Khanna v Woolworths Group Limited (no 2)

[2021] NSWDC 567

District Court

New South Wales

Medium Neutral Citation:

Khanna v Woolworths Group Limited (ABN: 88 000 0146 75) (No 2) [2021] NSWDC 567

Hearing dates:

10-11 March 2021; 16 March 2021; 17-19 May 2021; 21-22 June 2021; 25 August 2021 (written submissions); 1 September 2021 (written submissions); 9 September 2021 (written submissions);16 September 2021 (oral submissions)

Date of orders:

20 October 2021

Decision date:

20 October 2021

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

(1) Judgment for the defendant.

(2) The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed.

(3) Liberty to the parties to apply within 14 days for a different costs order to that in (2) above.

Catchwords:

TORTS – negligence – trip and fall – Civil Liability Act2002 (NSW) claim – alleged breach of duty of care by the defendant which resulted in the plaintiff's wife tripping on goods near an aisle of the defendant’s store causing the plaintiff's wife to fall and the plaintiff being allegedly injured in attempting to support her – whether injury occurred as alleged by the plaintiff – whether breach of duty of care – question of the nature of the injuries suffered by the plaintiff, if any, in the accident – extensive pre-accident and post-accident history of other accidents and injuries and conditions

LIMITATIONS OF ACTION – personal injury - ss 50C-50D

Legislation Cited:

Civil Liability Act 2002 (NSW)

Limitation Act 1969 (NSW)

Civil Liability (Non-economic Loss) Amendment Order 2021

Cases Cited:

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479

Best v Rosamond [2020] NSWCA 90

Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320

Council of the City of Sydney v Bishop [2019] NSWCA 157

DC v State of New South Wales [2016] NSWCA 198

Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29

Jackson v McDonald’s Australia Ltd [2014] NSWCA 162

Kabic v AAI Limited t/as GIO [2019] NSWCA 247

Lloyd v Thornbury [2019] NSWCA 154

Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

Mason v Demasi [2009] NSWCA 227

McPherson v Dowell [2018] NSWDC 348

Miller v Galderisi [2009] NSWCA 353

New South Wales v Burton [2016] NSWCA 12

Patrick Stevedores Operations (No 2) Pty Ltd v Hennessey [2015] NSWCA 253

Smith v Alone [2017] NSWCA 287

Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182

Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375

Category:

Principal judgment

Parties:

Sanjeev Khanna (Plaintiff)
Woolworths Group Limited (ABN: 88 000 0146 75) (Defendant)

Representation:

Counsel:
In Person (Plaintiff)
R Gambi (Defendant)

Solicitors:
HBA Legal (Defendant)

File Number(s):

2019/00030652

Publication restriction:

No

Judgment

1. In these proceedings, the plaintiff, Mr Sanjeev Khanna, brings a claim in negligence against the defendant, Woolworths Group Ltd, which previously carried on business at a Masters Home Improvement store at Rouse Hill in New South Wales, in relation to personal injuries allegedly suffered by the plaintiff on 18 April 2015. The proceedings are brought by the plaintiff under the Civil Liability Act 2002 (NSW) (“CLA”).

2. The plaintiff alleges, in summary, that his wife, Mrs Geeta Khanna, tripped on the legs of chairs of a stack of chairs in the defendant’s store which was negligently placed by the defendant creating a trip hazard and this caused the plaintiff's wife to fall. The plaintiff says that he attempted to stop his wife falling and, as a result, fell himself, causing injuries to him. The defendant, in summary, disputes that the plaintiff fell or, if he did fall, that he suffered any injury and, if he suffered any injury, that it gives rise to compensable loss under the CLA. A limitation defence is also pleaded.

The issues

3. The defendant handed up a lengthy statement of issues at the commencement of the trial. In my view, the issues to be considered are of a narrower compass and are as follows:

1. Was there a fall by the plaintiff’s wife at the defendant’s store on 18 April 2015?

2. Was a duty of care owed by the defendant as the occupier of the store to the plaintiff and his wife?

3. What was the precise mechanism of the fall by the plaintiff's wife?

4. Did the plaintiff himself fall and in what way?

5. In the light of the court's factual findings, was there a breach of a duty of care owed by the defendant to the plaintiff’s wife and the plaintiff?

6. Did any breach of duty of care by the defendant cause any injury to the plaintiff?

7. If so, what was the extent of the injury caused?

8. Does any injury caused by any breach of duty of care by the defendant give rise to compensable loss in the plaintiff?

9. The plaintiff filed his Statement of Claim on 29 January 2019. Under s 50C of the Limitation Act 1969 (NSW), there are limitations for the bringing of personal injury actions, being the period of three years running from and including the date on which the cause of action is discoverable by the plaintiff. The defendant has pleaded s 50C of the Limitation Act and an issue therefore arises whether the action is statute barred because of the provisions of ss 50C and 50D of the Limitation Act.

The pleadings

4. The plaintiff brings his claim by an Amended Statement of Claim filed on 25 February 2019. In substance, the plaintiff pleads:

1. The defendant carried on business at all material times under the name Masters Home Improvement at Rouse Hill in New South Wales;

2. The plaintiff and his wife as a result of a general invitation to the public decided to attend the defendant’s store at Rouse Hill;

3. The plaintiff has been disabled since 23 September 2013;

4. The defendant owed the plaintiff a duty of care;

5. On 18 April 2015, the plaintiff and his wife were walking in the store when the plaintiff’s wife tripped on a stack of chairs and fell on the concrete floor. The plaintiff tried to save the fall of his wife but could not save her and in the process of attempting to save her, the plaintiff injured himself in the right knee and lower back;

6. The plaintiff’s injury occurred as a result of the defendant’s negligence which included a failure to safely format the layout of the floor of the store, a failure to arrange the stock to avoid the risk of injury and creating a hazard by putting large stacks of chairs where shoppers may trip over them;

7. The plaintiff alleges that as a result of the defendant’s negligence, he has suffered injury and loss.

5. In a Statement of Particulars filed on 1 July 2019, the plaintiff claims extensive injuries as a result of the accident including anxiety and mental distress, a knee injury, a cervical spine injury, and injuries to the pelvis and right hip. The plaintiff claims that the psychiatric injury suffered includes depression and the injuries have caused continuing disabilities including an inability to walk which results in worsening diabetes.

6. In a Defence filed on 4 March 2019, the defendant, in summary, denies liability and states that the Amended Statement of Claim is statute barred pursuant to s 50C of the Limitation Act. The defendant denies that the accident occurred as alleged or at all. It admits that it was the occupier of the Rouse Hill store at the time. The defendant also claims that it took reasonable precautions in the circumstances at the store and all relevant hazards were removed. The defendant also pleads in the alternative, that if it was negligent, the plaintiff's injuries were due to the manifestation of an obvious risk: ss 5F, 5G and 5H of the CLA. The defendant also relies on contributory negligence and a lack of causation.

The plaintiff's evidence

Exhibit A

7. At the commencement of the hearing, the plaintiff, who was self-represented, provided to the court a document entitled “Court Book Chronologically Submission” which referred to various matters relating to his claim. This was treated solely as a submission.

8. The plaintiff tendered a folder of documents which became, following certain objections, Exhibit A in the proceedings.

9. The plaintiff also read an affidavit of his dated 10 March 2021 in which he referred to his anxiety and depression.

10. Part of Exhibit A was an incident report which was prepared by employees of the defendant. The incident report provides that the incident occurred on 18 April 2015 at 3:20pm and was reported to Mr David Zammit, the Assistant Store Manager, at the time. Mr Zammit gave evidence and stated that the contents of the report were prepared by Mr Ross Atherton following Mr Zammit providing information to him. The incident summary was described as:

“Customer Geeta tripped on stack of chairs and fell to the ground”.

11. The further details of the incident in the report were as follows:

“Customer Geeta Khanna was walking around corner of Bi Fold tables display located at the front of the store. Customer Geeta tripped on stack of chairs next to display. As Customer Geeta went to fall she went to break her fall by grabbing the table set up in front of the display, however the table slid a short distance before falling [to] the ground. Customer Geeta then fell on both knees but stated to Ross (CEM) that she landed firstly on her right knee then on her left knee. Customer's husband stated to Ross that the floor was slippery.”

12. The report indicates that first aid was applied by Mr Ross Atherton and the floor was inspected by Mr Zammit and Mr Atherton and no evidence of debris or liquid spillage in the area was located. The injury to Mrs Khanna was described as “swelling and bruising to knees” on both sides of the body. The report indicated that the area was not covered by CCTV. The name of the staff member who first attended Mrs Khanna was recorded as Mr Zammit. The report included the following comments:

“Store was busy and can't specifically point who the area was inspected last as there was associates constantly in the area. After customer had fallen area was inspected by David and Ross and there was no evidence of spillage or debris in the area”.

13. The report referred to and attached a handwritten diary entry of Mr Zammit. The report also indicated that a letter of demand was received on 28 October 2015 by the defendant from Shad Partners Compensation Lawyers.

14. As stated, annexed to the report was a diary entry for Saturday, 18 April 2015 in the following terms:

“I was directly behind the customer when she fell over. The customer was looking up at the furniture wall direction not in front of her. She did not see the folding table and tripped on the leg of the table and then tried to brace herself using the table, the table slid forward and the customer fell on her knees. I then comforted the lady offered her a chair and asked her if she was okay and the other manager Ross Atherton applied first aid. Whilst comforting the lady her husband was trying to make me sign a document saying we were liable and wanted a copy of the incident report. I rang store manager Sean who then spoke to the husband.”

15. It should be noted that Mr Zammit's diary entry indicates that Mrs Khanna tripped on the leg of a folding table whereas the incident report indicates that she tripped on the leg of a chair which was part of a stack of chairs. The incident report was consistent with the oral evidence of Mr and Mrs Khanna.

16. Exhibit A included a number of colour photographs. These were taken on 18 April 2015 by the plaintiff. The photographs depict what appears to be a folding table and also a stack of what appears to be black plastic chairs. The photographs appear to depict the table and chairs at the end of an aisle with the chair stacks appearing to be abutting a stack of folding tables.

17. Part of Exhibit A was a document apparently written in hand by the plaintiff on the day of the accident which included the following:

“My wife tripped & slipped from the stack of chairs and bi-fold tables were displayed on the left. Geeta fell on to both of knees on the ground with the right knee first & then on left knee.

Her husband who was walking with her tried to save her fall but could not as the floor was slippery and the weight of his wife. In this process husband was also injured but without looking my injury I was more worried of my wife.”

18. The plaintiff tendered as part of Exhibit A numerous medical notes, medical records and reports. Both parties relied on medical notes. Appellate courts have cautioned trial judges in relation to discounting a plaintiff's oral testimony on the basis of accounts given to various health professionals which appear to be inconsistent in notes particularly where the health professional has not been cross-examined: see Mason v Demasi [2009] NSWCA 227 at [2] per Basten JA and Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8]. I take the caution stated by the Court of Appeal into account in considering the plaintiff’s evidence.

19. I note, however, that the plaintiff appeared to be an intelligent man with a reasonable command of English. The plaintiff's general practitioners were also consulted by him over an extensive period. In addition, the consistency or lack of consistency of medical records is significant. Mr Khanna also referred to concentration and memory problems in his oral evidence. Some of the medical issues occurred over 10 years ago and, accordingly, in my view, particular weight should be given to contemporaneous documents especially if there is consistency in relation to them.

20. The medical records relied on by the plaintiff in Exhibit A were extensive. However, it is clear from the voluminous medical records tendered by the defendant which became Exhibit 1 in the proceedings, that the plaintiff’s tendered medical records were limited and did not include all medical records prior to the 18 April 2015 accident or documents relating to other accidents in which the plaintiff was involved after the 18 April 2015 accident. With these limitations in mind, I refer to the more significant records relied on by the plaintiff in Exhibit A.

General Practitioner notes

21. There are no medical notes relating to the plaintiff in Exhibit A for the period from 18 April 2015 to 11 June 2015, apart from a CT scan dated 21 April 2015. The plaintiff did not attend hospital immediately after his alleged injury and no ambulance was called. The plaintiff’s general practitioner notes from the Rouse Hill Medical Practice include the following:

1. 12 June 2015:

“Injured right knee whilst trying to break wife's fall in April (18/4)

painful when mobilising

O/E pain patellar region. No effusion

Adv painkillers”;

2. 24 June 2015:

“Left arm issues.

Tingling and numbness

Left third, fourth and little fingers

Neck discomfort

Neck muscle stiffness – worse in the morning

MRI scan requested”;

3. 9 July 2015:

“Right knee pain from fall in April.

Adv physio”;

4. 26 August 2015:

“GP mental health Pla”;

5. 26 August 2015:

“Low mood. Anhedonia. Social phobias

Has been getting worse

Multiple medical issues causing patient to be mentally unwell

Also has to see hepatologist urgently for deranged LFTs

O/E mood low. No thoughts of DSH

Plan – start ssn

Ref psychologist”;

6. 29 August 2015:

“Mental health plan and K10 26/8/15”;

7. 7 September 2015:

“Diazepam requested

Anxiety +

Unable to sleep

Diazepam helps patient rest”;

8. 22 October 2015:

“Right knee pain – fell in April 2015.

No physio appointment yet”;

9. 25 February 2016:

“Still having low back pain and worsening right shoulder pain.

Painful abduction at 90 degrees”.

Physiotherapy report

22. The medical records contain referrals to a physiotherapist and to a podiatrist. There was in evidence a report from Ms Wendy You, physiotherapist, dated 28 June 2018 referring to the plaintiff’s “complex history of musculoskeletal problems. His treatments have commenced on 6 April 2018”. Ms You states in her report:

“Mr Khanna presents with various complex problems secondary to a history of a motor vehicle accident and recurrent hospital admissions. He complains of a dull ache to moderate pain across his lower back region that radiates into both of his glutes and thighs. Often he experiences numbness along the back of his thigh. These symptoms are aggravated with moderately timed walking or sitting. He finds bending upwards more painful than bending downwards. There is also a persistent dull ache to moderate pain across his neck that radiates into his upper back region that is strongly associated with headaches when aggravated. Mr Khanna further has bilateral glenohumeral joint pain and bilateral calf and foot pain; often leading to cramping sensations in the calf and foot.”

23. No knee pain was referred to. The 18 April 2015 alleged fall was not specifically referred to.

24. Ms You found in relation to the plaintiff's lumbar spine, markedly reduced lumbar spine range of motion with pain being experienced radiating into the plaintiff’s “glutes” and posterior thighs with tenderness on palpation over the sacroiliac joint and increased stiffness and tenderness on palpation over his lumbar spine facet joints.

25. An extensive period of weekly consultations was recommended for soft tissue and joint mobilisation and pain relieving techniques.

Radiological investigations

26. As part of Exhibit A were numerous radiological investigation reports concerning the plaintiff.

27. The plaintiff claimed in his oral evidence that he saw a general practitioner on 19 or 20 April 2015. The history noted in a radiologist’s report was: “2 months of radicular symptoms radiating to C8”. A CT scan of the cervical spine reported on by Dr Kariappa dated 21 April 2015 found multilevel degenerative change in the plaintiff’s cervical spine with broad-based disc bulges seen at the C5/6 level causing some flattening of the thecal sack at the level. A mild broad based disc bulge was noted at the C4/5 level. An MRI was recommended.

28. An MRI of the plaintiff’s cervical spine was reported on by Dr Dugal on 25 September 2015 in the light of a clinical history of neck pain and pain down the left arm with radiculopathy. Dr Dugal confirmed that the cervical spine MRI showed no cord lesion but did note that there was a small disco vertebral “complex” at the C4/5 level without neuro central compression. This was said to be associated with mild foraminal stenosis. Although there was no deviation of the exiting C5 roots, Dr Dugal stated that this may irritate the roots at the C5 level and may account for symptoms. A left C5 nerve root injection was recommended.

29. A CT scan of the lumbar spine was reported on by Dr Evans dated 4 April 2018. The report noted multilevel vertebral body and bilateral facet joint osteophyte formations with a generalised mild lumbar canal stenosis but with no definite nerve root compression identified. A cortisone injection into the facet joints bilaterally particularly at the L5/S1 level was recommended.

30. Dr Nishiguchi reported on an MRI of the cervical spine on 20 December 2018 referring to cervical spondylosis and facet arthropathy being present most prominent at the C4/5 and C5/6 levels. Impingement of the C5 nerve root was suspected. There was reference to consideration of a CT guided nerve root block.

31. Dr Truong reported on an x-ray of the plaintiff’s pelvis and right hip in a report dated 2 April 2019. Dr Truong reported mild osteoarthritis in the right hip joint and also mild osteoarthritis in the left hip joint. There was spurring noted at the iliac crests with mild to moderate lower lumbar spondylotic change. The x-ray of the right knee was essentially normal apart from prominent spurring at the patella.

32. An MRI of the right hip was reported on by Dr Sim on 26 November 2019 as a result of a history of right hip pain. Fraying and a tear at the plaintiff’s labrum was noted with also chondral wear at the hip junction. There was said to be no “convincing” trochanteric bursitis.

33. An MRI of the lumbar spine dated 26 November 2019 referred to a degree of background congenital spinal canal stenosis of the lumbar spine with a mild disc bulge at the L5/S1 level with mild to moderate facet joint arthropathy of the mid to lower lumbar spine slightly more prominent at L5/S1 level.

26. There was a report by Dr Vasili, Orthopaedic Surgeon, dated 2 March 2020 with the plaintiff relating persistent right hip and knee symptoms from the fall on 18 April 2015. Dr Vasili referred to the MRI scans and noted that his examination demonstrated an irritable right hip joint and an irritable right patellofemoral articulation. A future CT guided right hip injection was noted.

27. An MRI of the brain reported on by Dr Wan on 11 December 2020 noted that since 7 May 2018 there was generalised volume loss in the plaintiff’s brain with features of chronic microvascular ischaemic changes in part of the white matter which “appears slightly prominent for patient's age”.

General practitioner reports

36. The plaintiff’s medical documentation in Exhibit A refers to the plaintiff having an extensive history of cardiac problems including frequent complaints of chest pain and significant diabetes problems. A referral from the plaintiff’s general practitioner Dr Nima dated 29 June 2020 refers to the plaintiff having ischaemic heart disease since 25 November 2011, diabetes since 25 June 2012 and anxiety/depression since 2 February 2019. Documents relied on by the defendant show the plaintiff had anxiety/depression problems since 2010. Dr Nima referred to a shoulder injury on 10 June 2020. Earlier documents tendered by the defendant showed the plaintiff having shoulder problems prior to the accident.

37. There are a number of other documents authored by Dr Nima including a medical certificate dated 18 August 2020 stating that the plaintiff was suffering from chronic anxiety and depression including low mood which affected his concentration and attention significantly. See also Dr Nima's letter dated 17 September 2020.

38. GP management plan documents prepared by Dr Nima appear to suggest that the plaintiff’s need for regular podiatrist assessments was as a result of the plaintiff suffering from a chronic diabetic ulcer.

Report of Dr Pearson

39. In the plaintiff’s tender bundle was a report from Dr Gregory Pearson, psychiatrist, dated 6 November 2020. Dr Pearson notes in the report that the plaintiff had not worked since 2009 when:

“Under particular circumstances he was run over by a tow truck. He immediately suffered two myocardial infarctions and has essentially been unable to work since … he suffered further injuries when in 2016 he was hit from behind by a motor vehicle. Despite multiple stentings and further complications, in 2019 he had coronary artery bypass graft surgery. His recovery has been complicated by quite severe Type 2 insulin-dependent diabetes.”

40. The April 2015 accident is not referred to. Dr Pearson refers to the plaintiff having a degree of shame about his financial position with him being highly anxious about the fragility of his physical state. Reference to the plaintiff being involved in litigation in relation to the 2009 tow truck accident is referred to. Dr Pearson concluded that there was evidence of significant depression as well as depressive themes with a hint of grief and trauma. Dr Pearson prescribed Pristiq.

41. A report of Dr Nima dated 25 November 2020, provides that the plaintiff was suffering “from significant chronic medical conditions including uncontrolled diabetes, depression/anxiety, chronic cardiac condition and complications of cardiac surgery”. The 18 April 2015 fall was not mentioned.

42. Included in the plaintiff’s bundle were documents from Westmead Hospital indicating that the plaintiff was admitted on 21 December 2020 for chest pain and was managed by Professor Kovoor in the Cardiology Department. It was noted that the plaintiff had a “risk of falls”. It is later stated “mobilises by self but is a high falls risk”. Later medical records were also tendered, including a report from Dr Nima dated 26 May 2021 stated that the plaintiff had problems at the L5/S1 level which had “started after a fall on 18/04/2015…”: Exhibit A page 209.

Medico-legal reports

43. The plaintiff included in his bundle which became Exhibit A two medicolegal reports which were obtained on behalf of the defendant.

44. The first report was a report of Dr F Machart, Orthopaedic Surgeon and head of the Orthopaedic Department at Bankstown Hospital. It appears that Dr Machart had limited medical records and radiological reports relating to the plaintiff before him when preparing his report. Dr Machart records a history from the plaintiff of his wife tripping with him being behind her. He states: “He tried to stop her from falling. He fell. He did not feel a great deal of discomfort. There may have been pain in the right knee. He took Panadol. He saw a doctor. Mr Khanna was of the opinion that 16 March 2016 was “the date when the injuries from 18 April 2015 had accrued”. In March 2016 he started to be aware of pain in other areas, suffering greater pain in the right knee, pain in the lower back, right hip, and in the neck”.

45. Following an examination, Dr Machart referred to various medical records and limited radiological reports. He expressed the opinion that there was no evidence of substantial or long-lasting injury to the plaintiff in the accident. He also expressed the opinion that there was evidence of a substantial pre-existing history of lumbar and hip pain with evidence of a fall and a motor vehicle accident after the 18 April 2015 accident. In relation to the development of symptoms later in March 2016, Dr Machart expressed the opinion that there was no objectively defined evidence that drew a connection between the symptoms reported in March 2016 and the incident on 18 April 2015. He concluded that the incident on 18 April 2015 caused no diagnosable condition or evidence of substantial injury. He was of the view that the entire presentation of the plaintiff represented pre-existing and post-18 April 2015 pathology and degenerative changes. No further treatment or assistance was recommended as there were no injuries from which to recover.

46. Also in evidence was a medico-legal report from Dr D Samuell, psychiatrist, dated 20 August 2019. After setting out an extensive background history, including the 2009 (referred to as 2010) accident, Dr Samuell referred to the plaintiff’s diabetes, hypertension, heart disease and other motor vehicle accidents. He noted from the plaintiff’s medical file that he was prescribed antidepressants in March 2015, a number of weeks before the April 2015 accident.

47. Although he recorded the plaintiff as having psychiatric problems after the fall at the defendant's premises and the plaintiff denying any mental health symptoms prior to the accident, Dr Samuell noted that the materials he had were uninformative concerning the plaintiff's mental state prior to the accident other than to confirm that he was prescribed antidepressants.

48. He noted the plaintiff having difficulties recalling details relating to the accident with him claiming that he first obtained medical attention for any difficulties that had arisen from the accident eight to nine months later which Dr Samuell noted was incorrect as the plaintiff first sought a consultation with his general practitioner on 12 June 2015. Dr Samuell expressed the opinion that the totality of the medical evidence reviewed by him suggested that prior to the subject accident the plaintiff was medically frail and depressed. He stated that the plaintiff's claim that he was more miserable following the accident should be corroborated with objective information having regard to the plaintiff's poor recollection and pre-existing difficulties.

49. Dr Samuell accepted that the plaintiff had a persistent depressive order but was of the opinion that it was unclear that the depressive order was attributable to the accident given that the plaintiff had received antidepressants only weeks before the accident. He was of the view that it was unclear that the accident contributed to the plaintiff’s depression. While accepting that it was possible that medical difficulties that arose from the accident could have aggravated or exacerbated the plaintiff's pre-existing persistent depressive order, Dr Samuell said that it was difficult to express that opinion having regard to the plaintiff’s poor recall and the limited medical notes. On balance, Dr Samuell was of the view that the contemporaneous medical notes would suggest that if there was any contribution from the accident from a mental health perspective “it was incremental”. He again noted that antidepressant medication was prescribed prior to the accident.

The plaintiff's oral evidence

50. The plaintiff was not legally represented at the trial. That caused some real practical difficulties in the plaintiff giving his oral evidence. With the agreement of the parties, the plaintiff was asked non-leading questions by the court. He was also given a full opportunity to say anything further which he wished to say on significant topics such as the 18 April 2015 accident and difficulties arising from the accident. The plaintiff asked questions himself of his wife, Mrs Geeta Khanna, and of Mr Zammit, the other two witnesses called.

51. The plaintiff gave evidence in chief that he was born in February 1962 in India and migrated to Australia in 1995. He has been married to his wife, Mrs Geeta Khanna, since 1985. Prior to 2009, the plaintiff was involved in an import/ export business importing paper to Australia and exporting items to the United Kingdom. The plaintiff stated that he had been on a disability pension since 2013.

52. The plaintiff gave evidence that his health was “absolutely perfect” prior to an incident in November 2009.

53. The plaintiff gave evidence that in 2009 he was “run over” by a truck and struck by it whilst reversing with its tilt tray during an attempted repossession of his car. The plaintiff said that he was also manhandled by the driver of the truck. The plaintiff gave evidence that he was injured in the left knee, the middle back and the left shoulder. In due course, the plaintiff commenced proceedings relating to this incident seeking damages.

54. The plaintiff stated that in December 2009 following the incident, he had what he described as a “double heart attack” which required surgery to insert cardiac stents: T92.16. He said that two to three stents have been inserted regularly over a number of years since 2009. The plaintiff stated that he had open heart surgery in September 2019 and he was not fully recovered from that surgery: T92.31.

55. The plaintiff gave evidence that he suffered from diabetes for 25 years and after the December 2009 accident, took insulin. He said that good exercise was required to keep the diabetes under control. He said that at the time of the 18 April 2015 accident his diabetes was not under control: T92.50.

56. The plaintiff gave evidence that prior to the 18 April 2015 accident he had had minor mental health issues due to his heart condition and was not taking medication for those mental health issues: T94.5.

57. Other than the accidents and conditions referred to above, the plaintiff said that he had been involved in a number of small accidents where he had suffered minor injuries including a motor vehicle accident which he believed occurred in 2014. He said he suffered minor whiplash injuries in the accident.

58. The plaintiff then gave evidence about the accident on 18 April 2015.

59. The plaintiff stated that he and his wife attended a new Masters Home Improvement Store at Rouse Hill in Sydney. Mr Khanna said that he and his wife proceeded to enter the store by foot. As far as he was aware, there was only one entrance to the store. He noted that at the entrance, all of the employees of the store appeared to be wearing what he described as “rubber soled boots”. He also noticed that the floor of the store appeared to be quite shiny. Mr Khanna gave evidence that there were no markings indicating that the floor was slippery. He stated that he noted that the whole store was filled with goods. He observed that there was hardly enough space to move around. A lot of customers were present.

60. Mr Khanna gave evidence that at the end of the second aisle there were stacks of chairs in the aisle. His recollection was that there were four to five stacks of chairs with four to six chairs in each stack. These stacks were at the front of the second aisle from where they entered the store. Mr Khanna stated that there was also at the end of the aisle a folding table. He observed that there was a very small gap for customers to walk down and near the aisle because of the amount of goods present: T109.26-T111.2.

61. Mr Khanna noted that the legs of the chairs in the stack came out from the base of the chair at an angle: T111.26. He observed that his wife tripped on the leg of one of the chairs in a stack. He also believed that his wife slipped due to the slipperiness of the floor. Mr Khanna said he tried to save his wife but due to the slipperiness of the floor, the weight of his wife and the suddenness of her fall he could not stop her fall. He attempted to hold his wife as she fell but could not hold her and her upper body whilst falling struck him and he fell to the floor due to her weight being on him: T113.6. Mr Khanna gave evidence that his wife fell on her knees. He said his wife was on the floor and he could not pick her up. His wife complained that she could not stand up and she had pain in her knee and her wrist.

62. Mr Khanna stated that he also fell with his right knee hitting the floor and him falling backwards with his head and shoulders hitting the floor. Due to the curvature in his back, his back did not hit the floor: T113.16-T114.10. Mr Khanna asserted that he was able to get up fairly quickly from the floor but it took him two to three minutes to get up from the floor: T114.17. When he got up, he noticed that his wife was lying on the floor crying. He then noticed that customers had gathered around them and attempted to help his wife to get up. Soon after, Mr Khanna noticed that a female employee from Masters came up and then appeared to retreat quickly before another member of staff came up with an ice pack and water for his wife who was then assisted to sit on a couch. His wife claimed to be very heavy-headed and with pain in her knee: T115.2. Mr Khanna's best estimate was that his wife was lying down on the floor for seven to eight minutes. Whilst Mr Khanna said that he also assisted his wife to get up, he could not provide a lot of assistance due to his heart condition.

63. Mr Khanna said that a member of staff asked whether his wife would like to have an ambulance called but his wife said no as she was not bleeding from any injury. The plaintiff asked whether he could have an incident report in case the next day there continued to be problems with what had occurred: T116.5.

64. Mr Khanna said that he believed “Mr Ross” from the defendant store said that he would have to report the incident to his boss and that they did not have forms with them. Mr Khanna then asked if they did not have a form if he could be provided with pen and paper so he could record what had happened. He also claimed that he wanted to be given the footage from a CCTV camera which was in the vicinity. A person who he identified as Mr Zammit said that he would need to ask the boss.

65. At this time, Mr Khanna said that his wife appeared to be in great pain with ice on her swollen knee. She was lying on the couch and he was talking to the defendant’s employees and was standing up. In due course, the plaintiff asked for and was given an incident number. He then wrote out the document which is at page 53 of Exhibit A which he confirmed was in his handwriting. He said that he prepared the letter sitting down. He stated that the letter was completed by him between 35 and 40 minutes after the accident. He said he tried to give it to the defendant’s staff but they would not accept it. Mr Khanna said that he and his wife left the store about 45 to 60 minutes after the accident. By this time, Mr Khanna said that his wife was able to walk with assistance from him. He said they then travelled home by car.

66. Mr Khanna gave evidence that either on 19 April or 20 April 2015, he attended the Blacktown Medical Centre with his wife. He said they told the doctor that they had a fall and he noted that his wife's knee was then very swollen. Mr Khanna said that he informed the doctor that he had pain in his neck, back, knee and right shoulder and the doctor referred him for a CT or an MRI scan: T120.38-.50. Mr Khanna said that he saw a doctor at the Blacktown Medical Centre between one and three times relating to his own problems arising from the accident: T121.32. Mr Khanna stated that he then moved to consult doctors at the Rouse Hill Medical Centre at four to five months after the accident. He stated that they transferred to the Rouse Hill Medical Centre because they moved their residence. Whilst at the Blacktown Medical Centre, Mr Khanna said that he was prescribed painkillers and an injection for the pain and was then told that no more could be done for him due to his heavy medication for his other conditions.

67. At the Rouse Hill Medical Centre, Mr Khanna said he was referred for physiotherapy.

68. Mr Khanna gave evidence that four to five months after the accident he was in “terrible pain”: T122.48. This is relevant to the severity of his condition at that stage. The pain was in his back, his legs and his hip. He said his right shoulder at that time was not too bad and he believed it had started healing. Mr Khanna stated that the pain severely impacted his life with him not being able to walk or sleep properly and him waking up at midnight with pain in the legs and his back. The pain prevented him having exercise including taking his dog for a walk, washing and cleaning his car and mowing the lawn: T123.34.

69. Mr Khanna gave evidence that he had undertaken these activities prior to the 2015 accident and now relied on neighbours, his children or his wife to undertake the activities. He also stated that his pain had a substantial impact on his social life and he stopped going out. He said he became very depressed and his depression medication was increased as was his heart and painkiller medication.

70. In relation to his dog walking, the plaintiff said that he went daily for between 45 minutes and one hour. Since the accident, a neighbour's son took the dog for a walk three days a week, his wife took the dog for two short walks two days a week and his son took the dog for a walk one day a week. He said he had not resumed taking his dog for a walk.

71. In relation to washing and cleaning his car, he stated that his wife cleaned it a small amount but otherwise his son did it or he paid for the car to be washed. He said the car was washed and vacuumed by him prior to the accident every fortnight for between 45 minutes and one hour.

72. In relation to lawn mowing, the plaintiff gave evidence that prior to the accident he mowed the lawn every two to three weeks and now his son did it. He said he had not resumed lawn mowing. He said prior to the accident it took him 45 minutes to one hour to do the lawn mowing and now being in a house with a smaller lawn, it took about 45 minutes for the lawn to be mowed.

73. In relation to shopping, the plaintiff said that he occasionally assisted his wife with shopping before the accident and now his wife did the shopping.

74. The plaintiff gave evidence that four to five months after the accident, his pain had become much worse than it was immediately after the accident. From the end of 2015 to now, the plaintiff said that his pain has increased substantially in his back, legs and hip. This included cramps in the legs, tingling in the legs and a feeling of instability in his legs. He said he had pain all the time in his back and it was particularly difficult if he bent. He said the pain in his hip had become substantially worse. He noted a slight improvement in the pain in his right shoulder but it was still present. The plaintiff claimed that his depression became worse after the accident and has never improved. He said he felt most of the time that he wished to cry and his pain was beyond a degree which was tolerable. He said he felt helpless and could see no scope to get better.

50. The plaintiff said that he had been to an orthopaedic specialist for consultation and had an MRI completed. He said he was told that he could not obtain treatment from some doctors due to the number of medications he was taking. He was referred for neuropathy but said he was not able to afford the treatment and other recommended treatment because of his financial position. He said he was on a disability pension with his wife acting as his carer.

51. The plaintiff gave evidence that since he fell in 2015, he continued to have significant heart problems which included more stents being inserted in 2017 and open heart surgery in 2019.

52. The plaintiff said he was last employed in September 2009 and had not worked since. He said between 2009 and 2013 he was on unemployment benefits but was approved for a disability pension in 2013. He agreed that after September 2009 he could not work due to his medical condition.

53. Mr Khanna said that he was not able to afford physiotherapy or podiatry which was recommended after the accident.

54. The plaintiff gave evidence that whilst he was injured and felt pain in the 2015 accident, his pain became much more serious from 30 March 2016: T135.20-T136.28. He accepted that he was injured in the accident and felt back pain from that date but his position was “aggravated” and got particularly worse from 30 March 2016. He said he could not recall when he first saw a lawyer in relation to his own injuries in the accident but believed it was in 2016: T136.45. He could not recall the relevant month.

55. The plaintiff was later taken to photographs of the store at pages 45 to 46 of Exhibit A. The plaintiff stated that he took the photographs on 18 April 2015 and at the time of the accident, the stacks of chairs and the bi-folding table indicated in the photographs were in the same place when the accident occurred. The plaintiff said he saw his wife trip. He said she tripped on the leg of the lowest chair in the stack of chairs closest to the bi-folding table with the relevant chair leg being the front left chair leg.

56. The plaintiff also gave evidence relating to drugs which he was prescribed. He gave evidence relating to drugs which were newly prescribed since the April 2015 accident or which had been increased in dosage since the 18 April 2015 accident. The plaintiff referred to Janumet as being a new drug following the accident but accepted in cross-examination that it related to his blood sugar levels in circumstances where the plaintiff has diabetes. In relation to Lantus which the plaintiff said had involved an increase in his dose since the accident, the plaintiff stated in cross-examination that it related to his insulin. In relation to Mirtazapine, the plaintiff said that this was a new drug which he took for depression. However, he conceded that he took the antidepressant drug Cymbalta prior to the accident in April 2015. In relation to Nizatidine, which the plaintiff said he took for pain, he conceded in cross-examination that it could have been an antihistamine for stomach ulcers. In relation to Valium, the plaintiff said in cross-examination that this was a new drug and he had taken it in the last few years.

57. The plaintiff agreed that he had depression since 2009 but claimed it stopped and started again in 2015. This seems to be inconsistent with the prescription to the plaintiff of Cymbalta fairly shortly before the accident.

58. In cross-examination, the plaintiff confirmed that he regularly saw his general practitioner for check-ups and had done so for many years since the 2009 accident. Contrary to his evidence in chief, the plaintiff agreed that he went to his general practitioner as often before the April 2015 accident as after the 2015 accident. He also agreed that his diabetes and heart required regular monitoring and he had regular blood tests. He accepted that his medication was required to be renewed regularly and he saw his general practitioner for that.

59. The plaintiff gave evidence in chief in relation to further treatment which he had sought. In relation to physiotherapy, the plaintiff said this had been recommended by Dr Pang and Dr Nima. The reference was for five physiotherapy sessions costing $95 each which the plaintiff could not afford. In relation to a referral by an orthopaedic surgeon, the plaintiff said his orthopaedic surgeon had referred him to a neurologist for neuropathy treatment but this cost $450-$550 per session which he could not afford. In relation to a podiatrist, the plaintiff said that his general practitioner Dr Nima had recommended that the plaintiff be referred concerning a pain in the leg for five consultations which were $80 each week which he could not afford. The plaintiff said that he also saw his general practitioner for review many times but, as indicated above, agreed in cross-examination that he saw his general practitioner as many times before the April 2015 accident as after.

60. Mr Khanna was extensively cross-examined in relation to his evidence in chief. Mr Khanna was asked a number of questions about his accident in 2009 when he was struck by the tray of a tow truck and was allegedly “manhandled” by the driver. He agreed that he hurt his left knee in the incident. He could not recall giving evidence in chief that the middle of his back was also injured (see T91.35-.42). However, Mr Khanna stated that he had hurt the area of his back about five inches below his neck between his shoulder blades. He could not recall whether he had injured any other part of his back in the 2009 incident: T142.11. Mr Khanna stated that he injured his left or right shoulder but could not recall whether it was both shoulders. In his evidence in chief, he had indicated that he believed he had hurt his left shoulder: T92.4. The plaintiff claimed that he had “almost” recovered from the 2009 injuries at the time of the accident in 2015. This was inconsistent with documents prepared by the plaintiff later, which will be discussed further below. The plaintiff stated that after April 2015, he continued to have pain in both his knees with the pain in his right knee being more than the pain in his left knee. He confirmed that he had hurt his right knee in the 2015 accident. The plaintiff then denied having right knee problems before 2015: T143.25.

61. In relation to his shoulders, the plaintiff asserted that his right shoulder had recovered about 60% from the April 2015 accident. He could not recall whether his left shoulder problems arose from the 2009 or 2015 accidents despite his evidence at T92.4.

62. The plaintiff agreed that the injuries arising from the 2009 incident were “fairly significant” injuries. The plaintiff was then extensively cross-examined in relation to written complaints he had made concerning injuries arising before the 2015 accident including those arising from the 2009 incident. At Exhibit 1 page 78 was a letter from the plaintiff to Allianz Australia Insurance Ltd dated 26 July 2012 which stated: “After the hit by the driver I started suffering pain at my Lower back. Shoulders and left leg where I was hit repeatedly by tilt tray”. The plaintiff agreed that the document was prepared by him and sent to Allianz. When it was put to the plaintiff that he claimed he had injured his lower back in the 2009 incident, the plaintiff claimed that he was using layman's language and that this included his hip and buttock area. It was put to the plaintiff that this letter showed he had suffered pain in the lower back from the 2009 incident and he rejected this T146.43. He said the pain was more in the middle of his back between his shoulder blades which he regarded as being the lower back.

63. The plaintiff gave evidence in relation to a photograph which became Exhibit B in the proceedings which he said was taken in 2009 and showed his back. He stated that the red marks on his back near his right shoulder and upper back were a result of the tow truck driver hitting him towards a wall in 2009 and not contact with the truck itself.

64. Reference was made to the plaintiff's evidence that he took Nitrolingual which was a pump action spray. He said it had been prescribed for him by the Cardiology Department at Westmead Hospital and was for “blood thinning” to assist with the flow of blood to his legs. Although the plaintiff claimed that his diabetes had got worse since the April 2015 accident, he agreed that he had suffered from diabetes for 25 years. The plaintiff also agreed that he required regular review and consideration of the medication relating to his heart condition and that he saw a cardiologist regularly.

65. The plaintiff agreed that he had problems going from downstairs to upstairs. He said this was due to right knee pain but also shortness of breath. He said he did not suffer from fatigue due to heart problems all of the time. He also agreed that he had problems walking short distances due to his heart problems.

66. The plaintiff was cross-examined about his list of “many other diseases” at Exhibit 1 page 79 including that he was “in terrible pain all the time”. The plaintiff agreed with the descriptions in the document relating to the 2009 incident, including that he was not stable mentally but said that this did not equal being incapacitated. He said his depression complaints started from after the 2009 accident. The plaintiff agreed that the incident had also increased his diabetes problems and depression. In relation to the list of soft tissue injuries at Exhibit 1 page 80, the plaintiff confirmed that he regarded these as arising from the 2009 incident. They included “neck injury”, “unable to move neck frequently”, “pain under armpits and shoulders” and “all the time headache”. In relation to the phrase “the backbone injury”, the plaintiff denied that this was intending to refer to the whole of his backbone including the lower back. He said this was intended to refer to the injury between the shoulder blades. The plaintiff also denied that the complaint “unable to stretch” indicated low back pain. The plaintiff stated that the reference to “leg injury” was referring to his left leg consistent with his claim of a left hip injury. He said the reference to “pelvis injury” referred to pain in the area. He denied that the tray had hit his lower back. He said the reference to “shoulder injury” and “thigh injury” was referring to the left thigh and shoulder.

67. The plaintiff was then taken to a document entitled “Description of Accident” at Exhibit 1 page 82. He confirmed it was signed by him on 26 July 2012. He agreed the list of “diseases” and “injuries” was very similar to that at Exhibit 1 pages 79 and following. In relation to the claim that the plaintiff was “in terrible pain all the time”, the plaintiff agreed with this but did not recall where. The plaintiff was then taken to a further document relating to his injuries in the 2009 accident at Exhibit 1 page 85. He confirmed that he claimed a neck injury which he was still suffering from in 2012, three years after the accident as well as headaches. The plaintiff agreed that he claimed that he was in the habit in 2009 of taking morning and evening walks which he was unable to do. He said this was due to problems with his left leg. In relation to the claim that he experienced “difficulties with sleep and relaxation as my both shoulders are frozen”, the plaintiff claimed this was due to his diabetes including his diabetes becoming worse as a result of the 2009 accident. This assertion is difficult to accept in the absence of medical evidence supporting it.

68. The plaintiff was then asked about a document entitled “Estimated Earnings Loss” (Exhibit 1 page 87). The plaintiff agreed that he made significant claims for damages in this document arising from the 2009 accident totalling about $3.77 million. He also agreed that the 2009 incident involved very significant injuries to him with long term effects. It is noted at Exhibit 1 page 88, that the plaintiff states: “The plaintiff was incapacitated as a result of the accident”. The plaintiff said he had two heart attacks as a result of the incident and three stents inserted. He agreed he brought a claim in the District Court relating to it and that the document at Exhibit 1 page 303 was an affidavit which he prepared in 2020 in relation to the claim which he had filed in 2019. The plaintiff was taken to an Amended Statement of Claim at Exhibit 1 page 310 where he listed his particulars of injury. These included a neck injury, a back injury and injury to the shoulders and legs on the left-hand side. The plaintiff agreed that as at 8 May 2020 (Exhibit 1 page 316) he was still claiming that arising from the 2009 incident he was suffering from neck pain, a back injury (between the shoulder blades), and injuries to the left shoulder, left leg, left hip and left thigh. He also agreed that he was claiming that he needed physiotherapy as a result of the incident. The plaintiff agreed with his claim at Exhibit 1 page 312 that following the incident, he suffered from a double heart attack and he continued to have heart problems with further surgery including stents. The plaintiff accepted that he claimed that as a result of the 2009 incident his heart problems had worsened which led to surgery. The Amended Statement of Claim also asserted psychological and mental injuries: Exhibit 1 page 311. Mr Khanna agreed that the 2009 incident proceedings resolved in 2020.

69. Mr Khanna was then asked about a motor vehicle accident in which he was involved on 16 May 2014. He agreed that he had seen lawyers in relation to the claim and signed a statutory declaration in relation to a personal injury claim form concerning the accident: Exhibit 1 pages 174 and 185. The form referred to injuries to the neck, shoulder, lower back and an exacerbation of an injury to the right and left hips, thighs and legs, toes and sole. While initially asserting that he just signed the form and trusted his lawyer, after some questioning Mr Khanna accepted that he must have read the statutory declaration before signing the document. He could not recall which shoulder he claimed was injured in the accident. In relation to the reference to a “lower back” injury, the plaintiff agreed that he had an injury but it was below the shoulder blades but above the beltline in the middle of the back. The plaintiff claimed that the accident had worsened his left leg and hip problems but the injury to his right leg and hip was a new injury. He could not recall what was meant by the injury to “legs”.

70. The plaintiff was asked questions in relation to the answer to Question 26 in the form which referred to “pins and needles”. He could not recall whether this referred to pins and needles in the legs, shoulders or his feet.

71. The plaintiff was then asked about his consultations with doctors from the Blacktown Medical Centre relating to a number of accidents.

72. The plaintiff was first asked about consultations arising from the 2009 accident. He agreed that he saw a doctor on 2 November 2009 complaining about multiple injuries after being hit by a truck. In relation to the consultation note referring to “pain along entire spine and LBP (mild tender over the lower lumbar region)”, the plaintiff said that he did not recall this and doubted it. He agreed that the doctor medically examined him but could not recall whether he examined his lower back along the beltline. The plaintiff said the doctor referred the plaintiff for a CT scan. The plaintiff said he could not recall complaining of pain to the lower back. He did say that he was suffering pain in the back. He agreed that he continued to see doctors from time to time at the Blacktown Medical Centre in relation to his complaints.

73. The plaintiff was then cross-examined about other entries in the consultation notes which referred to back pain or lower back pain or sciatica. See the entries for 10 January 2014 (Exhibit 1 page 111) and 30 August 2013 (Exhibit 1 page 49). The plaintiff said he could not recall telling the doctor he had shooting pain from his buttocks down his leg but did recall taking Lyrica for pain. The plaintiff could not recall mentioning lower back pain but accepted that he referred to back pain. This is inconsistent with various entries in the notes including entries in 2013: Exhibit 1 page 49.

74. The plaintiff was asked how long he had been suffering from pins and needles in his left arm as referred to in a consultation note entry for 18 December 2014. The plaintiffs said that he started having problems after the 2009 accident in his arms. He claimed that the problems remained for a number of years and then started improving and later came back again: T175.47. The plaintiff could not clarify the dates when this occurred: T175.49.

75. The plaintiff was then taken to a consultation note entry for 11 February 2015, some two months before the April 2015 accident, where it is stated: “numbness down the left arm”. Mr Khanna said he could not recall whether that was similar to the problems he was having in December 2014 with pins and needles in his left arm: T176.13. After a question from the court, the plaintiff claimed that he had no numbness down his left arm a few months before the April 2015 accident: T176.34. This seems to be inconsistent with the consultation notes including the history provided for the CT scan of the cervical spine requested on 20 April 2015: see Exhibit A page 54. The plaintiff suggested it could be only “temporary”. Why this was so was unclear.

76. The plaintiff was then taken to a consultation note for 13 April 2015, five days before the accident, where he was complaining of numbness in the fingers of his left hand. The 13 April 2015 consultation note refers to “Numbness left 3^rd-small fingers. CT shows disc protrusion pressing C7-T1”: Exhibit 1 page 39. The plaintiff said that the entry must be correct because his doctor referred him to a neurosurgeon but he believed the numbness in the left arm could be from heart problems or perhaps other reasons. The plaintiff accepted that he had gone for a CT scan which he discussed with his doctor who then referred him to a neurosurgeon: T177.37-T178.16. The plaintiff said he was not able to afford to go to the neurosurgeon.

77. The plaintiff claimed again that he had gone to the Blacktown Medical Centre one or two days after the 2015 accident for a consultation. He said he could not recall the name of the doctor who he saw. The plaintiff was taken to Exhibit A page 54 which was a report on a CT scan of the cervical spine which indicates that it was requested on 20 April 2015. The report referred to a clinical history as follows: “2 months of radicular symptoms radiating to C8’: T180.50-T181.2. The plaintiff said that symptoms radiating to his neck area “could be possible”: T182.6. The plaintiff stated that he has not claimed that his neck was hurt in the 18 April 2015 accident: T182.8. The plaintiff agreed that it could be possible that he had symptoms radiating “to his neck” for two months prior to the accident: T182.21. The plaintiff said he could not recall in early 2015 complaining of numbness down his left arm: T182.43.

78. The plaintiff was then taken to the photograph at Exhibit A page 45. The plaintiff claimed that he and his wife were travelling in front of the chair from the left to the right of the photograph. Although the plaintiff could not recall clearly, he believed his wife was on his left side. He did not recall whether his wife was walking in a straight line. The plaintiff claimed, in answer to the suggestion that he did not see his wife trip on anything and only saw her “tumbling forward”, that he did see where she tripped. Despite there being a lot of people, the plaintiff said that he saw her left leg trip on the front left chair leg in the stack of chairs closest to the end of the aisle. He could not recall whether there were people walking in front of them before the fall. He accepted that he and his wife were walking at an angle across the front of the aisle.

235. The plaintiff claims a worsening in his psychiatric health as a result of the accident. There is no medicolegal evidence which establishes that claim. The report of Dr Samuell dated 20 August 2019 notes that the plaintiff has a persistent depressive disorder. However, it is also noted that the plaintiff was being treated for depression prior to the accident. Dr Samuell expresses the opinion that it is unclear that the 2015 accident contributed to the plaintiff's depression while accepting that that is a possibility. Dr Samuell notes: “on balance, the contemporaneous medical notes would suggest that if there was any contribution from the subject accident from a mental health perspective, that it was incremental”. The view is expressed that no clear nexus was drawn by the plaintiff’s general practitioner in consultation notes between a claimed worsening of the depressive disorder and the injury.

236. Dr Pearson, in his 6 November 2020 report, does not refer to the 2015 accident as being connected with the plaintiff’s depression. The plaintiff claims this was an oversight, but that is not at all clear and established.

237. In the period between the accident and the trial, the plaintiff continued to have serious heart and diabetes issues.

238. As concluded above, I am not satisfied that any worsening in the plaintiff's psychiatric condition was due to the accident.

239. I am also not satisfied on all the evidence that any worsening in the plaintiff's diabetes or heart condition was due to the accident. There is no satisfactory medicolegal evidence to establish that. While I have accepted that the plaintiff saw his general practitioner Dr Doan, probably on 20 April 2015 (see the request for the CT of the cervical spine at Exhibit A page 54), the result of this consultation was to arrange for a CT of the cervical spine. The history provided in the radiologist's report at Exhibit A page 54 refers to “2 months of radicular symptoms radiating to C8”.

240. Having regard to the entry for 12 June 2015 in the general practitioners notes (Exhibit A page 56), I am satisfied that the plaintiff injured his right knee whilst trying to break his wife's fall at the time of the accident and that it was painful as at that time. This is supported by later entries: see the 9 July 2015 entry. Entries relating to left arm issues appear to have been long-standing. Neck issues also appear to have been long standing. The plaintiff claims that he injured his lower back and right shoulder in the accident. There are no references to this in the consultation notes from his general practitioner until 25 February 2016 when an x-ray of the lumbar spine was requested. An investigation of the lumbar spine was not requested by the general practitioner on 20 April 2015 when the CT scan of the cervical spine was sought.

241. Despite the submissions from the defendant, I accept that the plaintiff injured his right shoulder and lower back in the accident but it was only a minor injury having regard to the lack of reference to either area until February 2016. The medical evidence which I have referred to above, shows the plaintiff having low back pain and right shoulder pain from other incidents and accidents before the subject accident. See for example the entry on 30 August 2013 (Exhibit 1 page 49). A frozen shoulder with supraspinatus tendinosis and bursitis was referred to in 2010 (Exhibit 1, pages 71 and 75). The plaintiff’s documents relating to the 2009 incident referred to pain in his shoulders and lower back: Exhibit 1 pages 78-81, 84, and 86 where the plaintiff states that both his shoulders were frozen. The plaintiff claims that his frozen shoulders were due to his diabetes. There was no evidence to support that. The plaintiff also claimed that his complaints arising from the 2009 accident were at the upper back level. However, no radiological investigations of the lumbar spine were ordered in April 2015.

242. I assess the plaintiff on the basis that the accident caused an injury to his right knee involving pain and limitations of movement and it exacerbated his back, hip and shoulder injuries. The report of Dr Machart concludes that there was no evidence of substantial or long-lasting injury to the plaintiff in the accident. However, Dr Machart referred to limited records including radiological reports. The report of Dr Vasili, orthopaedic surgeon, dated 20 March 2020 notes an irritable right hip joint and right knee articulation. I prefer the treating doctor's reports to Dr Machart’s report. Whilst I accept that the plaintiff has ongoing limitations relating to his knee injury and the aggravation to his shoulder and back injury, I am not satisfied on all the evidence that the plaintiff’s current position is all linked to the 2015 accident in the light of the medical evidence.

243. Taking into account all of the evidence and the factors I have referred to above, I assess the plaintiff’s severity of non-economic loss as a proportion of a most extreme case as being 21%. This equates to 4% as a proportion of the maximum amount that may be awarded for non-economic loss being 4% of $693,500. This amount is $27,740. This is to be reduced to $27,500 in accordance with s 16(4) of the CLA. I therefore allow $27,500 under this head.

Past out-of-pocket expenses

Commercial paid expenses

247. The plaintiff gave oral evidence that prior to the accident his son used to undertake the lawn mowing on most occasions: T270.9-.22. The plaintiff said he did the car washing/cleaning activities. Mrs Khanna gave evidence that the plaintiff did the mowing activities prior to the accident: T339.6. The plaintiff said that after the accident his son used to come and clean the car and mow the lawn: T124.48. Having regard to the plaintiff's evidence at T124, it seems that the plaintiff's son now undertakes the lawn mowing every fortnight to three weeks: see T124.19. That will be considered in relation to past gratuitous care. No commercial payments were established.

248. In relation to car washing, the plaintiff used to clean and wash the car prior to the accident. Now his wife does it or his son arranges it by paying money at a car wash: T127.12. No receipts were in evidence relating to this. I accept the plaintiff's evidence on this issue. I allow a buffer of $1,500 for past expenses relating to the car washing/cleaning.

249. There was some evidence about the plaintiff and his wife obtaining domestic assistance relating to cleaning. However, the evidence was that his wife completed these duties prior to the accident. The plaintiff did not contribute in any significant way. Accordingly, this expense is linked to his wife's injuries not the plaintiff’s injuries. I allow nothing for past commercial cleaning expenses.

250. There was some evidence about dog walking being required, but it was not established to my satisfaction that there was any cost incurred in the past relating to this.

Past medication and Medical expenses

251. I was not satisfied on the evidence that the increase in the plaintiff’s diabetes or heart medication was established to be linked to the accident. The plaintiff gave evidence of increased use of painkillers. Again, the evidence in relation to this was very limited and there was no satisfactory medicolegal evidence. I would allow a lump sum of $2,000 for past prescription and non-prescription painkilling medication arising out of the injuries in the accident.

252. In relation to past medical expenses, the defendant submits that no amount should be ordered and relies on the document at Exhibit 1 pages 261-282 as signed by Mr Khanna on 30 May 2018 (Exhibit 1 page 162). There Mr Khanna has ticked those services said to have been provided to him in relation to a claim described as “Compensation type MVA” relating to an injury which occurred on 30 October 2009. Further, when Mr Khanna saw the doctor relating to his knee following the April 2015 accident he seems to have seen the doctor also for other reasons relating to other medical issues: see Exhibit 1 pages 34-39. This seems to support the approach which Mr Khanna took at Exhibit 1 pages 261-282. I therefore allow no amount under this head in the absence of more definitive evidence. If I am wrong in taking this approach, having regard to the poor state of the evidence I would only have allowed a lump sum amount for past medical expenses of $500.

Future out-of-pocket expenses

253. The plaintiff claimed a substantial amount for future out-of-pocket expenses. The evidence was limited in relation to non-prescription and prescription pain medication. The plaintiff claimed amounts for physiotherapy and podiatrist therapy. I was not satisfied that the podiatrist amounts claimed were likely due to the accident as opposed to the plaintiff’s diabetes. I was also not satisfied that the diabetes and heart medication increases were due to the accident.

254. Doing the best I can on the limited evidence, I would allow physiotherapy treatment once a fortnight for two years: see Exhibit A pages 56 and 65. I note the plaintiff's evidence that he had been referred by his general practitioner for five sessions costing $95 each which he could not afford. I would allow a lump sum of $4,000 for this physiotherapy treatment.

255. In relation to medication, there was very little evidence on the point. Doing the best I can, I would allow $3,000 for future painkilling medication. I would also allow $2,000 for the plaintiff to have some initial consultations with a pain specialist.

256. In relation to future lawn mowing and car cleaning, I will consider this in relation to future commercial care. I was not satisfied on the evidence that the plaintiff's requests for a gym program and the other drugs claimed were established.

257. The plaintiff will also need to see his general practitioner for review every six months. There is no suggestion that further surgery is required connected to the accident. The need for surgery is inconsistent with Dr Machart’s report. Although the plaintiff sees his general practitioner regularly for numerous other conditions (including with similar frequency as before the accident) I would allow a lump sum of $1,000 for future general practitioner consultations only related to the injuries in the accident. This allows for the plaintiff to seek some consultations unconnected to his other medical conditions.

258. In his 23 November 2020 report (Exhibit A page 90), Dr Vasili notes that he recommended to the plaintiff that he consult a neurologist to be assessed for peripheral neuropathy relating to his lower back and knee problems since the 2015 accident. I would allow a lump sum of $1,000 for two consultations with a neurologist in relation to this issue.

Past gratuitous attendant care services

259. The plaintiff makes a considerable claim for past gratuitous attendant care services. The items mentioned by the plaintiff in his evidence were dog walking, car washing and lawn mowing. The evidence is that the plaintiff's wife undertook most of the domestic tasks internally prior to the accident. Mrs Khanna gave evidence that her son and daughter-in-law assisted her considerably after her accident. There is no suggestion that the plaintiff contributed substantially to domestic tasks prior to the accident. Whilst he gave some assistance with cooking and minor tasks, this appears to be as part of the general division of domestic tasks and, on the evidence, his contribution to tasks internally appears to have been minor.

260. Section 15 of the CLA provides as follows:

“15   Damages for gratuitous attendant care services: general

(1)  In this section—

attendant care services means any of the following—

(a)  services of a domestic nature,

(b)  services relating to nursing,

(c)  services that aim to alleviate the consequences of an injury.

gratuitous attendant care services means attendant care services—

(a)  that have been or are to be provided by another person to a claimant, and

(b)  for which the claimant has not paid or is not liable to pay.

(2)  No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that—

(a)  there is (or was) a reasonable need for the services to be provided, and

(b)  the need has arisen (or arose) solely because of the injury to which the damages relate, and

(c)  the services would not be (or would not have been) provided to the claimant but for the injury.

(3)  Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided)—

(a)  for at least 6 hours per week, and

(b)  for a period of at least 6 consecutive months.

(4)  If the services are provided or are to be provided for not less than 40 hours per week, the amount of damages that may be awarded for gratuitous attendant care services must not exceed—

(a)  the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for—

(i)  in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award—that quarter, or

(ii)  in respect of the whole or any part of any other quarter—the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or

(b)  if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.

(5)  If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4)(a) or (b), as the case requires.

(6)  Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services.

Note—

By reason of the operation of section 3B(1)(b), this section does not apply to the determination of civil liability in proceedings of the kind referred to in section 11 (Claims for damages for dust diseases etc to be brought under this Act) of the Dust Diseases Tribunal Act 1989.

Section 15A makes provision with respect to the determination of damages for gratuitous attendant care services in proceedings of the kind referred to in section 11 of the Dust Diseases Tribunal Act 1989.”

261. Accordingly, no damages may be awarded to a claimant for gratuitous attendant care services unless the services were provided or to be provided for at least six hours per week and for a period of at least six consecutive months.

262. I am not satisfied on the evidence that the lawn mowing and car washing assistance provided by the plaintiff’s son and/or his wife satisfies the intensity and duration requirements in s 15(3). The plaintiff's wife completed the grocery tasks with him prior to the accident and completes them now. In relation to dog walking, the plaintiff's wife gave evidence that she walked the dog prior to the accident both in the morning and in the afternoon. The plaintiff gave evidence that he also walked the dog. Currently a neighbour's son walks the dog and the plaintiff’s own son walks the dog one day a week.

263. It appears therefore that his wife undertook the majority of the dog walking tasks prior to the accident. I am not satisfied on the evidence that it is necessary to pay anyone for walking the dog or that the duration or intensity requirements in s 15 are satisfied in relation to the dog walking. Also, the evidence is that the plaintiff's current residence has a backyard.

264. When I combine the lawn mowing assistance, the car washing assistance and other minor assistance provided to the plaintiff since the accident, I am not satisfied that the intensity requirement in s 15(3) of the CLA is satisfied. Accordingly, I do not award any amount for past gratuitous care.

Future gratuitous attendant care services

265. Similarly, I am not satisfied that the s 15(3) requirements are established in relation to future gratuitous attendant care services. The lawn mowing by the son is only done for about 45 minutes once every two to three weeks. Dog walking seems to have been the plaintiff's wife's primary responsibility prior to the accident. I see no reason why the neighbour's son or the plaintiff's own son would not continue to walk the dog in the future. The dog is also nine years old and has a limited life expectancy.

266. I also see no medical evidence establishing the rehabilitation claim sought for the future.

Future commercial care

267. In my view, however, an amount should be allowed for future commercial assistance relating to the lawn mowing and the car washing. The plaintiff's son is a married man and is no doubt busy. He may have increased family responsibilities in the future. It seems that car washing expenses are already paid for by the plaintiff. In my view an amount for future lawn mowing and gardening assistance as well as car washing assistance is appropriate as being necessary and likely to arise in the future: Miller v Galderisi [2009] NSWCA 353. I accept that the plaintiff needs to establish a need for future paid commercial assistance in the future: Smith v Alone [2017] NSWCA 287 at [73]-[77].

268. The plaintiff, of course, has substantial other medical complaints. His heart and diabetes conditions would render it likely that he would need commercial assistance in relation to lawn mowing, gardening and car washing in the future anyway at some stage.

269. Doing the best I can in all the circumstances on the evidence, I would allow an amount for 10 years at $50 per hour for three hours per month. This arrives at the sum of $14,294.60 ($50 x 3 hours per month = $150 x 12 ÷ 52 = $34.62 per week x 5% multiplier for 10 years being 412.9 = $14,294.60).

270. I reject any further claim for future commercial assistance.

271. The defendant submitted that the evidence was simply too unclear to allow any claims for past and future gratuitous assistance or commercial assistance. While I accept those submissions in relation to past and future gratuitous assistance, in my view a need to make an allowance for future commercial assistance for lawn mowing and car washing is established for the reasons which I have given.

Conclusion

272. Accordingly, I would have allowed the following amounts:

Head of Damages
Non-economic loss	$27,500.00
Economic loss	No claim was made
Loss of superannuation	No claim was made
Past out of pocket expenses	$3,500.00
Future out of pocket expenses	$11,000.00
Past gratuitous assistance	$Nil
Future gratuitous assistance	$Nil
Future paid commercial assistance	$14,294.60
Total	$56,294.60

Determination

273. As indicated, I do not consider that the plaintiff has established negligence in the present case.

274. Accordingly, for the above reasons, I make the following orders:

1. Judgment for the defendant.

2. The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed.

3. Liberty to the parties to apply within 14 days for a different costs order to that in (2) above.

**********

Decision last updated: 21 October 2021