintiff's other injuries
Conclusion regarding the plaintiff's neck, right shoulder and back
Non-pecuniary loss
Future medical treatment and travel
Past and future care and assistance
Special damages
Findings about the plaintiff's qualifications, employment history and historical earnings
Lay evidence regarding the plaintiff's economic loss claim
The medical opinion regarding the effect of the knee injury on the plaintiff's work capacity
The employment evidence
The plaintiff's claim for past loss of earning capacity
The plaintiff's claim for future loss of earning capacity
Conclusion
PALMER DCJ:
Introduction
On 2 October 2015, the defendant was driving behind the plaintiff on Yangebup Road in Yangebup when the plaintiff's car stalled at an intersection. The defendant was not paying adequate attention and she drove into the back of the plaintiff's car at a low speed, causing a collision.
The defendant has admitted that the accident was caused by her negligence. These reasons concern the assessment of damages to which the plaintiff is entitled.
The plaintiff alleged that she injured her knee, neck, right shoulder and back in the accident. She alleged that the impact of her knee on the steering column accelerated the degeneration of her right knee and resulted in symptomatic osteoarthritis.[1]
[1] Amended Statement of Claim dated 19 November 2024 (Statement of Claim), par 4.
The defendant admitted that the plaintiff suffered a whiplash injury to her neck and lower back and a modest blow to her right knee. She claimed that any injuries that the plaintiff sustained in the accident were modest and that the plaintiff's right knee was already arthritic.[2] She also alleged that if the plaintiff suffered any injuries, loss or damage, they were caused, or significantly contributed to, by the plaintiff's pre-existing medical conditions.[3]
[2] Defendant's Closing Submissions dated 9 December 2024 (Defendant's Closing Submissions), par 1.
[3] Amended Defence dated 20 November 2024 (Defence), par 9.
Although the plaintiff has continued to work following her accident and is currently employed full‑time, she alleges that the injuries that she sustained in the accident have significantly diminished her earning capacity. She alleges that the osteoarthritis in her knee prevents her from pursuing fly‑in/fly‑out (FIFO) work in the mining industry. She also says that she is unable to pursue a business that she ran giving cardio‑pulmonary resuscitation (CPR) training.
The defendant denies that the plaintiff has suffered any meaningful economic loss.
The injuries that the plaintiff alleged she sustained in the accident
The plaintiff alleged that the accident caused bruising and patellofemoral cartilage damage to her right knee. She alleged that the patellofemoral cartilage damage accelerated the degeneration of her knee resulting in progressive tricompartmental osteoarthritis.[4]
[4] Amended Statement of Claim dated 19 November 2024 (Statement of Claim), par 4.1.
The plaintiff also alleged that she injured her neck, right shoulder and back in the accident. Specifically, she alleged that she suffered:
(a)the exacerbation of a soft tissue whiplash injury in her neck, spondylosis with loss of disc height and a C4/C5 disc injury resulting in nerve root changes;[5]
[5] Amended Statement of Claim, par 4.2.
(b)a soft tissue injury in her right shoulder, a partial thickness tear of the anterior supraspinatus fibres with associated tendinopathy and/or an injury to the long head of the biceps;[6] and
[6] Amended Statement of Claim, par 4.3.
(c)a soft tissue injury to her upper, mid and lower back.[7]
[7] Amended Statement of Claim, par 4.4.
The Amended Defence did not admit that the plaintiff injured her right knee in the accident.[8] In the defendant's closing submissions, the defendant admitted that the plaintiff suffered a modest blow to her right patella. The defendant submitted, however, that the plaintiff's right knee was already arthritic and characterised the plaintiff's injuries as modest.[9]
[8] Amended Defence dated 20 November 2024 (Amended Defence), par 4.
[9] Defendant's Closing Submissions, par 1.
When counsel for the defendant closed the defendant's case orally, he accepted that it was inevitable that a finding would be made that the plaintiff injured her knee in the accident and that that injury brought forward what would otherwise have occurred.[10]
[10] ts 602.
Although the Amended Defence did not admit that the plaintiff had injured her neck, shoulder or back,[11] in the defendant's written closing submissions she admitted that the plaintiff suffered a modest whiplash injury to her neck and lower back but maintained that the effects of this injury were transitory.[12]
[11] Amended Defence, par 3.
[12] Defendant's Closing Submissions, pars 1, 92 - 123.
The defendant alleged that if the plaintiff suffered any injuries, loss or damage, they were caused, or significantly contributed to, by the plaintiff's pre-existing injuries, unrelated medical conditions, or unrelated events.[13] The defendant particularised those pre-existing injuries, unrelated medical conditions and events as being:
[13] Amended Defence, par 9.
(a)degenerative right knee with osteoarthritis;
(b)cervical spine causing neck pain requiring cervical spine chiropractic adjustments;
(c)a symptomatic right shoulder;
(d)chronic low back pain requiring chiropractic adjustments to the lumbar vertebra and thoracic back pain, requiring thoracic vertebra chiropractic adjustments;
(e)chronic and longstanding morbid obesity; and
(f)stress, anxiety, loss of sleep, tiredness and depression (with associated workers' compensation claims).[14]
[14] Amended Defence, particulars to par 9.
The defendant's written closing submissions suggested that the extent to which the accident caused, aggravated or initiated the plaintiff's right knee osteoarthritis and the extent to which it became symptomatic were the central issues for determination in this case.[15] Whether the accident caused the plaintiff any significant lasting neck or shoulder injury, or back pain was also in issue.
[15] ts 124.
Given the nature of the dispute between the parties about the injuries that the plaintiff sustained in the accident and the differing opinions expressed by the various medical experts who gave evidence, it is necessary to begin by considering the plaintiff's health prior to the accident and the medical treatment that she received both before and after the accident.
I make the findings at [16] - [100] below about the plaintiff's health prior to the accident and the treatment that the plaintiff received before and after the accident.
The plaintiff's health prior to the accident
2 June 2006 - the plaintiff's knees were X-rayed and she began attending the Kardinya Chiropractic Clinic
The plaintiff has a history of knee pain.
On 2 June 2006, an X-ray was performed of both of the plaintiff's knees.[16] In a report about the X-ray addressed to Dr Irene Fruzynski at the Reynolds Road Medical Centre, Dr Rodney Butler (who seems to be a radiologist) recorded:
[16] Exhibit 1.
(a)'clinical details' as 'pain in knees, greater on left than the right'; and
(b)findings that bilaterally the joint space of all three compartments were preserved and there was no evidence of a degenerative arthropathy and no osteochondral lesion, or intra‑articular ossified body.
Dr Butler commented that bilaterally there was no significant bone or joint abnormality. He said that a CT arthrogram would be necessary to assess internal derangement of the knee.
The same day, the plaintiff began attending the Kardinya Chiropractic Clinic and completed a health questionnaire.[17] The questionnaire recorded that:
[17] Exhibit 39.
(a)she had had significant back and shoulder pain which had been ongoing for 20 years; and
(b)she had had two car accidents and had fallen from horses about twelve times. At trial, the plaintiff said that she only fell from horses twice and it was an error to record that she had fallen from horses twelve times.[18]
[18] ts 197.
2006 - 2015 - the plaintiff received treatment at Kardinya Chiropractic Clinic
The plaintiff saw Dr David Lelek, a chiropractor at the Kardinya Chiropractic Clinic, 51 times between 2006 and the accident on 2 October 2015. The treatment that Dr Lelek administered consisted primarily of chiropractic adjustments to the 2nd to 4th cervical vertebra, 6th to 8th thoracic vertebra, and 4th to 5th lumber vertebra.[19]
[19] Exhibit 38.
2011 - the plaintiff started to gain weight
In about 2011, the plaintiff started gaining weight even though she thought that she was not eating much. The plaintiff attributes this weight gain to a gallbladder condition that she was subsequently diagnosed as suffering from.[20] The plaintiff's weight became an ongoing health issue for her.
[20] ts 86 - ts 87, ts 203.
16 September 2013 - the plaintiff saw a general practitioner about her weight gain
On 16 September 2013, the plaintiff saw Dr Gehad Hassanein at the Jupiter Medical Centre for, amongst other things, problems with her weight. At the time she weighed 117 kg and had a BMI of 45.1. The doctor referred the plaintiff to a dietician.[21]
[21] Exhibit 14, page 225.
February to May 2014 - the plaintiff saw general practitioners about stress and her weight
On 5 February 2014, the plaintiff saw Dr Mahbud Talukder at the Jupiter Medical Centre about problems she was having at work at Notre Dame University. The plaintiff told the doctor that she felt bullied at a workplace meeting. The doctor noted that she seemed teary and unable to cope with stress. He provided her with a medical certificate.[22]
[22] Exhibit 14, pages 225 - 226.
On 10 February 2014, the plaintiff again saw Dr Talukder about the issues that she was experiencing at work. He gave her another medical certificate.[23]
[23] Exhibit 14, page 226.
On 13 March 2014, the plaintiff saw Dr Vinod Nambiar (at the same practice) about the issues that she was experiencing at work and was given a further medical certificate.[24]
[24] Exhibit 14, page 226.
On 1 May 2014, the plaintiff saw Dr Sujatha Kanukutla, at the same practice. That doctor noted, amongst other things, that the plaintiff had a problem with being overweight which was aggravating her lower back pain but she was seeing a chiropractor which helped. The doctor referred the plaintiff to a chiropractor and a dietician.[25]
[25] Exhibit 14, page 226 - 227.
13 May 2014 - the plaintiff's gallbladder was removed
On 13 May 2014, the plaintiff's gallbladder was removed.[26]
1 October 2014 - a chiropractic full spine, pelvis X-ray was performed
On 1 October 2014, a chiropractic erect X-ray of the full spine, pelvis and both hips was performed by Capital Radiology.[27]
In a report that day Dr Neil Berlinski, a radiologist, observed in relation to the plaintiff's cervical spine, loss of the cervical lordosis and multilevel facet joint degenerative changes and degenerative change at C1/C2. In relation to the plaintiff's lumber spine and hips, he noted a narrowed L5/S1 disc space with facet joint degenerative changes.
26 November 2014 - the plaintiff injured her knee while moving pot plants
[26] Exhibit 14, page 227.
[27] Exhibit 65; ts 348.
On 26 November 2014, the plaintiff injured her knee while lifting heavy pot plants at home. She applied basic first aid but when her injury did not resolve, she went to see a general practitioner.[28]
28 November 2014 - the plaintiff consulted a general practitioner about her knee and had an X-ray
[28] ts 77 - ts 79; Exhibit 8, page 407 and Exhibit 9.
On 28 November 2014, the plaintiff saw Dr Bob Oumo at the Jupiter Medical Centre about her injured knee.[29]
[29] Exhibit 8, page 407.
Dr Oumo recorded that the plaintiff had given a history of twisting her knee while lifting heavy pot plants at home two days earlier and that the plaintiff felt like she had 'done something in there'.
Dr Oumo examined the plaintiff's knee and found her to be limping badly, with a swollen right knee, apparent bruising and 'RROM' (which I infer means restricted range of movement).
Under diagnosis Dr Oumo recorded 'r/o ligament/meniscal damage'. I infer that the abbreviation 'r/o' means 'rule out' and Dr Oumo wanted to rule out ligament or meniscal damage.
Dr Oumo ordered an X-ray and CT scan of the plaintiff's right knee and prescribed Panadeine Forte and Tramadol.
An X-ray was performed on the plaintiff's right knee at Global Diagnostics in Kwinana that day. In a report, Dr Alex Meakin, a consultant radiologist reported that the X-ray demonstrated normal alignment and joint fluid, with no bone or joint abnormality.
1 December 2014 - an X-ray and CT arthrogram of the plaintiff's right knee was performed
On 1 December 2014, a CT arthrogram was performed on the plaintiff's knee at Global Diagnostics (the December 2014 CT Arthrogram). As is discussed in greater detail below, this CT was to become a significant point of reference for the medical experts who commented about the condition of the plaintiff's knee before the accident.
In a report on the December 2014 CT Arthrogram (the December 2014 CT Arthrogram Report) Dr Reena Srivatava, a consultant radiologist, commented as follows:[30]
Findings:
Artefacts degrade images however no definite tear is identified in the menisci, Tibiofemoral cartilages are intact. There is subchondral sclerosis in the tibial condyle. There is fraying in retropatellar cartilage with some fissures in the trochlear cartilage.
The cruciate ligaments are intact within the limits of the study. The patellar and the quadriceps tendons appear intact.
A very small Baker's cyst is noted. There was moderate joint effusion. No definite intra-articular loose bodies identified. No definite tear identified to the collateral ligament.
Comment:
Minimal fissures in the cartilage at the patellofemoral joint. There was moderate joint effusion. No tears identified to the menisci or to the cruciate ligaments within the limits of the study. A very small Baker's cyst has been demonstrated.
[30] Exhibit 8, page 410.
Whether Dr Srivatava's commentary properly reported the extent of the injury shown on the December 2014 CT Arthrogram is controversial. As is discussed in greater detail below, some of the medical experts who have subsequently reviewed the December 2014 CT Arthrogram thought that Dr Srivatava underreported the extent of the degenerative change in the plaintiff's right knee.
5 December 2014 - the plaintiff saw a general practitioner about the imaging
On 5 December 2014, the plaintiff returned to see Dr Oumo to discuss the results of the CT arthrogram.[31] He recorded that he told the plaintiff that no tears were seen, there were minimal fissures in the cartilage at the patellofemoral joint and minimal effusion. He gave the plaintiff a medical certificate from 5 December 2014 until 12 December 2014.
24 June 2015 - the plaintiff saw a general practitioner about her weight and back and knee pain
[31] Exhibit 8, page 408.
On 24 June 2015, the plaintiff saw Dr Shiva Sethuraman at the Jupiter Medical Centre. The doctor noted that the plaintiff had issues with obesity, chronic low back pain and knee pains and that the plaintiff had been referred to a dietician and a chiropractor. The doctor diagnosed the plaintiff as having moderate chronic low back pain.[32]
Late 2015 - other visits to the general practitioner prior to the accident
[32] Exhibit 14, page 228.
The plaintiff saw a general practitioner at the Jupiter Medical Centre on eight further occasions prior to 2 October 2015 for various reasons unrelated to any back or knee pain.[33]
[33] Exhibit 14, pages 228 - 230.
The medical treatment that the plaintiff received after the accident
6 October 2015 - the plaintiff sees a general practitioner
On 6 October 2015, the plaintiff saw Dr Hassanein at the Jupiter Medical Centre about the accident.
Dr Hassanein noted that the plaintiff had neck pain on her right side and shoulder but she had not lost consciousness and had injured the 'same knee in Dec 2014'.[34] The plaintiff recalls that she told Dr Hassanein about injuring her knee previously but thought that she said that this happened in November, not December.[35]
[34] Exhibit 14, page 231.
[35] ts 92.
Dr Hassanein noted that the plaintiff had no neck stiffness, no meningism, no rash, no photophobia and some restricted movements in her neck and right shoulder.[36]
[36] Exhibit 14, page 231.
The plaintiff's recollection is that Dr Hassanein told her to rest and take some pain medication.[37] Dr Hassanein's notes recorded that he prescribed 30 mg of Panadeine Forte four times a day.[38]
Late 2015
[37] ts 92.
[38] Exhibit 14, page 231.
For a period of time after the accident, the plaintiff was not able to walk up stairs at work, sit or stand for long periods but she did not take any time off work.[39]
[39] ts 93.
On 27 October 2015, the plaintiff saw Dr Sethuraman at the Jupiter Medical Centre after she had been seen by the Emergency Department in Rockingham for low back pain which was associated with a urinary tract infection. The doctor's notes do not mention any injuries associated with the car accident.[40] The day prior to this attendance the plaintiff withdrew from her enrolment in a masters course she was enrolled in.[41]
[40] Exhibit 14, page 231.
[41] ts 207.
On 2 November 2015, the plaintiff saw Dr Sethuraman again regarding tests associated with her urinary tract infection. The doctor's notes do not mention any injuries associated with the car accident.[42]
[42] Exhibit 14, page 233.
On 13 November 2015, the plaintiff saw Dr David Lelek.[43] He treated the plaintiff's back but not her knees.[44]
22 February 2016 - the plaintiff complained to a general practitioner about neck and knee pain
[43] Exhibit 3.
[44] Exhibit 15.
On 22 February 2016, the plaintiff attended the Jupiter Medical Centre and saw Dr Nambiar.
Dr Nambiar noted that the plaintiff was suffering right sided neck discomfort and had occasional spasms and constant clicking and cracking of knees and discomfort. He recorded that the plaintiff had been to see a chiropractor who had advised deep tissue massage before further sessions.[45]
[45] Exhibit 14, pages 233 - 234.
Dr Nambiar's notes record that his examination of the plaintiff's back revealed that she had a full range of movement over her neck, 'no c spine tenderness' and she was tender over the trapezius.[46]
[46] Exhibit 14, page 233.
Dr Nambiar's notes record that his examination of the plaintiff's knee revealed that:
(a)she walked with a normal gait;
(b)there was no redness or bony deformity;
(c)there was a full range of active movements;
(d)the plaintiff was tender over the medial joint line and 'inf' (presumably inferior) patellar tendon and the surrounding soft tissue;
(e)there was no ligament laxity; and
(f)she was able to bear full weight.[47]
[47] Exhibit 14, pages 233 - 234.
Dr Nambiar noted that the plaintiff was suffering from a tender inferior patellar area and suggested that she might be suffering from patellar tendonitis. He requested an ultrasound of the plaintiff's knee.[48]
March 2016 - the plaintiff saw a general practitioner about insomnia and anxiety
[48] Exhibit 14, page 234.
The plaintiff attended the Jupiter Medical Centre twice in March 2016 first on 5 March and then again on 14 March. The notes of these visits do not mention the plaintiff complaining about her neck or knee but they do mention the plaintiff having difficulty sleeping and being stressed.[49]
[49] Exhibit 14, pages 234 - 235.
On 5 March 2016, the plaintiff saw Dr Hassanein about various matters, including difficulty sleeping well. He prescribed the plaintiff Temazepam, a sleeping tablet.[50]
[50] Exhibit 14, page 234.
On 14 March 2016, the plaintiff saw Dr Michael Gendy about being very stressed due to family court proceedings and not sleeping well. He noted that the plaintiff said that the sleeping tablet was not working and he provided her with a medical certificate.[51]
20 May 2016 - ultrasound of plaintiff's knees
[51] Exhibit 14, page 235.
On 20 May 2016, an ultrasound was performed of the plaintiff's right knee pursuant to the request made by Dr Nambiar in February.[52]
[52] Exhibit 14, page 273.
In a report dated 23 May 2016, [53] Dr Avl Saks reported that:
(a)there was no significant effusion present in the suprapatellar bursa;
(b)the medial and lateral collateral ligaments were normal;
(c)the quadriceps and patellar tendons were normal and the inferior aspect of the patellar tendon demonstrates a normal appearance;
(d)no obvious meniscal pathology was noted;
(e)the popliteal fossa was normal, with no Baker's cyst, haematoma or aneurysm noted; and
(f)there was no significant abnormality in the patellar region or elsewhere within the knee.
29 May 2016 - the plaintiff is referred to Dr Buelow, orthopaedic surgeon
[53] Exhibit 14, page 273.
On 29 May 2016, the plaintiff saw Dr Talukder. During that visit, Dr Talukder discussed the ultrasound performed on 20 May with the plaintiff. The notes of that consultation included the following:[54]
Had an MVA in October last yr--rear end collision
Rt knee ,neck [sic] and Rt shoulder pain
R kne [sic] US done--NAD
Discussed
[54] Exhibit 14, page 235.
Dr Talukder's notes also record that he discussed the plaintiff's obesity with her. They record the plaintiff's weight as 121 kg with a BMI of 45.5 and that she had been trying to lose weight by changing her lifestyle but that her back and knee pain affected her physical activity and job.
Dr Talukder referred the plaintiff to Mr Jens Ulrich Buelow.[55]
2 June 2016 - the plaintiff has another motor vehicle accident
[55] Exhibit 14, page 235.
On 2 June 2016, the plaintiff had a further motor vehicle accident. The plaintiff's car was a write‑off.[56]
[56] ts 102 - ts 103.
The plaintiff's chiropractor, Dr Lelek, considered that she had shown good improvement prior to this further accident. He thought this subsequent accident aggravated her neck, mid-back and lower back.[57]
[57] Exhibit 15, page 17.
The plaintiff says, however, that she did not suffer any injury as a result of this further accident.[58]
October 2016 - the plaintiff sees Dr Buelow, orthopaedic surgeon and has surgery
[58] ts 102 - ts 103.
On or around 3 October 2016, the plaintiff saw Dr Buelow (the orthopaedic surgeon to whom Dr Talukder had referred the plaintiff in May). In a report to Dr Talukder dated 3 October 2016,[59] Dr Buelow said that when he saw the plaintiff, she:
(a)had a knee that was so sore that she could not do stationary cycling or ride her horse;
(b)had difficulty squatting and walking up or down stairs;
(c)felt grinding behind her right kneecap and it was quite sore; and
(d)could not do her normal work or first aid training (as this involved squatting and kneeling).
[59] Exhibit 2, page 277.
Dr Buelow said that the plaintiff presented with a mildly restricted range of motion from zero to 125 degrees, with patellofemoral crepitus, increased Q angle to suggest that there is some maltracking, mild knee effusion and ligaments were intact but meniscal signs were not convincing. He said that the plaintiff was overweight.
When he gave evidence Dr Buelow said that a normal range of motion was between 130 to 135. He said that he had suspected maltracking when he saw the plaintiff but that this had not ultimately been demonstrated on subsequent investigation.[60]
[60] ts 446 - ts 447.
Dr Buelow said that he had organised a patellofemoral CT tracking study to assess the degree of maltracking and also an MRI scan. He said that he would review the plaintiff once this had been done and keep Dr Talukder informed of her progress.
A CT scan[61] for maltracking and an MRI[62] were performed on the plaintiff's knee on 5 October 2016 (the October 2016 MRI). This MRI was significant because it revealed osteoarthritis in the plaintiff's knee.
[61] Exhibit 17.
[62] Exhibit 18.
On 17 October 2016, the plaintiff saw Dr Buelow again. That day he wrote a further report to Dr Talukder.[63] In that report, Dr Buelow indicated that:
(a)the plaintiff's right knee MRI revealed:
(i)focal chondral wear overlying the patellar apex and lateral patellar facet;
(ii)high grade chondral wear and articular surface osteophyte involving the medial trochlear facet;
(iii)the menisci were intact and the lateral compartment structures were well preserved and there was no ligamentous damage; and
(b)the patellofemoral CT tracking study revealed normal tubercle lateralisation values and there was some mild patellar shift on the left, without tilt, with quadriceps contracted.
[63] Exhibit 2, page 282.
Dr Buelow said that the plaintiff was keen to proceed with an arthroscopy to have the damaged cartilage debrided and he recommended that he perform a lateral release procedure at the same time. He indicated that he had scheduled her for surgery.
Late 2016 - the plaintiff saw general practitioners for other non‑accident related reasons
On 8 September 2016, 18 October 2016, 24 June 2017 and 28 August 2017, the plaintiff saw doctors at the Jupiter Medical Centre for various matters unrelated to the plaintiff's car accident.[64]
June 2018 - October 2018 - the plaintiff sought treatment from her general practitioner for work‑related stress
[64] Exhibit 14, pages 235 - 242.
On 27 June 2018, the plaintiff saw Dr Sethuraman regarding stress she was experiencing because of bullying at work. A WorkCover first certificate of capacity was issued associated with the commencement of a workers' compensation claim. Dr Sethuraman suggested that she review the plaintiff in two weeks.[65]
[65] Exhibit 14, page 242.
On 9 July 2018, the plaintiff saw Dr Sethuraman again. The doctor's notes recorded that the plaintiff was still feeling anxious and had to attend the emergency department a few days before she saw Dr Sethuraman. Dr Sethuraman provided the plaintiff with a WorkCover certificate of capacity and suggested that she review the plaintiff again in three weeks.[66]
[66] Exhibit 14, pages 242 - 243.
On 31 July 2018, the plaintiff saw Dr Sethuraman again. The doctor's notes recorded that the plaintiff was still suffering from anxiety from bullying at work. Dr Sethuraman gave the plaintiff extended sick leave for one month and another WorkCover certificate of capacity. The notes also referred to the possibility of the plaintiff suffering from an epigastric hernia and an ultrasound was performed.[67]
[67] Exhibit 14, page 243.
On 2 August 2018, the plaintiff saw Dr Sethuraman again to discuss the results of the ultrasound. The plaintiff was referred to Fiona Stanley Hospital.[68]
[68] Exhibit 14, pages 243 - 244.
On 30 August 2018, the plaintiff saw Dr Sethuraman again. The notes record that the plaintiff was still feeling anxiety because of bullying at work and the doctor provided her with a WorkCover certificate of capacity giving her a further two months off work. The notes also record that the plaintiff was suffering from right knee pain, mainly on weight bearing, walking and climbing. The doctor recorded no symptoms of ligament or meniscal damage.[69]
[69] Exhibit 14, page 244.
On 4 September 2018, 10 September 2018 and 14 September 2018, the plaintiff saw various doctors at the Jupiter Medical Centre for various matters unrelated to the plaintiff's car accident.[70]
[70] Exhibit 14, pages 244 - 246.
On 18 September 2018, the plaintiff saw Dr Chen regarding anxiety and depression associated with her workplace bullying. The plaintiff was suffering from insomnia, an inability to do simple tasks, loss of concentration, fatigue and irritability, feelings of worthlessness and hopelessness and was unable to go back to work due to stress. The plaintiff was provided with a WorkCover certificate of capacity and referred to a psychologist.[71]
[71] Exhibit 14, page 246.
On 17 October 2018, the plaintiff saw Dr Nambiar about various issues including her weight. The doctor noted that the plaintiff had been unable to exercise since her motor vehicle accident in 2015 and had been gaining weight. The plaintiff weighed 134.2 kg. The doctor referred the plaintiff to a chiropractor and to a bariatric surgeon.[72]
30 August 2018 - the plaintiff saw a general practitioner
[72] Exhibit 14, pages 246 - 247.
On 30 August 2018, the plaintiff saw Dr Sethuraman for various matters including her anxiety at work and her right knee pain. The plaintiff was prescribed Mersyndol for the pain.[73]
22 October 2018 - Dr Buelow reviews the plaintiff again prior to surgery
[73] Exhibit 14, page 244; ts 125 - ts 126.
On 22 October 2018, Dr Buelow met with the plaintiff and prepared a report to Dr Talukder that day.[74] In that report, he noted that it had taken a while for the surgery that he recommended to be approved and her knee had worsened in the meantime.
30 October 2018 - Dr Buelow performs arthroscopy and lateral release
[74] Exhibit 2, page 289.
On 30 October 2018, Dr Buelow performed an arthroscopy and lateral release on the plaintiff's right knee. In a report to Dr Talukder of the same date,[75] Dr Buelow reported that:
(a)arthroscopy of the plaintiff's right knee confirmed quite severe patellofemoral cartilage damage. There was a 3 sq cm grade IV defect in the centre of the trochlea and grade III cartilage damage with delaminating cartilage on the patella apex;
(b)careful chondroplasties were performed. The unstable edges of the defect on the trochlea were debrided until stable edges and stable surfaces were achieved. Loose fragments were removed;
(c)in the medial compartment medial femoral condyle there was also grade III cartilage damage and in a small area grade IV. Careful chondroplasties were performed. The medial tibial plateau was intact. The medial meniscus was stable. The lateral compartment and lateral meniscus were normal. Cruciate ligaments were intact; and
(d)following chondroplasties and removal of loose fragments, he performed a lateral release procedure.
[75] Exhibit 2, page 294.
When Dr Buelow gave evidence, he explained that the lateral release that he performed was intended to change the pressure behind the kneecap by releasing a retinaculum on the inside and outside.[76]
November and December 2018 - Dr Buelow reviews the plaintiff
[76] ts 449.
On 5 November 2018, the plaintiff was reviewed by Dr Buelow. In a report to Dr Talukder,[77] Dr Buelow reported that the plaintiff had recovered well from her lateral release procedure and she still reported grinding and pain behind her kneecap (which he observed is to be expected).
[77] Exhibit 2, page 295.
On 3 December 2018, the plaintiff was reviewed by Dr Buelow again. In a report to Dr Talukder,[78] Dr Buelow reported that the plaintiff was making steady progress, she still described a degree of anterior knee pain but things were improving and she was fit to return to work from 2 December 2018.
16 May 2019 - the plaintiff is reviewed by Dr Buelow again
[78] Exhibit 2, page 297.
On 16 May 2019, the plaintiff was reviewed by Dr Buelow again. In a report to Dr Talukder,[79] Dr Buelow reported that:
(a)the plaintiff had not made any significant progress since his last review as she did not have time to do physiotherapy because of a hernia operation;
(b)the plaintiff was massively overweight and she was on the wait list for bariatric surgery;
(c)the plaintiff insisted that something was wrong with her knee. She described anterior knee pain when she walked, sat or got up from a sitting position. She said this was a different pain to what she had before and was keen to have this investigated and to have another MRI scan;
(d)clinically she had a normal range of motion in her knee. There was patellofemoral crepitus. She described pain anterior to and below the kneecap, consistent with the grade IV cartilage damage that she had in her trochlea and the grade III damage around the patellar apex. There was no significant effusion or swelling; and
(e)Dr Buelow had sent the plaintiff for a follow up MRI scan and a Durolane injection.
16 July 2019 - MRI performed on the plaintiff's right knee
[79] Exhibit 2, page 307.
On 16 July 2019, an MRI was performed on the plaintiff's right knee.[80]
[80] Exhibit 81.
In a report about this MRI prepared by Dr Dirk Sweeney, Dr Sweeney observed that the scan showed:
(a)diffuse moderate grade chondral wear over the entire central aspect of the MFG and this had progressed in the interval. There was mild subarticular marrow oedema involving the medial tibial rim;
(b)moderate grade chondral wear had progressed within the medial patellar facet and there was a persisting chondral fissuring at the patellar apex; and
(c)full thickness chondral wear and articular surface osteophyte had progressed at the trochlear apex.
22 July 2019 - the plaintiff is reviewed by Dr Buelow again
On 22 July 2019, the plaintiff was reviewed by Dr Buelow again. In a report to Dr Talukder,[81] Dr Buelow reported that:
(a)the plaintiff had a Durolane injection the week before but said she had not experienced any improvement and thought her knee was a little worse;
(b)an MRI was performed that confirmed a progression of tri‑compartmental degenerative changes;
(c)Dr Buelow discussed further treatment options including a replacement knee but that given she was under 50 and overweight the risk was that she would need a revision knee replacement within 8 years;
(d)the plaintiff was waitlisted to see a bariatric surgeon and this should be the priority; and
(e)he did not think that another arthroscopy would make a difference.
[81] Exhibit 82.
When Dr Buelow gave evidence, he said that he did not recommend that the plaintiff have a knee reconstruction at this stage because her clinical situation did not justify her having knee replacement surgery. He thought that her knee was still better than an artificial knee would have been.[82]
14 November 2020 - the plaintiff sees a general practitioner after fall
[82] ts 451 - ts 452.
On 14 November 2020, the plaintiff saw Dr Mamukuyomi after falling. The plaintiff injured her left knee.[83]
March 2021 - the plaintiff's knee gave way
[83] Exhibit 30, pages 325 - 326; ts 126 - ts 127.
In March 2021, the plaintiff had a fall at home when her right knee gave way. An MRI was performed of the plaintiff's knee.[84]
[84] ts 127; Exhibit 24.
The plaintiff also experienced other falls but the precise dates of these were unclear.[85]
18 August 2021 - MRI of lumbar spine
[85] ts 128.
On 18 August 2021, an MRI was performed of the plaintiff's lumbar spine.[86] This scan revealed:
(a)transitional anatomy with sacralisation of L5 vertebra;
(b)bilateral subarticular recess narrowing with impingement of both descending L5 nerve roots;
(c)a left extraforaminal disc-osteophyte complex at the L1/L2 level possibly impinging extraforaminal portion of left exiting the L1 nerve root; and
(d)mild left L3/L4 facetal arthropathy.
21 August 2021 - CT of both hips
[86] Exhibit 26.
On 21 August 2021, a CT was performed of both of the plaintiff's hips. These scans revealed degenerative changes involving both hip joints especially in the anterosuperior quadrants, worse on the right side.[87]
21 February 2022 - spine CT
[87] Exhibit 27.
On 21 February 2022, a CT was performed of the plaintiff's cervical and thoracic spine. The CT of the cervical spine revealed a partially compressed exiting right C5 root within its foramen. The CT of the thoracic spine revealed no overt untoward feature, a shallow coronal curve with a degree of degenerative change from T2 - T10 and possible left T4 and T5 root partial deformity.[88]
[88] Exhibit 28.
Causation
Section 5C of the Civil Liability Act
Section 5C(1) of the Civil Liability Act 2002 (WA) (Civil Liability Act) provides:
A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements -
(a)that the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
In Wallace v Kam[89] the High Court explained the separate nature of the enquiries as follows:[90]
The common law of negligence requires determination of causation for the purpose of attributing legal responsibility. Such a determination inevitably involves two questions: a question of historical fact as to how particular harm occurred; and a normative question as to whether legal responsibility for that particular harm occurring in that way should be attributed to a particular person. The distinct nature of those two questions has tended, by and large, to be overlooked in the articulation of the common law. … Statute now requires that the two questions be kept distinct.
[89] Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 (Wallace).
[90] Wallace [11] - [12].
The test of factual causation in s 5C(1)(a) of the Civil Liability Act is to be determined by the but for test: but for the negligent act or omission, would the harm have occurred?[91] It is a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.[92]
[91] Wallace [16]; Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 [45] (judgment of the court); Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182 [20] (French CJ, Gummow, Crennan & Bell JJ); East Metropolitan Health Service v Ellis (by his Next Friend Christopher Graham Ellis) [2020] WASCA 147 (Ellis (CA)) [600]; Veitch v Connor [2023] WADC 38(Veitch) [173].
[92] Veitch [173]; Wallace [16].
It is not necessary for a defendant's negligent act or omission to be the sole cause of a plaintiff's injury. Causation will be established if the relevant act or omission contributed materially to the damage suffered.[93] It is sufficient for the plaintiff to prove that the fault of the defendant was 'a necessary condition of the occurrence of the harm', as opposed to, for example, 'the necessary condition' of the occurrence of the harm.[94]
[93] Van der Velde v Halloran [2011] WASCA 252 [95]; City of Stirling v Tremeer (2006) 32 WAR 155 [71].
[94] Veitch [173]; Ellis (CA) [597] ‑ [600].
With regard to the proof of factual causation, in Ellis (CA), the Court of Appeal made the following observations:[95]
… it is clear, and there can be no doubt, that mere proof by a plaintiff of the possibility that a defendant's breach caused the plaintiff to suffer harm is insufficient. The court must be satisfied that it is more probable than not that the defendant's breach caused the relevant harm; it is not sufficient to conclude that the breach may have been a cause of the harm.
At the same time, it is also well-established that causation may be proved by inference. If direct proof is not available, an inference of causation may be drawn if the circumstantial evidence is sufficiently strong and coherent to support a definite inference to that effect. Before such an inference can be drawn, there must be more than two conflicting inferences of equal probability.
[95] Ellis (CA) [263] ‑ [264].
Section 5C(4) of the Civil Liability Act provides that for the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.
Section 5D of the Civil Liability Act provides that the plaintiff bears the onus of proving on the balance of probabilities any fact relevant to the issue of causation. The issue of causation involves a question of fact on which expert opinion evidence may be received.[96]
Pre‑existing injuries and hypothetical alternative scenarios
[96] Ellis (by his Next Friend Christopher Graham Ellis) v East Metropolitan Health Service [2018] WADC 36 [814] and the authorities referred to there.
A negligent defendant must take its victim as the defendant finds him or her and pay damages accordingly.[97]
[97] Watts v Rake (1960) 108 CLR 158, 159 (Watts); Purkess v Crittenden (1965) 114 CLR 164, 168 (Purkess).
The plaintiff submitted that if she made out a prima facie case of injury by the defendant's negligence, the disabilities that followed that injury are presumed to have been caused by it. She argued that in that situation, if the defendant contends otherwise, the defendant has an evidential burden to show that the disabilities were caused by a pre‑existing injury.[98] In support of this proposition the defendant referred to the decisions of the High Court in Watts and Purkess and a decision of Staude DCJ in Stojceska v Muharemovic.[99]
[98] Plaintiff's Closing Submissions, par 111.
[99] Stojceska v Muharemovic [2017] WADC 9 [279].
The defendant's closing submissions referred to the High Court's decision in Malec v JC Hutton Pty Ltd[100] and submitted that the principles in that case applied here.[101] In Malec Deane, Gaudron and McHugh JJ said:[102]
[I]n respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages.
[100] Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 (Malec).
[101] Defendant's Closing Submissions, pars 48 - 49.
[102] Malec (643).
Brennan and Dawson JJ said:[103]
The judgment of the majority in the Full Court seems to us to overlook the difference between the fact that the [plaintiff] had not been working for some time before the trial and an evaluation of the plaintiff's earning capacity which was destroyed in consequence of the defendant's negligence. The fact that the plaintiff did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred. By contrast, earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false - for the plaintiff has been injured - the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past.
[103] Malec (639) - (640).
Their Honours also said:[104]
In assessing the plaintiff's earning capacity in the present case, what had to be evaluated was the prospect that the deteriorating back condition would have precluded him from engaging in gainful employment had he not contracted brucellosis. An evaluation of that prospect had to be made. To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation.
[104] Malec (640).
The interaction between the principles in Malec and the High Court's earlier decisions in Watts and Purkess was considered by the New South Wales Court of Appeal in Seltsam Pty Ltd v Ghaleb.[105] In that case, Ipp JA with whom (Mason P agreed) said the following about the interaction of those principles:
104What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the 'disentangling' evidentiary burden on it of showing that part of the plaintiff's condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
105Where a defendant alleges that the plaintiff suffered from a pre‑existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of 'disentanglement' discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations - not proof on a balance of probabilities.
106Without intending to give an exhaustive list of possibilities, it may be that, had the defendant's negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff's enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant's negligent act might have contributed to the plaintiff's ultimate condition.
107Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant's negligence. A preexisting condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.
108As was pointed out in Newell v Lucas [1964-5] NSWR 1597 (at 1601 per Walsh J, with whose judgment Hardie and Asprey JJ agreed), the court must determine whether a comparison may be made between the plaintiff's condition prior to the injuries sustained by the defendant's negligence (including the plaintiff's economic and other prospects in that condition) and the plaintiff's condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.
109Of course, if the evidence does not adequately establish the pre‑existing condition or its possible consequences (as was the case in Purkess v Crittenden), it would not be possible to carry out such a comparison and assessment. In regard to the possible consequences, a scintilla of evidence would not suffice. The evidence must be such that a reasonable person could draw from it the inference that the possible consequences contended for by the defendant existed (see McCormick, Evidence, 5th ed, para 338, p.511).
[105] Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 (Seltsam).
Ipp JA said that according to Malec:
(a)in the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring;
(b)the court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred;
(c)the court must form an estimate of the likelihood of the possibility of alleged future events occurring; and
(d)these matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.
This analysis has been regularly followed by courts in New South Wales and by the Court of Appeal in Victoria.[106] While I have been unable to identify any consideration of Seltsam by the Court of Appeal in this state (at least in this context) the approach suggested by Ipp JA has been followed by two intermediate courts of appeal and, with respect, seems correct and consistent with High Court authority to me.
[106] Footscray Football Club Ltd (ACN 005 226 595) v Adam Kneale [2024] VSCA 314 [659] - [660]; The Bishop of the Roman Catholic Diocese of Wagga Wagga v TJ (a pseudonym) [2024] VSCA 262; (2004) 74 VR 612 [148] ‑ [149].
The lay evidence regarding the accident and its effect on the plaintiff
The plaintiff gave evidence about the accident and its effect on her. In addition, she called three lay witnesses who spoke about the effect that they witnessed the accident had on her.
The plaintiff's evidence
The plaintiff gave the following evidence about the accident and its effect on her.
During the accident on 2 October 2015, her right knee struck the steering column and the seatbelt pulled on her right shoulder across the base of her neck.[107]
[107] ts 92.
Once the shock wore off, she started stiffening up a bit and her knee started swelling. All across the base of her neck, shoulder and down the right‑hand side of her spine and down her shoulder blade started to burn.[108]
[108] ts 92.
She did not take any time off work after the accident but had difficulty walking up stairs or standing for long periods. She also was not able to deliver first aid because she was not able to kneel or squat.[109]
[109] ts 93 - ts 94.
In 2015, prior to the accident, she was able to exercise rigorously as part of efforts to lose weight.[110]
[110] ts 87 - ts 88; Exhibit 11.
She twisted her right knee previously in November 2014, while she was moving pot plants. She felt a twinge in her knee, put ice on it and applied some basic first aid. She went to see her general practitioner a couple of days later.[111]
[111] ts 77.
Her general practitioner sent her for an X‑ray and a CT scan. He told her that she had no damage to her knee and to continue with first aid treatment and she was provided with some medication. She was given a medical certificate stating that she was unfit for work from 5 December 2014 to 12 December 2014.[112]
[112] ts 78; Exhibit 8, page 413.
Her symptoms were gone in a few days to a week, and she did not go back to the doctor again.[113]
[113] ts 79.
On 7 December 2014 she posted on Facebook about topical anti‑inflammatories definitely working and that she was able to bend her knee again.[114]
[114] ts 79 - ts 80; Exhibit 9.
In 2018, the plaintiff's leg gave way and she had a fall.[115]
[115] ts 125; Exhibit 14, page 244.
When the plaintiff turned 50 in 2022, she decided to participate in a series of activities including go‑karting, visiting the treetop walk in Kings Park, Bells Rapids, the Whitsundays, flying a helicopter, driving a V8 supercar and a rally car, skydiving, driving in an off‑road buggy, jet skiing and gliding.[116]
[116] ts 215 - ts 220.
When the plaintiff went go‑karting she needed help getting up and down from the kart.[117]
[117] ts 221.
The plaintiff needed assistance to get on and off the tender boat in the Whitsundays and needed to sit near the captain while sailing and her knee was sore afterwards.[118]
Ms Kathleen Culkin
[118] ts 222.
The first lay witness called by the plaintiff was Ms Kathleen Culkin. She gave the following evidence.
Ms Culkin was a former work colleague of the plaintiff between 2009 and 2011 and 2015 and 2017. They were working together when the plaintiff had her accident on 2 October 2015.[119]
[119] ts 239.
After the accident the plaintiff had difficulty walking up stairs and had to walk differently. The plaintiff stopped demonstrating resuscitation because she could not kneel or walk down the stairs to the training area.[120]
[120] ts 240 - ts 241.
In the six months prior to the accident, she had not observed the plaintiff having any problem with her knee, neck, back or shoulder.[121]
Ms Alyce Budz
[121] ts 243.
The second lay witness called by the plaintiff was Ms Alyce Budz. She gave the following evidence.
Ms Budz was a friend of the plaintiff who saw her regularly at social occasions.[122]
[122] ts 266.
The plaintiff helped Ms Budz with packing up her house in 2011 which involved a lot of kneeling. Ms Budz did not observe the plaintiff having any mobility issues at that time.[123]
[123] ts 266 - ts 267.
After the accident the plaintiff had a lot of swelling in her knee and as time went on it got progressively worse and she walked with a limp.[124] Ms Budz recalled having to assist the plaintiff with laying pavers and stones at her house.[125]
[124] ts 267.
[125] ts 272.
The plaintiff could not sit on high bar stools and she needed help getting off a boat in the Abrolhos Islands in 2020 and could not participate in stand-up paddleboarding. She cannot wear flippers and has to bring a bigger bed to go camping.[126]
[126] ts 268 - ts 269.
The plaintiff fell over while they were in the Abrolhos Islands which left her with a swollen knee.[127]
[127] ts 269.
Prior to the accident the plaintiff would be in the mosh pit for concerts but now had to sit in the stand.[128]
[128] ts 269 - ts 270.
Ms Budz participated in various activities that the plaintiff participated in when she turned 50 including gliding. The plaintiff had to use her good leg to push off.[129]
[129] ts 270.
Ms Budz also attended a birthday weekend celebration during which the plaintiff had difficulty getting out of the pool.[130]
[130] ts 270.
The plaintiff now walks more slowly.[131]
Ms Justine Dunlop
[131] ts 272.
The third lay witness called by the plaintiff was Ms Justine Dunlop. She gave the following evidence.
Ms Dunlop is a friend of the plaintiff who has known her since university in 2007.[132] She caught up with the plaintiff about every six months after the accident.[133]
[132] ts 372.
[133] ts 375.
Prior to the accident she saw the plaintiff painting and going up and down ladders without a problem.[134]
[134] ts 373.
Ms Dunlop thought the plaintiff was someone who loved the outdoors.[135]
[135] ts 374.
Ms Dunlop recalls an incident after the plaintiff's accident where she became uncomfortable sitting on chairs for a long period of time.[136]
[136] ts 374 - ts 375.
The medical opinion regarding the cause of the plaintiff's knee injury
The reports of various medical experts were tendered during the trial and a number were called to give evidence about the cause of the plaintiff's knee injury.
Dr Heather Campbell
Dr Heather Campbell was a Consultant Occupational Physician who reviewed the plaintiff at the request of the defendant's solicitors on 19 August 2016.[137]
[137] Exhibit 80.
Unfortunately, Dr Campbell had passed away by the time that the trial commenced. A report that she prepared dated 23 August 2016 was admitted into evidence by consent and pursuant to s 79C of the Evidence Act 1906 (WA) (Evidence Act).[138]
[138] ts 442 - ts 443.
Dr Campbell noted that the accident appeared to have been very low impact. Although Dr Campbell accepted that the accident may have caused the plaintiff some temporary discomfort, she did not think that the accident either aggravated any pre‑existing injury, or left the plaintiff with a lasting injury. She thought that the plaintiff's symptoms were likely to relate to patellofemoral degeneration associated with the plaintiff's weight and prior history.
Associate Professor Hardisty
Associate Professor Hardisty is an orthopaedic surgeon who reviewed the plaintiff at the request of the plaintiff's solicitors on three occasions, first in June 2017 and then on 8 January 2018 and 18 October 2024. He prepared five reports dated 26 June 2017,[139] 31 May 2018,[140] 10 August 2020,[141] 3 November 2023[142] and 18 October 2024.[143] Associate Professor Hardisty's report dated 31 May 2018 responded to Dr Campbell's report.
[139] Exhibit 49.
[140] Exhibit 50.
[141] Exhibit 52.
[142] Exhibit 54.
[143] Exhibit 56.
Associate Professor Hardisty disagreed with Dr Campbell. He considered that there was 'no doubt' that the plaintiff's knees were injured given the nature of the accident and the appearance of her knee after the accident.[144]
[144] Exhibit 50.
Associate Professor Hardisty accepted that the plaintiff might have been suffering from osteoarthritis in her right knee before the accident. He accepted that the December 2014 CT Arthrogram revealed that the plaintiff was suffering from some chondral (cartilage) degeneration consistent with osteoarthritis at that stage.[145]
[145] ts 309. See also ts 323 - ts 324.
He said, however, that you could not tell from a CT arthrogram whether the plaintiff was symptomatic.[146] He said that you cannot extrapolate clinical symptoms from imaging and that a patient might be asymptomatic despite the fact that an image revealed osteoarthritis. He thought that the plaintiff could plausibly have been asymptomatic with a knee that appeared to be in the condition shown in the December 2014 CT Arthrogram.[147]
[146] ts 309. See also ts 323 - ts 324.
[147] ts 305 - ts 306.
Associate Professor Hardisty said that direct blows to the kneecap often cause problems in the kneecap. He said that in the plaintiff's case, the blow was at a slightly oblique angle and it could have caused slide or friction which can result in a cartilage injury. He said that such an impact had the capacity to cause an asymptomatic knee to become symptomatic.[148] He thought that the blow that the plaintiff received to her kneecap in the accident accelerated the progression of the plaintiff's right knee osteoarthritis by making her asymptomatic knee become symptomatic.[149]
[148] ts 307 - ts 307.
[149] ts 311.
Associate Professor Hardisty said a patient with symptomatic patellofemoral arthritis would be expected to experience continued swelling and complaints of the knee catching or giving way and would be expected to attend a general practitioner for treatment.[150]
[150] ts 307.
Associate Professor Hardisty said that at the plaintiff's age you would be reluctant to consider a total knee replacement but if the pain was intractable, interfering with her life and preventing her from working, a total knee replacement would be considered.[151]
[151] ts 312.
Associate Professor Hardisty said that even if the plaintiff had not injured her knee in the accident, she would probably have needed a knee replacement in 10 - 15 years from the accident anyway.[152] He said that he thought that the accident brought forward the need for a knee replacement by 2 - 5 years.[153]
[152] ts 311 - ts 312, ts 321, ts 327 - ts 329.
[153] ts 321, ts 327 - ts 329.
Associate Professor Hardisty said that if a knee was replaced when a patient was 65 years old, it might last between 15 and 20 years. He said, however, that when someone's knee is replaced when they are in their 40s or 50s, the knee wears out quicker and would only last between 10 and 15 years.[154]
[154] ts 315.
Associate Professor Hardisty disagreed with Dr Mark Hamlin's opinion (discussed below) that the degree of patellofemoral arthropathy was similar between the two separate examinations. He said that you could not satisfactorily compare a CT and an MRI as the modalities were different.[155] He thought that Dr Hamlin's opinion carried less weight because he was not musculoskeletal trained.[156]
[155] ts 323.
[156] ts 323.
Associate Professor Hardisty accepted that weight can accelerate osteoarthritis.[157] He accepted that her weight had contributed to her symptoms.[158]
[157] ts 326.
[158] Exhibit 56.
During cross-examination, Dr Martyn Flahive's opinion (see below) that the changes between the December 2014 CT Arthrogram and the October 2016 MRI represented natural progression, was put to Associate Professor Hardisty. He said in response that the plaintiff was obese and had some degeneration in 2014 but he said that she had a high level of function before the accident.[159]
[159] ts 326.
In Associate Professor Hardisty's report dated 18 October 2024, he said that given the two years elapsing between the December 2014 CT Arthrogram and the October 2016 MRI, it cannot be definitively said that the changes represent natural progression, and the changes cannot be distinguished from exacerbation or aggravation from the motor vehicle accident from 2015.[160]
[160] Exhibit 56.
Dr Flahive's opinion that it would be impossible for the medial femoral condyle and the tibiofemoral condyle to be impacted during the accident[161] was also put to Associate Professor Hardisty. He said it was not possible to say that. He said that the plaintiff's injury was a twisting and oblique injury to the patellofemoral joint which would have caused the knee to rotate. He said that the twisting could have caused damage to the medial femoral condyle.[162]
Dr Benjamin Witte
[161] ts 570.
[162] ts 577 - ts 578.
Dr Benjamin Witte is an orthopaedic surgeon who reviewed the plaintiff twice at the request of the Insurance Commission of Western Australia (ICWA) on 29 August 2018 and 18 March 2020. He prepared two reports addressed to the ICWA dated 5 September 2018[163] and 7 April 2020.[164] Dr Witte then reviewed the plaintiff again on 31 October 2024 at the request of the plaintiff's solicitors and prepared a report that day.[165]
[163] Exhibit 71.
[164] Exhibit 73.
[165] Exhibit 76.
Dr Witte broadly agreed with Associate Professor Hardisty's opinion and followed a similar reasoning process. He considered that the plaintiff's symptoms were caused by the accident and the impact of her knee on the dashboard. He thought that the accident was the predominant cause of her ongoing symptoms, although he also thought her weight may have contributed to her condition.[166] He described the cause of the plaintiff's knee injury as 'multifactorial'.[167]
[166] Exhibits 71 and 73.
[167] ts 379 - ts 381.
Dr Witte accepted that the plaintiff had osteoarthritic degenerative changes in her right knee prior to the accident.[168] He agreed that the December 2014 CT Arthrogram Report[169] failed to properly recognise the damage shown on the arthrogram.[170] He said that the December 2014 CT Arthrogram confirmed that there was chondral damage before the accident.[171] He did not consider that the damage meant that the plaintiff would necessarily have been symptomatic, however.[172]
[168] ts 379 - ts 381.
[169] Exhibit 8, page 410.
[170] ts 401 - ts 402.
[171] Exhibit 76.
[172] ts 382.
Dr Witte thought that the cartilage behind the patella in the December 2014 CT Arthrogram appeared fairly normal but looked damaged in October 2016 MRI. He described it as disorganised as if it had been ripped, squashed and pushed out of position. He thought that the appearance of the cartilage was consistent with a traumatic injury.[173]
[173] ts 384.
Dr Witte expressed the opinion that the chondral changes in the patellofemoral joint of the right knee prior to the accident, would have predisposed someone to suffer significant ongoing symptoms and problems from a relatively minor injury (particularly a direct blow to the patella, such as hitting the dashboard/steering column).[174]
[174] Exhibit 76.
Dr Witte said that the force of the blow to the knee during the accident could have impacted the soft tissue at the front of the knee and squashed the cartilage between the kneecap and the femur. He thought the accident was a cause of the injury suffered by the plaintiff.[175] He considered that the accident exacerbated and worsened the injury and precipitated symptoms.[176]
[175] ts 383 - ts 384.
[176] ts 379 - ts 381.
Dr Witte said that prior to the accident the plaintiff had not experienced significant symptoms in her right knee. He observed that this was evident from the plaintiff's general practitioner notes. He said that his interpretation of the notes and history the plaintiff gave was that the general trajectory of her leisure time, knee symptoms and ability to work changed following the accident.[177]
[177] Exhibit 76.
Dr Witte said that significant osteoarthritis in one compartment of the knee can provoke deterioration in other compartments. He said that therefore the worsening of the patellofemoral chondral surfaces and the development of osteoarthritis in one compartment could well have contributed to the deterioration of the knee in general.[178]
[178] Exhibit 76.
Dr Witte said that the pattern of deterioration, particularly in the patellofemoral and medial compartments, revealed that there was definitely an underlying genetic component. He said that the plaintiff's chronic weight problem had contributed to her worsening right knee symptoms as it had increased the wear and tear on that joint.[179]
[179] Exhibit 76.
Dr Witte said it was difficult to tell whether the incident when the plaintiff injured her knee in 2014 caused the injury that could be seen on the December 2014 CT Arthrogram.[180]
[180] ts 381 - ts 382.
Dr Witte thought that there were changes in the patellar cartilage that looked significantly worse on the October 2016 MRI compared to the December 2014 CT Arthrogram. He thought that the changes looked as if they might be traumatic and caused by the accident. He said that slow deterioration of the cartilage tends to cause thinning whereas the image looked disorganised and squashed.[181]
[181] ts 382 - ts 384.
Dr Witte thought that the plaintiff would likely require a total knee replacement.[182] Like Dr Hardisty, he thought it was quite possible that the plaintiff would have required a total knee replacement even if the accident had not occurred. He said that in 2014 he would not have thought that the plaintiff would have needed a knee replacement for 10 or 15 years.[183]
[182] ts 386 - ts 388.
[183] ts 388.
Dr Witte said that the condition of the plaintiff's left knee provided a useful comparison as to what her knee might have looked like if it were not for the accident. He said that he did not think that the left knee needed replacement in the short to medium term.[184]
Dr Benjamin Kimberley
[184] ts 389.
Dr Benjamin Kimberley reviewed the plaintiff on 11 October 2024 at the request of her solicitors and prepared a report the same day.[185] He prepared a supplementary report on 15 November 2024.[186] He had a similar opinion about the cause of the plaintiff's right knee injury to Associate Professor Hardisty and Dr Witte.
[185] Exhibit 62.
[186] Exhibit 63.
Dr Kimberley thought that the plaintiff's knee injury was caused by the accident. He said that there had been some minor right knee pre‑existing degeneration which was asymptomatic that had been rendered symptomatic by the accident and had continued to deteriorate.[187]
[187] Exhibit 62.
Dr Kimberley thought that the plaintiff had moderate to severe arthritis in her right knee before the accident and he said that she had lost cartilage in certain areas. He said that this meant that the accident may have impacted other tissues.[188] He thought that the twisting position of the accident might mean that any blow was on the left side.[189]
[188] ts 355.
[189] ts 347.
Dr Kimberley thought that the accident had caused a significant degeneration of the plaintiff's right knee.[190]
[190] ts 347.
Dr Kimberley said that cartilage does not heal like skin and once there is a bit of damage, then this leads to more rapid wear over time. He described it as a snowball effect. He said that knee replacement surgery was the only option.[191]
[191] ts 355.
Dr Kimberley said that a patient's age would affect the timing of surgery. He said that before surgery, he would advise treatment that might improve the patient's position without surgery, including injections, bracing and weight loss. He thought that the plaintiff was capable of undertaking a rehabilitation program.[192]
Dr Jens-Ulrich Buelow
[192] ts 355 - ts 356.
Dr Jens-Ulrich Buelow also gave evidence. He was the orthopaedic surgeon who treated the plaintiff and performed surgery on her right knee on 30 October 2018. Knee surgery is his specialty.[193]
[193] ts 445.
The plaintiff was initially referred to Dr Buelow by her general practitioner, Dr Talukder in 2016. Dr Buelow saw the plaintiff at least three times prior to the surgery. He also reviewed the plaintiff post‑operatively on at least four occasions on 5 November 2018, 3 December 2018, 16 May 2019 and 22 July 2019. He reviewed the plaintiff again on 14 October 2024, shortly before the trial started.
In Dr Buelow's report to Dr Talukder following the surgery on 30 October 2018, Dr Buelow reported that when he performed the surgery he noted a 3 sq cm grade IV defect in the centre of the trochlea and grade III cartilage damage with delaminating cartilage on the patella apex.[194]
[194] Exhibit 2, page 294.
When Dr Buelow saw the plaintiff in 2019, he thought she might need a knee replacement at about age 60.[195]
[195] ts 452.
Dr Buelow was provided with the December 2014 CT Arthrogram by the time he reviewed the plaintiff on 14 October 2024.[196] He said that the December 2014 CT Arthrogram showed some grade IV damage in the trochlea measuring 1.2 cm x 1.3 cm. He said that this was in the area where the knee would have impacted the dashboard and it might be expected that the impact would damage the trochlea (although the December 2014 CT Arthrogram revealed that there was damage there already).[197]
[196] ts 453.
[197] ts 453, ts 455 - ts 456.
Dr Buelow agreed that a patient with cartilage damage like that revealed by the December 2014 CT Arthrogram might not report pain. He said that he had no doubt that the accident aggravated the plaintiff's symptoms.[198]
Dr Heng Tan
[198] ts 457.
Dr Heng Tan is an occupational physician who reviewed the plaintiff at the request of the plaintiff's solicitors on 17 September 2024. He prepared a report the same day.[199] His opinion was similar to that of the experts already mentioned.
[199] Exhibit 46.
Dr Tan thought that the knocking of the plaintiff's knee against the steering column during the accident caused it to become symptomatic.[200]
[200] Exhibit 46.
Dr Tan thought that the force of the car hitting the back of the plaintiff's car would have forced her forward and impacted around the kneecap region.[201]
[201] ts 276 - ts 277.
Dr Tan thought that the December 2014 CT Arthrogram revealed some degeneration prior to the accident. He reviewed the plaintiff's medical records and considered that her injury at that time resolved without treatment. He also considered it relevant that the plaintiff was able to perform CPR prior to the accident.[202] He considered that there was no evidence of the right knee being chronically painful, or any evidence of the right knee causing any significant restrictions to her day‑to‑day activities.[203]
[202] ts 278 - ts 279.
[203] Exhibit 46.
Dr Tan said that a person with symptomatic arthritis would have morning stiffness, an inability to kneel and a swollen knee intermittently if they had to stand for a long time or had to squat or kneel.[204]
[204] ts 282.
Dr Tan thought that there may have been a number of contributors to the plaintiff's osteoarthritis but he thought that the accident was a significant contributor. This opinion was based on the differing condition of the plaintiff's knee before and after the accident. He thought that the changes shown on the December 2014 CT Arthrogram were mild and the fact that after four years there was bone on bone suggested that an intervening factor had accelerated the arthritis.[205]
[205] ts 279.
Dr Tan thought that over time the plaintiff would have developed symptomatic arthritis anyway and by her late 50s or 60s, she would have had an arthritic knee.[206] He said that it is not recommended that someone in their 50s have a knee replacement.[207]
Dr Martyn Flahive
[206] ts 279.
[207] ts 283.
Dr Martyn Flahive is a consultant occupational physician who reviewed the plaintiff twice at the request of the defendant's solicitors on 13 May 2020 and 12 August 2024. He also prepared five reports for the defendant's solicitors dated 29 May 2020,[208] 27 September 2022,[209] 12 August 2024,[210] 11 October 2024[211] and 16 October 2024.[212]
[208] Exhibit 85.
[209] Exhibit 86.
[210] Exhibit 87.
[211] Exhibit 88.
[212] Exhibit 89.
Dr Flahive said that when he saw the plaintiff on 13 May 2020, she did not provide him with a history of injuring her knee in 2014.[213]
[213] ts 472.
At the time, he thought it likely that the plaintiff's osteoarthritis pre‑dated the accident. He thought it was unusual for the plaintiff to have developed such severe osteoarthritis after such a low‑speed accident. He said that that did not mean that the accident was immaterial, but he thought that other factors would have been relevant to the progression of the osteoarthritis, particularly as it had only been five years since the accident. He did seem to accept, however, that it was possible that the injury had been exacerbated by the accident. In terms of treatment, he expressed the view that the focus should be on weight loss.[214]
[214] Exhibit 85; ts 470.
By the time that Dr Flahive prepared his report dated 27 September 2022, he had reviewed the December 2014 CT Arthrogram. He said that he thought that the December 2014 CT Arthrogram revealed chondral pathology (most notable in the patellofemoral joint) and early osteoarthritis. He thought that the disease was established and likely symptomatic prior to the accident and that the plaintiff's present symptoms were unrelated to the accident.[215]
[215] Exhibit 86.
Dr Flahive reviewed the plaintiff again on 1 August 2024. In his report dated 12 August 2024, he said that he:
(a)found it difficult to accept that the injury to the plaintiff's knee in 2014 was a minor strain as asserted;
(b)thought that the injury aggravated the chondral pathology that has continued since;
(c)thought it clear on reviewing the imaging that the loss of a large area of the patellofemoral joint cartilage pre‑dated the accident and cannot be attributed to that accident;
(d)considered that Dr Buelow, Dr Witte and Associate Professor Hardisty had not been provided with all of the imaging and he thought that their opinions regarding causation were tainted by heuristic and confirmation bias. He referred to the persistent view that if it were not for the accident, the plaintiff would not have developed knee osteoarthritis. He said that this view was not supported by the radiological evidence;
(e)expressed the view that the plaintiff's injury was caused by her weight;
(f)said that he found it difficult to find any rational argument that the accident had been material in either causing her cartilage changes, the progression of her knee arthropathy, or her knee symptoms and disability; and
(g)accepted that the plaintiff may have exacerbated her right knee pain in the accident but thought that the effect of this would have been overwhelmed by other factors, such that there was no material association between the accident and her osteoarthritis.[216]
[216] Exhibit 87.
Dr Flahive said that when he saw the plaintiff in 2020 and 2024 she was unable to kneel, walked with a limp and had difficulty climbing up and down stairs.[217]
[217] ts 504.
Dr Flahive's report dated 11 October 2024 commented on Dr Tan's report. He said that Dr Tan had not had the opportunity to review all of the imaging available. He said that it was difficult to accept that chronic change developed in a few months, and he thought that the condition of the plaintiff's knee in 2016 was consistent with the changes identified in the December 2014 CT Arthrogram.[218]
[218] Exhibit 88; ts 502 - ts 503.
When Dr Flahive was asked to explain his conclusions at trial, he placed significant emphasis on the plaintiff's weight. He accepted that the knock on the knee might have aggravated the plaintiff's knee but he said that it was not the driving force of her knee pathology. In terms of treatment, he thought that the focus should be on weight loss.[219] At one point he said that it would be impossible for the medial femoral condyle and the tibiofemoral condyle to be impacted during the accident.[220]
[219] ts 499 - ts 501.
[220] ts 570.
Dr Flahive said the osteoarthritis in the plaintiff's knee in 2014 was likely to progress.[221] He said that it was inevitable that the plaintiff's knee would become symptomatic.[222]
Dr Mark Hamlin
[221] ts 501.
[222] ts 522.
Dr Mark Hamlin is a radiologist who prepared a report providing his interpretation of the December 2014 CT Arthrogram and the October 2016 MRI at the request of the defendant's solicitors. He prepared a report dated 29 October 2024.[223]
[223] Exhibit 79.
Dr Hamlin thought that the December 2014 CT Arthrogram revealed advanced patellofemoral osteoarthritis, associated with regions of full thickness chondral loss. He said that the October 2016 MRI revealed severe patellofemoral chondromalacia, grade IV. He said that there was focal high grade chondrosis of the medial femoral condyle posteriorly, approaching full thickness.[224]
[224] Exhibit 79.
Dr Hamlin said that while the imaging modalities of CTs and MRIs are not comparable, the degree of patellofemoral arthropathy appeared similar between the December 2014 CT Arthrogram and the October 2016 MRI.[225]
[225] Exhibit 79.
Mr McDonald said that the next progression in the plaintiff's career depended on their experience. He said that if someone did not have experience on a mine site, they would need to progress to an advisor position which was a lower role before they could progress to a higher role. He said that someone might then progress to a manager position once they had the necessary experience.[532]
[532] ts 256 - ts 257.
Mr McDonald said that he doubted that Ora Banda mining would employ the plaintiff as a superintendent, so she would need to step sideways, or take a demotion, if she wanted to go onsite.[533] He said that she might be considered for an advisor role, or a co‑ordinator role, depending on her experience. He said that he did not think that someone would be made a superintendent on a mine site, if they had never stepped on a mine site before.[534]
[533] ts 257.
[534] ts 256 - ts 257.
Mr McDonald said that the Perth based position of HSE general manager was not within the plaintiff's skills and experience. He said that he thought that this role required site‑based experience.[535]
[535] ts 257 - ts 258.
Mr McDonald accepted that there were metropolitan roles that did not require site‑based experience and not all roles on site were advertised as requiring a first aid certificate. He said that if you were working in a mining rescue team you would be expected to have a first aid certificate but that he had been to many mine sites without a first aid certificate.[536]
[536] ts 258 - ts 259.
In his report, Mr McDonald observed that the plaintiff's career had taken numerous paths over time, with some directions appearing to be conflicting or in flux. He said that she was unable to answer clearly, when asked simple vocational questions. He said that he thought this demonstrated an element of 'career distress' which might require vocational intervention.[537]
[537] Exhibit 41, page 7; ts 259 - ts 260.
Mr McDonald said that the plaintiff's career progression prospects were 'pretty good' and there was a prospect that she might obtain a role at a larger company with a pay rise. He said that her likely salary might increase to between $140,000.00 and $170,000.00.[538]
Mr John Shaddick
[538] ts 260 - ts 261; Exhibit 41, page 210.
Mr John Shaddick is a recruiter from Sundstrom Recruitment. Sundstrom Recruitment is a company that specialises in health and safety recruitment in Western Australia and Queensland, with a focus on senior roles within the mining industry.[539] He was called to give evidence by the plaintiff.[540]
[539] ts 332; Exhibit 60.
[540] Exhibit 59.
Mr Shaddick said that typically there are site‑based roles which report to operational leaders in corporate, who are in leadership positions and are the head of function. He said that these roles involve the setting of strategy for the business which is implemented at site level. He said that there might also be co‑ordinator roles and some administrative roles.[541]
[541] ts 334.
Mr Shaddick thought most roles were based on site and only 10% ‑ 20% of the company's safety team would be based in Perth.[542]
[542] ts 334.
Mr Shaddick said that it was advantageous that the plaintiff had an undergraduate degree and qualifications in training.[543] He said that the plaintiff was a viable candidate for a site‑based health advisory role. He said that those roles paid between $140,000.00 to $150,000.00 but he thought the plaintiff might earn $150,000.00 with her qualifications.[544]
[543] ts 334 - ts 335.
[544] ts 335.
Mr Shaddick said that the progression typically went from advisor to senior advisor. He said that some businesses had superintendent of health and safety above that. He said on larger sites there could be a senior advisor position, or a site‑based safety manager.[545]
[545] ts 336.
Mr Shaddick said that the next career progression would be a leadership position back in Perth. He said that this position would move away from operational safety and would involve delivering strategy with the senior management team.[546]
[546] ts 336 - ts 337.
Mr Shaddick said he thought that 3 - 5 years' experience was required to become a superintendent. He expected that such a person might earn between $175,000.00 and $200,000.00 plus bonuses.[547]
[547] ts 336.
Mr Shaddick was asked whether a job applicant might obtain a role that they could not fulfill. He said no.[548]
[548] ts 336.
Mr Shaddick said that if a job had a site fitness requirement, the job applicant would need to pass that requirement. He said that each company had different parameters and the requirements were not hard and fast.[549]
[549] ts 337.
Mr Shaddick said that a general manager might earn $250,000.00 plus superannuation.[550]
[550] ts 338.
Mr Shaddick said that if the plaintiff were to work on site with her current level of experience, she might be able to obtain a position as a site safety advisor and earn between $150,000.00 and $175,000.00.[551]
[551] ts 340.
Mr Shaddick said that a candidate would require a minimum of five years' experience to be a superintendent.[552]
[552] ts 340 - ts 341.
Mr Shaddick said that the position of manager above superintendent was rare and not every site would have one. He said they would likely have significant on site experience.[553]
[553] ts 342.
Mr Shaddick said that the plaintiff's current role where she gets paid $145,000.00 was well renumerated.[554]
[554] ts 342.
The plaintiff's claim for past loss of earning capacity
The plaintiff's claim
The plaintiff claimed $225,901.79 (inclusive of interest) for past loss of earnings.[555] This claim related to an alleged:
(a)lack of competitiveness on the open labour market to obtain FIFO roles from January 2021; and
(b)loss of earning capacity to undertake first aid training in her 'off‑swing' weeks from that time when it was contended that the business would have become profitable.[556]
[555] Plaintiff's Closing Submissions, pars 302 - 306; Particulars of Damage, pars 29 - 60.
[556] Plaintiff's Closing Submissions, par 303.
The plaintiff alleged that if it were not for the defendant's negligence, she would have commenced working in a FIFO role from about January 2021 and would have had a greater earning capacity to run her first aid training business in her off‑swing weeks.[557]
[557] Plaintiff's Closing Submissions, pars 315 - 316; Particulars of Damage, par 39.
She claimed that she would have earned a base salary of $169,000.00 from January 2021. This figure was based on the salary she would have received at Central Earthmoving as an HSEQ Advisor.[558]
[558] Plaintiff's Closing Submissions, pars 317 - 318; Exhibit 91, page 678.
For the period October 2015 to 30 June 2021, the plaintiff also claimed $13,037.00 for her first aid training business in the six‑month period commencing when she would have commenced FIFO work.[559]
[559] Plaintiff's Closing Submissions, par 320.
The plaintiff relied on Dr Tan's evidence to establish that she would not be able to complete a functional capacity test to work on a mine site.[560]
[560] Plaintiff's Closing Submissions, pars 274 - 279.
She submitted that the starting point for the assessment of damages was the difference between her earning capacity if she had not been injured and her current earning capacity. She acknowledged that there are inherent elements of uncertainty and conjecture in making the present assessment.[561]
[561] Plaintiff's Closing Submissions, pars 321 - 322; Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281 [26].
The plaintiff claimed between $25,000.00 and $30,000.00 net per year, for the period from 1 July 2021 to trial, other than for the financial year ending 30 June 2023. For that financial year (which was the year she left Central Earthmoving) she claimed $96,000.00.[562]
[562] Plaintiff's Closing Submissions, par 323.
The plaintiff did not place any particular reliance on the fact that she withdrew from her masters degree. She submitted that she had not undertaken any work in the environmental science field and the focus should be on the career she pursued in the training, assessment, health, safety and compliance fields.[563]
[563] Plaintiff's Closing Submissions, pars 308 - 310.
With regard to the plaintiff's first aid business, the plaintiff acknowledged that she had conceded in cross‑examination that her business had not made a profit but she argued that this did not mean that the business might not have made a profit if she had been able to devote more time to it once she was working FIFO.[564]
[564] Plaintiff's Closing Submissions, par 366.
The plaintiff also submitted that whether the plaintiff had made a profit was not the only consideration. She submitted that the court must also consider the value of her lost earning capacity and the plaintiff's business's income yield.[565]
The defendant's case
[565] Plaintiff's Closing Submissions, pars 367 - 372.
The defendant contended that the plaintiff's earning and employment after the accident did not demonstrate any real variation to that prior to the accident. She submitted that the plaintiff continued to change jobs on a regular basis for reasons that included an inability to get on with fellow employees. The defendant contended that the plaintiff's post‑accident employment pattern was wholly unrelated to the accident.[566]
[566] Defendant's Closing Submissions, par 63.
The defendant seemed to accept that the knee injury might have prevented the plaintiff from squatting and kneeling so that she was unable to perform first aid training but submitted that the plaintiff never earned a profit from this business. The defendant argued that no award of economic loss should be made in relation to the plaintiff's first aid business.[567]
[567] Defendant's Closing Submissions, pars 61 - 64.
The defendant referred to particulars that the plaintiff had filed in 2020 (which were subsequently amended) which stated that she was working towards a change in career to environmental science and environmental management work and submitted that that had now been abandoned in full. The defendant submitted that the plaintiff's actual earnings were more than the amounts claimed in these particulars.[568]
[568] Defendant's Closing Submissions, pars 66 - 68.
The defendant submitted that there was no evidence that the plaintiff ever attempted to fulfill the requirements of a valid first aid certification, or a pre‑accident medical. The defendant referred to evidence that Dr Flahive gave that:[569]
(a)the physical requirement of a medical varied depending on what particular work people were being inducted to do on the mine site;[570]
(b)he did not think that the plaintiff would have had difficulty getting certification to work as a health and safety officer;[571] and
(c)he thought that the plaintiff would have been able to demonstrate CPR.[572]
[569] Defendant's Closing Submissions, pars 80 - 83; ts 558.
[570] ts 558.
[571] ts 558.
[572] ts 560.
The defendant submitted that there was only a very remote possibility of the plaintiff being able to perform FIFO work given her weight, neck and back problems and lack of experience.[573]
Whether the plaintiff lacked competitiveness in the open labour market for FIFO roles from 2021
[573] Defendant's Closing Submissions, par 85.
The plaintiff's claim for loss of earning capacity was predicated on the proposition that her injury meant that she lacked competitiveness on the open labour market for FIFO roles from 2021. The plaintiff's case seemed to be that she would have pursued FIFO work if it were not for the fact that the accident had rendered her incapable of doing so.
As I have already indicated, I did not find it implausible that the plaintiff might have thought about working FIFO in the mining industry. That she secured a FIFO role at Central Earthmoving in 2023 is consistent with the plaintiff having such an interest at that stage.
Although the plaintiff's claim for past economic loss seemed to assume that she would have started working FIFO in 2021, there was no evidence that she took any steps to seek FIFO work at that stage. The plaintiff's evidence was that in 2021 and 2022 she worked for the Department of Fire and Emergency Services, Fenner Dunlop Australia Pty Ltd and Falck Pty Ltd. It was only when she resigned from Falck in December 2022 (because she was dissatisfied about the way in which the role was structured) that there is any evidence that she actively pursued a FIFO role. That evidence was in the form of the fact that she secured the FIFO role at Central Earthmoving in January 2023.
The fact that the plaintiff secured a FIFO role at Central Earthmoving seems inconsistent with the proposition that her injury meant that she lacked competitiveness on the open labour market for FIFO. This is particularly so, when it is considered that she left Falck in December 2022 and secured employment at Central Earthmoving in January 2023. Not only did she obtain a FIFO role after leaving Flack, she did so in a short amount of time.
Further, the fact that the plaintiff was employed by Central Earthmoving to work FIFO seems inconsistent with the proposition that her osteoarthritis meant that she was incapable of doing FIFO work. That Central Earthmoving employed the plaintiff reveals that they did not consider that she was incapable of working FIFO.
The plaintiff was never assessed by Central Earthmoving as being unable to fulfill a FIFO role. The plaintiff's evidence was that she resigned when Central Earthmoving's client asked her to update a first aid certificate. Notably, the plaintiff's evidence was that Central Earthmoving were 'happy' with her not having a current first aid certificate.[574] As the defendant submitted, the plaintiff never attempted to update her first aid certificate.
[574] ts 183.
Nor is there any evidence that the plaintiff has ever been refused FIFO work. The plaintiff's evidence was that she did not apply to work FIFO with Ora Banda (where she currently works) because on her own assessment she did not think she would pass the medical.[575] Ora Banda have never refused her such employment.
[575] ts 164 - ts 166.
The plaintiff has also never been the subject of a mine site medical assessment which she has failed. I attach little weight to the plaintiff's opinion that she would have been unable to satisfy Ora Banda's requirements. No one was called from Ora Banda who could properly comment on those requirements, including the circumstances in which they applied, or any exceptions.
The plaintiff's case relied heavily on the evidence of Dr Tan to establish that she could not work FIFO because she would be unable to pass a medical assessment and be cleared to attend site.
Two observations may be made about Dr Tan's evidence.
First, to some extent Dr Tan's report dated 17 September 2024 seemed to assume that in order to be 'physically capable' of working on a mine site a person must have a current first aid certificate and be able to perform CPR. I was not satisfied that only persons with a current first aid certificate and who were able to perform CPR can work FIFO.
This proposition did not seem to find support amongst the other experts. Further, if a current first aid certificate was essential, it is hard to understand how the plaintiff secured FIFO employment with Central Earthmoving and why they were 'happy' with her not having a current first aid certificate.
Secondly, as Dr Kimberley and Dr Flahive said and Dr Tan acknowledged, whether or not the plaintiff was capable of performing FIFO work would depend on the particular role in question. I found Dr Tan's evidence too general to be helpful, or particularly persuasive.
As Dr Flahive explained in some detail and I found persuasive, whether or not the plaintiff was capable of working FIFO would depend on the specifics of the role. This evidence seemed consistent with Mr Shaddick's evidence that each company had different parameters and the requirements were not hard and fast. It also seemed consistent with the fact that the plaintiff was able to only recently obtain FIFO employment with Central Earthmoving despite her osteoarthritis.
The plaintiff did not seem to rely on Mr McDonald's opinion that the plaintiff would not pass a medical assessment. Given that Mr McDonald had no experience in conducting medical assessments, I do not attach any weight to his opinion in this regard.
Ultimately, I am not persuaded that the evidence establishes that the plaintiff's injury meant that she lacked competitiveness on the open labour market for FIFO roles from 2021.
Further, while I accept that the plaintiff's osteoarthritis might have prevented her from performing some FIFO roles like those that required her to climb ladders, I am not persuaded that the evidence establishes that she was incapable of performing any FIFO work, or attending any mine site. Nor do I consider that the evidence establishes that she could not pursue some office based FIFO roles.
Assessment
The plaintiff gave evidence that she had been unable to perform CPR since the accident. Associate Professor Hardisty, Dr Witte and Dr Kimberley all accepted that she would be unable to perform CPR, although Dr Flahive expressed a contrary view.
I am satisfied that the plaintiff has been unable to perform CPR. I do not consider that Dr Flahive's view is a sufficient reason to reject the plaintiff's evidence that she was unable to perform CPR and had been since the accident. Her evidence was consistent with the opinions of the other medical experts.
I find that the plaintiff has been unable to perform CPR since the accident. I also find that the plaintiff has therefore been unable to conduct her first aid business since then.
The plaintiff sought a significant amount of damages associated with her inability to conduct her first aid business. She claimed that she would have conducted even more CPR training once she worked FIFO and her business would have become profitable.
The plaintiff's submissions did not identify any evidence to suggest that the increase in the number of sessions that she provided would have rendered her business profitable. This submission appeared to be a matter of assertion only.
Neither the plaintiff's first aid business, nor any of her other businesses have ever made a profit. It is therefore difficult to accept that the loss of her capacity to pursue her first aid business caused her to suffer any meaningful financial loss.
Further, I have concluded that the accident merely accelerated the plaintiff's osteoarthritis. It is necessary to take into account the possibility that the plaintiff may have developed symptomatic osteoarthritis in any event.
In such circumstances, while I consider it appropriate to make some award to recognise the loss of the plaintiff's capacity to conduct her first aid business, I consider that the award should be a modest global sum. I will award the plaintiff the sum of $5,000.00 for the loss of her capacity to pursue her first aid business since the accident.
The plaintiff also sought damages calculated on the basis of the difference between the salary that she would have earnt at Central Earthmoving and her current salary.
I do not consider that this is an appropriate basis to calculate the plaintiff's economic loss. I am not satisfied that the plaintiff lost the opportunity to pursue her job at Central Earthmoving because of her knee injury. Central Earthmoving did not terminate her position because of her inability to obtain a first aid certificate. She resigned. There was no evidence from Central Earthmoving that she was unable to perform the role for which she had been employed.
As I have already indicated, I am not persuaded that the evidence establishes that the plaintiff's injury meant that she lacked competitiveness on the open labour market for FIFO roles, or that the plaintiff's knee makes her incapable of working FIFO.
Even if she was, it would be necessary to take into account the strong possibility that she would not continue with FIFO work for an extended period. She has no experience working FIFO to demonstrate that she is well suited to such work and can tolerate it. Her employment history also reveals a tendency to change jobs regularly. Mr McDonald thought she might be suffering from career distress.
Further, the incentives for the plaintiff to work FIFO were not obvious. Mr Shaddick said that she was currently earning something similar to what she would earn on site. This seemed consistent with Mr McDonald's analysis. Mr McDonald also said that because of her lack of experience, she might be required to take a demotion if she were to take a FIFO job.
I accept, however, that the plaintiff's knee injury brought forward her incapacity to pursue some jobs including, for example, jobs that involve climbing ladders. I consider that the plaintiff is entitled to an award of an amount to recognise the loss of her capacity to pursue such work. I will award a global sum of $10,000.00 in this regard.
I will therefore award the sum of $15,000.00 for past economic loss. This sum is inclusive of superannuation and interest.
The plaintiff's claim for future loss of earning capacity
The plaintiff's claim
The plaintiff claimed $423,935.00 for future loss of earnings, based on an assumption that, if it were not for the accident, the plaintiff would have progressed to a management position.[576]
[576] Plaintiff's Closing Submissions, par 342.
The plaintiff submitted that damages should be assessed on the basis that from about 2024, she would have worked in a senior safety advisor, or safety superintendent role and held that role for at least seven years. She argued that such a role would have paid $175,000.00 gross per year. She also contended that she would have made business income in the sum of $44,850.00 gross, so that her annual net loss would be about $35,000.00.[577]
[577] Plaintiff's Closing Submissions, pars 343 - 344.
The plaintiff submitted that it was apparent from her resume that since as early as 2011 she had attained management roles, including as a training and HSEQ manager at Falck Pty Ltd. She relied on the evidence from Mr Shaddick and Mr McDonald to argue that the plaintiff had the background to progress to a senior leadership position.[578]
[578] Plaintiff's Closing Submissions, pars 345 - 349.
The plaintiff argued that with three years' experience as a safety advisor from about 2021, then a further seven years' experience as a senior advisor or safety superintendent, she would have progressed to a manager role at or about age 60. She argued that she would have made $200,000.00 gross per year and business income of $44,850.00 gross. She submitted that her annual net loss was therefore about $48,000.00 plus superannuation over 10 years from age 60 to retirement age.[579]
[579] Plaintiff's Closing Submissions, pars 351 - 352.
The plaintiff relied on evidence that Mr McDonald gave that while these roles are available in Perth, without having site‑based experience a management role would not be within the plaintiff's skills and experience.[580]
[580] Plaintiff's Closing Submissions, par 353; ts 259.
The plaintiff also referred to evidence that Mr Shaddick gave that:
(a)drew a distinction between the plaintiff's management experience in her previous roles and having site-based leading of teams' experience which was a key requirement for the Perth based management roles;[581]
(b)there was very limited to nearly negligible chance for someone without site‑based experience to achieve those roles;[582] and
(c)the plaintiff has all the relevant academic qualifications for this role, it is the lack of site‑based experience that precludes her progression into this role.[583]
[581] Plaintiff's Closing Submissions, par 354; ts 340.
[582] Plaintiff's Closing Submissions, par 354; ts 340.
[583] Plaintiff's Closing Submissions, par 355; ts 337.
The plaintiff accepted that there were a number of factors, some of which were unknown that would impact on her career progression. She submitted that contingencies should be applied to reflect these unknown factors. Her damages calculations included a 3% contingency and her submissions addressed the possibility of a 6% or 10% contingency. She also submitted that the court might award a lump sum to deal with the incalculable loss of earning capacity which it was argued should not fall below $400,000.00.[584]
The defendant's case
[584] Plaintiff's Closing Submissions, pars 357 - 364.
The defendant submitted that the plaintiff would suffer no future economic loss. She argued that the plaintiff's present earnings are as high as could reasonably be expected given her vocational antecedents and her sense of grievance which was unlikely to engender long‑term employment leading to promotions with the same employer.[585]
[585] Defendant's Closing Submissions, pars 89 - 91.
The plaintiff argued that the defendant's assertion was unfounded on the evidence. She submitted that it was evident from her resume that she has held a number of positions in excess of 12 months, including achieving internal promotion within Fenner Dunlop.[586]
[586] Plaintiff's Closing Submissions, par 325.
The defendant referred to evidence that Dr Witte gave that the plaintiff might be able to perform CPR after a total knee replacement.[587]
[587] Defendant's Closing Submissions, par 78.
The defendant submitted that for the plaintiff to have 10 years' experience to obtain a higher position as Mr McDonald described would mean that she would be almost 60 when she obtained that position.[588]
Assessment
[588] Defendant's Closing Submissions, par 87.
I am not satisfied that the plaintiff should be entitled to a significant award for future loss of earning capacity for four reasons.
First, like the plaintiff's claim for past loss of earning capacity, the plaintiff's claim for future loss of earning capacity seems predicated on the proposition that her injury meant that she lacked competitiveness on the open labour market for FIFO roles, or that her knee makes her incapable of working FIFO. As I have indicated, I was not satisfied of either matter.
Further, the medical evidence suggests that in the future a total knee replacement will increase the functionality of her knee. This would increase the plaintiff's capacity to pursue FIFO work.
Secondly, I have accepted the medical evidence that the accident accelerated the progress of the plaintiff's osteoarthritis. It is necessary to account for the likelihood that the plaintiff's knee would have become symptomatic in any event.
Thirdly, the plaintiff's claim again assumed that she would have remained committed to a career in health and safety working FIFO for an extended period. As I have already indicated, I consider that the evidence suggests that there was a strong possibility that the plaintiff would not have worked FIFO for an extended period.
Fourthly, I did not find the plaintiff's case that she would have assumed a senior management role particularly persuasive either. Even if the evidence of Mr McDonald and Mr Shaddick is accepted and the plaintiff was qualified for a management position, it does not necessarily follow that she would have been able to obtain such a position. Some of the positions under discussion were very senior positions. Being qualified for a role, particularly a senior role, does not necessarily mean that a person will obtain that role.
Ultimately, I consider that the plaintiff is only entitled to a modest award of damages to recognise that the acceleration of her right knee osteoarthritis might continue to have an effect on her earning capacity in the future. I will therefore award a further global amount of $10,000.00 for future loss of earning capacity. This sum is inclusive of superannuation.
Conclusion
In summary, for the reasons given above, I have assessed the damages to which the plaintiff is entitled as follows:
Item Amount Non-pecuniary loss $47,250.00 Future medical treatment and travel $12,500.00 Past and future care and assistance $5,000.00 Special damages $36,447.01 Past loss of earning capacity $15,000.00 Future loss of earning capacity $10,000.00 Total $126,197.01
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
GS
Associate to the Hon Justice Palmer
24 FEBRUARY 2025
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