Miller v Jones (No. 6) - [2020] NSWSC 736

Supreme Court

New South Wales

Medium Neutral Citation: Miller v Jones (No. 6) [2020] NSWSC 736
Hearing dates: 21, 22, 23, 24 and 25 October 2019
Date of orders: 17 June 2020
Decision date: 17 June 2020
Jurisdiction: Common Law
Before: Bellew J
Decision:
(1)   I enter a verdict in favour of the plaintiff.

(2)   I direct the parties to bring in Short Minutes of Order calculating the final judgment sum in accordance with this judgment.

(3)   I stand the matter over for further directions before me until 10 July 2020 at 9:30am.
(4)   I reserve all questions of costs pending further submissions from the parties.
Catchwords:
TORTS – Negligence by medical practitioner – Breach of duty – Where plaintiff suffered an injury to the anterior cruciate ligament of his right knee in the course of playing professional rugby league – Where the defendant was an orthopaedic surgeon who performed a reconstruction of the plaintiff’s anterior cruciate ligament – Where the plaintiff alleged the defendant breached his duty of care by performing the surgery in a suboptimal manner because of malpositioning of the graft – Standard of care expected of a reasonably competent orthopaedic surgeon – Breach of duty established

TORTS – Medical negligence – Causation – Whether the breach of duty caused the plaintiff’s ongoing disabilities – Whether the breach of duty caused the plaintiff to lose an opportunity to pursue a career as a professional rugby league player – Whether an infection also contributed to the plaintiff’s ongoing disabilities

TORTS – Negligence – Damages – Where damages were to be determined according to the law of France – Where the plaintiff lost an opportunity to pursue a career as a rugby league footballer – Where the plaintiff suffered non-financial losses – Where the plaintiff lost the opportunity to pursue a career in the mining industry
PRIVATE INTERNATIONAL LAW – Torts – Where action brought in the Supreme Court of NSW arising out of an allegation of negligence which arose in the course of a surgical procedure carried out by the defendant in France – Consequent necessity to apply the law of France to both issues of breach of duty of care and assessment of damages
Legislation Cited: Civil Liability Act (2002) (NSW)
Cases Cited: Miller v Jones (No 3) [2019] NSWSC 1444
Miller v Jones (No 5) [2019] NSWSC 1448
Category: Principal judgment
Parties: Lucas Anthony Miller – Plaintiff
Dr David Jones - Defendant
Representation:
Counsel:
B Dooley SC and J Lee – Plaintiff
A Bartley SC and J Layani-Ellis – Defendant
Solicitors:
Carroll and O’Dea Lawyers – Plaintiff
Ken Cush and Associates – Defendant

File Number(s): 2015/124172
Publication restriction: Nil

Judgment

INTRODUCTION

On 6 December 2010 Lucas Anthony Miller (the plaintiff) was participating in a rugby league match in France when he suffered an injury to the anterior cruciate ligament (ACL) of his right knee. He subsequently consulted Dr David Jones (the defendant), an orthopaedic surgeon who, on 3 January 2011, performed a reconstruction of the ACL. On 19 July 2011, following various post-operative consultations and a period of rehabilitation, the defendant advised the plaintiff that his knee had recovered to the point where he was fit to return to rugby league training.
The plaintiff returned to Australia and commenced training with a view to returning to play rugby league at a professional level. In the course of undertaking a training drill, he noticed pain and discomfort in his right knee. He consulted Dr Neil Halpin, who referred him to Dr Bruce Caldwell, an orthopaedic surgeon. Dr Caldwell diagnosed instability and a tear of the medial meniscus both of which, the plaintiff alleges, were due to the defendant having negligently performed the surgery on 3 January 2011.
The plaintiff underwent an exploratory arthroscopic procedure by Dr Caldwell on 28 February 2012, following which Dr Caldwell performed a re-arthroscopy on 13 March 2012. On 17 July 2012 Dr Caldwell carried out a revision of the ACL reconstruction. The plaintiff returned to playing rugby league but alleges that he could do so only with the assistance of medication. He finally retired from the game at the end of the 2014 season.
By a statement of claim filed on 27 April 2015 the plaintiff alleges that the defendant was negligent in that he:

failed to afford the plaintiff proper medical, surgical and specialist treatment;

performed the surgery on 3 January 2011 in a way which:

resulted in the ACL graft being manifestly inadequate, highly vertical and in the wrong position; and

left visible non-absorbable sutures present in the graft, leading to infection of the ACL.

The plaintiff now relies only upon the negligence particularised at [4](ii)(a) above. [1] The defendant denies liability.
1. Plaintiff’s final written submissions at [40]-[41].
The parties agree that the issues of both liability and damages are to be determined according to the lex loci, or the law of France.

THE EVIDENCE

The majority of the documentary evidence was contained in a court book (CB) which was tendered by consent. [2] The evidence in chief of all witnesses was advanced by evidentiary statements.
2. Exhibit A.

THE FACTS

To a large extent, the facts are not in dispute. Where factual issues have arisen, I have indicated the nature and extent of those issues, and my resolution of them.

The plaintiff's background

The plaintiff was born on 27 January 1988 and is currently 32 years of age. [3] He began playing rugby league at the age of 5, and aspired to be a professional rugby league player from the age of 12. [4]
3. CB30.
4. CB30.
At the age of 15 the plaintiff moved from Young (where he had been living with his mother) to Newcastle. By this time, the plaintiff had resolved to pursue a career as a professional rugby league player, and thought that the Newcastle area would provide him with greater opportunities in that regard. When he moved to Newcastle he lived with his father who was a rugby league coach in the area at the time. [5]
5. CB30.
At the age of 16, the plaintiff captained the Newcastle representative team which competed in the NSW State Rugby League Competition. [6] At the age of 17 he signed a contract to play with the Newcastle Knights (the Knights) Junior (i.e. under 18) team. Senior teams representing the Knights compete in the National Rugby League competition (NRL), the elite rugby league competition conducted in Australia and New Zealand. [7]
6. CB30.
7. CB30.
The evidence establishes that as a teenager, the plaintiff was considered to be a rugby league footballer of some ability. Michael Hagan, the former Director of Football at the Knights and a man of great experience in rugby league, gave the following evidence which was not challenged: [8]

18. At the time Lucas was in the junior squads with the Knights he would train with the NRL team. This is when I got to look at his ability, skill-set and temperament. He had a good work ethic. He was dedicated, professional and very competent at rugby league. For his age he was meeting all key criteria and was a good team member.
19. Lucas Miller was coachable – which means he responded to feedback to improve his game.
20. I'm aware that players who establish themselves in the French competition are sometimes picked up by the English Super League or other competitions which can lead to much higher salaries than the French competition Lucas Miller was playing in.
21. Lucas Miller was probably a mid-range player and his salary would have reflected this.

8. CB118.

The plaintiff's first injury

In 2007, the plaintiff signed a contract to play seasons 2008, 2009 and 2010 with the Melbourne Storm Club (Storm) which competed in the NRL. [9] He was the inaugural captain of Storm’s National Youth Competition (NYC) team in season 2008, [10] but did not play first grade at any time in that season.
9. CB31.
10. CB31.
In July 2008, in the course of playing for Storm in a match in the NYC, the plaintiff was injured in a tackle, as a consequence of which he ruptured the ACL and posterior cruciate ligament in his left knee, and tore the medial meniscus. [11] He underwent knee reconstruction surgery by Dr David Young which incorporated the use of a hamstring graft. A period of rehabilitation, which the plaintiff described as “long and difficult”, [12] followed.
11. CB31.
12. T21.43-T21.45.
The plaintiff was eventually cleared by Dr Young to return to playing rugby league in about August 2009, which was the second year of his contract with Storm. [13] Although not specifically stated, I infer that he played for Storm in the NYC for the balance of the 2009 season. That being the case, and given that he was only cleared to return in August of that year, his opportunities were obviously limited by virtue of the fact that when he was finally cleared to return to playing, only a small number of matches remained before the season ended.
13. CB32.

The plaintiff’s departure from Storm

The plaintiff remained contracted to Storm for season 2010. In his first evidentiary statement he said: [14]

In the pre-season to 2010 the Storm had a salary cap scandal and several players were “moved on” because the team was illegally filled. I looked at other opportunities to play with NRL clubs.
14. CB32.

Taken by itself, that paragraph tends to convey the impression that those players who were contracted to play for Storm and who were “moved on” as a consequence of the so-called “salary cap scandal” included the plaintiff. However, I am not satisfied that this was the case. Having been taken to that part of his evidentiary statement, the plaintiff was asked the following in cross-examination: [15]
15. T38.36-T39.13.

BARTLEY
Q. Mr Miller, you intended that to mean that the salary cap scandal was the reason why you left Melbourne Storm, didn't you? Didn't you?
A. It was a combination of both and--
…
HIS HONOUR
Q. Go on, Mr Miller. A combination of both, did you want to say anything further?
A. Yeah, with the knee - them knowing about the significance of my injury and having to move on players, I was told both instances were in effect, but when I wasn't wanted, I looked for other opportunities because I was confident that my knee was 100%.
Q. There's no reference in paragraph 19 to anything about a knee, is there?
A. No.
BARTLEY
Q. Mr Miller, you said, "I looked at other opportunities". Don't you think that suggests that you were the person who terminated the relationship with Melbourne Storm, that is you left the job rather than the job left you? Don't you agree that that's how that might be read?
A. It might read that way but that's not how it occurred.
Q. That's what you swore to in your statement, isn't it?
A. It's a brief version of events.

The fact is that the plaintiff had sustained a serious injury to his left knee in 2008, and had not played first grade for Storm either in season 2008 or 2009. After surgery and a long period of rehabilitation, he was finally cleared to return to playing in August 2009. [16] The plaintiff expressly accepted that suffering a serious knee injury as a young player necessarily cast a cloud over his future career as a rugby league footballer. [17] I am satisfied that, contrary to the impression which might be gained from his evidentiary statement, he was “moved on” by Storm at least partly because of the knee injury he sustained in 2008. I should say, however, that I do not regard this as reflecting completely adversely on the plaintiff’s credit. Generally speaking, the plaintiff impressed me as a person who made every attempt to give his evidence honestly.
16. CB32.
17. T25.14-T25.19.

The plaintiff’s contract with the Knights

After leaving Storm, the plaintiff returned to Newcastle and signed a contract to play for season 2010 with the Knights. [18] His evidence was that during the 2010 season with the Knights he was “not getting as many first grade appearances as [he] would have liked”. [19] He played reserve grade for the Knights for the entirety of the 2010 season. [20]
18. CB32.
19. CB32.
20. T24.50-T25.2.
Although he was certified as being “fit to play professional football” by his general practitioner Dr McGeoch on 14 September 2010, [21] and despite the fact that his knee “felt good,” [22] the plaintiff said that he thought that his left knee injury had given rise to a concern on the part of the management of the Knights that he was at risk of suffering further injury. [23] Aware that other clubs competing in the NRL knew of his previous knee injury, the plaintiff decided to make enquiries about what he could do in order to enhance his career prospects. [24]
21. CB345.
22. CB32.
23. CB32.
24. CB32.

The plaintiff’s decision to travel to France

Around the end of the 2010 season, and following discussions with his father and his coach at the Knights, the plaintiff spoke to Wayne Portlock about the availability of other opportunities. [25] Mr Portlock had previously coached a junior representative team of which the plaintiff had been a member. [26] Having made enquiries, Mr Portlock told the plaintiff that there was a position available with the St Gaudens Rugby League Football Club (St Gaudens) which participated in a First Division rugby league competition in France. [27]
25. CB32.
26. CB75.
27. CB33; CB75.
The plaintiff subsequently signed a contract to play with St Gaudens. [28] He explained that he did so because he had known several rugby league players who had played for overseas clubs, who had returned to Australia more accomplished players, and who, having been presented with such opportunities, had enjoyed considerable success. [29] The plaintiff cited Jeff Lima, Nathan Ross, Brett Finch and Ryan Hoffman as players in that category. [30] He conceded that players Finch and Hoffman were in an exceptional category, and accepted that his ability was not comparable to theirs, at least in 2010/2011. [31] However maintained that his ability was commensurate with that of players Lima and Ross. [32]
28. CB33.
29. CB33.
30. CB33.
31. T25.30-T25.37.
32. T25.42-T26.13.
I am satisfied that the plaintiff decided to travel to France and play for St Gaudens in order to prove that his left knee had recovered, and that he did so to further his career with a view to obtaining a contract to play for a team in the Super League Competition, the elite Rugby League competition conducted in the Northern Hemisphere (the Super League), before returning to Australia to play in the NRL for the balance of his career. [33]
33. CB34.
In terms of such a career path, Russell Bussian, the plaintiff’s coach at St Gaudens who had coached in France for several years, said: [34]

… the Australian imports in France become an integral part of the club while at the same time being less scrutinized [sic] by media and the like. They are therefore able to experiment more and play their natural game. Numerous players have benefited from playing stints in France before enjoying long careers in Australia and England.
34. CB112.

At this stage, it was the plaintiff’s intention to continue playing professional rugby league until about the age of 31, or until the end of the 2019 season, following which he intended to work in the mining industry, the NSW Police or NSW Fire and Rescue. [35] The plaintiff described himself as a “very physical and sports minded” person who was much better suited to physical work. [36]
35. CB34.
36. CB34.

The plaintiff's commencement with St Gaudens

The plaintiff commenced playing with St Gaudens in September 2010 under the coaching of Mr Bussian. [37] Mr Bussian said that having met the plaintiff, and having observed him train, it was immediately clear to him that the plaintiff would be an asset to the St Gaudens team which he described as being in a rebuilding period. [38] Mr Bussian said: [39]

Lucas is the style of player that becomes the backbone of a team or club. Some players have talent and some rely on dedication. Lucas was fortunate to have both. Along with his ability to communicate and willingness to help younger players, he soon became an integral part of the club. … Lucas was already a well-established graded player upon his arrival in France. If anything, the style of play in France enabled him to further develop his skills as a leader and therefore enhancing his overall game.
37. CB35.
38. CB111.
39. CB111.

The plaintiff had only been playing for St Gaudens for a few weeks when he spoke with his manager, Michael Newton, about the possibility of playing with the Catalans Dragons (Catalans), a French-based rugby league team which competed in the Super League. [40] Some preliminary discussions took place between Mr Newton and Trent Robinson, who was the coach of Catalans at the time, about the possibility of the plaintiff transferring to that club. However, the discussions did not progress beyond that point. [41]
40. CB35.
41. CB35.

The plaintiff’s second injury

On 6 December 2010 the plaintiff was playing for St Gaudens in a match against Montpellier. In the 73rd minute he was tackled by an opposing player. The impact of the tackle was occasioned directly to his right knee. [42] The plaintiff immediately felt pain, and suspected that the ACL in his right knee had been damaged. [43]
42. CB35.
43. CB35.
Having received attention from the team's medical staff, it became apparent to the plaintiff that he would require surgery, and that there would be a lengthy period of rehabilitation before he could return to playing. He said that he wanted to consult a surgeon who not only had a good reputation, but who could also speak English. The plaintiff was referred by Dr Claude Lechuga, the St Gaudens club doctor, to the defendant. [44]
44. CB36.

The plaintiff's initial consultation with the defendant

On 22 December 2010, the plaintiff was examined by the defendant who told him: [45]

You've ruptured the ACL. You are going to need an ACL reconstruction. I will do it by using a hamstring graft.
45. CB36.

In his evidentiary statement, the defendant described what he found when he examined the plaintiff: [46]

11. On examining Mr Miller I found an abundant effusion within his right knee joint. The knee joints [sic] range of motion was between 0 and 90 degrees. Lachman’s test was done and indicated a soft or mushy end point with some protrusion upon rotation. He had pain with joint laxity associated with the internal ligament wall but no pain at the meniscus site. A scan confirmed he had ruptured his anterior cruciate ligament.
12. I diagnosed a rupture of the anterior cruciate ligament in Mr Miller's right knee.
13. I recommended to Mr Miller that I perform a ligamentoplasty under arthroscopy.
46. CB124.

Following his examination of the plaintiff, the defendant reported to Dr Lechuga as follows: [47]

Today I examined [the plaintiff] … who suffered an injury to the right knee following a tackle about eight days ago. … An MRI scan confirms an isolated tear of the anterior cruciate ligament.
Given his rugby activities, I see no other solution than to propose stabilisation by ligamentoplasty.
…
I have explained the procedure and its impacts to him, which he is familiar with having already undergone a ligamentoplasty on the left side.
He wishes to undergo surgery quickly. I proposed surgery on next 28 December. We will try and find him a space at the clinic's rehabilitation centre.

47. CB418.

The surgery performed by the defendant

On 2 January 2011 the plaintiff was admitted to the Medipole Clinique Du Sort in Toulouse, France. The following day he underwent surgery, [48] which was described by the defendant in his evidentiary statement as follows: [49]

14. … I performed a ligamentoplasty under arthroscopy. It was a standard procedure. There were no technical issues. I used a transtibial approach and drilled the femoral tunnel at 10-11 o’clock …

15. I have used the transtibial approach since 2004. It is a simpler technique than other available techniques.
…
27. Images 35, 36 and 63 show that the femoral tunnel is at 11 o’clock.
…
29. The MRI images show the graft.
48. CB36.
49. CB124; CB126.

The defendant’s report of the surgery recorded (inter alia) the following: [50]
50. CB419.

Extraction of graft: Anterior incision 1cm from ATT. Extraction of semitendinosus and right medial tendons with stripper. Preparation for transplant of four secured arms with a total diameter of 8.5 mm.
Arthroscopic exploration: Antero-medial and antero-posterior pathways.
- Joint effusion: None
- Internal meniscus: Normal
- External meniscus: Normal
- Internal femoral cartilage: Healthy
- External femoral cartilage: Healthy
- Patello-femoral cartilage: Healthy
- Anterior cruciate ligament: completely ruptured
- Internal tibial cartilage: Healthy
- External tibial cartilage: Healthy
- Posterior cruciate ligament: healthy
Arthroscopic intra-articular ligamentoplasty: Cleaning of notch, identifying and preserving as much as possible the anatomical areas of the insertion of the old ACL. Transtibial preparation of tibial tunnel and blind femoral recess with 8.5 mm diameter. Insertion of graft on a Beath pin. Upper attachment with one 2 mm resorbable Biomet ToggleLoc. Verification of Isometry (0 displacement in extension). Equal graft cycling and tensioning for all arms. Lower fixation with one 9x25 resorbable BioRCI screw.

The defendant recommended a rehabilitation program that allowed the plaintiff to walk, as long as he was completely supported by means of a brace and crutch for up to three weeks. [51] The defendant further recommended a follow-up consultation in about one month and that the two ends of the absorbable intradermal suture be trimmed 15 days after surgery. [52]
51. CB420.
52. CB420-CB421.

The plaintiff’s rehabilitation following surgery

Following the surgery performed by the defendant, the plaintiff commenced a period of rehabilitation, during which his knee remained very sore and the graft wound did not appear to be healing. [53] The rehabilitation program required the plaintiff to keep training vigorously, to the point where he was not able to rest his leg. [54] He was in hospital and rehabilitation for a combined period of 36 days, during which he underwent reconditioning and physiotherapy for eight hours per day. [55] He described this rehabilitation as “very excessive”, [56] and said that he lost a great deal of weight over this period. [57]
53. CB36.
54. CB37.
55. CB37.
56. T28.28.
57. CB37; T28.38-T29.14.

The defendant’s post-operative reviews of the plaintiff

The defendant reviewed the plaintiff on 4 February 2011, at which time he recorded the plaintiff’s progress as “quite satisfactory”. [58] The defendant also recorded that the plaintiff’s knee flexion was at 130 degrees once the muscles had been warmed up, and at the end of the review his passive knee extension was almost full. [59]
58. CB125.
59. CB125.
The defendant reviewed the plaintiff again on 2 April 2011 and reported: [60]

Joint recovery is excellent. … There is minimal joint effusion.
In the Lachman test, the stop is hard and early. There is no meniscal pain.
He can return to running progressively and fractionally and will continue muscle strengthening at Capbretron about one month from now.
We give him preliminary approval.
I will see him again six months after surgery to monitor recovery.
60. CB423.

The defendant reviewed the plaintiff again on 19 July 2011 and reported: [61]

Joint recovery is excellent, amplitudes are complete. In the Lachman test without jerk test, the stop is hard and early. There is no meniscal pain.
On the other hand, he has not yet had an isokinetic test to evaluate muscle recovery.
However, given his muscle tone, I believe he can put some weight on it.
He leaves for Australia in three weeks. I believe we should schedule the test upon his return in September.
61. CB424.

The defendant said that he last saw the plaintiff on 19 July 2011, at which time his knee was in as good a condition as could be hoped. He explained that there was no sign of any infection in the knee and that he had expected the plaintiff to return to France in September 2011, at which time he proposed to arrange isokinetic testing. [62]
62. CB125.
The plaintiff said that he understood that he had been cleared by the defendant to do “the full training, rugby league specific" and that he could start to build towards getting back to playing. [63] He said that he commenced training after he had seen the defendant on 19 July 2011, [64] who had cleared him to train. [65]
63. T13.45-T14.1.
64. T14.3-T14.4.
65. CB37.
The plaintiff was asked in cross-examination: [66]

Q. … You say he cleared my knee for play, but he didn't, did he?
A. In his conversation with me he did. Providing my knee - my muscle wastage had been improved to a point, but the knee was given the all clear. The joint recovery was excellent, full range of motion and strong, I just needed to improve my muscle wastage which I was aware of.
66. T32.16-T32.21.

The plaintiff was then asked: [67]
67. T32.23-T33.10.

Q. Do you say that as at September 2011 when you went back to training, as you speak about in paragraph 61, your understanding was that you were fit to return to play?
A. Yeah - the knee reconstruction recovery fit to play is nine months, and that's a cautious approach, you can come back sooner, but given that I was needing to improve my muscle wastage in my knee - in my quadriceps, I took appropriate time to make sure it was 100%.
Q. You'd agree that your knee was fit to play as at September 2011?
A. Yes.
Q. What you were focussing on was to regain the slight wasting that was still there--
A. Yep.
Q. --but other than that you were fine?
A. I was fine.
Q. You were in exactly the same position as you were when Dr McGeoch had said in September 2010 you were fit to play?
A. Yes, but I had not started any rugby league training, specific training, until I'd seen him from that date.
Q. You'd played a fair bit of rugby league by then, hadn't you?
A. Yeah.
Q. You knew what was involved in playing as opposed to training?
A. I was more worried about the structure and the confidence in what he said
about my knee structurally than I could deal with the muscle wastage myself having known how to train--
Q. I see, but you see--
A. --and his opinion was that it was structurally sound enough to return to play and--
Q. But it was your body and your knee, and you wouldn't have gone back to playing unless you thought you were fit to go back, would you?
A. And that's what we did.

The plaintiff’s return to Australia

The plaintiff returned to Australia in about August 2011 with a view to commencing training with the West Newcastle Club (Wests). Wests competed in the Newcastle First Division competition, and the plaintiff’s father was the coach. [68] The plaintiff believed that with appropriate training, he would be in a sufficiently fit state to return to France to continue playing in the following season in the Northern Hemisphere which was due to start in around September 2011. [69]
68. CB37.
69. CB37.
Shortly after he returned to Australia the plaintiff spoke with Mr Bussian who indicated that he wished to sign the plaintiff to play for St Gaudens for another season. [70] However, the plaintiff also had a conversation around that time with Greg Bannister, a player agent in the Newcastle area, about the possibility of undertaking a trial with the Knights in October 2011 with a view to obtaining a contract to play for the Knights for the 2012 NRL season. [71]
70. CB38.
71. CB38.
The plaintiff explained that he was hopeful by that time his knee would have improved to the point where he would be able to undertake the trial. [72] However, he said that he continued to experience pain and swelling, and needed to “ice” his knee regularly. [73] He said that whilst he understood that his knee was “fine" to undertake training, it concerned him that it wasn't progressing as much as he thought it should. [74] In particular, he felt a “pain deep in [his] knee”. [75]
72. CB38.
73. CB38.
74. T14.14-T14.16.
75. CB38.
In these circumstances the plaintiff spoke with Mr Bussian and explained that his knee was “not ready to do the season”, and he would not be fit to play with St Gaudens. He told Mr Bussian that the club would need to find another player until such time as his knee had sufficiently recovered to allow him to play. [76] As a consequence, the plaintiff did not return to France in 2011 as he had planned, but continued to train with Wests with a view to trialling with the Knights. [77] He described himself as being in “full training” by September 2011. [78]
76. CB38.
77. CB38.
78. T41.14-T41.24.

The training incident on 6 September 2011

On 6 September 2011 the plaintiff was undertaking a conditioning-based drill known as a “Malcolm”, which required him to continuously repeat a sequence of running 10m, getting down to and then up from the ground, and then running for a further 10m. [79] He described that part of the drill which required him to get up and down as being “like a push-up position, stomach onto the ground, get back up”. [80] In the course of undertaking the drill, the plaintiff felt what he described as a “click” in his right knee, and fell to the ground in pain. [81] He was asked in cross-examination: [82]
79. CB38; T14.23-T14.28.
80. T14.31-T14.34.
81. CB38; T33.32-T33.36.
82. T33.50-T34.15.

Q. You were running forward, there was a click?
A. Yes.
Q. But you previously described this exercise where you run, you drop, you run, you drop; that's what you were doing?
A. Yep, at that point--
Q. That's what you were doing, wasn't it?
A. That exercise is what I was doing, yes.
Q. And the click on the knee didn't cause you to fall to the ground, did it?
A. At that point it did.
Q. You mean you actually fell to the ground because of a click in your knee; is that what you are saying?
A. A click and the pain in the knee caused me to fall to the ground.

I accept the plaintiff’s evidence as to the circumstances in which he fell.

Events following the training incident on 6 September 2011

Following the incident of 6 September 2011, the plaintiff consulted his general practitioner, Dr McGeoch, who referred him to Dr Halpin. [83] Dr Halpin examined the plaintiff on 27 September 2011, and reported that he had a large joint effusion in the right knee and pain at the lateral joint line consistent with a meniscal tear. [84] An MRI scan conducted on 7 October 2011 demonstrated a complex tear of the medial meniscus, a joint effusion, post-surgical scarring and a partial thickness tear of the ACL graft. [85] The plaintiff said that Dr Halpin explained to him that the MRI scan “showed a problem with the ACL graft”, [86] and that the MRI showed that he had suffered a complex tear of the medial meniscus. [87]
83. CB38.
84. CB185.
85. CB185.
86. Evidentiary statement at para 68; CB38.
87. T35.8-T35.12.
Dr Halpin formed the opinion that as things then stood, the plaintiff was unfit to play rugby league, and that the only realistic chance of him returning to playing at any elite level would be if he underwent further surgery. [88] He referred the plaintiff to Dr Caldwell who examined him on 1 November 2011. The plaintiff's evidence, which I accept, was that Dr Caldwell said to him words to the effect: [89]

I think you will need revision surgery on the knee. Your ACL graft is not working.
88. CB186.
89. First evidentiary statement para 69; CB38.

Dr Caldwell reported: [90]

On 6 September 2011 he was training full on when his knee suddenly got painful and swelled. He located the pain laterally.
He has been complaining of some lateral sided pain and it doesn't sound like his knee is entirely stable. He underwent an MRI scan, which has shown a tear of his medial meniscus.
I agree with this report. The tear is on the medial side. The graft appears largely intact, but it is difficult to tell its position due to the fact that it is done on MRI, which I find very difficult. You can't really tell where the screws are and its signal is such that it doesn't appear to be normal.
On clinical examination today is medial side has not healed well and he has got medial laxity. His ACL is loose with an anterior drawer, but there is some end point and I couldn't really produce a pivot.
This knee is not doing well.
90. CB206-CB207.

At the time of his initial consultation with Dr Caldwell, the plaintiff was asked to complete a questionnaire in which he stated that he: [91]
91. CB361.

had a slight or periodical limp;

could walk an unlimited distance;

had no locking or catching sensations in his knee;

was not experiencing his knee giving way;

had no difficulty squatting;

would experience pain after more than 2 km of running;

had no knee pain when sitting for long periods of time; and

had pain, which was otherwise slight and occasional.

The plaintiff returned to see Dr Caldwell with further x-rays on 9 November 2011, at which time Dr Caldwell reported: [92]
92. CB205.

Lucas returns today with his x-rays. These confirm that the femoral position of his tunnels are [sic] quite vertical in almost the 12 o’clock position. …
I re-examined him today. I confirmed he has some slight medial laxity. The anterior draw [sic] has an end point to a somewhat long Lachman’s test and I could produce a pivot shift on two occasions.
I believe that the discomfort he is getting laterally is not related to his meniscus, but to this occasional giving way.
His episode in September was almost certainly a pivot shift phenomenon, which has caused him to have pain, but has not been associated with any meniscal rupture.
There are two choices here:
1. Is a complete revision of the ACL reconstruction or;
2. To stick in additional posterolateral bundle behind the present AP graft.

I discussed this in detail with Lucas and he is going to think about where he wishes to go. Certainly, if he doesn't play anymore [sic] football he would probably be fine with the reconstruction he had, but if he wanted to get back to a more active pivoting lifestyle or particularly also with his horses then he may need to consider having a revision surgery with the addition of the posterolateral bundle.
Of course, to do this we are going to have to get him an allograft.

Dr Halpin had also referred the plaintiff to Dr Musgrove who, having examined the plaintiff, said to him words to the effect: [93]

I agree with Dr Caldwell. The only thing you can do to improve the knee is have revision surgery.
93. CB39.

Dr Musgrove then reported on 22 November 2011: [94]

The previously obtained X-rays do demonstrate a vertically orientated femoral tunnel more so towards the 11 o’clock/12 o’clock position rather [sic] the 9 o’clock position on the lateral wall of the notch.
…
Lucas while reporting functional stability, has not necessarily challenged his knee in change of direction, land or jump activities since reconstruction. Clinical instability unfortunately is demonstrated on examination today.
While there is a disparity between the subjective sense of stability, the objective clinical examination would preclude a decision for Lucas to return to change of direction activity for concern about injury to the relatively intact menisol [sic] and chondral surface presently.
The exact nature of the effusion needs to be determined, and may well relate to the ongoing synovitis related to the instability, but I think it would be worthwhile considering a formal aspiration/synovial fluid analysis and for completeness a blood work up to include a full blood count, ESR and CRP.
While it may be possible to consider revision with a more horizontal placed graft and leave the current graft intact, in reality more likely a revision with either patellar tendon or Allograft and removal of the current graft would be required, to restore anterolateral rotational stability to the right knee.
94. CB187-CB188.

The consultation with Dr Musgrove was the first time the plaintiff was made aware of the possibility that there may be an infection in his knee. [95] At this time the swelling in his knee was causing him a great deal of distress, to the point that he was limited in what he could do. [96] The plaintiff said that he could not recall being previously treated at any time in his life for any infection, although he conceded that it was possible. [97]
95. T46.19-T46.21.
96. T46.23-T46.28; T47.5-T47.20.
97. T47.26-T47.27; T47.34-T47.50.

The surgery performed by Dr Caldwell on 28 February 2012

On 28 February 2012 Dr Caldwell carried out an arthroscopy and medial meniscectomy of the plaintiff’s right knee. His operation report included the following:[98]
98. CB203. The defendant’s objections to parts of the various reports of Dr Caldwell are addressed in Miller v Jones (No 5) [2019] NSWSC 1448.

On introduction of the cannula a large amount [of] very cloudy joint fluid flowed out. 50mls was sent for culture. It appeared to be an infected knee.
The knee was extensively washed out and then arthroscopy was performed.
At arthroscopy the patella was in good condition. There were minor changes in the trochlea.
The medial compartment was examined and probed. The chondral surfaces were in good condition. There was a very minor tear of the posterior horn of the medial meniscus of no real consequence. This was gently trimmed. I chose not to suture this, as I did not want to introduce further foreign bodies into the knee.
The lateral compartment was examined and probed. The chondral surfaces were in good condition and the meniscus intact.
The notch was examined and probed. There was a large Cyclops lesion in the notch, which was excised. The graft was … vertical in the front of the notch … there appeared to be some visible non-absorbable sutures present in the graft.
The finding of a probably infected knee was unexpected, but without the permission of the patient I chose not to excise the graft.
As he was not clinically toxic I felt we would wait for culture results before commencing antibiotics.

The plaintiff said that following this surgery Dr Caldwell explained that he had extracted fluid from the knee which would be tested for the presence of a bacterial infection. [99] In a subsequent report forwarded to the plaintiff's solicitors, Dr Caldwell said the following in relation to the surgery he had performed: [100]

On entering the knee it was apparent that there was a large degree of strandy pus and fibrin and reflected that he probably had an infection.
There was a large Cyclops lesion (that is a scar tissue that had accumulated in the front of the knee in the notch). The graft was highly vertical and there was [sic] a lot of non-absorbable sutures (Ethibond) throughout the notch and in the joint.
Swabs and aspirates were taken and these were sent for analysis. His synovial fluid showed a white cell count of 121,000 and he grew a bacillus species.

99. CB39.

100. CB189-CB190.

The surgery performed by Dr Caldwell on 13 March 2012

Dr Caldwell performed an arthroscopy of the plaintiff’s right knee on 13 March 2012. [101] Dr Caldwell reported (inter alia): [102]
101. CB39.
102. CB201-CB202.

At arthroscopy the patella and trochlea were in good condition.
The medial compartment was examined and probed. The chondral surfaces were in good condition and the meniscus intact.
The lateral compartment was examined and probed. The chondral surfaces were in good condition and the meniscus intact.
The notch was explored. …
The previous broad and infected scar was excised and the tibial tunnel was located and a large absorbable type plastic screw was removed.
A guide wire was then placed up through the tunnel into the joint and this was over-drilled with a 9mm drill.
The arthroscope was introduced into the tibial tunnel and all remnants of graft and graft material and sutures were debrided.

The intra-articular proportion of the graft was then removed. The guide wire was then passed through the tibia into the femoral tunnel and again the femoral tunnel and its contents were drilled out. All this was removed with a shaver and curettage.
It was then apparent that the Endo button continuous loop was at the top. I photographed it. This could not be removed by pulling or drilling, so I decided to remove it directly from above.
The guide wire was passed up through the femoral tunnel and out through the skin at the femur.
A 2cm incision was made over the anterior femur and followed down the wire to the side of the drill. The Endo button was located and removed with its loop.
Thus, a complete debridement of all foreign material was performed.
Multiple specimens were sent for culture.
Routine closure was performed without drainage.
He is to undergo routine post-operative care with the use of antibiotics. …

In a later report of 10 August 2017 Dr Caldwell explained that the surgery involved removing all of the foreign material, graft material and fixation devices, and washing out the joint. [103] He explained that the removal of all foreign bodies allows a patient to eradicate the infection with the help of antibiotics. Dr Caldwell also explained that the plaintiff's knee “largely settled down” following this surgery, and that the infection was fully controlled. [104]
103. CB189.
104. CB190.

The surgery performed by Dr Caldwell on 17 July 2012

The plaintiff consulted Dr Caldwell again on 1 May 2012 and discussed options for further surgery. [105] The plaintiff said that having used his own hamstrings in his previous knee reconstructions, he was keen to use an allograft from a donor bank. This was subsequently arranged by Dr Caldwell through the Queensland Bone Bank. The plaintiff returned to surgery on 17 July 2012 and underwent a reconstruction of his right knee, [106] in respect of which Dr Caldwell reported (inter alia): [107]
105. CB39.
106. CB39.
107. CB198.

A 30cm tibialis anterior graft had been obtained from the Queensland Bone Bank.
The graft was sutured and tied to an Endo button and then looped through the loop to give a triple stranded graft. This was 9-10mm in width and 10cm in length.
The tourniquet was then inflated and routine arthroscopy was performed.
At arthroscopy the patella and trochlear were in good condition.
The medial compartment was examined and probed. The chondral surfaces were in excellent condition and the meniscus intact.
The lateral compartment was examined and probed. The chondral surfaces were in good condition and the meniscus intact.
The notch was examined and probed. Of course, the graft was absent and the holes appeared to have healed well.
Arthroscopic guided tunnels were placed in the femur and tibia and the graft was placed and held in position with an Endo button on the femoral end and a 10x30 Active tibial screw. The tibial fixation was supplemented with a post screw and sutures.

In his subsequent report of 10 August 2017 Dr Caldwell confirmed that he performed a revision of the anterior cruciate ligament reconstruction using a tibialis anterior allograft. [108] In particular, he said: [109]

The tibial tunnel was used, but the femoral tunnel was repositioned to a correct position.
108. CB190.
109. CB190.

In the same report Dr Caldwell said: [110]

The position the graft was in would not be accepted internationally as the optimal position. It was way too vertical and should have been down about the 10 o'clock position on the lateral wall of the notch.
110. CB191.

The plaintiff said that following the surgery of 17 July 2012 he attended physiotherapy and started a rehabilitation program, as a result of which his knee felt steadily better and stronger, and the swelling reduced. [111] He saw Dr Caldwell for follow-up appointments and said that in April 2013 Dr Caldwell had said to him: [112]

You can start building up your training again now and in about July you should be right to start playing again competitively.
111. CB39-CB40.
112. CB40.

In his report of 23 April 2013, [113] Dr Caldwell said:

Everything has gone fine with Luke. He has a stable, pain free knee with a good range of motion.
I am happy for him to return to sport.
He has been undertaking his PEP program. He has got good strength, so I am happy for him to go back to football training and he can return to competitive football one year post surgery.
113. CB196.

In a further report of 12 February 2013, [114] Dr Caldwell said:

He has made a fabulous recovery from his surgery and is doing very well with a stable and pain free knee.
The important thing is that this graft is a little slower than usual and we would like him to at least go another couple of months before he returns to full levels of sport.
However, I am happy for him to begin a PEP rehab program. This has been shown to reduce the risk of recurrent injury in the operated knee and new injury in the un-operated knee by 75% in males.
I reiterate he is doing really well and I will see him at the nine month mark.

114. CB197.

The plaintiff’s return to playing rugby league

The plaintiff was reviewed by Dr Caldwell on 25 June 2013, who reported to Dr Halpin that the plaintiff had had “a really terrific result from his surgery with a stable pain free knee and a full range of motion”. [115] Dr Caldwell reported that he was “happy for [the plaintiff] to return to all levels of recreational and sporting activity” and he returned the plaintiff to Dr Halpin’s care. [116] Following that clearance, the plaintiff returned to playing for Wests in July 2013. When he did so, his knee immediately began to hurt, and he found that he could not properly weight bear. He played in eight games with Wests (which were not full games). He said that his knee was never “right” and that he felt that he was “playing on one leg … and in pain”. [117]
115. CB195.
116. CB195.
117. CB40.
In April 2014, in the course of playing a trial game prior to the commencement of the 2014 season, the plaintiff felt a click in his right knee when he was being tackled, although he did not feel any particular pressure from the tackle itself. [118] Ultimately, he played approximately 20 games for Wests during the 2014 season, and was selected to play in a Newcastle representative team that year. [119] He said that during the 2014 season he did not run at training or do any leg weight-bearing exercises, but kept fit by using a cross trainer and a stationary bicycle. His knee continued to ache and he had to ice it regularly. [120] In order to be able to play in that season he adopted a medication regime which involved taking a total of eight Voltaren tablets over a 24 hour period around each game. [121] In all of these circumstances the plaintiff decided at the end of the 2014 to cease his career as a rugby league footballer. [122]
118. CB41.
119. CB41.
120. CB41.
121. CB41.
122. CB41.

THE EVIDENCE OF DR JOURNEAUX

Dr Simon Journeaux, a consultant orthopaedic surgeon, gave expert evidence in the plaintiff's case on the question of liability, in the form of both written reports and oral evidence.
In reviewing the plaintiff’s x-rays of 7 November 2011, Dr Journeaux said: [123]

I have reviewed images. …The femoral tunnel on the AP view is not in the currently accepted position for ACL reconstruction.
123. CB238.

Having reviewed the plaintiff's history, Dr Journeaux expressed the following opinion: [124]

Mr Miller, on the medical evidence, had a significant injury whilst playing rugby league for a First Division Rugby League side in France. This was on the 6th December 2010. He sustained a complete rupture of the right anterior cruciate ligament, which was subsequently reconstructed by Dr David Jones in Toulouse, France. At that time, there was a problem with the hamstring graft site with delayed healing and it is more likely than not he suffered a subtle post-operative (nosocomial/hospital acquired) infection, which then persisted. The infection was not diagnosed, essentially, until Dr Caldwell assessed him and performed arthroscopic surgery on the 28th February 2012. Synovial fluid from the large effusion was sent off for culture. A bacillus species was grown. It is my view this infection relates to the original surgery, was low-grade and insidious, but caused ongoing pain and swelling up to the time he was surgically managed by Dr Caldwell.
In addition to the post-operative infection, Mr Miller had a poorly done hamstring ACL reconstruction, in addition to the infection. This suboptimal procedure and the infection has [sic] adversely affected the expected outcome in respect of Mr Miller.
Following appropriate management by Dr Caldwell he has achieved a good result in terms of stability of the knee following the secondary reconstruction, but unfortunately has ongoing symptoms and associated functional incapacity as documented in the body of my report.
124. CB239.

When asked whether the surgery performed by the defendant on 3 January 2011 was in accordance with prevailing medical opinion for such procedures, Dr Journeaux said: [125]

Dr Jones performed a suboptimal reconstructive procedure in which there was malposition of the femoral tunnel of the hamstring reconstruction. In addition there was a failure to diagnose a postoperative infection. [126]
125. CB240.
126. Despite the second sentence in that opinion, it should again be noted that the plaintiff does not assert the defendant breached his duty of care by failing to diagnose an infection.

Dr Journeaux said that had the defendant utilised what he (Dr Journeaux) regarded as the optimal graft position, the infection would, on the balance of probabilities, have still occurred although in those circumstances it is likely that it would have been diagnosed earlier. [127] In this regard he said: [128]

Given the history of poor wound healing and the history as given to me by Mr Lucas [sic] it is more probable than not his knee was infected primarily from the index procedure.
The diagnosis of infection should have been made early in the postoperative period to have allowed for the infection to be treated. This would have provided a reasonable chance of salvaging the hamstring graft used for the reconstruction. Access to the contemporaneous hospital records potentially changes my opinion in this regard.
127. CB242.
128. CB242.

Dr Journeaux went on to say: [129]

Assuming the graft was in an optimal position the early treatment of the post operative infection could have, on the balance of probabilities, obviated the need for a secondary reconstruction by Dr Caldwell. However, even with optimal treatment of the infection it is likely, given that Mr Miller plays high grade sport, that he would have had recurrent instability problems of the affected knee. This would have been due to the rotational instability imparted by the vertical positioning of the graft.
129. CB243.

Dr Journeaux expressed the opinion that it was because of the surgery having been suboptimally performed by the defendant that the plaintiff had lost the opportunity to return to playing professional rugby league. [130] In his opinion, the vast majority of the plaintiff's current symptoms and restrictions are a consequence of such suboptimal surgical procedure. [131] Dr Journeaux also said that although the plaintiff would have been at risk of developing post traumatic osteoarthritis in the knee even with optimal positioning of the graft, there had been a potential acceleration of post-traumatic osteoarthritis because of what he regarded as the suboptimal positioning. [132]
130. CB247.
131. CB247.
132. CB248.
Dr Journeaux expressed the opinion that the repair which was undertaken by the defendant was not one which would produce optimal strength and stability within the knee, so as to enable the plaintiff to return to playing professional rugby league. [133] When asked whether adopting a vertical position for the purposes of the graft was suitable for a successful ACL reconstruction in the case of a professional rugby league player, Dr Journeaux said: [134]

The vertical position is a manifestly inadequate position for a reconstructive procedure involving the ACL.
133. CB240.
134. CB240.

Dr Journeaux went on to say: [135]

If the graft had been in a more horizontal [sic] appropriate position for reconstruction and if it was not for the infection, it is likely Mr Miller, with appropriate rehabilitation, would have been able to return to his professional rugby league career. It should be noted, however, that he did suffer, what I would regard as, significant post-operative infection for which there was a delayed diagnosis. Even in the presence of a well done reconstruction this infection may have affected Mr Miller's capacity to return to professional rugby league. Infection can cause a failure of reconstruction.
135. CB241.

When asked his opinion as to the optimal position for the reconstructive procedure performed by the defendant, Dr Journeaux said: [136]

The optimal position for the positioning of the femoral tunnel of a hamstring reconstruction in anatomic terms is in the most functional position of the footprint of the native anterior cruciate ligament. The hamstring reconstruction can be considered a compromise in respect of this as its footprint is much smaller. Note the footprint is situated on the posterolateral aspect of femoral notch and is not in its roof (superior).
136. CB241.

Dr Journeaux also expressed the view that the optimal position to which he had referred was: [137]

… the current internationally accepted norm as to optimal position. The standard is a consensus and is often discussed at ISAKOS (International Society of Arthroscopy, Knee Surgery and Orthopaedic Sports Medicine).
137. CB242.

In oral evidence in chief, Dr Journeaux said: [138]

…[T]here's an accepted position for an anterior cruciate given the knee constructional, the femoral side, so ideally you want to put the new ligament, the hamstring ligament in the same footprint where the anterior cruciate ligament originates from, which is right at the back of the femur and where the ‑ from memory were the position was ..(not transcribable).. far too anterior and that was borne out in the arthroscopic finding by Dr Caldwell.
138. T58.5-T58.13.

Dr Journeaux confirmed his opinion that the position in which the plaintiff's graft had been placed by the defendant had “never been an accepted position for ACL reconstruction". [139] He also said: [140]

… the best reconstruction in the world, you can never replicate and so there's always a danger of developing additional problems such as degeneration down the track. If the operation is done suboptimally you increase your chance of having further problems down the track.
139. T59.29-T59.30.
140. T60.9-T60.13.

Dr Journeaux also expressed the opinion that the infection contracted by the plaintiff was more likely than not related to poor wound healing. However, he also said that the infection had contributed to the poor result which followed the surgery performed by the defendant. [141]
141. CB241.
Dr Journeaux was cross-examined about the transtibial approach which had been adopted by the defendant in performing the surgery: [142]
142. T75.29-T78.36.

Q. Doctor, this was what is called the transtibial approach, isn't it?
A. That's one way of doing an ACL reconstruction.
Q. That's one way of doing it, isn't it?
A. That's - yeah, that's an acceptable way of doing it.
Q. Yes and that's what Dr Jones did?
A. That is presumably his preferred method of doing it but I can't vouch for him.
Q. What term do orthopaedic surgeons use to describe the method followed by Dr Caldwell?
A. Are you talking about the revision procedure?
Q. Yes?
A. Yeah, that's just a revision ACL reconstruction.
Q. Yes, but you see he used a different approach, didn't he?
A. Yeah. Well not - all the transtibial approach means is you're putting the guide wire through the tibial tunnel into where you think the correct position for the femoral tunnel should be. So you're effectively doing like a shoot through approach. If you like a tunnel into the tunnel as opposed to doing it from two separate incisions.
Q. You refer in your answer to question 10 about a currently internationally accepted norm and you speak of a consensus is [sic] often discussed at ISAKOS, International Society of Arthroscopy, Knee Surgery and Orthopaedic Sports Medicine?
A. That's correct. Yeah.
Q. Are you familiar with the publication Journal of International Orthopaedics?
A. Yes, International Orthopaedics, yes, I get it every month.
Q. And are you familiar then with an article on 11 May 2012, a study by a Chechik et al, C H E C H I K, E T, A L, in which the author surveyed 271 orthopaedic surgeons from ten subspecialities in 57 countries to determine the choice of graft and fixation device for ACL reconstruction, the reference to the article is published online 2012 July 12, are you familiar with that article?
A. Not off the top of my head, no.
Q. I'd like you to assume that in that study the surgeons were also asked about the arthroscopic portal choice for femoral tunnel drilling. The choice was transtibial, or anteromedial, do those terms mean anything to you?
A. Yep, they do.
Q. The transtibial approach was that adopted by Dr Jones, is that right?
A. It would appear that way.
Q. Well, doctor, you're the orthopaedic surgeon, you're involved in this case, is that what he did?
A. Well that's what he did in this case. I haven't got access to his logbooks, so I don't know what he does--
Q. I'm talking about this case, doctor. And the transtibial approach involves drilling from in a distal proximal direction using the tibial tunnel as the entry point?
A. That's correct.
Q. And following the line of the transtibial tunnel you engage with the distal end of the femur with your drill, is that correct?
A. Assuming you've located the correct point, that's right.
Q. And you drill up into the femur until you can reach a point where you can anchor that end, the Endobutton of the Endobutton [sic] of the ACL graft that you're going to put in, is that correct?
A. That's correct.
Q. And that approach, the transtibial approach will always produce a tunnel in the position that this tunnel was in, is that not correct?
A. That's a completely incorrect statement.
Q. You are dictated to by the anatomy of the transtibial tunnel, are you not?
A. Well, you might be a - probably better to use the term location.
Q. Let me go on then with what this study, and I'm reading now from page 431, your Honour, Mr Devitt's report. The choice was transtibial or anteromedial, can you describe the surgical procedure involved in the anteromedial approach?
A. That's a ..(not transcribable).. approach. Where, basically what you're trying to do is find the correct position in order to draw the tunnel to the femur, so generally speaking you do that to - one of the arthroscopic portals you then insert the guide wire through, the portal into the correct position which is quite far back on the femur, on the femoral condyle on the lateral side, the outside.
Q. And what you're talking about is what you described at the beginning of your evidence, that is, where the, in terms of the anterior posterior placement of the ACL?
A. Correct.
Q. And the anteromedial approach involves drilling from the front towards the middle?
A. That's correct, yep.
Q. And that's a hole you start in the femur, isn't it?
A. Yes, you work directly into the femur, yes.
Q. Yes, so that approach--
A. You [sic] often strained by the tibia.
Q. That approach involves your initial drill hole being into the femur, that is, on an anteromedial approach, that is, from the front towards the middle of the femur, is that correct?
A. Yeah, that's correct.
Q. And then you attach your graft to the tibial tunnel which is the anatomical or native position of the ACL graft, if you use that approach?
A. Yes, correct.

Q. And therefore, the angle of attack of the initial drill hole, that is, the one into the femur is dictated by the choice of the surgeon rather than the anatomy of the knee?
A. That's correct, yeah.
Q. If I could go back then to this survey. The survey was distributed to a major international conference held in the United State and Europe at the annual meeting of the America Academy of Orthopaedic Surgeons, AAOS held in San Diego February 2012, are you familiar with those annual meetings?
A. Yes, I'm a member of the America Academy.
…
Q. Are you familiar with that annual meeting?
A. Yes.
Q. And are you familiar with an organisation called the European Federation of National Associations of Orthopaedics and Traumatology?
A. Correct, yes.
Q. And were you aware of a meeting that that organisation held in Copenhagen in June 201 [sic]?
A. Well, I can't recall that one; there are many orthopaedic meetings.
Q. Let me just put this to you--
A. I can't recall that specific one.
Q. Let me just suggest to you this as a generally accepted orthopaedic proposition, that of the surgeons surveyed at that meeting 68% preferred the surgical approach for drilling the femoral tunnel - I withdraw that. The most preferred surgical approach for drilling the femoral tunnel was the anteromedial portal. That's the one that you advocate for, isn't it?
A. Yes, correct.
Q. Followed by the transtibial approach with 31%. Now--
A. Can I just ask you what you mean by I advocate for? I don't actually have a problem with either technique.
Q. Doctor, I withdraw that, and I apologise for it. I mean the approach that you endorse is the anteromedial portal approach.
A. I don't endorse either of the approaches. It's in preference of the surgeon, depending on their experience and expertise and training.

Dr Journeaux explained that the “footprint" of the native anterior cruciate ligament is the position from which the natural ligament originates, or the position at which it inserts. [143]
143. T59.36-T59.39.
Dr Journeaux was cross-examined about this as follows: [144]
144. T82.43-T83.33.

Q. So the anatomical position of the native anterior cruciate ligament is by no means vertical but nor is it horizontal?
A. Correct.
Q. If you placed it at the position of 5 o'clock to 11 o'clock, that would be within acceptable orthopaedic standards?
A. On that particular view.
Q. Using the transtibial approach. Is that correct?
A. Yeah, well you're describing something in 2D which is a 3D of course.
Q. Doctor, in your report you identify, in your first report, you identify the harmful consequences long term as you said of the undetected infection. Is that correct?
A. Sorry, of the undetected? I just missed that last bit.
Q. The undetected infection. You expressed the view that--
A. Yeah.
Q. --50% of this man's ongoing problems were to be attributed to the infection?
A. Did you say the word 50%? I don't recall saying 50. Is that what you just asked me?
Q. You said it has to be a portion and you said you thought it was 50/50. Isn't that correct?
A. Can you point out in my report where I said that? I don't recall saying, that's why I am - there it is, I've got it there, I beg your pardon. Page 40 second report, yes. I was looking at the first report.
Q. You've got that? 50/50?
A. Yeah, got it.
Q. But of course even assuming that the replacement graft was in the wrong position, it was only in the wrong position from January 2011 until May of 2013 wasn't it?
A. That's correct.
Q. So that whatever - 12 I mean, I'm sorry. 12. It was only in what you call the wrong position for a period of 12 months?
A. Yep.

Dr Journeaux was taken at length to the various reports of Dr Caldwell, and took no issue with the surgery that Dr Caldwell had carried out, or with the results from that surgery. [145] He generally agreed that Dr Caldwell's various statements as to the degree of the plaintiff's recovery following the surgery that he performed were “very positive". [146] He was taken in cross-examination to Dr Caldwell's report of 23 April 2013 [147] and was asked: [148]
145. T67.29-T67.39.
146. T68.4.
147. CB196.
148. T69.3-T69.29.

Q. Nine months post-revision ACL reconstruction using an allograft, nine months would be the cut-off point where you'd be hoping that everything had gone swimmingly?
A. Yes, that's about right.
Q. "Everything has gone fine with Luke." This is important, isn't it, that he has a stable, pain free knee with a good range of motion? They're very important touch stones, aren't they, of how well Dr Caldwell has done his job?
A. He appears to be very happy with it at that point.
Q. Yes, and stable, pain free with a good range of movement is what you want, isn't it?
A. Correct.
Q. He says, "I am happy for him to return to sport". If those were the observations then you would have been happy for him to return to sport at that stage?
A. Absolutely.
Q. He's been undertaking his PEP program, "good strength, happy to go back to football training", you'd endorse the fact that he could go back to training at that point?
A. Yep.
Q. "He can return to competitive football one year post-surgery", you'd agree with that?
A. Yeah.

He was also taken to Dr Caldwell's report to Dr Halpin of 25 June 2013 [149] and was asked: [150]
149. CB195.
150. T69.49-T70.30.

Q. I'm referring to a letter the substance of which starts, "Lucas returns today one year post-revision right ACL"?
A. Yes, that's the one, yeah.
Q. Dr Caldwell goes on to say, "He has had a really terrific result from his surgery". Have you any reason to doubt that's correct?
A. No, not at all.
Q. Nothing that you know about this man, that you've been told about him, that came out of your examination would have you doubt what Dr Caldwell says when he says he's had a really terrific result from this surgery, is that right?
A. Not - yeah, not at all.
Q. He's got a stable, pain free knee and a full range of movement, that's a very good outcome, isn't it?
A. That's a very good outcome at that time.
Q. I think you referred to Dr Caldwell as being a highly experienced orthopaedic surgeon in your report?
A. Yes, he is.
Q. Do you know him?
A. Not personally, no.
Q. He has a very good reputation, doesn't he, in this area of sporting injuries?
A. Correct.
Q. He then goes on to say, "I am happy for him to return to all levels of recreational and sporting activity". Doctor, you don't disagree with that on any basis at all, do you?
A. Not at all.

He was also asked: [151]

Q. Below the area that I've already taken you to about surgical management and your opinion about how infection has affected the outcome, underneath that you write a paragraph, "Following appropriate management by Dr Caldwell he has achieved a good result in terms of stability." Now what I was putting to you, Doctor, is that if you assume that what Dr Caldwell says is right the result goes far further than just achieving stability, doesn't it?
A. Well you've got to be careful of getting confused with his impairments, which is what you can measure, ie stability and functional incapacity or disability; they're related but different. I don't want anyone to get confused about that concept.
151. T73.19-T73.28.

Dr Journeaux agreed that the fact that the plaintiff had returned to playing rugby league in 2014 was indicative of his having a “really good, strong knee": [152]
152. T74.7-T74.38.

Q. Doctor, when you said in terms of stability you didn't mean in any way, did you, to second-guess Dr Caldwell's opinion that he has had a really terrific result from his surgery with a stable pain free knee, a full range of movement and he was happy for him to return to all levels of recreation and sporting activity? That is all encompassed in your - is it not?
A. Well the - yeah, the - certainly Dr Caldwell's happy with the surgery and the results.
Q. Yes, but, doctor, don't you think by just using the stability you're rather underplaying the success that Dr Caldwell had?
A. Well I don't think - will accept Dr Caldwell's happy with his operation and from what he'd written here he seemed very happy with it, the--
Q. Then you go on to say, "but unfortunately"--
A. --well the - aspects and the fontanel aspects of a surgery.
Q. --"his ongoing symptoms and associated functional incapacity is documented in the body of my report". You see if what you were told in the letter of assumptions is right, and if what Dr Caldwell is saying is right, there were minimal ongoing problems with this man's knee until April 2014. Don't you agree with that?
A. Well I don't believe - no, well I don't actually but I don't believe Dr Caldwell has simply commented on the claimant's function other than the fact he could return to sport, he didn't comment on any other fact as to that.
Q. He went back and played at least eight games including a grand final of rugby league, which he won, and was playing again in 2014. That's a great deal more than just achieving stability, isn't it?
A. Absolutely, yeah, I don't disagree with it.
Q. Doctor, that is a really good, strong knee, isn't it?
A. So it would seem.

He was then asked: [153]
153. T83.26-T84.27.

Q. But of course even assuming that the replacement graft was in the wrong position, it was only in the wrong position from January 2011 until May of 2013 wasn't it?
A. That's correct.
Q. So that whatever - 12 I mean, I'm sorry. 12. It was only in what you call the wrong position for a period of 12 months?
A. Yep.
Q. Then if you accept what Dr Caldwell describes "He did an absolutely excellent job of fixing this man's knee when he did his ACL reconstruction." Isn't that correct?
A. That's correct. Yep, that's correct.
Q. And of that period between January 2011 and May 2012, during that period for six months of it was a period of active inpatient rehabilitation. Is that correct?
A. That's my understanding.
Q. When you wouldn't have excepted [sic] him to be returning to playing rugby league or indeed in nay [sic] gainful employment during that period?
A. No, that would be the early stage.
Q. Then in September 2011 he, I'd like you to assume, returned to full on training rugby league. I'd like you to assume that?
A. Yes.
Q. That is actually contrary to what you recorded in your report where - when you went to what he told you, you said, and I'll take you to it. If you can go to page 2 of your report, your first report. This is on page 2?
A. I'm on page 2, yep.
Q. You said, "Mr Miller indicates that prior to Dr Caldwell's operation in late 2011", well we know now that it was 2012 don't we?
A. Yeah.
Q. "His knee always had a constant ache between four and five out of ten." That's a significant complaint of pain isn't it?
A. It's what's known as moderate level of pain.
Q. "Was persistently swollen" and you would put the pain down to the swelling wouldn't you?
A. Pain, the cause of pain can have many causes. Swelling is one cause.
Q. The swelling of course was caused in this case by the infection?
A. Contributed to by the infection. That could easily be contributed to by instability.
Q. In relation to when he returned to training in September, did you understand that what he returned to was only light training?
A. I can only go on what he told me at that time, whatever's written in the report. That would be probably what my understanding was at the time.

In re-examination Dr Journeaux was asked: [154]

Q. Doctor, you were asked about the short period of time between - or the period of time between the date of the operation and the incident in between January 2011 and May 12 when he had the incident while he was training?
A. Yeah.
Q. September 11, I apologise, January to September 2011. I n [sic] terms of the significance of the period of time, does that depend upon the activities which were engaged in during that period of time?
A. Absolutely, yeah, definitely.

BREACH OF DUTY OF CARE

154. T90.26-T90.34.

Submissions of the plaintiff

Senior counsel for the plaintiff emphasised the importance of the correct positioning of the ACL reconstruction which, he submitted, stemmed from the necessity to return the anterior cruciate ligament to what Dr Journeaux had described as the “footprint of the native … ligament”. It was submitted that in the present case the graft, rather than being at the 9 o'clock position of the femoral notch, was closer to the 12 o'clock position and that bearing in mind that the plaintiff played high-grade sport, the effect of that positioning by the defendant meant that the plaintiff would be subject to ongoing rotational instability. Senior counsel for the plaintiff relied, in these respects, upon the opinions of Dr Journeaux which, he submitted, were generally supported by the opinions of Drs Caldwell, Halpin and Musgrove, as well as by the evidence of the defendant himself.
Senior counsel emphasised the opinion of Dr Journeaux that due to what he regarded as the suboptimal surgery carried out by the defendant, additional internal derangement was incurred to the knee in the form of a medial meniscus tear. However, senior counsel accepted that a discount would apply to the assessment of damages in light of the infection which was found by Dr Caldwell.
It was further submitted that no significance lay in the fact that there were two approaches to this type of surgery. It was submitted that both approaches were directed to finding the correct position from which to operate, and that the predominant consideration was the need to return the anterior cruciate ligament to its “footprint”.
Senior counsel further submitted that the incident on 6 September 2011 came about as a consequence of an absence of rotational stability and submitted that such a conclusion was supported by the opinions of Dr Musgrove. It was further submitted that the subsequent surgeries which were carried out, and the subsequent difficulties experienced by the plaintiff, were all attributable to the negligence of the defendant.
In summary, senior counsel for the plaintiff submitted that the opinions of Dr Journeaux should be accepted, in which case I would find that:

the surgery performed by the defendant was suboptimal because of malpositioning of the graft;

the positioning of the graft was at about the 12 o’clock position, and therefore outside the 5 o’clock to 11 o’clock range nominated by Dr Journeaux, in circumstances where there was no contrary evidence led by the defendant;

the surgery was not such as would produce optimal strength in the knee because of the manifestly inadequate position which had been adopted; and

as a consequence, the plaintiff continues to suffer ongoing difficulties and has lost the opportunity to return to playing professional rugby league.

Submissions of the defendant

Senior counsel for the defendant accepted that the professional conduct of the defendant was to be judged in accordance with the standard to be expected of a reasonably competent orthopaedic surgeon specialising in this type of surgery. Senior counsel also accepted that the concept of fault applicable under French law was the same, generally speaking, as that which governs the law of negligence in Australia. Senior counsel also emphasised that the plaintiff relied on only one particular of negligence, namely the placement of the graft. He defined the principal issue as being whether, in placing the graft in the position that he did, the defendant was negligent.
Senior counsel submitted that the plaintiff had adduced no evidence as to whether or not there was an absolute uniformity, between all human beings, as to the location of the footprint of the anterior cruciate ligament. It was submitted that on the evidence, I would find that the defendant had, as far as possible, placed the graft in the appropriate anatomical position.
Senior counsel further submitted that bearing in mind that it was the transtibial approach which had been adopted by the defendant, I would find on the basis of the evidence of Dr Caldwell and Dr Journeaux that what occurred in this case in terms of the placing of the graft occurred in the course of adopting an accepted surgical approach and that in those circumstances there was no lack of care on the part of the defendant.
Senior counsel further submitted that if it were found that the defendant had breached his duty of care, an issue arose as to the compensable consequences which resulted. Senior counsel submitted that the evidence did not support a conclusion that the incident on 6 September 2011 was in any way causally connected to the positioning of the graft. He further submitted that the instability identified by Dr Caldwell as having arisen from that incident was not due, in any way, to the reconstructive surgery performed by the defendant. It was submitted that in these circumstances, even if a breach of duty of care was established, any entitlement to damages would cease on or about 6 September 2011. It was submitted that what brought the defendant to Dr Caldwell was the incident of 6 September 2011, and that from that point onwards, there was no evidence to attribute any responsibility to the defendant.

CONSIDERATION

Tortious responsibility in French Law

The expert report of Benjamin Nataf relied upon by the plaintiff addresses the issue of tortious responsibility under French law. [155] Mr Nataf was firstly asked to express his opinion as to the conditions under which a person may “engage civil responsibility of a physician or surgeon" under French law. He responded by saying: [156]

Article L 1142 – 1 of the Public Health Code … sets out the principle of medical responsibility for a health professional who practices in the private sector. The article states the following:
“I - Apart from those cases where their responsibility is incurred because of a fault in a health product, health professionals mentioned in the fourth part of this Code, as well as any establishment, service or organisation in which individual preventative actions are carried out, whether for purposes of diagnosis or the provision of care, are only responsible for the actionable consequences of measures taken for purposes of prevention, diagnosis or the provision of care, if they have committed an error."

A fault therefore has to be established in relation to the physician in order for his or her responsibility to be engaged. (Emphasis in original).
155. CB443 and following.
156. CB443.

When asked what constitutes a fault that may render a physician or surgeon liable, Mr Nataf said: [157]

The nature of the fault that may render a health professional liable is quite varied and it may be engaged at any moment in the care chain (initial consultation, pre-operative period, moment of the intervention or examination, post-operative follow-up).
It may concern a fault in the diagnosis (non-discovered diagnosis or late discovery), a blunder during the operation, the administration of an appropriate medication, a follow-up that is not careful enough, and which would not have allowed the discovery of a complication sufficiently early.
It is up to a legal expert to evaluate the conduct of the health professional and to state whether a fault is to be counted against him or her, within the framework of his or her relationship with the patient.
157. CB443.

When asked who bore the burden of proof, Mr Nataf said: [158]
158. CB444.

Under the terms of article 1315 of the Civil Code (Code Civil):
“One who claims the performance of an obligation must prove that it exists.”

And article 146 of the Code of Civil Procedure … adds the following:
“An investigative measure (assessment) can not [sic] be ordered in relation to a fact if the party who alleges it does not possess the elements sufficient to prove it.

In no case can an investigative measure be ordered in order to make up for the absence of the party in the provision of the proof.”
It is therefore up to the patient to prove that a fault has been committed by the health professional, if he requests that his or her responsibility is to be retained.
This proof is to be provided by means of a counter examination.
In order for an Expert to be nominated by the Court, the patient must provide the elements of proof that show that the application for an assessment rests on a legitimate reason. (Emphasis in original).

Evidence was also given in the plaintiff's case by Bortolo Baiteri, the International Development Manager for the NRL. Mr Baiteri was previously a professional footballer for 10 years in Australia. He moved to France in 1981. [194] He has been performing his current role with the NRL for 25 years and is responsible for developing the game of rugby league in various areas of the world. Mr Baiteri's evidence included the following: [195]

13. The wage for players is a monthly wage of about 2000 Euros a month (on average), plus airfares, fully furnished accommodation, and a vehicle are usually provided. Some players may share the accommodation and/or car provided by the French club. It is a nine to ten month contract and playing season in which the player earns this income.
…
15. Playing in the French competition allows players to better demonstrate their full range of skills and this assists their career development. As an example of the benefits that come to players who play in the French competition, a current player in the Newcastle Knights team, Nathan Ross, played in the French competition for a few years and came back to a position in the Knights. He had demonstrated an improvement in his capacity to play and thus earnt a new contract with the Newcastle Knights.
16. If Lucas Miller played out the whole season and did well during his time in France, an Australian club would likely transition a player like this into at least a reserve grade team where he would play and demonstrate the qualities that he may have developed in France. Seven years ago the basic minimum wage for these better players was about $55,000 although some players are paid significantly more.
17. Lucas Miller may have alternatively gone into one of the levels in the English Rugby League competition which is a three tiered competition. Lucas Miller would probably have been paid 75,000 pounds in his first year if in the Tier One competition – the Super League.
194. CB68.
195. CB69-CB70.

Mr Baiteri also said: [196]

10. I am aware that the salaries paid to rugby league players from overseas playing in the French Rugby League has regressed in the period of 2011 to 2019. From the time Lucas Miller played in 2010, I am aware that the average salary was around $2000 [sic] euros per month. In my opinion, the average salary for a foreign player, such as an Australian player, would presently be around $1500 [sic] euros per month.
11. The average salary in the period of 2011 to 2019 for a foreign player was between $1500 [sic] and $2000 [sic] euros per month plus travel allowances.
Average NRL Wages 2011-2019
12. In the period of 2011 - 2019 the average minimum wage has increased from the $55,000 to around $85,000. Players on a bottom tier contract could also earn a match payment of $3,000 per game for each NRL game which they play. There are 25 regular season rounds in an NRL season, meaning a player, if he played every week, could earn an additional $75,000 per season.

196. CB72.

Non-financial losses

Mr Van Teslaar deals with the issue of non-financial losses in his report. [197]
197. Commencing at CB466.
The first component of non-financial loss is that of temporary functional deficit which he explained in the following terms: [198]

Temporary functional deficit indemnifies the loss of physical or intellectual capacity, as determined by a medical expert. Temporary functional deficit ends upon consolidation; if there is still functional deficit at that time, it is deemed to be permanent deficit.
A person is supposed to have a 100% functional capacity. If he has no capacity, his impairment is a theoretical 100%.
Doctors consider that when at the hospital, a person has a total incapacity of 100%.
When the person returns home, the incapacity is not nil; it depends on the degree of severity of the injuries. Said incapacity can be partial, indicated as a percentage of full capacity. The most recent practice by doctors is to say incapacities is can be of 75%, 50%, 25% or 10%. Various percentages can be given for various periods.
Full temporary functional deficit is compensated between € 600 and € 900 per month according to the Common Methodological Compendium.
198. CB466.

Mr Van Teslaar worked on the basis of an average of €750 per month, or €25 per day.
The next component is that of permanent functional deficit which Mr Van Teslaar explained as follows: [199]

Any functional deficit after the date of consolidation is deemed permanent. In theory it also includes loss of quality of life, post-consolidation pain and suffering, as well as difficulties encountered by plaintiff in his or her daily life, but in practice it is really the physical and psychological losses that are considered.
This head of injury is assessed by a doctor according to a scale going from 0% (no loss) to 100% (full impairment), usually using either of the two in words guidelines mentioned in paragraph 7.
With the percentage of functional deficit is determined [sic], a French judge can refer to one of the guidelines issued by the court of appeals. The 2016 Common Methodological Compendium, now the national guideline, sets out, page 55, a chart enabling [sic] to determine quantum of permanent functional deficit.
Each percentage point of deficit is given an average amount; said amount increases as the functional deficit is greater but decreases the older the plaintiff is.
For example, were Mr. Miller, aged 32, to have a 15% functional deficit, the average point would be determined by crossing the line that shows 11% to 15% with a column for people between 31 and 40 years. In this example, the result shows €2,090. A judge could grant around 15*2,090 = €31,350; this said, judges have a certain leeway to grant higher or lower figures as they deem appropriate.
If on the other hand Mr. Miller were deemed to have 18% functional deficit, according to the compendium the percentage point averages €2,330, hence a quantum evaluation of around 18*2,330 = €41,940.
199. CB468.

In terms of calculating the plaintiff’s entitlement to damages for temporary functional deficit, I accept that the date of consolidation is the date on which his disability is to be regarded as permanent. On the evidence before me that is 25 June 2013, that being the date on which the plaintiff was cleared by Dr Caldwell to return to playing competitive rugby league.
During the period 1 November 2011 to 25 June 2013 the plaintiff underwent three separate surgical procedures and I accept the submission of senior counsel for the defendant that it is appropriate to allow two weeks of total incapacity in respect of each operation, during which the plaintiff was 100% impaired, along with two additional weeks after the period of total impairment on the basis that the plaintiff would have been 50% impaired.
I adopt the €25 per day rate applied by Mr Van Teslaar and calculate damages under this head as follows:

100% x 14 (days) x €25 x 3 = €1050.

50% x 14 (days) x €25 x 3 = €525.

83 weeks = 581 days x €25 x 10% = €1,452.50.

In terms of the permanent functional deficit, the evidence of Mr Van Teslaar supports an approach which is adopted in this State when assessing the percentage of a most extreme case under the Civil Liability Act (2002) (NSW). Bearing in mind the evidence, I assess the plaintiff’s percentage as 28%. Given the age group of between 31 to 40 into which the plaintiff falls, his damages for permanent functional deficit would be based on a calculation of €2,810 as follows:

€2,810.00 x 28 = €78,680.

The next component of non-financial loss is the suffering which the plaintiff has undergone. In his report, Mr Van Teslaar said the following in respect of this component: [200]
200. CB467.

In France, doctors grade pain and suffering using a scale ranging from 0 to 7:
0/7: no suffering
1/7: very light
2/7: light
3/7: moderate
4/7: medium
5/7: fairly severe
6/7 severe
7/7 very severe
This scale differs from the one the victim uses when indicating his pain from 0 to 10.
…
The 2016 Common Methodological Compendium gives quantum ranges for these marks …:
1/7: up to €2,000
2/7: between €2,000 and €4,000
3/7: between €4000 and €8,000
4/7 between €8,000 and €20,000
5/7 between €20,000 and €35,000
6/7 between euro €35,000 and €50,000
7/7 between euro €50,000 and €80,000
Very exceptionally: €80,000 and more

On the evidence before me, I assess the plaintiff's pain and suffering at a moderate level, namely 3/7 and award the sum of €7,000.
The next component of non-financial loss is that of temporary aesthetic loss about which Mr Van Teslaar said the following: [201]

This head of injury compensates the temporary scars and burns of the plaintiff, but also the fact that he or she has had to use crutches, or has had to wear a cervical collar, a corset, etcetera [sic].
There is no clear way to determine what sum could be awarded. In the case of Mr. Miller, I would say, from my experience, that the figure would be between € 1,000 to €3,000.
201. CB468.

On the evidence before me, bearing in mind the plaintiff’s period of rehabilitation and the fact that he was reduced to using crutches for a period of time, I allow €1,500 under this head of damage.
The next component of non-financial loss is loss of amenity in respect of which Mr Van Teslaar said the following: [202]

The loss of the possibility to carry out an activity, or a hobby, confers to the plaintiff the right to seek compensation under this head of injury.
The amounts granted vary but depend mainly on how intensely the sport or hobby was carried out, and how many such activities the plaintiff had, if any. Usually a few thousand euros are granted. I'm not aware whether Mr. Miller did any sports or can no longer enjoy a prior hobby.
202. CB468.

Obviously, the plaintiff played rugby league but I have taken that loss into account when assessing damages for pain and suffering, as well as in terms of loss of earnings. In these circumstances, and mindful of not double counting, I do not propose to allow any sum for loss of amenity.

Loss of earnings

In respect of loss of professional income, Mr Van Teslaar said the following: [203]

Loss of income incurred as a result of the Defendant’s fault can be claimed.
The Particulars of Loss of Income of the Third amended statement of particulars indicate, paragraphs [sic] 3, that Mr. Miller has lost income in the amount of € 2,800 for six months, i.e., € 16,800. This amount would be due.
Paragraphs 4 and following of the Particulars of Loss of Income state that Mr. Miller was to be transferred to the English Super League, and then to the NFL, and his expected income until December 2017 [sic] set out.
I am not informed as to how certain the transfer to the English Super League and the NFL were, and if any negotiations with potential employers were underway.
Under French judicial practice it would be a matter of convincing the judge that the loss was certain in order to obtain the amounts claimed. Alternatively, the judge could deem that there was not enough proof that income was lost and discard the claim in excess of € 16,800.
The judge could also determine that there was a loss of chance that Mr. Miller would have earned the amounts claimed for the period October 1, 2012, to consolidation date. Such loss of chance could be compensated by providing part of [sic] amount claimed; as a percentage of the loss of income depending on the probability of a loss (e.g. 30% of the claim, or 50%, or 80%…).
203. CB463-CB464.

Subsequently, when dealing with the future loss of professional income, Mr Van Teslaar said: [204]

If we assume the plaintiff's career will not be as promising as it would have had the defendant not committed a fault (which we presume), then the plaintiff will possibly have lost future entitlements to his pension plan.
In France an employee must pay into mandatory retirement pension schemes.
The official retirement age in France is presently sent [sic] at 62, but it [sic] destined to change and will probably be nearer 65 or 67 when Mr. Miller retires. The Government has [sic] is currently contemplating enforcing legislation that will modify the retirement schemes.
The Cassation court has judged in [sic] various occasions that the lower courts had to determine the loss resulting from the lower pension annuity.
So an exact determination of said loss should be made, preferably with an expert report. In practice some courts either forget to grant it (in which case an appeal can be lodged), or conversely deem that the loss is more or less equal to the pre-retirement period, and hence calculate the loss of income as a life-long loss.
In the case of Mr. Miller I see a difficulty in determining his loss over a long period of time, since his professional career as a football would have ended well before retirement.
204. CB465.

I have set out in detail the evidence of the plaintiff’s career as a rugby league footballer. I am satisfied that the plaintiff was a player of above average ability and that but for the negligence of the defendant in carrying out the surgery which is the subject of these proceedings, the plaintiff would have had a career at a senior level. At the same time, the nature of rugby league as a sport is such that injuries will always present a risk. Those injuries can include career threatening injuries of varying kinds. It follows that in my view, a significant discount for vicissitudes must be applied when calculating any future loss.
The plaintiff’s evidence was that he intended to play seasons 2010 and 2011 in France, and/or the Super League, before returning to play in Australia from season 2012, with a view to retiring in season 2019. As I have noted, there is some evidence that Catalans was interested in securing the plaintiff’s services for season 2011. That did not materialise. I am unable to determine whether it would have done so but for the plaintiff’s injury.
For seasons 2011 and 2012, a period of two years, I propose to allow past loss at €2,800 per month.
I accept the plaintiff’s evidence that after two seasons in the Northern Hemisphere, it was his intention to return to Australia to play in the NRL for seasons 2013 to 2019. He has lost that chance. Mr Van Teslaar makes it clear that under French law, it is open to me to apply a discount to represent the loss. Accepting the evidence of Mr Portlock, the minimum salary for an NRL player at the relevant time was $110,000.00. Mr Hagan described the plaintiff as a “mid-range” player and said that this would have been reflected in his salary. Accepting that opinion, the plaintiff was an average, or slightly above average, player. In terms of the plaintiff’s loss of career as a rugby league player, I propose to adopt an average figure for the period of $125,000.00 per annum, which should be discounted by 25% for vicissitudes, which yields an amount of $93,750.00. Allowing for taxation this yields a figure of $1,300 net per week (rounded down) for the years 2013 to 2019, from which the amount earned by the plaintiff during that period as per his taxation returns is to be deducted. [205]
205. Commencing at CB139.
In terms of the future, I accept that but for his injury, the plaintiff would, in all probability, have pursued a career in the mining industry on and from 2019 onwards when he retired from football. I am fortified in that view by the evidence that other persons in similar positions to the plaintiff had pursued that career after retiring from football. The evidence of Mr Owen makes it clear that the plaintiff is unable to undertake that kind of work. The plaintiff’s most recent taxation return for the year ending 30 June 2017 shows a taxable income of a little less than $60,000.00. [206] That equates to a sum of approximately $941.00 net pw.
206. CB162
The evidence of Mr Ravagnani is that the salary for positions in the mining industry which the plaintiff might otherwise have pursued ranges from approximately $100,000.00 to $150,000.00 gross. [207] I propose to adopt a gross figure of $125,000.00 per annum, which equates to $1,706.00 net pw. The plaintiff’s future loss to age 65 (that being the lower point of Mr Van Teslaar’s range) is therefore $765.00 pw.
207. CB296

Past out-of-pocket expenses

Mr Van Teslaar refers to this head of damage as “current health expenses” in respect of which he said the following: [208]

A plaintiff is entitled to seek from the defendant the compensation of his out-of-the-pocket [sic] medical expenses which have not been paid upfront, or reimbursed, by a medical insurance or a state social security organisation.
In medical cases the recoverable amount of medical expenses is the additional expenditures resulting of the fault, if any, of the Defendant, not the medical costs which the prior medical condition of the plaintiff would have entailed anyway.
208. CB463.

I expect that the past out of pocket expenses will be the subject of agreement between the parties.

Future out-of-pocket expenses

In his report of 28 March 2019 Dr Millons expressed the view that the plaintiff “will have to consider” returning to Dr Caldwell for a knee replacement in 5 to 10 years. [209] His opinion did not go beyond that, and I am not satisfied that it is more probable than not that such surgery will be required. Accordingly, I do not propose to allow that sum.
209. CB274.
In his report, Mr Van Teslaar made reference to “future health expenses" in respect of which he said the following: [210]
210. CB464.

Future health expenses can be claimed.
If we take the Plaintiff’s claim ‘Particulars of continuing out-of-pocket expenses’ as set out in the third amended statement of particulars, and not calculating the one-time future surgical procedure, Mr. Miller has the following annual medical expenditures:
general practitioner:          $400.00
physiotherapy treatment:       $2,080.00
pain-killing analgesic:          $ 15 * 52 = $780.00
non-slip mattress:          $ 97 * 3/5 = $58.20
Total yearly cost          $3,318.20.
If the Plaintiff were 45 at the date of the judgment he could claim for his lifelong future medical expenses a sum in capital of $3,318.20*41.320 = $137,108.02.

The claims made by the plaintiff in these respects are not supported by the evidence, as indicated by the fact that the Schedule of Damages provided to the Court makes reference to an “estimate” of $50.00 pw. I have referred to evidence given by the plaintiff that he has taken anti-inflammatory medication from time to time. It is also conceivable that he will require attendances on medical practitioners from time to time. Doing the best I can, I allow $25.00 pw under this head of damage.

Sundry expenses

In his report Mr Van Teslaar explained that the plaintiff is entitled to “sundry expenses caused by the fault of the defendant". These expenses include what he described as “temporary carer need" in respect of which he said the following: [211]

In France there is no distinction between gratuitous carer need, and non-gratuitous assistance. In practise [sic] however, gratuitous assistance is compensated at a lower hourly rate.
In France it is the doctor that determines the hourly requirements per day or per week, and the compensation claim is then made on that basis. If the assistance actually given was in excess of what the doctor determines, then said excess assistance cannot be claimed. Conversely, if the doctor determines a certain number of hours of care help is needed, and such care wasn't provided at all, or not provided to the extent indicated by the doctor, the plaintiff is nevertheless entitled to claim compensation on the basis determined by the doctor.
In the case of Mr. Miller, I do not know what the doctors have determined was the care needed; I only have the care provided as indicated in the ‘Particulars of claim for domestic assistance or attendant care’ under the Third amended statement of particulars.
Amounts granted by courts in France for hourly rates vary between € 13 and € 24, though for pre-consolidation care by a family member the rate is more in the € 15/hour range.

211. CB463.

Mr Van Teslaar further stated, under the heading “Assistance by third party": [212]

For carer costs from the date of consolidation to the date of judgement, the amount awarded would probably be around € 15 per hour. However, for future care costs the amounts granted by the courts tend to be more around € 18 per hour.
…
If, for instance, the Court decided that plaintiff, aged 45 at the date of the judgement, was to be awarded 3 hours per week of care for his lifetime, we could expect an approximate award for that of 3 *52 * € 18 * 41.320 equals € 116,029 – though of course a judge has leeway to grant more or less than that amount.
212. CB465.

The plaintiff’s case in this regard is supported by the evidence of Anne Haron, occupational therapist, who has set out calculations based upon a history provided by the plaintiff. The plaintiff’s unchallenged evidence was that he was assisted by his mother following the surgery undertaken after his return to Australia. [213] He also stated that it is his intention to employ a cleaner “2-3 hours per week”. [214]
213. CB44.
214. CB45.
I accept the calculations of Ms Haron as to the past, as set out in the plaintiff’s Schedule of Damages. In terms of the future, I accept that the plaintiff will require some domestic assistance which I will allow at 2 hours per week.

CONCLUSION AND ORDERS

Having regard to the foregoing reasons, I make the following orders:

I enter a verdict in favour of the plaintiff.

I direct the parties to bring in Short Minutes of Order calculating the final judgment sum in conformity with this judgment.

I stand the matter over for further directions before me until 10 July 2020 at 9:30am.

I reserve all questions of costs pending further submissions from the parties.

**********

Endnotes

Decision last updated: 17 June 2020

Medium Neutral Citation:	Miller v Jones (No. 6) [2020] NSWSC 736
Hearing dates:	21, 22, 23, 24 and 25 October 2019
Date of orders:	17 June 2020
Decision date:	17 June 2020
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	(1) I enter a verdict in favour of the plaintiff. (2) I direct the parties to bring in Short Minutes of Order calculating the final judgment sum in accordance with this judgment. (3) I stand the matter over for further directions before me until 10 July 2020 at 9:30am. (4) I reserve all questions of costs pending further submissions from the parties.
Catchwords:	TORTS – Negligence by medical practitioner – Breach of duty – Where plaintiff suffered an injury to the anterior cruciate ligament of his right knee in the course of playing professional rugby league – Where the defendant was an orthopaedic surgeon who performed a reconstruction of the plaintiff’s anterior cruciate ligament – Where the plaintiff alleged the defendant breached his duty of care by performing the surgery in a suboptimal manner because of malpositioning of the graft – Standard of care expected of a reasonably competent orthopaedic surgeon – Breach of duty established TORTS – Medical negligence – Causation – Whether the breach of duty caused the plaintiff’s ongoing disabilities – Whether the breach of duty caused the plaintiff to lose an opportunity to pursue a career as a professional rugby league player – Whether an infection also contributed to the plaintiff’s ongoing disabilities TORTS – Negligence – Damages – Where damages were to be determined according to the law of France – Where the plaintiff lost an opportunity to pursue a career as a rugby league footballer – Where the plaintiff suffered non-financial losses – Where the plaintiff lost the opportunity to pursue a career in the mining industry PRIVATE INTERNATIONAL LAW – Torts – Where action brought in the Supreme Court of NSW arising out of an allegation of negligence which arose in the course of a surgical procedure carried out by the defendant in France – Consequent necessity to apply the law of France to both issues of breach of duty of care and assessment of damages
Legislation Cited:	Civil Liability Act (2002) (NSW)
Cases Cited:	Miller v Jones (No 3) [2019] NSWSC 1444 Miller v Jones (No 5) [2019] NSWSC 1448
Category:	Principal judgment
Parties:	Lucas Anthony Miller – Plaintiff Dr David Jones - Defendant
Representation:	Counsel: B Dooley SC and J Lee – Plaintiff A Bartley SC and J Layani-Ellis – Defendant Solicitors: Carroll and O’Dea Lawyers – Plaintiff Ken Cush and Associates – Defendant
File Number(s):	2015/124172
Publication restriction:	Nil