Johnson v Fraser Coast Regional Council

[2020] QDC 228

DISTRICT COURT OF QUEENSLAND

CITATION:

Johnson v Fraser Coast Regional Council [2020] QDC 228

PARTIES:

CLINTON JAMIE JOHNSON
(plaintiff)

v

FRASER COAST REGIONAL COUNCIL
(defendant)

FILE NO/S:

138 of 2016

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

23 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

24 - 28 August 2020,1 September 2020

JUDGE:

Loury QC DCJ

ORDER:

Judgement for the plaintiff in the sum of $349,548.07.

CATCHWORDS:

TORTS – NEGLIGENCE – GENERALLY – where plaintiff claims damages for an injury suffered at his employment with the defendant – where defendant denies injury occurred at work – where plaintiff had a pre-existing degenerative knee condition

WORKERS’ COMPENSATION – LIABILITY OF EMPLOYER – where plaintiff stepped on unstable tow-hitch to cover a load of asphalt – where plaintiff stepped down, and twisted knee – where defendant accepted that it had not enforced a system for covering asphalt – where plaintiff had complained to his supervisors of difficulties in covering asphalt

DAMAGES – MEASURE OF REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where event causing injury was minor – where minor injury aggravated pre-existing knee condition – where plaintiff would have had problems working in heavy labour in any event because of pre-existing injury – level of current impairment – discount which should apply for contingencies

Czatyrko v Edith Cowan University (2005) 214 ALR 349
Bevan v Wagner Industrial Services Pty Ltd [2017] QCA 246
Andar Transport Pty Ltd v Brambles Limited (2004) 217 CLR 424
Wyong Shire Council v Shirt (1980) 146 CLR 40
Meandarra Aerial Spraying Pty Ltd v GEJ and MA Geldard Pty Ltd (2013) 1 Qd R 319
Vairy v Wyong Shire Council (2005) 223 CLR 422
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 642-643
McDonald v FAI General Insurance Co Ltd [1995] QCA 436
Stitz v Manpower Services Australia & Anor [2011] QSC 268
March v E & MH Stramare Pty Ltd (1999) 171 CLR 506

Workers’ Compensation and Rehabilitation Regulation 2014 Sch 8 s 9
Workers’ Compensation and Rehabilitation Act 2003 ss 306O, 306P

COUNSEL:

RC Morton and JM Sorbello for the plaintiff
WDP Campbell for the defendant

SOLICITORS:

Morton & Morton Solicitors for the plaintiff
Jensen McConaghy Lawyers for the defendant

1. The plaintiff is now a 49 year old man.  He was born in Maryborough and has spent the vast majority of his life living in Maryborough. He was educated to part way through year 11.  He has a long-term partner and five children including a step-son.  He has worked in manual labouring jobs for all of his working life until he suffered an injury to his knee in September 2014.  He has not worked since.  

1. The plaintiff was employed by the defendant.  On 26 October 2015 his employment was terminated (effective 1 December 2015)[1] as he was no longer fit to undertake the manual components of his duties.  Those components included regular bending and squatting, heavy lifting and the operation of heavy plant and fleet. 

   [1]Exhibit 1 page 361.

1. The plaintiff was well regarded by the defendant.  In his last performance appraisal in August 2014 (two weeks prior to his injury) the plaintiff was considered to meet all/the majority of the requirements of his role as a plant operator.  Relevantly, it was considered that he understood and complied with work, health and safety requirements and reported all potentially unsafe conditions and incidents.  He was described in this way, “Clint always displays a good work ethic. He is a team player and does his work to a high standard.  Needs little supervision and gets on well with other team members.”  

1. The plaintiff sues for damages against the defendant claiming that the injury he sustained in September 2014 occurred whilst at work and was caused by the defendant’s negligence.  The defendant does not accept that the injury occurred at work and denies liability on that basis.  For the reasons which follow I am satisfied that the plaintiff sustained an injury at work on 5 September 2014 and that the injury was caused by the defendant’s negligence. 

The plaintiff’s evidence as to his injury

1. The plaintiff was tasked to drive a 16 tonne double axle Isuzu truck.  He carted gravel and asphalt (referred to as hot-mix) to job sites.  When not driving the truck he was required to work as a labourer.  He also drove a roller.  He would collect the asphalt from a plant just outside of Maryborough or from a plant at Dundowran near Hervey Bay. 

1. Asphalt is a dark, hot, sticky substance used to patch road surfaces.  The process of loading it into the tray of the truck required the plaintiff to position his truck under a hopper from which the asphalt was poured.  Two loads of asphalt would be poured into the tray of the truck creating two mounds.   Before driving the asphalt to a work site where it would be used to repair roads, the plaintiff was required to cover the load of asphalt by placing a tarpaulin over it.   On the Isuzu truck, a mechanical system had been installed where the plaintiff turned a handle which allowed him to wind the tarpaulin from a fixed point near the cab of the truck, over the load. 

1. On 27 June 2014 the plaintiff took some recreation leave.  He returned to work on Tuesday 15 July 2014 and was tasked to drive a different truck.  It was a smaller Mitsubishi Fuso truck, approximately 10-12 tonne.  Again, the plaintiff was required to cart asphalt and gravel.    The truck was loaded with asphalt in the same way as previously had occurred with the larger truck, by positioning the tray under a hopper from which the asphalt was poured.  The system for covering the load of asphalt with a tarpaulin was different to the mechanical system he had previously used.   The plaintiff was required to manually pull the tarpaulin over the load of asphalt by use of a rope.  That required him to stand at the rear of the truck and pull the tarpaulin by the rope from the front of the tray where it was affixed, to the rear of the tray where it was then attached to some hooks. 

1. The plaintiff experienced difficulty undertaking the task of covering the asphalt in the smaller truck because the mounds of asphalt in the tray extended beyond the height of the tray.  If standing on the ground when attempting to pull the tarpaulin into place, it would dig into the mounds of asphalt.  Consequently, in order to manoeuvre the tarpaulin into place the plaintiff stood on the tow-hitch at the rear of the truck, which allowed him to lift the tarpaulin over the mounds of asphalt. 

1. Images of the tow-hitch tendered in evidence[2] demonstrate that it was not a flat surface and not a large enough surface upon which a person could place two feet comfortably.  The tow-hitch was also not a stable surface.  There was some movement in it.[3]  By standing on the tow-hitch however, the plaintiff was able to lift the tarpaulin over the two mounds of asphalt and attach it to the hooks at the rear of the truck. 

   [2]Exhibit 1 pages 10 and 11.

   [3]Transcript 1-45 line 45.

1. The plaintiff gave evidence that he spoke to his supervisor, Mr Bausch, about the difficulties he was having covering the asphalt with the tarpaulin.  He could not remember when this conversation occurred but thought it was three or four weeks after he started driving the smaller truck which would be around mid-August.  Mr Bausch told the plaintiff that he would “look into it”.  The plaintiff said that Mr Bausch did get back to him about the tarpaulin.   An entry in the plaintiff’s dairy suggests that occurred on Wednesday, 3 September 2014.  The entry reads, “Talk to Darren and Fred about tarp”.[4]  The reference to Fred is a reference to Mr Bausch. 

   [4]Exhibit 9.

1. The plaintiff said that he remembered speaking to Mr Bausch, “Darren” and the maintenance supervisor, “Smithy” on 3 September 2014.   He had returned to the depot at the end of the day.  Mr Bausch approached him and asked about the work site he had attended that day.  Mr Bausch then said “we’ll find out a way – leave it up to Darren and Smithy about the tarp”.[5]  The plaintiff said that neither Darren nor Smithy were present for this conversation.  He could not recall whether he discussed with Mr Bausch how he was going about covering the asphalt with the tarpaulin although he did say that he told Mr Bausch that he was standing on the tow-hitch.  He recalled Mr Bausch suggested that he might try standing on a platform at the rear of the truck which was higher from the ground than the tow-hitch.  Mr Bausch did not, however, tell him not to stand on the tow-hitch.  The plaintiff said that he was otherwise not told how to go about covering the asphalt with the tarpaulin.[6]

   [5]Transcript 1-49 line 32.

   [6]Transcript 1-50 line 29.

1. On Friday 5 September 2014 the plaintiff said that he was carting asphalt to Ariadne Street in Maryborough.  He said initially in his evidence that he could not remember where he collected the asphalt but said “it would’ve been at the Maryborough plant”.[7]   In cross-examination however he said that he attended the plant at Dundowran.[8]   In any event, the plaintiff said that after the tray of his truck was filled with asphalt he covered it with the tarpaulin.  He stood on the tow-hitch and pulled the tarpaulin over the asphalt making sure that it was tied off correctly.  He then stepped down off the tow-hitch onto his right leg.  As he turned, his knee twisted and he fell to the ground.[9]   He suffered pain in his right knee however he nonetheless continued working.  He took some time to compose himself and then drove the load of asphalt to the job site at Ariadne Street.   He described his knee as having pain shooting through it as he drove to the site.  

   [7]Transcript 1-53 line 1.

   [8]Transcript 2-29 line 14.

   [9]Transcript 1-53 line 16.

1. In his diary for 5 September 2014 the plaintiff has written:

“Hot Mix

Ariadne St

Darren and Fred came over to see

what to do about the tarp. Twisted

my knee.”

1. The plaintiff said in evidence that whilst at Ariadne Street, Darren and Mr Bausch and Smithy called him over and spoke to him about modifying the tray of the truck so that gravel did not spill from the tray.  He said that Mr Bausch asked him if he was alright and he responded that he was.  He did not tell him that he had injured his knee.[10]  The plaintiff continued working for the remainder of the day.  He said that his knee was very sore and swollen.[11] 

   [10]Transcript 1-55 line 33.

   [11]Transcript 1-56 line 20.

1. The plaintiff did not work again until Tuesday 9 September 2014 (he had a rostered day off on Monday 8 September 2014).  Over the weekend he iced his knee or placed a heat pack on it.  He did not seek any medical treatment because he thought it would “come all good”.   The plaintiff continued working over the following days.  He said that his knee “wasn’t too bad” although moving it from the accelerator to the brake and back to the accelerator caused it to swell.  The knee continued to cause him pain and to swell until Friday 12 September 2014 when he went to the hospital.  He said that Mr Bausch told him to go to hospital.  He did not ask him what the problem was with his knee.[12] 

   [12]Transcript 1-58 line 4.

Credibility/Reliability of the plaintiff

1. The plaintiff is, in my view, an unsophisticated man.  His answering of questions, including in evidence-in-chief, was restricted.  He did not volunteer information.  He did not provide detailed descriptions or a narrative style answer.    He often misunderstood questions, giving literal answers when the question was not directed to the literal meaning of the words.  There was a tendency for the plaintiff to answer questions quickly regardless of whether he understood them.   The plaintiff did not appear to understand complex sentences and often tended to focus his answers on the very last part of the question without understanding the true meaning of the question.   I consider that the plaintiff’s communication skills are somewhat limited.  The plaintiff also has some difficulty with his memory particularly as it relates to his ability to give an accurate medical history.    Nonetheless, I consider the plaintiff to be an honest and sincere witness who has attempted, to the best of his ability, to communicate what he considered to be the truth. 

1. The defendant argues that the plaintiff has fabricated the circumstances of the incident in order to fraudulently obtain the benefit of workers’ compensation statutory benefits, initially for medical expenses and weekly benefits consequent upon his inability to work and ultimately in a claim for common law damages.   There are a number of features of the evidence, upon which the defendant relies, arguing that they give rise to an inference that the plaintiff has fabricated the circumstances of the incident.  Those features arise from inconsistencies found in a number of documents which were admitted into evidence.   

1. The plaintiff, as required by his employer, completed an incident report in relation to this event, however it was not completed until 12 September 2014 contrary to the defendant’s policy.[13] It indicates that the injury was sustained at 10:30 am on 5 September 2014. It also documents that the injury was sustained at Ariadne Street at Maryborough.   The incident report indicates that the nature of the injury is a sprain to the knee.  The type of incident is described as “stepping on” and “strain”.  

   [13]Exhibit 3.

1. The plaintiff, in his evidence-in-chief, initially stated that the injury occurred at the Maryborough plant.  Later in cross-examination he said that the injury occurred at the Dundowran plant.  He was definite that the injury did not occur at Ariadne Street as documented in the incident report.    His explanation for writing Ariadne Street in the incident report was difficult to understand.  He appeared to be saying that Ariadne Street was the site where he was working on the day that the injury occurred and that he was busy.[14]  There were a number of times during the course of his giving evidence that I consider the plaintiff struggled to communicate with both counsel.  He, at times, struggled to understand the question being asked and struggled to communicate his answer in a responsive and understandable manner.  

   [14]Transcript 2-30 line 20.

1. I consider that the plaintiff made an error in completing the incident report by inserting Ariadne Street as the place where the incident occurred.  At the time he completed this report he was about to go to hospital.  It was one week after the injury had occurred.  I infer that he was in pain as a result of the condition of his knee at that time and he was then at the Ariadne Street address when he completed the report.  His account of what occurred when he injured himself cannot have occurred at the Ariadne Street address as that is where he was unloading the asphalt from the truck.  At this site he was not required to cover the load of asphalt, but rather to uncover and unload it.  The reference to Ariadne Street is, in my view, explicable as an error made by the plaintiff in the circumstances of his filling out the report.

1. The first occasion that the plaintiff gave a lengthy account of the events of this day was on 13 October 2014 when he spoke to an investigator retained by the defendant.[15]  He indicated at that time, close in time to these events, that the injury occurred at Dundowran, consistent with the opening given by counsel for the plaintiff.  The plaintiff in his evidence-in-chief initially said that the injury occurred at the Maryborough plant however in cross-examination said that it occurred at the Dundowran plant.  I do not consider that anything turns on this inconsistency as it is consistent with the plaintiff finding himself in the unusual environment of the courtroom and is no more than a minor error made in those circumstances.      

   [15]Exhibit 15.

1. The plaintiff, in the incident report, wrote in a section providing for a description of what happened “step on back towing hitch on truck, to pull trap(sic) rope over headed hot mix to cover load.  While pulling on rope felt right knee twist. Got wose (sic) over period of week”.

1. The incident report is signed by the plaintiff and dated 5 September 2014, however he accepted that he did not in fact complete the document until 12 September 2014 when he informed his supervisor, Mr Bausch, about his injury.   He said that he didn’t fill out an incident report on 5 September 2014 because he thought his knee would get better.  The reason he signed and dated the report as 5 September 2014 (rather than 12 September 2014) was because Mr Bausch told him to do so.[16]

   [16]Transcript 2-32 line 24.

1. There are other bodies of evidence which, in my view, provide support for the plaintiff’s evidence that Mr Bausch told him to sign the document as 5 September 2014.  The plaintiff’s partner, Ms Julie Polzin, gave evidence that she recalled the plaintiff injuring his knee at work.  It was swollen and causing him pain.  He alternated the use of ice packs and deep heat before returning to work for a few days.  She recalled receiving a telephone call from Mr Bausch who instructed her to pick up the plaintiff and take him to the hospital.  Ms Polzin completed a Local Government Workcare Application for Compensation form[17] for the plaintiff.  She said that Mr Bausch brought the form to their home where she completed it, as the plaintiff’s glasses were broken.  She said that she filled in the form on the basis of what the plaintiff told her together with Mr Bausch’s advice.[18]  The form suggests the injury occurred at Woodstock Street, Maryborough at around 10:00 am on 5 September 2014.  Woodstock Street intersects with Ariadne Street.  The intersection is the job site where the plaintiff was working on 5 September 2014.  The document also records, like the incident report, that the injury was reported to the plaintiff’s supervisor on 5 September 2014 at approximately 10:00 am.  

   [17]Exhibit 14.

   [18]Transcript 4-13.

1. Ms Polzin recorded Mr Bausch’s details on the form which included his phone number, which I infer was provided by Mr Bausch to her.    The document also records that the plaintiff stopped work on 12 September 2014 at around 11:00 am.  The document recorded the mechanism of injury as “standing on tow hitch pulling a tarp over the load in the truck”.  It is signed by the plaintiff and dated 16 September 2014.   That the mechanism of injury is stated to be in the context of covering the load of asphalt, demonstrates that it cannot have occurred at the job site (at Woodstock Street or Ariadne Street) as that is where the asphalt was unloaded rather than loaded in to the truck. 

1. I again consider that the reference to the injury occurring at Woodstock Street in the incident report is an error which has occurred in the context of the document being completed 11 days later by the plaintiff’s partner. Ms Polzin said, in cross-examination, that Mr Bausch assisted in completing the document by helping with the dates.  It is unclear on the state of the evidence before me what particular information she was provided by the plaintiff as opposed to Mr Bausch.  The reference to Woodstock Street can be seen to be a reference to the same job site as referred to in the incident report. The plaintiff has consistently, in his diary, referred to this job site as Ariadne Street.  I do not consider it likely that the plaintiff indicated Woodstock Street as the place of the incident.   In any event the reference to Woodstock Street is an error which in my view does not impact upon my acceptance of the plaintiff’s evidence given the circumstances in which the document was completed.

1. Ms Polzin’s evidence that Mr Bausch helped with the dates provides support for the plaintiff’s evidence that Mr Bausch told him to indicate he had reported the incident on 5 September 2014.  Mr Bausch was not called by the defendant to refute the plaintiff’s claim (or that of Ms Polzin) that he told the plaintiff and/or Ms Polzin to insert 5 September 2015 as the date the injury was reported into the relevant forms.  That is despite Mr Bausch being present at court and available to give evidence. 

1. The plaintiff accepted that the council was quite strict in its policy that all injuries irrespective of however minor they might be, must be reported to a supervisor.   The plaintiff had, over the years, reported a number of minor injuries by completing incident reports.  In particular, on 4 September 2014 (the day prior to his knee injury) the plaintiff signed an incident report[19] in which it was documented by Mr Bausch that the plaintiff had injured his lower back on Wednesday 3 September 2014 at Ariadne Street when he stepped out of a boxed section on a road.  This is not an injury that the plaintiff made a note of in his diary.  Nor did he make a note of having completed an incident report.  His explanation was that he was busy at work on those particular days. 

   [19]Exhibit 13.

1. This injury to his back was very minor.  There is no suggestion that the injury gave the plaintiff any medium or long term effects.  It may well be that by the time the plaintiff came to make his diary entries on 3 September 2014 at the completion of his shift, that his injury had resolved and it was simply forgotten.  The plaintiff did sign an incident report the following day in relation to this event.  The policy of the council in regards to reporting injuries appears in a document headed “HR Matters Safety Bulletin”[20].  This bulletin indicates that problems arise if injuries are not reported at the time that they occur or as soon as possible afterwards.  The bulletin however indicates that a formal incident report does not have to be filled out in relation to minor injuries or small incidents.  A diary entry in the supervisor’s diary is sufficient. 

   [20]Exhibit 31.

1. Entries from Mr Bausch’s diary were admitted into evidence.[21]  There are three relevant entries. The first is written on 5 September 2014.  It reads “Clint twisted back stepping out of boxing on road. Pink slip completed.  Also stated he twisted knee stepping on tow hook on back of truck F0173 to pull tarp over hot-mix. Talked to Steve Smith to see if he could modify tarp”.   On 9 September 2014 there is an entry which reads “Talked with Smith for tarp modification on truck F0173.  Advise to put in work request”.   On 12 September 2014 there is an entry which reads “Clinton off to hospital with sore knee.  Completed incident report. Left work approximately 10.30am”. 

   [21]Exhibit 32.

1. The entry on 12 September 2014 is consistent with the evidence as to what occurred on that day as given by the plaintiff, Ms Polzin and from a review of the medical records as to the time of the plaintiff’s presentation at hospital.[22]

   [22]Exhibit 1 page 175.  The emergency department records indicate that the plaintiff was triaged at 10:56 am. 

1. The reference to the “pink slip” in the entry of 5 September 2014 is a reference to the incident report prepared in relation to the injury the plaintiff suffered on Wednesday 3 September 2014. That report was in fact completed on 4 September 2014 by Mr Bausch.  The entry in his diary on 5 September 2014 is not accurate.  Accepting for a moment that the plaintiff told Mr Bausch about his knee injury on 5 September (despite his evidence to the contrary), Mr Bausch was not informed of the injury to the plaintiff’s back and the injury to his knee on the same day. He was not told about the back injury on Friday 5 September 2014 because he completed the incident report in relation to that injury on Thursday 4 September 2014.  That tends to suggest that the entry made by Mr Bausch in his diary on 5 September 2014 is not an accurate reflection of what he was told (if anything) that day. 

1. The defendant argues that I should not accept from Mr Bausch’s diary entry that the plaintiff reported his injury to his supervisor on 5 September 2014 most particularly because his evidence was that he did not report his injury until 12 September 2014.  I agree.  The plaintiff was clear in his evidence that he did not report his knee injury.  There is other evidence in the form of statements given to an investigator retained by Local Government Workcare that support the plaintiff’s evidence that he did not report his injury on 5 September 2014. 

1. The plaintiff’s statement to the investigator was provided on 13 October 2014.[23]  In that statement, consistent with his evidence, he indicates that he did not report any injury to Mr Bausch or another supervisor, Mr Smith, despite having spoken to them on 5 September 2014 about difficulties he had covering the asphalt with the tarpaulin.  He stated that it wasn’t until Friday 12 September 2014 that Mr Bausch asked him how he hurt himself and he reported the injury to Mr Bausch.  He then completed the incident report before attending at the hospital.[24]

   [23]Exhibit 15.

   [24]Transcript 2-34 line 12; Transcript 2-37 line 1; Transcript 2-38 line 5.

1. Mr Bausch prepared two statements.   The first is dated 17 September 2014.[25]  Mr Bausch states that the plaintiff approached him on 5 September 2014 about an injury he had sustained to his back, stepping out of the box section of the road works and completed an incident report.   That event in fact occurred on Wednesday 3 September 2014 and the incident report completed on 4 September.  Mr Bausch’s memory of when that injury occurred is mistaken.  Importantly Mr Bausch indicates that it wasn’t until 12 September 2014 that he was informed by the plaintiff of the injury to his knee.

   [25]Exhibit 39.

1. Mr Bausch also provided a statement to the investigator acting on behalf of Local Government Workcare.[26]   In that statement, which is dated 14 October 2014, Mr Bausch states that his first statement exhausts his knowledge of the matter although he goes on to say that he now recalls that on 5 September 2014 the plaintiff informed him that he had twisted his knee standing on the tow-hitch.  Mr Bausch states that he directed the plaintiff to fill in a pink form but the plaintiff indicated that he would not do so and would see how the injury progressed. 

   [26]Exhibit 39.

1. There can be seen to be a significant inconsistency in the statements of Mr Bausch.  It appears to me that there is a significant degree of reconstruction involved in his statements.   I consider that his diary entry of 5 September 2014 is also likely a reconstruction.  Accordingly, I place little weight on the contents of his diary entries or statements. 

1. It is difficult to determine why Mr Bausch might have reconstructed his diary in circumstances where he was not called to give evidence.  There are a number of inferences open.  One inference is that it suggests that the plaintiff and Mr Bausch have colluded with each other in order to assist the plaintiff make a false workers’ compensation claim.  Equally though, Mr Bausch might be a poor diary keeper and have written the entry of 5 September 2014 at a later time but without any dishonest intention.  Also it is possible he was attempting to cover himself for having failed to act in accordance with council’s policy as to the documenting of injuries of workers whom he supervises, in his diary. The latter of those findings is consistent with the evidence of the plaintiff and Mr Polzin that Mr Bausch instructed each of them to insert the date the injury was reported to him, into the incident report and application for compensation form respectively.  That is the more likely inference open on the evidence before me. Importantly, I am not prepared to infer that the plaintiff colluded with Mr Bausch to make a fraudulent workers’ compensation claim. 

1. As indicated Mr Bausch was not called to give evidence.  Criticism has been levelled by each party towards the other for not calling Mr Bausch.  Each have legitimate reasons for not having done so.  In the end however, in light of the fact that Mr Bausch did not give evidence, I am not in a position to make any findings as to his motivation for creating the diary entry of 5 September 2014.  I place little weight on the evidence as contained in his diary note and in his statements, to the extent that they are inconsistent with other evidence that I accept.  

1. The defendant also argues that there are inconsistencies in the plaintiff’s diary entries.  The plaintiff, in his diary,[27] did not note that he injured his back on 3 September 2014 or that he completed an incident report on 4 September 2014, however he did make an entry on 5 September 2014 that he twisted his knee (see paragraph [13]). The plaintiff’s explanation for not having made an entry in relation to his earlier injury was that he was busy that particular day.  The diary entries were made at the end of the working day upon return to the depot.  The injury sustained on Wednesday 3 September 2014 was very minor and appears to have completely resolved relatively quickly.  There is no suggestion that the plaintiff was required to take any time off work.  Indeed the incident report documents that the plaintiff kept on working.  

   [27]Exhibit 9.

1. It is argued that the plaintiff’s diary note, at least to the extent that it records “twisted my knee” on 5 September 2014, was created at a later date in order to support the plaintiff’s claim for compensation.  Reliance is placed on the absence of any reference to his back injury in the diary.   It is also argued that it would be expected to see that entry about his knee injury next to the printed line in the diary which reads 11:00 am.  It is also argued that the fact that it is recorded after the plaintiff spoke with “Darren and Fred” is also suggestive of the entry having been written at a later time than 5 September 2014. 

1. I do not consider that the entry “twisted my knee” has the appearance of having been created at a later time than 5 September 2014.  The plaintiff is a stoic man.  There are a number of features in the evidence that demonstrate to me that he endures pain without complaint and without demonstrating his feelings.   In particular, the plaintiff has a tendency to continue on working despite suffering injury.  When he sustained a significant injury in 2011, which ultimately required surgery, the plaintiff nonetheless continued working for almost three weeks.[28]  In 2012 he sustained an injury to his shoulder, however continued working.[29]  There are other similar incident reports which record the plaintiff continuing to work despite injury.

   [28]Exhibit 47 indictment report for 2011 injury.

   [29]Exhibit 11 incident report for 2012 injury.

1. In his statement to the investigator which was given at a time much closer to this event than the plaintiff’s evidence before me (which was almost six years later) he said that upon sustaining the injury he felt intense pain inside his knee.  He stopped and rested and moved it about and the pain subsided.  He said that he kept on working as he didn’t think it was too serious. He felt just a niggling pain throughout the day.    He said that he is a person likely to work through pain to just get the job done.[30]   I accept the plaintiff’s evidence contained in this statement that he didn’t think that the knee injury was particularly serious. Consistently with his character he continued working despite injury.

   [30]Exhibit 15.

1. In a similar vein, the plaintiff did not remember suffering a significant knee injury when playing football in 1994 when he spoke to the investigator.  In evidence he said that he recalled sustaining a knee injury playing football but he had no memory of having attended hospital on two occasions in relation to that injury.  The evidence suggests that he had in fact sustained a rupture of his anterior cruciate ligament in 1994.

1. Again consistently with his stoic character is a comment of Mr Bausch in his statement to the investigator[31] that the plaintiff is not one to complain.  The plaintiff’s evidence in cross-examination when asked why he didn’t fill in an incident report on 5 September 2014, was likewise, that he “thought the pain would go away and everything would be good” and “you just put up with it and just do your job”.   

   [31]Exhibit 39.

1. The diary entry was completed at the end of the day upon return to the depot. That the entry in his diary that he twisted his knee appears at the end of the entry is consistent with the plaintiff’s statement to the investigator that he didn’t think it was too serious and he thought it would go away.  The plaintiff’s diary, in my view, contains a reasonably contemporaneous account of the injury and provides support for his evidence that he was injured on 5 September 2014. 

1. The defendant argues that if the plaintiff sustained an injury on 5 September 2014 as described in his evidence it would have been apparent to Mr Bausch when the plaintiff spoke to him at the job site that day.   The plaintiff’s evidence was that upon return to the work site he was walking as normally as he could.  He said that he was holding his knee when speaking to Mr Bausch.  He was asked if he was alright and replied “yes”.  He continued working the entire day.  At the end of the day his knee was very sore and very swollen.[32]  In his statement to the investigator[33] the plaintiff also said that he just had a niggling pain in his right knee but continued working the day without any problems.  It was when he was home and resting that he noticed that his right knee was swelling.   I consider that the account the plaintiff gave to the investigator much closer in time to the injury is more likely an accurate account of the plaintiff’s level of pain and functioning in the days following the injury.  The plaintiff continued working through the day with some pain although nothing that caused him any difficulties in completing his tasks.  It is unsurprising in those circumstances that his injury was not noticed by Mr Bausch and others. 

   [32]Transcript 1-54 lines 6-7.

   [33]Exhibit 15.

1. The defendant also points to inconsistencies in the plaintiff’s account of the incident as provided to others, including medical practitioners and argues that such inconsistencies are not consistent with an honest witness recounting a significant event leading to trauma.   

1. The first account the plaintiff gave was in the incident report[34] dated 12 September 2014.  His account is “step(sic) on back towing hitch on truck to pull tarp rope over heaped hot mix to cover load. Whilst pulling on rope felt right knee twist. Got worse over period of week.”

   [34]Exhibit 3.

1. At the Maryborough hospital the triage nurse has recorded as the presenting problem, “painful R knee after twisting while standing on back of truck while at work on Wednesday last week”[35].  There is a handwritten note which states “fixed foot with medial twist of knee 9/7 ago”.  The treating doctor has recorded the following mechanism “Patient on back of towbar/foot bar and twisted right knee medially with a fixed foot 1/52 ago.”[36]  That entry was made at 11:46 am.  A further document completed by the same doctor indicates the mechanism of injury as “R knee medial twist injury on fixed foot. 1/52 ago”.[37]  The plaintiff was provided with a “Richard Knee Splint” and crutches.  The same doctor drafted a discharge letter to the plaintiff’s general practitioner.  The mechanism of injury is reported as “painful R knee after twisting while standing on back of truck while at work on Wednesday last week”.

   [35]Exhibit 1 page 175.

   [36]Exhibit 1 page 176.

   [37]Exhibit 1 page 178.

1. The defendant relies particularly on the notes created by the doctor at 11:46 am to argue that the plaintiff failed to mention to the doctor that he injured himself whilst stepping down from back of the truck and then falling.  The plaintiff, in cross-examination, accepted that he didn’t mention that he fell after stepping down from the back of the truck.[38]  I do not consider however that he accepted the proposition that he did not mention that he injured himself stepping down from the truck.  The questions asked of him were as follows: 

   [38]Transcript 2-42 line 5.

Mr Campbell:   You didn’t tell anyone at the hospital on this occasion that you injured yourself stepping down from the back of the truck.  Do you know what I mean by that?

Plaintiff:           Yes

Mr Campbell:   You didn’t make any mention that you fell after stepping down from the back of …?

Plaintiff:           No

Mr Campbell:   …the truck, I put it to you?

Plaintiff:           No

1. Whilst the plaintiff clearly accepted that he did not mention that he fell down, he did not clearly accept that he failed to mention that he was stepping down from the truck when he injured his knee.  His answer in this regard was not clarified.  The plaintiff tended to answer a question by reference to the last thing he heard and it is likely that he was acknowledging that he understood the question rather than accepting he did not tell the doctor he injured his knee stepping down from the back of the truck.   

1. The letter sent by the doctor to the plaintiff’s general practitioner is not consistent with the entries that the same doctor made in the records.  It appears to me that he has incorporated what someone else, likely the triage nurse, has written when drafting his letter to the general practitioner.  He has adopted what I consider to be an error in the record of the nurse, that the incident occurred on “Wednesday last week” into the letter he wrote to the general practitioner.  That is in circumstances where his own notation indicates that the injury occurred one week ago which would make it Friday 5 September 2014.   

1. I do not accept that the plaintiff told the treating doctor at the hospital that he was standing on the back of the truck when he twisted his knee.  The reliability of the doctor’s note cannot be assumed particularly in circumstances where he has incorporated an error of another into his letter.  There are other factors which might affect the reliability of the doctor’s note in determining what the plaintiff said to him.  That includes the level of interest the doctor had in the peripheral detail rather than the actual mechanism that resulted in the injury, that being a twist of the knee whilst the foot was fixed.  It is unknown what level of detail the doctor asked of the plaintiff.  He is not a man to volunteer information.  I consider that both counsel at times had difficulty eliciting evidence from the plaintiff.  Despite their experience in leading and cross-examining witnesses, they nonetheless encountered difficulties.  It is entirely unsurprising to me that the plaintiff might not have revealed in any great detail what happened to him or that others might have misunderstood his explanation. 

1. In a similar vein the defendant relies upon the workers compensation medical certificate and the explanation for the stated cause of the injury.  The certificate[39] is unsigned.  It appears to have been provided by someone (assumedly a doctor) at the Maryborough Hospital.  It states the date of the injury as 5 September 2014 and the cause of injury as “twisting knee movement whilst standing on towbar/foot bar of truck”.    I would infer that it has been completed by the same doctor as it indicates that the said doctor attended upon the plaintiff at the Maryborough Hospital on 12 September 2014.[40] As noted, there is an inconsistency in the doctor’s own notation as to the date of the injury and the letter he wrote to the general practitioner. The reliability of his notations cannot be assumed.

   [39]Exhibit 23.

   [40]There is an inconsistency in the doctor’s notation as to the date of the injury and the letter he wrote to the general practitioner. The reliability of his notations cannot be assumed.

1. The defendant refers to an entry in the plaintiff’s general practitioner’s records.  Doctor Cotton’s record of 16 September 2014 states “sustained at work 12/06/2014 while torpine (sic) load, twisted felt acute pain, no locking or giving way, sense of instability, marked swelling”.  The plaintiff in cross-examination did not accept that he had failed to tell Doctor Cotton that he injured himself stepping down from the back of the truck or that his knee gave way.  The plaintiff said that he told Doctor Cotton exactly what had happened as it was the first time that he saw him after injuring himself.[41] It is apparent on the face of the records that there is an error given the doctor’s reference to the injury occurring on 12 June.  Doctor Cotton was not called to give evidence.  The reliability of his notes cannot be assumed. It is unknown what peripheral detail he was focused on, how much time he had available to him to make notes and what process he used to elicit the information from the plaintiff.  As emphasised earlier, the plaintiff is not a man to volunteer information beyond precisely what he is asked.  What he understood of the detail that needed to be given is unknown.  What he understood by the questions he was asked by his doctor is not known.

   [41]Transcript 2-42 line 36.

1. The defendant also points to an entry in the records of Doctor Burness.  He is an orthopaedic surgeon who saw the plaintiff on 3 October 2014.  In a letter he sent to Doctor Cotton he wrote “[the plaintiff] was standing on the back end of his truck pulling the tarps over and twisted his knee resulting in pain ever since”.  The plaintiff, in cross-examination, said that he told Doctor Burness exactly that happened.[42] He said that he told him that he stood down from the back of the truck when he was injured and that he fell to ground.[43]  As with the other medical records it is unknown how the doctor obtained the history from the plaintiff and whether the questions he asked tended to limit the scope of the detail that would be revealed.   I consider the plaintiff struggled with providing detailed descriptions.  He is not an articulate man. There are, as emphasised, difficulties with his communication skills. 

   [42]Transcript 2-46 line 25.

   [43]Transcript 2-47 line 14.

1. The defendant also points to the detail contained in the plaintiff’s signed statement to the investigator[44] on 13 October 2014 and the inconsistencies in his account in that statement as pointing to his lack of credibility.   The account the plaintiff gives is in my view confusing.  It reads:        

   [44]Exhibit 15.

“25I got the tarp over with some difficulty and when finished I stepped down onto the ground with my left foot first.  I then stepped my right foot down onto the ground.

26I then had to tie the rope off at the back and as I went to turn I twisted my knee.  

27I feel that when I was standing on the tow-hitch and having difficulty pulling the tarp over the load, with me swivelling on my right knee that the injury has been caused.  I only felt it when I went to step off. 

28I felt a sharp stabbing pain on the inside of me knee which was quite intense.  I stopped and rested and moved it about and the pain subsided.”

1. There are aspects of the statement that do not appear to contain the actual words of the plaintiff but rather the words of the investigator.[45]   He, the investigator, was not called to give evidence and again it is not known how he went about eliciting the detail to put into the statement.   Initially the account reads at paragraphs [14] and [15] as “[on] this day and at about 10 am to 10.30 am, just after smoko, I hopped onto the back of the truck standing on the tow-hitch to pull the tarp over the load. When I got down I felt right knee pain.”

   [45]For example: “I have no concurrent employment.” “Resulting from the injury I had an arthroscopy and was away from work for some time.” “This claim is subject to my right knee injury on 5 September 2014.” “I have never had any orientation of the truck.”

1. The account at paragraphs 25 – 28 appear to confuse the right leg with the left leg.  Paragraph 27 is an opinion of the plaintiff as to when the injury might have occurred.  As the investigator was not called to give evidence it is unknown how it is that the plaintiff was asked to give an opinion as to precisely when he thought the injury was sustained.    What is clear however, is that the pain he experienced was when he stood on the ground and turned or twisted.  

1. It is not suggested that the account the plaintiff has given is inconsistent with that contained in his Notice of Claim. 

1. I do not consider that there is such inconsistency as between the accounts recorded in the medical records and in the plaintiff’s statement to the investigator, either individually or in combination, that gives rise to any concern in my mind as to the veracity of the plaintiff’s evidence.  The plaintiff has focused on the source of the problem, which was standing on the tow-hitch, to explain how his injury was sustained rather than on the precise mechanism of how he was injured which was a turning and twisting of his knee.  That he has done so is consistent with his level of communication skills.     

1. The plaintiff’s evidence is supported by that of his partner, Ms Polzin.  She gave evidence that he came home from work having hurt his knee.  It was swollen and sore. He used ice packs and Deep Heat and pain medication to treat it over the course of a few days.  He returned to work for a few days until 12 September when she got a call from Mr Bausch to collect him and take him to hospital.[46]

   [46]Transcript 4-11 line 40.

1. The defendant also argues that there is evidence from which an inference can be drawn that demonstrates the plaintiff’s financial motivation to make a fraudulent claim.  On the same day that the application for compensation form was filled out by Ms Polzin, the plaintiff attended upon his general practitioner, Doctor Cotton.  He was referred for an MRI on his knee.  Medical records from the hospital where the plaintiff attended on 12 September 2014 also reveal that it was recommended that an MRI be undertaken.   It cost $403.00 and took place on 16 September 2014.[47]  The plaintiff’s diary indicates that the MRI was performed in the afternoon of 16 September 2014.  It is argued that the need to pay for the MRI on 16 September 2014 is what motivated the plaintiff to complete the application for compensation form and make a claim for compensation. 

   [47]Exhibit 1 page 339.

1. The plaintiff did not impress as a man who had the wherewithal or the cunning to manipulate the defendant or its insurer, in this way. In any event, the incident report was completed on 12 September 2014 before the plaintiff attended the hospital and well before he was advised that he would even need an MRI. I reject the submission that there is evidence from which I can infer a dishonest intent.

Surveillance Evidence

1. The plaintiff was the subject of covert surveillance at the instigation of the defendant for a period of more than 85 hours.[48]  Extensive observations were undertaken in the vicinity of the plaintiff’s residential address.  During the first period of surveillance on six days between 27 June 2015 and 11 July 2015 the plaintiff was not seen to drive a car although he was the passenger in a car from time to time.  He can be seen using the handrail to assist in getting into the car.  There was no evidence seen of any significant activity by the plaintiff.  The footage shows the plaintiff walking with a limp and leaning on a counter for support. 

   [48]Exhibit 41.

1. On 21 September 2017 the footage depicts the plaintiff walking with a limp and using a knee brace for support.  The plaintiff is seen with his partner at a supermarket.  He pushes the trolley whilst favouring his left leg when he walks.  He uses the bonnet of the car to support himself when he steps off the gutter.  He uses the handrail to get into the passenger-side of the car.  His partner loads the groceries into the car and his children take the groceries from the car into the house.   The plaintiff is not seen to lift anything. 

1. On 1 October 2017 the plaintiff drives his car to a store where he remains in the car whilst his passenger enters the supermarket.  He can be seen walking with a limp but with no knee brace. 

1. On 3 October 2017 the plaintiff is wearing the knee brace.  He drives his car and favours his left side when he walks.

1. On 13 December 2017 the plaintiff gets into his car using the handrail to assist. 

1. I consider all of this footage to be consistent with the nature of the plaintiff’s disability and supportive of his evidence that he sustained an injury from which he has not recovered.    

1. On 14 December 2018, twenty-five minutes of footage was obtained over a period of 11 hours of observation on that day.  The plaintiff said in evidence-in-chief that there was a period of time where he had separated from Ms Polzin for approximately six months.  He said that he had to move out of the family home.  He moved some furniture including a mattress on wheels and a futon.  A friend assisted him to move.[49] 

   [49]Transcript 1-63.

1. The video footage of 14 December 2018 depicts the plaintiff moving out of the family home.  He can be seen involved in carrying a futon along a veranda, pushing a bed base, throwing five kilogram weights over the balustrade, carrying a television, and pushing a home gym along the veranda.  The plaintiff said in evidence that he was still limping at this stage. It does appear to me that the plaintiff favours his left leg when he walks in the video footage.  At times however there seems to be less restriction on his movement and he appears to be walking faster.  The plaintiff said in evidence that he was angry at the time and that his partner wanted him out of the house, so he was moving quickly to achieve that purpose.[50] 

   [50]Transcript 3-41 line 1.

1. The plaintiff, in this footage, however is not seen loading and/or carrying any of the larger items to either his or his companion’s vehicle despite the extensive period of time over which he was under surveillance. His evidence was that the items he moved or assisted to move were relatively light including the home gym.

1. Later the same day (approximately three hours later) the plaintiff is filmed at a supermarket.  He is using a walking stick and appears to be experiencing more significant pain.  The plaintiff said in evidence, that after moving house his knee was particularly sore.[51]  Whilst the plaintiff does not appear to be limping outside the supermarket he is using the trolley for support.  He appears to take a long time to load the groceries into the car and he appears to limp as he walks around his car to get into it. 

   [51]Transcript 3-44 line 1.

1. The surveillance footage tends to support the plaintiff’s case that he has an ongoing disability.  That, at times his limp is more pronounced than at other times, does not impair my confidence in his evidence as to the nature of his disability.  His appearance in the videos is consistent with the effect of his knee having varying impacts upon his functioning at different times.  He walks with a more pronounced limp at times consistent with his experiencing differing degrees of pain and range of motion at any given time.  He is not seen to be bending or twisting his knee in the videos despite his having pushed and lifted furniture. 

1. There is nothing in the surveillance footage that alters my conclusion that the plaintiff is an honest and sincere witness who has done his best to tell the truth as he remembers it. 

1. In evidence-in-chief the plaintiff said after injuring himself he initially used a knee brace and at some unknown point in time he started using a walking stick.[52] He said he used his walking stick and knee brace when outside always.[53] When inside the house he uses the walls or furniture for support.[54] He said he can only walk for 15 to 20 minutes before needing to rest.[55]

   [52]Transcript 1-61 line 34.

   [53]Transcript 1-61 line 17.

   [54]Transcript 1-62 line 25.

   [55]Transcript 1-62 line 30.

1. I do not accept that the impact the injury has had on his function is as great as he described in evidence. The surveillance footage suggests otherwise.

1. I do not consider the plaintiff is a reliable historian when it comes to his medical history including how he has sustained some injuries, the degree of pain he has suffered and the progression of those injuries. That does not impair my confidence in him generally, but only insofar as it relates to his account of pain and the degree of impact on his functioning. I will return to this later in these reasons.

The tarpaulin

1. The plaintiff said in evidence that three or four weeks after commencing to drive the smaller truck he raised with his supervisor, Mr Bausch, difficulties he had covering the load of asphalt with a tarpaulin.  The plaintiff did not have a particularly good recollection of this conversation. He did say however that Mr Bausch did get back to him on 3 September 2014 about the tarpaulin.  The plaintiff made a diary entry indicating that he spoke to Darren and Fred about the tarpaulin.[56]  There is a further diary entry on 5 September 2014 indicating that the plaintiff spoke to Darren and Fred about what to do about the tarpaulin. 

   [56]Transcript 1-47 and exhibit 9.

1. An email dated 17 September 2014 from another employee of the defendant Ms Anita Dale, described as the “Safety/Rehab officer”, indicates that Mr Bausch had told her that the plaintiff had raised issues he had with the tarpaulin about one month prior to the date of the email.  Mr Bausch’s first statement[57] refers to a conversation he had with the plaintiff in which the plaintiff related to him problems he was having with pulling the tarpaulin over the load of asphalt.  He indicates that the conversation occurred on 5 September 2014 however he also refers to it occurring on the day that the plaintiff injured his back which was 3 September 2014.  The latter date is consistent with the plaintiff’s diary entry and the email that there was a conversation about the tarpaulin around 3 September 2014.

   [57]Exhibit 39.

1. A request for service/repairs was completed by Mr Murray (Darren) on 4 September 2014.  It indicates that the truck the plaintiff was driving required both a pin to attach to the trailer safety chain and “rope 4 tarp (cotton)”[58].

   [58]Exhibit 29.

1. The incident report[59] also makes the following reference “in workshop hands. repair slip entered 3/9/14”. 

   [59]Exhibit 3.

1. Mr Bausch’s diary contains an entry on 9 September 2014 which states “Talked to Smith for Tarp modification on truck F0173. Advise to put in work request”.  This is a reference to the truck the plaintiff was using. 

1. An email was sent by Mr Bausch to Mr Smith on 4 September 2014 which asked for paperwork to be sent for the measuring of the plaintiff’s truck for the fitting of a hoop tarp for the purpose of carting “hot-mix”.[60]  Eventually a hoop tarp and electric pivot arm system were fitted to this truck on 15 May 2015 at a cost of $4,114.00.  Video footage was tendered of a truck fitted with a hoop tarp.  Such a device solved the difficulties associated with lifting the tarp over the mounds of asphalt.[61]  

   [60]Exhibit 35.

   [61]Exhibit 21.

1. The defendant admits that it did not provide and enforce a system for covering the load of the truck with a tarpaulin that did not require the plaintiff to stand on the tow-hitch.[62]  It further admits that it did not provide and enforce the use of equipment for covering the load of the truck with a tarpaulin.[63] 

   [62]Paragraph 4(i) Third Further Amended Defence.

   [63]Paragraph 4(j) Third Further Amended Defence.

1. The defendant disavowed reliance on any contributory negligence on the part of the plaintiff during the course of the trial. 

The pre-existing injury

1. It was not disputed at trial that the plaintiff had a significant pre-existing injury to his knee, a rupture of the anterior cruciate ligament.  That was likely sustained when the plaintiff was playing football in 1994. The plaintiff’s memory of this event is poor and my finding comes from a consideration of the medical records.

1. On 6 March 1994 the plaintiff attended at the hospital in relation to an injury to his right knee sustained at football.  His knee was x-rayed.  He was bandaged and sent home with crutches.  It was thought he had strained his medial ligament.[64]  He was seen at the fracture clinic on 10 March 1994.[65]    On 22 March 1994 the plaintiff attended at the orthopaedic clinic in relation to this knee.  He was advised to have an arthroscopy but decided to “wait and see”[66].  He was to be reviewed four weeks later however did not attend at the orthopaedic clinic.[67]  It appears that an arthroscopy was planned for 11 September 1995 however the plaintiff did not attend. 

   [64]Exhibit 1 page 198.

   [65]Exhibit 1 page 202.

   [66]Exhibit 1 page 184.

   [67]Exhibit 1 page 184.

1. In his evidence the plaintiff recalled playing football as a younger man and injuring his knee during a tackle.  He said that he did not take any time off work and did not seek any treatment for it.  He said that eventually he saw some doctors but could not remember when that was.[68]  He did not have any surgery and his knee healed.   The plaintiff would have been 22 years of age at the time.  In cross-examination he said that he did not remember attending at the hospital in relation to this injury.  He did not recall being sent home with crutches or being x-rayed or it being recommended that he have an arthroscopy. The plaintiff’s memory of the injury and its treatment is poor.

   [68]Transcript 1-26 line 27.

1. The medical records also reveal that on 15 August 1998 the plaintiff attended again at the hospital in relation to his knee. A further appointment was made for 21 August 1998.  The record indicates “knee improving spontaneously”[69].  The plaintiff in his evidence had no memory of this attendance at hospital. 

   [69]Exhibit 1 page 197.

1. On 26 October 2009 the plaintiff attended on his general practitioner.[70] The note indicates that the plaintiff had jumped out of a truck six days earlier.  His knee had become swollen and he had experienced pain. The plaintiff was not specifically asked if he remembered this attendance.  It seems unlikely that he would remember this event as he denied that he was having trouble at work with his knee in 2009.  He seems to have confused this attendance with an attendance in 2011 which involved a worker’s compensation claim.  As indicated earlier in these reasons I consider that the plaintiff has a poor memory of his medical history. 

   [70]Exhibit 1 page 248.

1. On 14 July 2011 the plaintiff attended at the hospital.  His primary complaint appears to be diarrhoea.  However he additionally complained that he had a painful right knee.  He had injured his knee getting out the truck at work two weeks earlier.   He said that he had twisted his knee and that he could not bear weight on it and it appeared swollen.[71]

   [71]Exhibit 1 page 192.

1. The plaintiff recalled this event as the “first time I got me arthroscope”[72].  He said that he didn’t have a very vivid memory of what had occurred. He agreed that he was jumping out of the driver’s seat of the truck to the ground.  He said that at first he felt a slight tinge to the knee but thought it would “come good”.  The plaintiff completed an application for workers compensation on 8 August 2011.  On 9 August 2011 the plaintiff underwent an MRI.  He was found to have a chronic rupture of his anterior cruciate ligament. At that time he had moderate degenerative changes in his knee joint with near full thickness cartilage loss.  He also had a tear to his medial meniscus which was considered likely to account for his symptoms.[73]

   [72]Transcript 1-75 line 41.

   [73]Exhibit 1 page 335 and exhibit 22 report of Dr Winstanley dated 26 September 2011.