McNaughton v State of Victoria

[2025] VCC 359

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-23-04077

McNaughton	Plaintiff
v
State of Victoria	Defendant

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JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2025
DATE OF RULING:	31 March 2025
CASE MAY BE CITED AS:	McNaughton v State of Victoria
MEDIUM NEUTRAL CITATION:	[2025] VCC 359

RULING

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Stanley SC Mr B Cooper	Mr Wolf Legal
For the Defendant	Mr S Smith KC Ms M Cameron	Wisewould Mahony

HIS HONOUR:

1At the commencement of the second trial presided over by me, and prior to jury selection and empanelment, Mr Stanley sought to revisit the Ruling I gave preliminary to the selection and empanelment of the first jury that came to be discharged prior to verdict.[1]

[1]McNaughton v State of Victoria [2025] VCC 208.

2Mr Stanley did not disavow the submissions that underpinned his arguments during the course of the hearing that led to the first ruling, but the emphasis he placed on this occasion, was on the evidence adduced by the defendant from Dr Saxby in the course of the first trial, and what he argued had been an impermissible use the defendant had attempted to make of that evidence, which he submitted contradicted and went beyond a mere challenge to the plaintiff’s credibility of her account of her knee buckling on 10 January 2016, and instead raised if there was any ongoing relatedness of the knee injury because at some point it resolved such that the cause of her pain is and has been for some time the overtaking of pre-existing osteoarthritis degeneration. Of course the ongoing relatedness of the knee was not what the debate that led to the first ruling was about which was instead an admission that the left achilles injury was a consequential injury to the left knee injury and of its use at trial.

3Mr Stanley nonetheless submitted that the approach taken by the defendant at trial was contrary to what it put to me as part of its submissions and led to the first ruling, and that in light of the defendant’s conduct, I should permit to be put before the jury in this second trial the defendant’s acceptance of a permanent impairment benefit granted to the plaintiff because Mr Stanley anticipated that the defendant appeared set on adducing similar evidence and making like submissions.

The evidence and submissions relied on by Mr Stanley from the first trial

4In the first trial, Dr Saxby’s opinion was relied on by the defendant. He made a number of reports. In taking his evidence in chief, Mr Smith attempted to put to Dr Saxby questions based on an “alternative scenario,” and the plaintiff objected, and I disallowed the questions.[2]

[2]Transcript (“T”) 746.

5In cross examination Dr Saxby was asked many questions by Mr Stanley about degeneration and the likelihood of it causing the knee to become symptomatic without the fall the plaintiff suffered in October 2015, or the degree it would have developed in any event. At this stage, all of this related to the left knee injury. Mr Stanley was doing so presumably to quarantine the type of submission often advanced in a trial by defendants where there exits evidence of a pre-existing condition. Ultimately, Mr Stanley had this exchange with Dr Saxby concerning the left knee at T 787-8:

The pain has never dissipated since that event. If that is the case, we are still dealing, are we not, with the consequences of the aggravation?---You're dealing with both. The degeneration hasn't gone away. But the degeneration was being coped with before, it is now not being coped with, ipso facto it is the event that has led to the current situation, is it not?---No. No?---No. You've said before it's very difficult to predict the ongoing degeneration?--Yes. Difficult - - -?---It would have become symptomatic. Difficult to predict when it would become symptomatic, so on what basis are you now proffering that the symptoms she now suffers is by reason of the degeneration alone without any consequence from the fall?---I'm not saying degeneration alone, I'm saying the degeneration is the major component, the aggravation is a smaller component. But there is no way to predict the future of degeneration absent the event?---No.

6In re-examination, Mr Smith put these questions to Dr Saxby without objection at T 788-9:

It was put to you by way of a question from Mr Stanley, talking about the left knee, absent the fall over the drain cover, it was entirely speculative as to whether the plaintiff would have had symptoms in her left knee and your answer was, 'It was fairly certain, given her age and degenerative changes that she would have symptoms.' Why do you say it's fairly certain that she would have had symptoms in her left knee even if she hadn't had the fall?---Because she's - the young age and active and there was significant degenerative change evident on that scan, so more likely than not she was going to have pain, symptoms, restrictions of activity in the future. Yes, and you said that there would be change later in life, within a decade or two?---Yes. So 10 to 20 years?---Yes. And is that by reference to the date of the scan of 2016, that decade or two?---Yes, the decade or two from there. So some time from around maybe now onwards, given it's a 2016 scan?---Yes. You said - you were talking about the need for surgical treatment, not talking about pain when you gave that evidence?---Yes. So what were you referring to as 'fairly certain to have developed within 10 to 20 years of 2016', was it the surgery or was it the symptoms or was it something else?---It's most likely some sort of surgical intervention. Would have been needed within 10 to 20 of the date of that scan?---That's what I'm thinking, yes. Something like a total knee replacement that's been discussed?---It's possible, yes.

7Also in re-examination at T791, these questions were asked by Mr Smith of Dr Saxby about the fall and the plaintiff’s left knee:

You were asked some questions, it was put to you, once we had the fall and there's a continuation of pain, the genie's out of the bottle; do you remember those sorts of questions talking about the knee?---Yes. I want you to take this history on board: there is no indication of the plaintiff receiving any treatment whatsoever for her left knee between April of 2017 and March of 2020, other than an attendance – two attendances on the GP at the clinic in April and May of 2018 where she's had an incident when she's been kicked in the knee by an offender in the cells. So no treatment by a GP from about that time and no treatment by a physio at that time either. If the jury were accept that the reason there had been no treatment is because there had been good symptomatic improvement and she wasn't troubled by the knee, does that affect at all the opinion you expressed about the question of the genie out of the bottle?---Well, yes. It would seem that she's - I was suggesting, you can treat these exacerbations or aggravations and they do hopefully return to the baseline level. That's what you're trying to achieve, that even though they have a significant underlying problem, we treat the symptoms now and hopefully they settle down and revert back to the pre-injury status. So that would tend to be the case there, or looking like the case there. If you accept that history, that it is indicative of there not being pain and difficulty in those years, what would you then say about the current presentation and complaints of knee pain, as in, what is their relationship to the fall onto the knees as opposed the degenerative process?---It would seem more likely that it's the degenerate process, rather than the fall onto the knee.

8In re-examination at T792, Dr Saxby was asked these questions by Mr Smith related to the achilles :

You were asked some questions about the achilles and the condition resolving and you were taken to the general practitioner's notes indicating the entry of April of 2009 and not after. You also had Dr Schachna's record at the end of 2010, being bilateral achilles tendonitis for the last two years, so that is through 2009 and 2010. What relevance does that have to the question of whether there had been a complete recovery – a symptomatic recovery?---It wouldn't seem - he's recording symptoms and some presumably clinical signs that there is tendonitis, or tendinopathy, so hadn't, you would expect, not fully resolved. You were asked questions about the absence of symptoms and you said, 'Well, it doesn't have clinical significance.' Does it have any significance, the previous history that you've been to about the achilles?---If there is an underlying problem, you would be predisposed to further troubles in the future. You would be wise not the strain it too much. You were asked questions about running and you said running is a traumatic thing because you're putting seven to eight times your body weight - do I have this right - onto the leg when you're running?---Through your achilles tendon as you run, yes. Can I ask you to take a hypothesis: a person is a standing position, a standing start - - -.

9An objection was then made by Mr Stanley that the defendant was seeking to circumvent my first ruling. I disallowed Mr Smith from asking such type of questions though, it must be said, they arose from Mr Stanley’s cross-examination on the achilles.

10Mr Stanley submitted that Mr Smith in closing address had questioned the aetiology of the plaintiff’s current presenting condition of the left knee and the achilles and he impressed on the jury that there was evidence to determine that what the plaintiff now suffers is not reflective of the injuries she suffered in 2015 and 2016. Mr Stanley also referred to Mr Smith’s closing address to the jury, and with respect to the knee, at T838, in which he referred to Dr Saxby's opinion of the degenerative nature of the condition according to the MRI, and his expectation that absent any fall onto the knee over the concrete drain, that 10 to 20 years from the date the scan was taken, so from about 2026 onwards, the plaintiff would be likely to need a knee replacement in any event because of the state of the knee as demonstrated in that scan.

11Mr Smith referred to Mr Smith’s closing address at T839 when he submitted that:

So if you accept Dr Saxby's opinion, we would say to you, what it paints of a picture of, is leaving aside any trip on the concrete cover, the lady who, because of the state of her knee before the fall, is likely to be experiencing problems in any event.

12Mr Stanley submitted that the submission was more than a Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 (“Malec”), argument and is not the customary argument with respect to extent of injury.

13Mr Stanley next recited another part of Mr Smith’s closing address, where at T833 reference was made to the hiatus in the plaintiff’s treatment and he said:

May I suggest to you that history of that treatment strongly bespeaks the fact that there was no problem of significance in the years that follow.

14Mr Stanley next referred to Mr Smith’s address at T835:

When you put those pieces together, the picture is very much, we would say to you: problems in 2017, long hiatus of problems through until the latter part of 2019, problem with the achilles, query whether that's still related to 2016.

15Mr Stanley submitted that Mr Smith’s submission was to suggest to the jury that it had no liability for her current state for the achilles and that is contrary to the matters contained in the letter of the defendant's agent of January 2022 and the concession about how matters would be challenged by the defendant and that was put to me in argument as part of the hearing that resulted in the first ruling.

Mr Smith’s submissions

16First, Mr Smith contended that no better arguments had been made by the plaintiff of the probative value of the authorised agent’s letter of a permanent impairment benefit payment. Mr Smith submitted that the legal concept of permanent impairment established in s 211 of the Workplace Injury Rehabilitation and Compensation Act 2013, only requires injury in the course of employment. It does not bespeak, as it would to the minds of a jury, that a worker has a permanent injury to a particular body part by reason of an incident in the course of their employment. Mr Smith, as an example, referred to the circumstances of a person who can roll their ankle at work, make an entire recovery from it, and nonetheless be entitled to submit a claim for permanent impairment and have their claim for permanent impairment accepted. In such a circumstance the permanent impairment would be assessed at zero per cent but nevertheless, they have the entitlement to make such a claim and have liability for the claim accepted.

17Mr Smith submitted that the effect of Mr Stanley’s submission would be that because the plaintiff obtained a permanent impairment determination and a payment for her left knee and left ankle as a result of the incident in October 2015, that its incorporation as part of the evidentiary matrix before the jury outweighed any prejudice it might have, and this is despite it not being capable of acting as a bar to prevent the defendant making evidentiary based arguments before a jury about either a subsequent resolution or later overtaking of the work relatedness of either injury by reason of a latent pre-existing condition.

18Mr Smith submitted that if the permanent impairment determination was tendered  as an admission it would require me to instruct the jury beyond the concept of a general description of permanent impairment, and to describe to the jury what the concept of permanent impairment means as a matter of law within the relevant legislation, and direct them that even a finding of permanent impairment does not mean a finding of permanent injury, and explain to them that a person could have an injury, make an entire recovery and still be entitled to make a claim for permanent impairment under the legislation.

19Mr Smith also observed that the plaintiff received a 7 per cent musculoskeletal impairment with a Total Combined Impairment of 8 per cent and payment of a  benefit of $16,3014 with the determination inexplicable as to which of the left knee or the left achilles supported the determination but that A/Professor Romas' opinion, which was submitted for the purposes of the impairment benefits claim, suggests that virtually none of the assessment came from the left achilles condition, and instead was attributed to the left knee. Mr Smith submitted that if the letter as an admission was introduced then the document would be misleading on the question of injury and would without explanation suggest to ta jury that there is some permanent injury arising from that condition. The jury would have to have explained to them that it is not what the agent’s determination means and then have explained to them the balance of that document, in terms of per cent impairments, impairment guidelines, conversion of those assessments into a dollar amount, and then be told, to ignore the dollar amount from its considerations when it comes to assess the plaintiff’s pain and suffering damages. Mr Smith submitted the course urged by Mr Stanley would entail no greater probative value than was advanced in the earlier hearing, but add more confusion and be liable to mislead the jury, having regard to the concepts, as well as the additional components of time required by the evidence of a claims agent about their decision-making process.

20Mr Smith submitted that in any event, the agent’s acceptance of a permanent impairment does not determine the question of the causative component between the knee and the achilles which, Mr Smith contended, as he did in the earlier hearing, depends on what the jury accepts about the occurrence of the incident in January 2016 and the attendance on her of left knee instability at that time.

21Mr Smith addressed the plaintiff’s submission that in the course of the first trial he had impermissibly withdrawn from the concession made that underpinned part of my reasoning of my first ruling. He disputed that he had. He submitted the proposition that a degenerative condition would have operated to, in any event, produce the same symptoms, as the plaintiff came to experience is a classic exposition of the principles in Malec.

22Mr Smith noted that in regard to the left knee, and given that the state of the evidence from Dr Saxby was no more precise than that the plaintiff could have reached the point of impairment sometime in the next 10 to 20 years after the incident, his evidence is better understood as a Malec type argument and not a break followed by the development of a separate condition. Mr Smith argued he had put this to the jury in closing address, that is that the jury may have regard to the prospect that absent the injury, the plaintiff’s left knee and achilles conditions would have developed in any event creating symptoms of a similar magnitude to that from which the plaintiff now suffers.

Analysis and findings

23I am not satisfied that Mr Smith breached the concession he made on behalf of the defendant in the first trial.

24Because the jury was discharged before they had been charged by me on the aetiology of her conditions, the point had not been arrived at which I would have directed the jury that the defendant had not led any evidence that the knee injury had ceased to have any causative effect and that all that was operating on her was her pre-existing state. The transcript references relied on by Mr Stanley did not offend my first ruling. In any evet, as to the achilles, the pre-history was so long ago, and the plaintiff having been active without incident since then and up to January 2016, any evidence pointing to a resurfacing of the vulnerability from the years past was so remote as to make it difficult to think it would have discharged the defendant’s evidentiary burden of proof as required by Malec.

25Until Malec, it had been thought that it was insufficient for a defendant merely to point to the possibility of a plaintiff’s pre-existing injury or illness worsening. To the contrary, as Dixon CJ said in Watts v Rake (1960) 108 CLR 158:

If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred.

26In Malec, the High Court said:

(Q)uestions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring... (T)he court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded.[3]

[3]Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 643.

27It will wait to be seen if the defendant can meet the legal test laid down.

Conclusion

28For the reasons expressed, I affirm my ruling. Indeed, on the matter of the asserted probative worth of the impairment determination, I am fortified in my conclusions by the maters put by Mr Smith concerning the prejudice to the defendant  additionally to those matters he advanced at the first hearing.

29I am not satisfied that the matters relied on by Mr Stanley, rise to the level that warrants me revisiting my first ruling.

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