Paues v Battunga Country Lions Club - [2020] SADC 162

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PAUES & ORS v BATTUNGA COUNTRY LIONS CLUB
[2020] SADC 162
Judgment of His Honour Chief Judge Evans
20 November 2020
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES
The first and second plaintiffs, with their three children, attended the Macclesfield Gravity Festival in April 2014. The festival included a go-kart race along a 600m stretch of public road. The plaintiffs and their children watched the open class go-kart race from a position just past the finish line, behind bunting and bollards. A competitor in the open class race lost control of go-kart and collided with spectators, allegedly injuring the plaintiffs.
The first plaintiff claims damages for injuries to his right knee. Assessment of damages for injury and consequential losses, including non-economic loss, economic loss, past gratuitous assistance, future medical treatment, future services and special damages.
Damages assessed in the sum of $478,617.23.
The second plaintiff claims damages for injuries to her upper extremity (shoulder, elbow, wrist, hand and thumb), neck, back and right knee. Assessment of damages for injury and consequential losses, including non-economic loss, economic loss, past gratuitous assistance, future medical treatment, future services and special damages.
Damages assessed in the sum of $187,905.74.
Civil Liability Act 1936 ss 52(2)(a), 53(2)(c), 53(2)(d), 56, 58(1)(a), 66; Superannuation Guarantee Charge Act 1992 ; Superannuation Guarantee (Administration) Act 1992 , referred to.
Skelton v Collins (1966) 115 CLR 94; Butler v Egg & Egg Pulp Marketing Board (1966) 114 CLR 185; Todorovic v Waller (1981) 150 CLR 402; Nominal Defendant v Gardikiotis (1995-1996) 186 CLR 49; Packer v Cameron (1989) 54 SASR 246; Percario v Kordys (1990) 54 SASR 259; Paun v Kay [2001] SADC 144; Sprigg v Gawlick [1998] SADC 3952; Harradine v Bishop [2003] SADC 111; Burton v Grocke & Ors [2014] SADC 195; Collins v Hoffricter [2001] SADC 39; Medlin v State Government Insurance Commission (1995) 182 CLR 1; Eicas v Dawson [2016] SASCFC 124; Husher v Husher (1999) 197 CLR 138; Kirkemeyer v Griffiths (1977) 139 CLR 161; CSR v Eddy (2005) 226 CLR 1; Van Gervan v Fenton (1992) 175 CLR 327; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Kenny v Ritter [2009] SASC 139; Pantazis & Anor v Jezzina [2013] SADC 45; Salkeld v Cocca [2013] SASCFC 138; De Pascquale & Anor v Viet Thahn Bakery Pty Ltd [2012] SADC 121; Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649; Calvaresi & Rota Forma Pty Ltd v Lawson (1995) 184 LSJS 147; Cole v Ellis (1992) 60 SASR 481, considered.

PAUES & ORS v BATTUNGA COUNTRY LIONS CLUB
[2020] SADC 162
Contents
Introduction
The Incident
Claim by the First Plaintiff
Preliminary
Prior to the Incident
First Plaintiff’s Injuries
Medical Investigations, Examinations, Assessment and Treatment - Chronology
6 April – December 2014
January – May 2015
June 2015 - Trial
Causation

First Plaintiff’s Credit
Water Sports
Other Recreational Activities
Household Tasks
Work and other Activities
First Plaintiff’s claim that he limps
Recall of the Incident
No initial reports of pain
The First Plaintiff’s Work Capacity
Evidence of the First Plaintiff
Financial Records
Pre and Post Incident Analysis of Annual Sales Revenue
Defendant’s Analysis of Number of Jobs, Cost of Materials and Expenditure on Subcontractors
Cost of Materials and Expenditure on Subcontractors
The Plaintiff’s Submissions
Evidence of Mr Clifton
Evidence of Callum Dunlevey and Matthew Tansell

Conclusion
Assessment of Damages
Pain and Suffering and Loss of Amenities
Loss of Earning Capacity
Past Loss of Earning Capacity
Future Loss of Earning Capacity
Past Gratuitous Assistance
Future Services
Equipment
Special Damages
Future Treatment and Medical Expenses
Interest on Past Losses
Summary
Claim by the Second Plaintiff
Preliminary
Second Plaintiff’s Injuries
Prior to the Incident
Chronology of Medical Investigations
Medical Opinions
Dr Teh
Dr Bastian
Dr Jackson
Ms Morgan
Conclusion

The Credibility of the Second Plaintiff
Yoga Pose (Exhibit D38)
Wakeboarding (Exhibit D39)
Surveillance Footage
Surveillance Footage (Exhibits D34; D42)
Surveillance Footage of Various Activities (Exhibit D40)
Video (Exhibit D32)
Other Issues
Conclusion

Assessment of Damages
Pain and Suffering and Loss of Amenities
Loss of Earning Capacity
Past Loss of Earning Capacity
Future Loss of Earning Capacity
Loss of Superannuation Benefits
Past Gratuitous Assistance
Future Services
Equipment
Special Damages
Future Treatment and Medical Expenses
Interest on Past Losses
Summary

Judgment
Orders
Introduction

On 6 April 2014, the first and second plaintiffs with their two sons (the third and fourth plaintiffs) and infant daughter were spectators at a go-kart race at the Macclesfield Gravity Festival (‘the Festival’). The four plaintiffs claim they were injured when an out of control go-kart, Katapault (‘the kart’), broke through the bunting at the side of the course, at a speed of approximately 55 km/h and collided into spectators (‘the incident’). The plaintiffs claim damages for personal injuries and consequential losses arising from the defendant’s negligence. The defendant was an organiser of the Festival.
At the commencement of the trial, the defendant admitted liability in respect of their two sons (Cooper, then aged 6 and Chase, then aged 3). Consent orders were made in favour of the two children to reimburse various special damages and to allow for payment for certain future medical and educational expenses with liberty for them to apply for a final determination of their claims. The defendant also admitted liability in respect of the first and second plaintiffs subject to them proving injury and consequent loss. With the admission of liability by the defendant, the action against the second defendant (the Festival Co-ordinator and President of the defendant), third defendant (the Local Council) and fourth defendant (the driver of the kart) were discontinued.
The issues that were left for trial for both the first and second plaintiffs were causation and quantum of loss.
The first plaintiff claimed his right knee was injured during the incident. The second plaintiff claimed she suffered multiple injuries, including to her right hand, wrist, thumb, elbow, shoulder, knee, neck and back. At the outset, the defendant denied the plaintiffs’ injuries were caused by the incident.[1] The defendant denied that the first and/or second plaintiff were hit by the kart and in any event, denied that they sustained any injury as a consequence of the kart colliding into spectators.[2]
[1] Defendant’s Written Response to the Plaintiffs’ Written Opening.
[2] The defendant made a concession as to the tear in the First Plaintiff’s medial meniscus on the 14^th day of trial, T1094-1095; see [25] below.
The Incident
I make the following findings in relation to the lead-up to the incident and the incident itself.
Whilst on a family outing, driving through the town of Macclesfield in the Adelaide Hills, the first and second plaintiffs, with their three children, saw signage for the Festival and decided to come back later in the day to have a look. They arrived back at Macclesfield at about 2:00 pm.
The Festival included market stalls and various other attractions, with the main feature being a go-kart race. The ‘race track’ was located on a 600 metre long stretch of Vernon Street, a public road, in Macclesfield, which descended approximately 50 metres in altitude from start to finish.[3]
[3] Exhibit P1 p 49; p 132, Expert Report of Chris Hall, Hall Technical, Accident Reconstruction Engineer.
After looking around the Festival, the family made their way to the race track, taking up a position behind bunting and candle bollards, just past the finish line, at the junction of Parin and Vernon Streets.[4]
[4] T78-79; Exhibit P8.
Shortly before 3:00 pm, a competitor in the open class race crossed the finish line, lost control of the kart and crashed at a speed of about 55 km/h[5] into the crowd where the first and second plaintiffs and their children were watching the race.
[5] Exhibit P1, pp 128-142, Report of Chris Hall; Admitted subject to two qualifications during plaintiff’s opening, T24 line 36 – T25 line 33.
The first plaintiff’s last memory before the incident was seeing a kart come down the hill and hearing a tyre screeching. After that he remembered seeing Chase ‘helicopter’ across the road and hearing him screaming. He raced to help him by holding a cloth t-shirt to the gash across his forehead.[6]
[6] T80 lines 25-31; T83 lines 4-32.
The second plaintiff remembered the kart skidding and making a noise[7] but nothing else, other than seeing the kart swerve. She recalled that it happened so quickly it was almost like ‘a black out’. The next thing she remembered was the pram tipping.[8] She could not remember the impact.[9] She ran over to the pram to stop it from falling and to check Charli, who was strapped in the pram. She picked up Charli who was crying and then heard screaming from her two sons.[10] She did not know if the kart hit her. She did not think she lost grip of the pram, but assumed it was thrown from her arms because she recalled it being a distance away.
[7]    T437 lines 13-14.
[8]    T438, 444.
[9]    T444 line 13.
[10] T438.
The incident was captured on footage from two Go-Pro cameras on the kart.[11] The footage was disclosed to the plaintiffs by the defendant on the eve of trial. The second plaintiff could not bring herself to watch the Go-Pro videos, but she saw the still photographs taken from the footage.[12]
[11] Exhibits P3 and P5; still images from video Exhibit P2 pp 2-21; A spectator also had a video on her mobile phone of the out of control kart; Exhibit P7; still image from phone Exhibit P2 p 1.
[12] T438-452.
On reviewing the footage, it can be seen that the second plaintiff was standing to the left of the first plaintiff, holding a pram and gently rocking it back and forth. Charli (then aged 6 months) was in the pram.[13] The first plaintiff was standing immediately behind his two sons.[14]
[13] T437 line 18, T438 line 26; T441 lines 6-28.
[14] T79-80, Exhibit P5.
The two sons and the pram were hit by the kart. The second plaintiff kept hold of the pram which pivoted to its right as it was hit. She was not hit by the kart; the pram was. It was flung a few metres away from her. The pram was significantly damaged.[15]
[15] T466-468; Exhibit P9.
The first plaintiff leapt into the air and twisted as he landed. The pram then made contact with his right knee as the pram became sandwiched between him and the kart. When in the air, the first plaintiff’s right leg was bent to approximately 90 degrees at the knee, with his right foot flexed and hands outstretched. He twisted to the left and bent forward before landing on his feet.[16]
[16] See description of Exhibit P5 during Plaintiff’s Opening T30-31, 32 lines 25-28, lines 35-43 and Exhibit P2.
The two sons suffered significant facial lacerations and were taken to the Royal Adelaide Hospital via helicopter and then transferred to the Women’s and Children’s Hospital, accompanied by the first plaintiff. The second plaintiff went to the Women’s and Children’s Hospital by ambulance with their infant, Charli. The two sons underwent emergency surgery that evening.[17]
Claim by the First Plaintiff
[17] T86 line 8.
Preliminary
The first plaintiff claims damages for injuries sustained during the incident. He alleges he sustained injury to his right knee.
The main issues are the extent of the injury to the first plaintiff’s knee, the extent of the first plaintiff’s disability and the extent of his loss of earning capacity.
The medical evidence focussed upon three aspects of the first plaintiff’s right knee.
The first was a tear of the medial meniscus (as explained by Dr Bastian: the meniscus is a fibro cartilage that acts to take some of the weight of the joint like a buffer between the femur bone and the tibia bone, and also helps to spread the lubricant of the knee joint around the knee).[18] This was the subject of surgery in December 2014, including a partial meniscectomy (if there is a tear in the meniscus, part of that meniscus can be removed via arthroscope).[19]
[18] T749 lines 9-17; Dr Ling described the meniscus as a shock absorbing cushion in the knee which helps to distribute the force when weight-bearing and also helps the knee to track correctly; T126 lines 15-18.
[19] As explained by Dr Bastian: T750 lines 15-22.
The second was a tear of the lateral meniscus.
The third was moderate to severe chondral thinning of the medial compartment.
There was no dispute that the first plaintiff had a tear of the medial meniscus which required an operation in December 2014 and that, as at May 2015, there was a tear in the lateral meniscus and severe chondral thinning of the medial compartment.
The defendant’s case initially was that the first plaintiff did not suffer any injuries as a result of the incident; further, in any event, he exaggerated his symptoms and restrictions.
On the 14^th day of trial, the defendant’s position changed. During cross‑examination of Dr Jackson, the defendant conceded that the incident caused or relevantly contributed to the tear in the first plaintiff’s medial meniscus that was the subject of surgery on 2 December 2014, [20] but otherwise did not admit causation in relation to the other injuries which became apparent in 2015, and which were shown on a further MRI scan.[21] The defendant submitted that the injury, the subject of the 2014 surgery, had resolved by early 2015.
[20] T1077 lines 15-19 – Defence counsel stated that ‘the defendant accepts that the incident on 6 April contributed to the tear in Mr Paues’ meniscus that was repaired at surgery in December 2014’.
[21] 22 May 2015, Radiology Report, Exhibit P10 pp 142-143.
The defendant submitted the first plaintiff’s entitlement to damages was limited to damages compensating him for (1) a modest level of discomfort from April 2014 to the operation on 2 December 2014 (submitting his work history in this period demonstrated that any incapacity did not materially interfere with his ability to carry out his pre-incident duties); (2) the discomfort associated with the knee operation and (3) the discomfort that flowed for a short time after that operation.[22]
[22] Defendant’s written address [2.1] – [2.2].
The first plaintiff gave evidence. He called two sub-contractors (Mr Dunlevey and Mr Tansell); expert evidence from Dr Teh (general practitioner), Dr Ling (orthopaedic surgeon) who wrote two reports,[23] Dr Bastian (senior consultant in rehabilitation) who wrote two reports,[24] Dr D’Onise (occupational physician) who wrote one report,[25] Ms Morgan (occupational therapist) who wrote two reports[26] and Mr Clifton (forensic accountant) who prepared two reports.[27] The second plaintiff and her mother also gave evidence in relation to the first plaintiff’s claim.
[23] Medical reports of Dr Ling dated 22 September 2014 (Exhibit P10 p 1) and 26 November 2015 (Exhibit P10 p 7).
[24] Medical reports of Dr Bastian dated 12 August 2015 (Exhibit P10 pp 13-22) and 26 February 2019 (Exhibit P10 pp 26-35).
[25] Medical report of Dr D’Onise dated 3 May 2016 (Exhibit P10 pp 40-45).
[26] Medico-legal assessments of Ms Morgan dated 29 July 2016 (Exhibit P10 pp 50-77) and 14 March 2019 (Exhibit P10 pp 82-110).
[27] Reports of Mr Clifton dated 1 August 2017 (Exhibit P10 p 792) and 14 December 2018 (Exhibit P10 p 819).
The defendant called Dr Jackson (orthopaedic surgeon) who wrote one report.[28]
[28] Medical report of Dr Jackson dated 17 April 2018 (Exhibit P10 pp 114-125).
To put the main issues in context, it is necessary to address the evidence of the first plaintiff’s circumstances prior to the incident, set out the chronology of medical investigations, examinations, assessment and treatment and set out the chronology of his ongoing symptoms and incapacity. The credibility of the first plaintiff was challenged regarding the extent of his claimed injuries, the extent of his claimed ongoing disability and the claimed changes to the value of work undertaken by his business, Lay It On Floors and its use of subcontractors. The challenge in part relied on photographs and videos (including surveillance videos) of the first plaintiff engaged in work and recreational activities, on business records of Lay It On Floors and the evidence of various witnesses.
It was submitted that, the photographs and videos (including the surveillance videos), showed the first plaintiff performing certain activities or functions which were inconsistent with the history he had given, or the findings made by the various medical practitioners that had examined, assessed or treated him from time to time. In some cases, it was submitted, that undertaking the activities at all was inconsistent with the first plaintiff’s claimed symptoms and restrictions, and in others, it was the manner or way in which he performed the activities. The defendant also, in part, relied on various financial records of the business as to the nature of work undertaken and the use of subcontractors. The defendant submitted that the first plaintiff should not be accepted as a credible witness.
Following the incident, the first plaintiff was examined and assessed by four medical experts and an occupational therapist:
·       Dr Chee Vui Teh, a general practitioner.
He obtained his bachelor of medicine and a bachelor of surgery in 2005;
·       Dr Chi Meng Ling, the treating orthopaedic surgeon.
He holds a bachelor of medicine and a bachelor of surgery (1996) and is a fellow of the Royal Australasian College of Surgeons (2007);
·       Dr John Bastian, senior consultant in rehabilitation and musculoskeletal medicine.
He holds a bachelor of medicine and a bachelor of surgery (1986) and is a fellow of the Australasian Faculty of Rehabilitation Medicine. He is a senior consultant at the Hampstead Rehabilitation Centre and the Royal Adelaide Hospital;
·       Dr Roberto D’Onise, occupational physician.
He holds a bachelor of medicine and a bachelor of surgery (1999), is a fellow of the Royal Australasian College of General Practitioners (2005) and is a fellow of the Australasian Faculty of Occupational and Environmental Medicine;
·       Ms Anne Morgan, occupational therapist.
She holds a bachelor of applied science (1980) and is a long-time member of the South Australian Association of Occupational Therapists (1980).
The defendant called one medical expert, who had assessed the first plaintiff:
· Dr Robin Jackson, medico legal consultant, former practising orthopaedic surgeon.
He holds a bachelor of medicine and a bachelor of surgery (from the UK) (1963), is a fellow of the Royal College of Surgeons (London) (1970) and a fellow of the Royal Australian College of Surgeons (1974). He retired from surgery in 1996 and since that time has been involved in preparing medico legal reports. Since 2006 he has been the principal and director of Medico Legal Assessment Australia.
Prior to the Incident
The first plaintiff was born on 1 November 1977 and, at the time of the incident on 6 April 2014, was 36 years old. He was fit, strong, active and healthy. The first plaintiff married the second plaintiff in 2004. They had two sons, Cooper, born in February 2008, Chase born in November 2010 and a daughter, Charli born in October 2013.[29]
[29] T63-64; T426-427.
At the time of the incident the first plaintiff was operating his own commercial flooring business ‘Lay It On Floors’. He had a solid work history. After leaving school halfway through year 11, he was employed in various capacities including as a pastry chef/cake decorator, general hand at a timber supply yard and in sales/management at a recycling business. He began working in flooring installation at Carpet Choice, where he worked from about 2002 to 2004.[30] He started his own business in late 2004 as a sole trader.[31] From about 2010, the business was run through a partnership between the first and second plaintiffs.[32] The business was involved in the installation of commercial flooring, such as commercial vinyl, vinyl planks, Marmoleums, carpet tiles and dual-bond carpet. In about 2007, he took on his brother-in-law, Matthew Tansell, as a subcontractor.[33] The first plaintiff later expanded his business, taking on more work and engaging a further subcontractor, Scott Davies.[34]
[30] T66.
[31] T66-67.
[32] T162 line 14-31.
[33] T67 lines 37, 38.
[34] T67-68.

Before the incident the first plaintiff worked long hours; it was not unusual for him to work 12-16 hours a day, 80% of which was working on his knees.[35]
[35] T73 line 20.
The first plaintiff played football until 2008, would run 4-5 kilometres up to five nights a week, go to the gym and took part in a range of water sports, such as knee-boarding and water skiing.[36]
[36] T77 lines 12-30.
The first plaintiff had not had any problems with his right knee prior to the incident.[37]
[37] Medical Report of Dr Ling dated 22 September 2014, Exhibit P10 pp 1-4.
He had two prior injuries – one to his left foot and the other to his left knee. When he was about 17 he broke his left foot in three places when he came off a motorbike. He had his foot put in plaster and experienced no subsequent problems.[38] In relation to his left knee, he had an arthroscopy and a lateral muscle adjustment following football training. He had no problems with his left knee afterwards,[39] and he continued to play football until his first son was born, in 2008.[40]
[38] T76 lines 17-35.
[39] T76 line 15 – T77 line 11.
[40] T77 lines 14-20.
First Plaintiff’s Injuries
Medical Investigations, Examinations, Assessment and Treatment - Chronology
6 April – December 2014
The first plaintiff gave evidence he was not aware of any pain immediately after the incident as he was focussed on his two children who were his priority.[41] His children were discharged from hospital on 7 April 2014.
[41] T86 line 20, T201 line 21.
The first plaintiff gave evidence that on waking on Tuesday 8 April 2014, he felt like he had been hit by a truck.[42] He described aches and pains throughout his body, but predominantly in his right knee, like somebody had put a knife through the inside of it.[43]
[42] T86 lines 23-28.
[43] T86 lines 24-31.
On 8 April 2014, the first plaintiff saw his general practitioner, Dr Teh. He complained of feeling ‘stiff and achy’ and was concerned about pain to the medial side of his right knee. He did not report any locking, giving way or swelling. Dr Teh noted ‘very mild medial joint line tenderness at the insertion of medial collateral ligament’.[44] The McMurray’s test (a test for any potential injury to the meniscus in general) was negative, meaning there was no positive finding to suggest there was an injury.[45] Dr Teh’s assessment was a right medial collateral ligament strain.[46]
[44] Exhibit P10 p 132 Patient Health Summary.
[45] Ibid; T679.
[46] Ibid; T680 lines 3-11.
Between 17 April and 29 May 2014, on his own instigation, the first plaintiff attended four physiotherapy treatments on his right knee.
On 13 June 2014, the first plaintiff returned for a further appointment with Dr Teh. He gave a history of severe deep medial pain, needing to ‘crack’ the knee at times but no locking or giving way.[47] Dr Teh noted tenderness on palpitation of the medial joint line. The McMurray’s test was positive for medial meniscal injury.[48] Dr Teh referred him for an MRI scan.
[47] Ibid 133; T680 line 21 – T681 line 10.
[48] Ibid 133; T681 lines 13-27.
On 13 June 2014, the MRI scan revealed, in relation to the medial compartment, an extensive tear of the posterior horn of the medial meniscus (‘the 2014 MRI’).[49]
[49] Ibid 141; T681 lines 28-38.
On 14 June 2014, Dr Teh referred the first plaintiff to Dr Ling, an orthopaedic surgeon.
On 30 June 2014, the first plaintiff consulted Dr Ling. He reported ongoing pain with his right knee since the incident, but had been ‘putting up with it’ while dealing with his family’s injuries. More recently the pain had gradually worsened. He reported having good and bad days, but the bad days were becoming more frequent. As a commercial floorer, he spent a lot of time on his knees and working on his legs, which exacerbated the pain. He was particularly sore after a busy day at work. The physiotherapy helped maintain movement and strength, but did not really help his pain.[50]
[50] Medical Report of Dr Ling dated 22 September 2014, Exhibit P10, pp 1-4.
On initial examination, Dr Ling found he walked with a normal gait, had a good range of motion but marked tenderness in the medial joint line. His pain was exacerbated on McMurray’s testing. The MRI showed a complex tear of the medial meniscus. Dr Ling gave evidence that meniscal tears of this size do not heal, they only get worse; they cause mechanical pain and symptoms and without treatment they will not recover.[51] Dr Ling recommended an arthroscopic debridement as the medial meniscus tear was not likely to heal, and would likely progress.[52] It was a clinically significant tear.[53] It was an acute traumatic tear in keeping with the injury.[54] He did not consider the first plaintiff would be able to work at his full capacity given the size of the tear causing the pain in his knee.[55]
[51] T126 lines 19-22; Medical Report of Dr Ling, Exhibit P10 p 3 at [4]; see also evidence of Dr Jackson T1079 line 20 – T1080 line 34.
[52] Medical Report of Dr Ling, Exhibit P10 p 3 [5].
[53] T124 lines 27-38; Medical Imaging, Exhibit P10 p 141.
[54] Medical Report of Dr Ling, Exhibit P10 pp 2-3.
[55] Medical Report of Dr Ling, Exhibit P10 p 3.
In his report prepared prior to surgery, Dr Ling was hopeful that following surgery the first plaintiff would regain full function in his knee. He thought there may be mild aching and stiffness at the end of a busy day, but there should be no restrictions to his activity or work. He estimated it could take four to six months to make a good recovery and return to full unrestricted work. He was hopeful there would be minimal, if any, permanent disability.[56]
[56] Ibid 3-4 [4]-[8].
On 2 December 2014, Dr Ling performed a right knee arthroscopy which comprised a chondroplasty and partial medial meniscectomy.[57] His operation record described (1) a degenerate posterior horn medial meniscal tear, (2) minor chondral damage of the medial femoral condyle (damage to the smooth articular surface of the cartilage[58]) and (3) minor fraying of the anterior lateral meniscus (irregularity of what should otherwise be a smooth surface of the meniscus[59]). No surgical work was performed on the lateral meniscus.
[57] Exhibit P10 pp 7-10, 12F.
[58] T127 lines 17-21.
[59] T128 lines 1-8.
The expert witnesses called at trial watched the video footage of the incident,[60] and considered still images from the video. They all shared the opinion that the twisting of the first plaintiff’s body in the air, and his subsequent landing on the pavement surface, caused or materially contributed to the medial meniscal tear, which required the surgery performed on 2 December 2014.[61] Dr Bastian described the medial meniscal tear as ‘quite extensive and quite large’,[62] clinically significant[63] and expected it would produce pain and restriction.
[60] Exhibits P3, P5 and P2.
[61] Dr Bastian at T767 line 4 – T768 line 24, T770; Dr Ling at T897-900; Dr D’Onise at T942-944; Dr Jackson agreed that the most common mechanism of a tear is a rotation or twisting injury, usually under pressure, T1053 line 36 – T1054 line 1.
[62] T747 lines 3-15.
[63] T749 lines 18-20.
According to Dr Ling, the first plaintiff recovered very well from surgery. He was mobilising well and had already gained a full range of motion at his post-operative review, shortly after the operation in December 2014. Dr Ling encouraged him to continue icing and resting the knee to try and reduce any swelling or aching and to gradually increase activity as comfort allowed. He encouraged him to continue with simple exercise to build up strength and confidence in the knee.[64]
January – May 2015
[64] Medical Report of Dr Ling dated 26 November 2015, Exhibit P10 p 8 [2].
The first plaintiff gave evidence he had a slight improvement after the surgery, but upon his return to work in mid-January 2015, he struggled to do ground work, was not as productive on jobs and the aching/stabbing pain came back; it did not feel like it was getting any better.[65] He reduced his working hours but his knee got progressively worse.[66]
[65] T96-97.
[66] T97 line 15, T158 line 7.
On 11 May 2015, Dr Ling reviewed the first plaintiff, who reported doing very well, that he had returned to work and everyday activities. He also reported that about a month prior he was having increasing pain going up and down stairs and it was worse with twisting activities. It was more of a sharp type pain. The first plaintiff denied any trauma or other precipitants apart from returning to work and doing a lot of bending and kneeling. He had ongoing tenderness in the joint lines and the pain was exacerbated on McMurray’s test. Dr Ling sent the first plaintiff for a repeat MRI scan.[67]
[67] Medical Report of Dr Ling dated 26 November 2015, Exhibit P10 p 8 [3].
On 22 May 2015, a further MRI was performed (‘the 2015 MRI’). According to the radiology report, the scan showed moderate to severe chondral thinning in the medial compartment and a complex tear of the lateral meniscus with parameniscal cyst.[68]
[68] Exhibit P10 pp 142-143.
On 25 May 2015, Dr Ling reviewed the first plaintiff. Because the complex tear of the lateral meniscus was giving him ongoing symptoms and pain, Dr Ling recommended further surgery in the form of a repeat arthroscopic debridement and partial lateral meniscectomy of the knee followed by further physiotherapy.[69] The first plaintiff chose not to undergo that surgery.[70]
June 2015 - Trial
[69] Exhibit P10 p 9 [6].
[70] T98 lines 24-32; History given to Dr Bastian, Exhibit P10 p 27.
On 12 August 2015, the first plaintiff was assessed by Dr Bastian. He reported that his knee felt a little better over the first six weeks after the surgery, but it then deteriorated. He reported that his knee pain was worse than prior to surgery. He was experiencing constant aching pain, more over the medial and anterior aspect of the knee, which was clicking, and occasionally partially gave way. At times, he would limp. His right knee pain increased if he walked for long periods, and at work within 3-4 hours. He struggled with crouching and kneeling. He could not really run. He was waking at least two or so times a night with right knee pain. Kicking a ball with his children increased knee pain. He would take up to four Panadol or Nurofen tablets on working days.[71]
[71] T751; Report of Dr Bastian dated 12 August 2015, Exhibit P10 pp 16-17.
Dr Bastian’s examination of his right knee revealed flexion of 125 degrees, with about eight degrees loss of extension. There was tenderness or mild tenderness over the medial and lateral joint margins and reported discomfort on the McMurray’s test. There were no non-organic findings on examination. The first plaintiff gave evidence he still had ongoing pain at that stage, including a stabbing pain. He was also getting aching pains when he was trying to sleep. He was taking Panadol and Nurofen. The knee had ‘let go [on] me a couple of times’.[72]
[72] T99 lines 1-28.
On 4 April 2016 and 21 July 2016, the first plaintiff was seen by Ms Morgan, an occupational therapist. The first plaintiff reported that his right knee had not changed overall in the past six months. It was worse when he had a busy week at work. It would throb and ache inside the medial aspect of the joint, about five nights per week, which would wake him a few times during the night. He had sharp right knee pain after walking for an hour, driving for about 20 minutes, or standing still for 20-60 minutes. It was more painful negotiating steps, stairs and soft sand. He denied any falls and he had rare ‘giving way’ of the knee going upstairs.[73] He had more marked morning stiffness and more pain sitting with his leg fully extended. He needed to spend much more time resting over the weekend to recover in order to manage the next working week.[74]
[73] Report of Ms Morgan dated 29 July 2016 p 3; Exhibit P10 p 52.
[74] Ibid.
On 3 May 2016, the first plaintiff was seen by Dr D’Onise.[75] He reported an intermittent ache in the anteromedial part of the right knee present most of the time, at least 85% of the day and on a daily basis. Sleep was impaired after a heavy work day because of an increased level of pain. The pain was aggravated by kneeling, squatting, lunging and heavy lifting. Pain relieving medication improved his symptoms.[76] On examination, there was tenderness in the anteromedial part of the right knee. The McMurray’s test was negative. There was pain on compressing the patellofemoral joint. He had a normal gait and no swelling.[77]
[75] Report of Dr D’Onise dated 3 May 2016, Exhibit P10 pp 40-45; T953.
[76] Ibid 41.
[77] Ibid 42.
On 12 April 2018, the first plaintiff was assessed by Dr Jackson.[78] He reported he had minimal symptoms for about 15-20% of the time. For the remaining 80% of the time, he reported there were variable levels of pain in the knee. When pain levels were at the maximum, he continued to go to work, but only supervised. The knee did not appear to swell, but did give way on him. He did not describe locking. He had difficulty kneeling and crouching. He had problems negotiating stairs, hills, slopes, rough and uneven ground, or when attempting cycling. His water skiing was very limited. Running always aggravated his knee. His sleep pattern was variable, he could experience either an aching pain or a sharp pain. On examination, Dr Jackson noted a slightly antalgic gait on the right side. He demonstrated an ability to individually weight-bear on the right and left legs, with some pain reported on the right side. He reported pain when attempting to walk on his heels or toes, and was only able to perform a quarter squat. With respect to the right knee, there was anteromedial and medial joint line tenderness with a movement range of 0-130 degrees.[79]
[78] Report of Dr Jackson dated 17 April 2018 p 7, Exhibit P10 p 114-122.
[79] T1111 line 25 – T1112 line 16.
On 19 February 2019, the first plaintiff reported to Dr Teh that he still had pain over the medial side of the joint and occasional stabbing which was worse when he flexed his knee over 90 degrees. His knee occasionally gave way and the knee pain was worse after working long hours at work. There was some moderate swelling and pain in the knee. The McMurray test was weakly positive, which meant there was still irritation in the meniscus.[80]
[80] Notes of Dr Teh; Exhibit P10 pp 143D-143E; T686 line 28 – T687 line 30.
On 26 February 2019, the first plaintiff reported to Dr Bastian escalating pain in his knee at work, which could become quite severe at the end of his working day. He was taking up to eight Panadol or Nurofen a day. He reported almost constant aching pain over the medial aspect of the right knee. Dr Bastian noted the mention in the material of a lateral meniscal tear, but said his symptoms appeared more medial joint orientated. The right knee would swell at the end of the day. It had given way and on one occasion he fell over a table. The pain in his knee increased if static standing for more than an hour, walking for more than one kilometre and descending stairs. He struggled with crouching and kneeling. When going down to low levels, he would place his right leg out sideways or sit on the floor. After a short run, he would start limping. Walking with his right leg externally rotated helped with the pain. Right knee pain woke him up to four times per week. He was only able to go wakeboarding once briefly per trip then would have to stop due to increased pain.[81] On examination, he was very tender over the medial joint margin and over the inferomedial aspect of the patella. The McMurray’s test resulted in pain and clicking in the medial aspect of the knee.[82] His gait pattern on that day was quite abnormal. He was tender over the medial joint margin, which was consistent with the underlying injury.[83]
[81] Ibid 30-32.
[82] Report of Dr Bastian dated 26 February 2019, Exhibit P10 pp 28-30.
[83] T755 lines 8-17; T759-760.
On 27 February 2019, the first plaintiff was reassessed by Ms Morgan.[84] The first plaintiff felt he had deteriorated over the previous six months, as he was now more aware of more continuous right knee pain. He had aching pain over the medial knee and dorsal calf pain. He had stabbing twinges of medial knee pain when getting up and down from sitting, driving and sitting for extended periods. He had aching pain at night. The pain increased with carrying, steps, stairs, getting up or down from low postures and standing/walking. The right knee had given way three times in the past six months when getting up from sitting. He had morning stiffness in the knee and after sitting when he gets up. He spent a lot of time resting seated at the weekends.
[84] Report of Ms Morgan dated 14 March 2019, Exhibit P10 pp 82-84.
At trial, the first plaintiff gave evidence that since seeing the doctors in 2015 and 2016, he believes, if anything, his condition has worsened and he lives with a consistent ache or pain every day.[85] He avoids stairs, and ‘up and down stuff’ like gluing at work.[86] He tried going back on his bike but has not maintained that.[87] He was having pains on the medial side of his right leg, which varied from day to day. He said it was unbearable, some days difficult to walk on and he limps severely. On other days, he feels as if he could go for a run, but he knows the consequences if he did that. The daily pain is ‘like somebody sticking a knife in the inside of his knee, on the inside of the leg’. At night he wakes several times, about two or three times a week.[88] He has not noticed any swelling. The knee has given way several times.[89] When he is kneeling, the pain occurs getting up and down. Squatting is very uncomfortable. He self-medicates with glucosamine tablets, Panadol, Nurofen, Panamax and Panadol Osteo.[90]
Causation
[85] T102 lines 17-23.
[86] T102 lines 31-38.
[87] T172 line 19.
[88] T182 lines 20-35.
[89] T183 lines 2-13.
[90] T184 lines 1-16 – T185 line 20.
The first plaintiff contends he sustained a traumatic injury to his right knee (the medial meniscal tear and the lateral meniscal tear) from the incident and that his knee has suffered the ravages of post-traumatic degenerative change within the knee joint, with loss of cartilage of the medial femoral condyle (the chondral thinning of the medial compartment visible on the 2015 MRI). He contends that but for the incident, he would be working without restriction.
During the trial, the defendant conceded that the incident caused, or materially contributed to, the tear of the medial meniscus that was the subject of surgery on 2 December 2014.[91] The defendant submits that any symptoms suffered by the first plaintiff from early 2015 are solely attributable to the complex tear of the lateral meniscus first detected in May 2015 and further, the complex tear of the lateral meniscus cannot be attributed to the trauma of the incident.[92]
[91] T1077 lines 15-19 – Defence counsel stated that ‘the defendant accepts that the incident on 6 April contributed to the tear in Mr Paues’ meniscus that was repaired at surgery in December 2014’.
[92] Defendant’s Written Closing Address [2.3].
The defendant also submits that even if the chondral thinning was attributable to the incident, it is not the cause of any claimed ongoing disability.
One of the main issues raised by the defendant is whether the first plaintiff has proved the complex tear of the lateral meniscus was caused by the trauma of the incident.
The defendant submits the first plaintiff has not discharged his onus of proof on this topic. He relies upon Dr Ling’s evidence that it is ‘equally as possible’ that the damage in the lateral compartment is the result of the natural degenerative change as it is to be related to the trauma of the incident.[93] Following from this, the defendant further submits that the first plaintiff’s ongoing disability, if any, is due to the lateral condition of his right knee, not the trauma-related medial injury, and therefore his claim must fail.
[93] Ibid [2.15].

I consider the tear of the lateral meniscus observed on the 2015 MRI can be traced back to the 2014 MRI and the 2014 surgery.
The 2014 MRI report for the lateral compartment of the right knee stated that ‘there is degenerative signal in the meniscus anteriorly but in addition there is a small irregular parameniscal cyst suggesting there is likely a small tear here’.[94] Dr Ling explained that the radiologist was unable to find enough signs to meet their criteria to call it a tear, but there were signs that indicated an abnormality in the lateral meniscus.[95] The cyst was next to the meniscus but on the outer surface of it. A cyst is formed because of a breach in the integrity of the meniscus, which allows fluid from the joint to enter the meniscus and form a balloon sack.[96]
[94] Exhibit P10 p 140.
[95] T126 lines 7-14.
[96] T892 lines 2-8.
The cyst reported in the 2014 MRI was in the same area in which Dr Ling noticed minor fraying during the arthroscopy on 2 December 2014.[97] Dr Ling explained that fraying is an irregularity of the surface. The meniscus ‘should be a smooth structure, fraying signifies that there is fibrillation or irregularity of the surface usually due to some form of trauma or damage’.[98] There was no surgery performed on the lateral compartment. There was no complex tear then present.[99] Dr Ling gave evidence that the fraying was noted at the time for completeness, but as it was minor, ‘we don’t usually treat it if it doesn’t need to be’.[100] He did not observe the cyst during the 2014 surgery, but ‘if it is very small, it cannot be seen’.[101]
[97] T892 lines 19-23.
[98] T128 lines 5-8.
[99] T907 line 16.
[100] T907 line 36.
[101] T908 line 14.
In turn, the minor fraying observed during the arthroscopy was in the same location as the lateral meniscal tear identified in the 2015 MRI.[102]
[102] Dr Ling at T892 line 23; Dr D’Onise at T950 line 30; Dr Bastian at T753 line 14.
In his closing submission,[103] the defendant relied heavily upon the following exchange with Dr Ling during cross-examination. The minor fraying referred to in the first question is the fraying in the lateral compartment seen at the time of the 2014 surgery:[104]
[103] Defendant’s Written Closing Address [2.15]; T1351 line 28, 1359 line 7.
[104] T908 line 7 – T910 line 10.
QIs [the] minor fraying you saw at the time of the first procedure … more likely than not the result of degeneration.
AWell it's hard to say whether that was there before or not. Looking back at the MRI scan, it's suggested that there may be a little cyst suggesting that there could be a possible tear, it was not evident at the time of surgery but if it is very small it cannot be seen and actually looking in retrospect now the development of the complex cyst has progressed - sorry, complex tear had progressed in the second MRI, you could assume that that fraying happened at the same time so the tear might have been a very small tear which just presented as fraying at the time of the initial injury but was not as large as the complex tear on the medial side initially, and thus was not noted. But in the following 11 months or so, that fraying has progressed to a tear.
QI see, it is possible, is it not, that the initial fraying observed at the operation was the result of degenerative change.
AIt could be.
QEqually as possible.
AIt could be equally as possible.
QIt is as equally as possible is my proposition.
AIt could equally be possible that it could have been there before, yes.
QYes, thank you. And then the presence of the cyst itself is indicative, is it not, of a degenerative change occurring in that part of the knee.
AThe cyst is only indicative that there is a breach in the meniscus, it doesn't actually signify what the cause of that initial breach was.
QAnd the complex tear that was observed rather on the MRI test or rather than a report that we've looked at, that is equally as likely to be the result of natural progression of degenerative fraying as it is likely to be attributable to the initial trauma.
AThat's correct. Once the fraying has started from whatever the cause, the progression is that it can develop into a complex tear.
QBut that development is equally likely to be the consequence simply of a progress of degenerative change as it is to be causally related to the trauma.
AYeah, as I said, once the fraying and tearing has started, regardless of the cause, the progression is that it can progress to a complex tear. So it's equally as likely, depending on the - regardless of the initial cause.
QEqually as likely.
AEqually as likely.
The defendant submitted the evidence from Dr Ling is unequivocal, such that the only finding open on the evidence is that the first plaintiff has failed to discharge the onus of proof to establish a causal connection between the complex lateral tear (which the defendant says is productive of the ongoing claimed symptoms and consequent claimed loss) and the trauma of the incident.[105] Non‑traumatic degenerative change was equally as likely to be the cause of the complex lateral tear as the trauma of the incident.
[105] Defendant’s Written Closing Address [2.15], [2.16].
On one reading of that passage of transcript, it could be said that the effect of Dr Ling’s answers in cross-examination is as suggested by the defendant. However, on a consideration of Dr Ling’s evidence as a whole, I do not consider that is so.
The initial question in cross-examination focussed upon the minor fraying observed by Dr Ling during the 2014 surgery. Dr Ling’s answer was to the effect that the minor fraying he observed needs to be considered in the context of the earlier and subsequent MRI reports. The presence of a cyst in that location in the 2014 MRI suggests the possible presence of a tear at that time. Intraoperatively, there might have been a very small tear, which presented as fraying at the time of the initial injury. It was not noted as a tear. It progressed to a complex tear visible on the 2015 MRI.
Significantly, Dr Ling gave evidence in re-examination, in relation to the lateral meniscus area, that there were no other signs of degeneration in the right knee as might be expected if the fraying was degenerative:[106]
[106] T933 lines 1-26, T934 line 13.
QIt was put to you whether that could be equally possible to have been present before the accident. Do you recall that.
AYes.
QIf there was anterior fraying due to degeneration before the accident would you expect to see other areas of fraying.
OBJECTION: MR TRIM OBJECTS
QUESTION ALLOWED
QDo you remember the question.
AYes.
QI was asking you would you expect to see other areas or signs of degeneration in that area if it was a degenerative fraying.
AYes, there can be other signs of degeneration in that compartment such as damaged - so fraying of the actual cartilage on the bones or in other parts of that same meniscus.
QIn this case did you see that kind of evidence.
ANo, I did not note. I did not make any note of that in my records or operation note.
…
[Dr Ling was then shown page 12G of Exhibit P10 – a page of operation photographs]
…
QAgain do we see any signs intraoperatively of those degenerative features that would suggest that this is a degenerative type fraying as opposed to a traumatic type fraying.
AOn the image labelled on the bottom right which is IMG_008 that is an image of the lateral side where the fraying was. I do not note any other signs of degeneration in that lateral compartment.
QSo when giving your opinion as to whether this is a fraying of a degenerative character or traumatic character that is quite relevant.
AIt's impossible to say whether it does but there are no other features here on that image to suggest that there are any other signs of degeneration in that side of the knee.
The defendant is critical of Dr Ling’s answers in re-examination and submitted that relevantly they are confined to what was seen intraoperatively and they ignore the results of the 2014 MRI.[107]
[107] Defendant’s Written Closing Address Appendix A p 8.
The first difficulty with that criticism of Dr Ling’s evidence in re‑examination is that the defendant sought, in cross-examination, to have the first plaintiff’s experts defer to Dr Ling on this issue, on the basis that Dr Ling had the advantage of performing the operation. Here, the defendant seeks to criticise Dr Ling’s answers for his sole reliance on his interoperative observations.
Second, even if Dr Ling’s answers in re-examination are limited to what he observed intraoperatively, he had earlier addressed the absence of signs of degeneration, on the 2014 MRI, and expressed the same opinion:[108]
QIn your report you refer to an acute tear. How do you differentiate between an acute tear and a chronic tear.
AA tear which is chronic or degenerate tends to have different changes in the signal, there's more fatty change on the MRI scan, there tends to be more extensive fraying or degeneration noted on the MRI scan whereas [an] acute tear, there may be fraying and quite extensive change but you do not get the signal alteration of what they call fatty change or degenerative change which is an MRI finding.
QThose indicators of degenerative change weren't present on the MRI.
ANot on the initial MRI, no.
[108] T126 lines 23-35.
Dr Ling’s evidence was clear that there were no other indicators of degenerative change present on the 2014 MRI, nor was there evidence of widespread deterioration or degeneration of the knee intraoperatively.[109]
[109] T132 lines 26-29.
The defendant also interprets Dr Ling’s answer, in re-examination, starting with the phrase ‘it’s impossible to say’ as confirming his position in cross-examination on causation. In my view, looking at the minor fraying observed intraoperatively in isolation, it may well be impossible to say whether it was the result of degeneration or the trauma of the incident. However, the minor fraying needs to be considered in its context. That context is the absence of any other indicators of degenerative change on the 2014 MRI and intraoperatively, together with the rapid rate of progress to a complex tear by the time of the 2015 MRI.
Dr Jackson made some concession about the need to have regard to context in considering the cause of the lateral tear.
He gave evidence that relying on the radiologist’s report for the 2014 MRI, there is likely to be a small tear because cysts are commonly associated with a tear.[110] He said, however, that he thought a parameniscal cyst would only ‘very, very remotely’ be due to trauma, and that it would generally be associated with degenerative change.[111] In his closing submission, the first plaintiff submitted Dr Jackson was prepared to concede that a parameniscal cyst could be related to trauma.[112] That concession was at most a marginal concession.[113]
[110] T1089 line 16-27.
[111] T1087 lines 10-15.
[112] Outline of First Plaintiff’s Closing Submissions [144.4], referring to T1087 line 14.
[113] T1087-1088.
In this aspect of his evidence, Dr Jackson was overly emphatic and definite. He did, however, state that when he was making an assessment of whether the cyst was related to trauma or degenerative change, he would look for other changes in the meniscus rather than just the cyst to see if there were any other indications of degenerative change.[114] There were no other reported signs of degeneration on the 2014 MRI.
[114] T1088 lines 2-6.
Dr D’Onise had regard to the lateral tear in its context when considering causation. He did not agree with the defendant’s suggestion that the complex lateral tear was equally as likely to be the progress of degenerative change as related to trauma.[115] He said he could not choose either option with complete certainty but there has been a ‘fairly rapid progression of that lateral meniscus in the time between the first MRI and the arthroscopy. Five months has evolved between some fraying and a complex tear’.[116] He went on to say that ‘if related to the natural progression of degeneration relating to work that started when he started working in that job, I would expect that degree of fraying to be more advanced at the time of the first event’.[117] In his opinion, ‘once the fraying has started there is an accelerated degenerative process, and I think that that rate of progression of that knee that led to the multiple – the complex tear on the second MRI was more than just a natural progression of a degenerative knee in the absence of trauma’.[118] He gave evidence he ‘would expect’ that Dr Ling, the person who had visually inspected the knee joint, and performed the surgery was in the best position to make that comment.
[115] T963 line 37 – T965.
[116] T965 lines 9-13.
[117] T965 line 37 – T966 line 3.
[118] T966 lines 3-8.
I do not accept that the surgeon is necessarily in a better position to make comment on this issue of causation regarding the complex tear in the lateral compartment. Dr Ling’s focus during surgery in 2014 was to repair the tear in the medial compartment. He did not operate on the lateral compartment. Further, the surgery was at a fixed point in time. The complex lateral tear was not then present. Dr Ling did not inspect the knee joint after the complex tear had developed, there was no second operation. In any event, Dr Ling’s evidence when considered as a whole was not inconsistent with the opinion expressed by Dr D’Onise, that the rate of progression that led to the complex tear on the 2015 MRI was more than just a natural progression of a degenerative knee in the absence of trauma.
I pause here to address one of the closing submissions made by the defendant. It was contended that the first plaintiff was likely to advance an argument that the cause of the first plaintiff’s ongoing disability is the sequelae of his arthroscopy from which he did not make a full recovery.[119] It was said that the first plaintiff did not put that to Dr Ling, namely, that his progress post-arthroscopy was such as to indicate his prognosis had not been borne out.[120] It was submitted that because the issue was not raised with Dr Ling in examination-in-chief, it was never agitated in cross-examination which would be sufficient to prevent the first plaintiff from relying upon the contention.[121]
[119] Defendant’s Written Address [2.5], referring to the cross-examination of Dr Jackson at T1125-1129.
[120] Defendant’s Written Address [2.17], [2.22], [2.23].
[121] Ibid [2.24].
First, I do not consider Dr Ling’s evidence was that the first plaintiff made a full recovery from surgery. In his report in September 2014, he said it could take 4-6 months to make a good recovery. He was hopeful that the first plaintiff would regain full function of the knee. He may have some mild aching and stiffness at the end of a busy day. He thought there should be no restrictions to his activity or work following the surgery. He was hopeful that there would be minimal, if any, permanent residual disability’.[122] That was his prognosis. He reviewed the first plaintiff approximately five months after surgery. The first plaintiff reported doing very well, having returned to work and every day activities, but one month prior to the review, he started noticing increasing sharp pain going up and down stairs or with twisting activities. On examination, he had ongoing tenderness.[123]
[122] Report of Dr Ling dated 22 September 2014, Exhibit P10 p 3 [4].
[123] Report of Dr Ling dated 26 November 2015, Exhibit P10 p 8 [3]; on McMurray’s testing the pain was exacerbated. Dr Ling sent him for a repeat MRI Scan – the 2015 MRI.
Secondly, I do not consider the first plaintiff has suggested that the arthroscopy did not achieve what it was meant to achieve, namely, the removal of the tear in the medial meniscus. The surgery went as expected. That is a different concept to having ‘a good outcome’, as described by Dr Bastian. As an occupational physician, Dr Bastian has a different skill set from Dr Ling because of his extensive experience in post-operative rehabilitation. Dr Bastian said in evidence:[124]
A... I think one can have a very good outcome and one can have a poor outcome. I run the post-operative rehab knee unit at Hampstead and some clients have good outcomes and some clients have bad outcomes. If this client had come to me with no knee pain after surgery I would have cleared him fit for his normal duties but advised him that long-term it wasn't an ideal job for his knee. In this case he had a poor outcome after surgery and in 12 months the repeat MRI showed very significant deterioration in that knee. It's not black and white.
[124] T786 line 33 – T787 line 5.
Finally, the cross-examination of Dr Jackson, from which the defendant anticipated the first plaintiff might advance the contention not put to Dr Ling,[125] was not about the first plaintiff’s ongoing symptoms being a sequalae of the arthroscopy from which the first plaintiff did not make a full recovery. Rather, it was on the topic of ‘altered biomechanics’ of the knee.[126] The questioning of Dr Jackson was focussed upon putting to him a proposition that the removal of material from the knee in an arthroscopy alters the biomechanics in the knee. Dr Jackson agreed that the biomechanics of the knee is changed after taking out part of the meniscus, although he said the degree of deterioration will depend on the degree of alteration.[127] He accepted that the surgery in December would affect the biomechanics of the knee.[128]
[125] Defendant’s Written Address [2.17].
[126] T1125-1129.
[127] T1103 lines 20-31.
[128] T1123 lines 1-14.
The topic of ‘altered biomechanics’ had been the subject of evidence from Dr Ling in the context of the occurrence of a traumatic injury. The following exchange occurred during examination-in-chief of Dr Ling:[129]
QIs this type of injury that Mr Paues suffered associated with a risk of an advanced degenerative change.
AAny traumatic injury to the joint can do damage to the cells which then can lead to a post-traumatic degenerative change.
QIn your clinical experience, can an injury of this type also be associated with altered biomechanics, the way that the knee functions.
AYes, if the knee is painful or there is tears which have affected the flow of the knee, then it can affect the way people walk or the biomechanics of how one mobilises.
QCan that also contribute to the fraying that we see on the MRI imaging.
AIt may not cause it but it can exacerbate it. So if you're not walking normally, things are not gliding as smoothly and then therefore they can catch more readily.
[129] T893 lines 16-34.
It is the case that there was no evidence from Dr Ling on the topic of altered biomechanics of the right knee arising from surgery. Nor was that surgical aspect of the concept of altered biomechanics specifically addressed in evidence led from the other expert witnesses called by the first plaintiff. Further, the first plaintiff did seek to make a point about the surgery and altered biomechanics, submitting in closing that the second of three critical features was ‘the accident necessitated the removal of meniscal cartilage which has the effect of changing the biomechanics of the knee’.[130]
[130] Outline of First Plaintiff’s Closing Submissions [163].
The focus of the evidence from the experts called by the first plaintiff, was that the biomechanics of the knee was altered by the trauma of the incident. The absence of evidence led from expert witnesses called by the first plaintiff, on the alteration of the biomechanics of the knee arising from surgery, has to be understood in the context of how the trial unfolded. It was not until partway through the cross-examination of Dr Jackson that the defendant made the concession that the incident had relatively contributed to the injury to the medial compartment of the right knee, which required surgery. Up until that point, the first plaintiff was facing a defence that the injury to the right knee, and any ongoing symptoms were not caused by the incident at all.

It was uncontroversial that the surgery involved the partial removal of the meniscus of the right knee. Dr Ling gave evidence about the surgery he performed. He removed the torn cartilage back to a healthy base or stable margin where there were no further tears. It was not replaced. Immediately above where it was resected, there was irregularity of the articular surface which was the chondral damage. It was in the centre of the top bone, or the centre of the medial femoral condyle in line with the meniscal tear. The only way to treat that damage was ‘to try to smooth any irregularity to reduce any loose edges because any loose edges can be caught and that increase[s] the size, but it can’t be repaired and it cannot be replaced’.[131] No criticism was made of the surgery during the trial.
[131] T131 lines 10-33.
Having considered the evidence about the alteration of the biomechanics of the knee generally, it logically follows that the biomechanics of the knee would be altered by such an arthroscopy. Part of the meniscus is removed and the cartilage resected. That is a different concept from any suggestion that the first plaintiff’s ongoing disability was the sequelae of his arthroscopy, from which he did not make a full recovery.
Further, I have taken the first plaintiff’s closing submission about the second of three critical features (that ‘the accident necessitated the removal of meniscal cartilage which has the effect of changing the biomechanics of the knee’) as emphasising the first of those three critical features, namely, that there was an accident capable of causing meniscal damage. In other words, I interpret the submission about the second critical feature as going on to emphasise the degree of meniscal damage caused by the incident described in the first critical feature, making the point that it was the kind of damage that necessitated surgery. The evidence from the expert witnesses called by the first plaintiff, which I accept, is that the trauma of the incident which caused that damage, altered the biomechanics of the knee.
In my view, that evidence about the alteration of the biomechanics of the first plaintiff’s knee arising from the trauma of the incident, is such that an endeavour to determine whether the damage in the lateral compartment on the 2014 MRI was degenerative or traumatic (and therefore whether the complex lateral tear on the 2015 MRI was degenerative or traumatic) is not necessarily to the point. This is best explained by Dr Bastian’s evidence on the topic of altered biomechanics of the right knee. His starting point in explaining the condition of the first plaintiff’s knee, as seen on the 2015 MRI, was that the minor fraying in the lateral compartment observed on the 2014 MRI was not trauma related. He said:[132]
AIn my opinion there wasn't initial injury to the lateral compartment, the initial MRI scan in 2014 showed some minor fraying of the lateral meniscus, which is not a tear and normally would not be significant and was not causing Mr Paues any problem prior to the accident. My assumption is that after the injury to his knee and the damage to the medial meniscus, the biomechanics of the knee was altered and he was more prone to developing deterioration of the knee as a whole and that's why the lateral meniscus has deteriorated since the injury.
QThat deterioration which you just explained could be a symptom of natural [pro]gression.
AI think one has to step back and look at the case holistically and the time frame between May 2014, the first MRI scan and a repeat MRI scan under 12 months in a young man has deteriorated quite markedly. If that had changed over five or 10 years I would concur with you but not over 11 months.
[132] T788 lines 7-24; see also report of Dr Bastian dated 26 February 2019 p 5, Exhibit P10 at p 30.
Dr Bastian explained that once you have changed the biomechanics of a knee joint, the knee starts to malfunction, you put weight through parts of the knee joint which are not used to weight bearing, and you then get more rapid progression of degenerative changes in that knee joint.[133] In relation to the first plaintiff, he said that:[134]
AIn this case the problem came on suddenly with no pre-existing knee pain and the initial MRI scan and the arthroscopy showed minimal changes of degeneration in the knee joint. The knee appeared quite healthy, apart from the meniscal tear.
QI'm really talking about the post-operative consequences, once you've had it.
AWhat I'm saying is the client reports no knee symptoms whatsoever prior to the incident in question and the initial arthroscopy and the initial MRI scan showed minimal degenerative changes, so in reality it was quite a good knee.
[133] T752 lines 33-37.
[134] T783 lines 10-21.
The rapid change in the knee also occurred in the medial compartment. During surgery in late 2014, Dr Ling noted minor chondral fraying. By May 2015, the MRI showed moderate to severe chondral thinning in the medial compartment. In Dr Ling’s opinion, for that speed of progression in someone of the first plaintiff’s age, ‘it is usually due to a traumatic event’.[135] He described it as post-traumatic degenerative change.[136] The progression was not the consequence of the first plaintiff’s work duties. He said:[137]
AGiven the fact that he had been doing this occupation for many, many years and the progression had been quite marked in the 11 months and even in the six months since the surgery, some original damage would have - it's assumed that the damage probably has really been done to the cells at the time of injury. So, the time course - the only difference between the previous 12 months as opposed to the last few years in his occupation is the accident. So, if the course of his work has not changed in the last few years but his progression of his arthritis has changed significantly since the injury.
[135] T890 lines 17-33.
[136] T906 line 3.
[137] T906 lines 12-23.
Dr Bastian expressed the same view in relation to the significance of the deterioration in the medial compartment over that short period of time. He said:[138]
A... The more significant change and very importantly is that in under a year from June '14 to May '15 there's been a marked deterioration in this man's [medial] joint compartment. They're now reporting moderate, severe [chondral] thinning over the medial aspect weight-bearing medial femoral [chondral] and also the medial tibial plateau but on the first scan there's no mention of any significant [chondral] damage in the medial compartment. To have that significant change in under 12 months is very significant in a young man without any other injury. So it appears that the incident in question has resulted in a marked deterioration in that knee joint over a very short period of time. That is very significant.
[138] T753 line 31 – T754 line 6.
Dr D’Onise made the same point in relation to the change in the medial compartment, stating that ‘… the rate of progression between the first scan that had no abnormality on the MRI, followed up by an arthroscopy five to six months later, some minor fraying and then followed up, about five months later, in the current MRI that we refer to revealing a moderate to severe thinning, in my opinion reflects a degree of accelerated wear as a result of trauma’.[139] He then included the change in the lateral compartment in that opinion. He said, ‘I think the rate of progression is acute in terms of the expectation that - it's accelerated in a manner that is more than just relating to a natural progression over time … the rate of progression of the changes in the knee, that is both the medial and lateral part of the knee, would reflect a more accelerated rate of progression than the natural degenerative process of a joint’.[140]
[139] T950 lines 14-20.
[140] T951 lines 19-30.
Dr Jackson agreed that the rate of progression from minor fraying of the medial femoral condyle at the time of surgery in December 2014, to moderate to severe chondral thinning at the June 2015 MRI could be secondary to a traumatic injury.
Whilst Dr Jackson did not think it was unusual for natural degenerative change to occur over that time scale, he agreed that proportionally more often than not when you see that rate of progression in the space of six months, it is usually associated with a traumatic injury, not degenerative.[141]
[141] T1133 lines 1-24.
The first plaintiff made the following written submission, with which I substantially agree:
The defendant attempts to compartmentalise the injury to the medial and lateral compartments however the reality is that the knee joint is one system … As a matter of common sense, if it is accepted that the First Plaintiff suffered an injury to his medial meniscus in the accident, there is no good reason to draw a line under that damage and confine the effects of the accident to the medial compartment. The medial meniscal tear was after all, an extensive one.[142]
The preponderance of evidence points to three critical features, firstly, we know that there was an accident capable of causing meniscal damage (this has been conceded), secondly, the accident necessitated the removal of meniscal cartilage which has the effect of changing the biomechanics of the knee, and thirdly, the rapid progression of changes within the knee in the very short time frame between the surgery in December 2014 to the MRI scan on 22 May 2015. This, it is submitted is not ‘normal’. The implied suggestion that after 10 years of working as a commercial floorer that all of a sudden the First Plaintiff would experience such rapid changes is illogical. The only events that intervened were the accident and the removal of the part of the meniscus.[143]
[142] Outline of Plaintiff’s Closing Submissions [163].
[143] Ibid [167].
The defendant also submits that the tear of the lateral meniscus (not the tear of the medial meniscus or the chondral thinning) is responsible for the first plaintiff’s ongoing difficulties, to the extent that there are such difficulties. The defendant says the first plaintiff has failed to discharge the onus of proof upon him to establish there is a causal connection between his ongoing claimed symptoms and consequent claimed loss and the trauma of the incident.
The defendant contends that Dr Ling’s evidence makes it plain that the chondral thinning is not relevant to the cause of the first plaintiff’s claim of ongoing disability, and submits that the ongoing disability is attributable to the unrepaired lateral tear.[144] That contention is founded, in part, upon an extrapolation of Dr Ling’s evidence that he considers the first plaintiff would have a good prognosis if he underwent the surgery recommended following the May 2015 MRI (an arthroscopic debridement and partial lateral meniscectomy). It is also based upon the following exchange during cross-examination of Dr Ling:[145]
QTo the extent he has any ongoing disability in his knee, is that attributable to the presence of an unrepaired lateral tear.
AYes, that's correct.
[144] Defendant’s Written Address [2.6]-[2.14].
[145] T907 lines 5-8.
That exchange occurred in the context of questions about the recommended second bout of surgery which would be focused upon repair of the lateral tear. Dr Ling did not say, however, that the ongoing disability was solely attributable to that unrepaired lateral tear. Earlier in evidence-in-chief, Dr Ling said the chondral damage changes shown in the 2015 MRI may well be the cause of pain:[146]
AWith the increase in the chondral damage seen on the MRI scan 2015 would make the predication of his pain relief following the surgery more difficult to predict. One is unable to differentiate how much pain is coming from the actual tear and how much is coming from the chondral damage. It's only once we remove the meniscal tear and get rid of that factor in the post-operative period can we then work out how much pain was caused by the medial chondral damage.
[146] T900 lines 12-26.
In cross-examination, Dr Jackson agreed with that statement.[147]
[147] T1153 lines 2-17.
The defendant put to Dr Bastian a suggestion contrary to the defendant’s closing contentions; that the chondral changes in the medial compartment and the complex lateral tear is ‘not necessarily symptomatic’.[148] Dr Bastian responded ‘it might not be, no. He was not tender over the lateral joint margin. Performing a [McMurray’s] test didn’t result in pain in the lateral compartment itself. Again one cannot be definitive in that regard’.[149]
[148] T789 line 30.
[149] T789 lines 30-33.
Dr D’Onise was asked whether he could discriminate between the cause of the first plaintiff’s symptoms. His evidence was it may be more likely to be from the medial compartment:[150]
AI could make a comment but it would not be - clinical examination wouldn't be very accurate at coming to that conclusion but based on the information I had when I saw him and based on the focal signs when I examined him, for example, the tenderness in the inner part of the joint, that is the medial part of the joint, would be related to, generally speaking, the medial compartment. So I could make a comment that it was most likely related to the medial compartment and that there was no significant irritation from the menisci when I did that test when I saw him and that some of his symptoms when I examined him were related to pain in the patellofemoral compartment, that is the undersurface of the kneecap. That would be the most accurate I could say in terms of commenting where the pain came from.
[150] T954 lines 17-31; Dr D’Onise saw the first plaintiff on 3 May 2016.
In cross-examination, it was put to Dr D’Onise that he had ‘some difficulty being definitive’ about the likely cause of the first plaintiff’s symptoms. He said:[151]
AI guess I started my answer in saying that clinical findings on their own can't be completely definitive. In the radiological scans - no clinical test is completely accurate, but I gave an opinion based on the information that I had, that is the clinical findings that I elicited, and based on that I considered that the cause of his symptoms were the answer I gave, which is the medial compartment of the knee and the anterior compartment of the knee, the anterior compartment based on my clinical findings at that time.
[151] T960 lines 11-20.
He then said he would defer to the opinion of Dr Ling on this issue. However, Dr Ling’s opinion in this respect was not put to him.
I do not consider it a criticism to suggest that Dr D’Onise (or any of the other experts) is unable to be definitive about which part of the knee is causing the symptoms. To the contrary, given the condition of the knee as depicted in the 2015 MRI, an inability to be definitive is credible and is to be expected.
I find that the incident caused an extensive tear of the posterior horn of the medial meniscus of the first plaintiff’s right knee. That tear required an arthroscopic debridement as the tear was likely to progress, not heal. The surgery, comprising a chrondroplasty and partial medial meniscectomy, went as expected. The trauma of the incident altered the biomechanics of the first plaintiff’s right knee. That traumatic alteration of the biomechanics of the knee caused, or materially contributed to, the rapid traumatic degeneration of the minor fraying in the lateral compartment shown on the 2014 MRI (regardless of whether that minor fraying pre-existed, or was the result of, the incident) into a complex lateral tear by the time of the 2015 MRI. Similarly, the traumatic alteration of the biomechanics of the knee caused, or materially contributed to, the rapid traumatic degeneration of the medial compartment, resulting in severe chondral thinning by the time of the 2015 MRI. I am satisfied that the damage observed on the 2015 MRI, to both the medial and lateral compartments of the right knee, was caused by the incident. I find that it is not possible to attribute the first plaintiff’s ongoing symptoms and disability to one compartment only. It is also not necessary to do so given my finding that the damage in both compartments has been caused by the incident.[152] I am satisfied that, as a matter of common sense and logic, the damage to the first plaintiff’s knee and his ongoing symptoms were caused, or materially contributed to, by the incident. I am satisfied, on the balance of probabilities, that the defendant’s negligence caused the harm to the first plaintiff’s knee: s 34(1) of the Civil Liability Act 1936.
[152] Even if I had not found that the complex lateral tear was caused by the incident, the result would have been the same, given that it is not possible to attribute the first plaintiff’s ongoing symptoms to one compartment only. The only way in which it may be possible to do so, would be for the first plaintiff to have the second arthroscopy. In circumstances in which he has already undergone one surgery because of the incident. I have found that it is reasonable for him not to proceed with that second surgery (see [251]; [366]-[372] below).
First Plaintiff’s Credit
The defendant submits that the first plaintiff is grossly exaggerating his disability and work capacity.[153] In cross-examination, it was put to the first plaintiff that he has made a good recovery, that he has no residual disability affecting his work at all and his evidence to the Court about that is not true. The first plaintiff disagreed.[154]
[153] Defendant’s written address [4.3].
[154] T292.
The first plaintiff was cross-examined about photographs and videos, including surveillance videos, which the defendant submitted demonstrated that the first plaintiff was able to carry out work activities, engage in recreational activities and walk in a manner inconsistent with his complaints. This was described as ‘a telling blow’ to his credibility.[155]
[155] Ibid [4.36].
Central to the challenge to the first plaintiff’s credit were various images and videos which can be categorised as relating to the first plaintiff’s participation in water sports and other recreational activities; his ability to undertake household tasks; and his performance of work and other activities.
Water Sports
The defendant tendered two exhibits, which comprised a series of photographs of the first plaintiff skimboarding with his daughter after the incident (Exhibit D26),[156] and two photographs of the first plaintiff kneeboarding (Exhibit D27).[157]
[156] Images contained in Exhibit D26 were posted on Facebook on 18 January 2019.
[157] Images contained in Exhibit D27 were posted on Facebook in December 2017 and November 2018. The second image was taken in about 2010; T315 lines 14-19.
The first plaintiff gave evidence that he had enjoyed water sports for many years, was very proficient and knew what to expect.[158] He said he continued to participate in water sports after the injury, as he has three young children who are ‘super active’, and he does not want to say no to them or be seen as a father who does not do activities with them.[159] However, due to discomfort, he now only participates for short periods of time and not to the same extent he did before the incident.[160] Additionally, if he knows he will be participating, he will self‑medicate before and after any water sports.[161] His knee aches and aches afterwards.[162]
[158] T402 lines 21-35; T403 lines 7-10; T404; T314.
[159] T315 lines 25-34.
[160] The first plaintiff said he now only wakeboards for about 10 minutes at a time; T192 lines 9-29.
[161] T316 lines 30-33.
[162] T158 line 8 – T159 line 12.
Dr Bastian, Ms Morgan and Dr Jackson gave evidence that the first plaintiff reported that he was still participating in water sports on a limited basis at the time of consultation.[163]
[163] Report of Dr Bastian dated 26 February 2019 p 3, Exhibit P10 p 28; Report of Ms Morgan dated 14 March 2019 p 14, Exhibit P10 p 96; Report of Dr Jackson, Exhibit P10 p 118; T1155 lines 10-12.

Prior to the incident, the second plaintiff was fit and healthy and was an active and involved mother with a young family.
The second plaintiff suffered injuries to her right shoulder, right elbow, right wrist and hand, right thumb and to her lower and upper back and neck. Those injuries have resulted in her suffering pain and restriction in those areas, and she continues to suffer ongoing limitations in relation to the use of her right upper limb and neck.
The second plaintiff’s physical injuries will continue to cause ongoing symptoms and restrictions, both for work and day-to-day activities and recreation.
I have not made any adverse finding in regard to the second plaintiff’s credibility, and do not consider she has exaggerated her symptoms. I have found that she continues to attempt to engage in activities and, where necessary, modifies her participation as a result of her ongoing restrictions.
I assign a scale value of 12. This produces an award for the second plaintiff’s non-economic loss of $21,850.00. This amount includes both past and future loss and does not bear interest.[673]
Loss of Earning Capacity
[673] Civil Liability Act s 56.
The second plaintiff submits that $75,000 is an appropriate sum to reflect her past and future loss of earning capacity.[674]
[674] Outline of Second Plaintiff’s Written Closing Submissions [200].
The defendant submits that no loss of earning capacity, either past or future, is justified on the evidence.[675]
[675] Defendant’s Written Outline of Closing Submissions [13], [16.1(b)].
The evidence establishes that since leaving school, the second plaintiff has been steadily employed in a range of jobs involving administrative work, marketing and retail.[676] After her first son was born in 2008, the second plaintiff continued her freelance work, as well as the administrative work for Lay It On Floors. She returned to work after her second son was born, for at least nine hours per week. Prior to the incident, there was no suggestion that she was anything other than physically fit to perform all duties required.
[676] See [390]-[392] above.
She did not return to work at Jacqui E as she had intended to after the birth of her third child. She was physically unable to do the job, which included lifting boxes, being on ladders, getting garments down, putting promotional material up, lifting heavy garments, steaming clothes and moving racks and tables around. She also had an infant and was trying to deal with her children’s injuries, their psychological issues, her own issues, her husband and ‘trying to be the glue for my family’.[677] She continued administration work for Lay It On Floors, averaging about 10 hours per week.[678]
[677] T480 lines 8-36.
[678] T423 line 13.
In 2015, she started up a style coaching business, Little Bird Styling. She styles wardrobes for female clients and takes them shopping. At the time of trial, she was working at that business for up to about 20 hours per week.[679] This work involves a lot of manual handling including moving, carrying, holding, folding and putting clothes back on hangers. Most weeks she works between three and nine hours face-to-face with clients. There is also significant non-contact time on the computer, undertaking research, managing emails and her website.[680]
[679] T482-483.
[680] Ibid.
The second plaintiff averages about a combined total of 30 hours a week in administration for Lay It On Floors, administration in her business and face-to-face time with her clients. Her hours are flexible.[681]
[681] T483 lines 30-36.
I accept that it was the second plaintiff’s intention, in the longer term as the children got older, to pursue retail work full-time, with a view to moving into management roles.[682]
[682] T494 lines 26-34.
In his report dated 12 August 2015,[683] Dr Bastian considered the second plaintiff had an ongoing partial incapacity for work with restrictions, including avoiding prolonged static neck and right arm forward postures, no right arm at or above shoulder height work, no forceful pushing and pulling with right upper limb, no repetitive forearm and elbow movements, and no repetitive thumb and wrist movements. She would have difficulty gripping and holding with her right hand. She would cope with working a few hours in a retail fashion boutique, but would be unable to manoeuvre heavy stock or set up displays.
[683] Exhibit P10 pp 177-190.
In his report dated 6 March 2019,[684] Dr Bastian expressed the opinion that the second plaintiff suffers a partial incapacity for work; her restrictions include avoiding prolonged static neck and back forward postures, no prolonged static right arm forward postures, no forceful or repetitive movement of the right arm at or above shoulder height, no forceful pushing or pulling with the right upper limb, no repetitive gripping with her right hand, and no tasks requiring prolonged static elbow flexion postures, which may aggravate her ulnar nerve problems, no repetitive bending/lifting, and no lifting more than around 7.5-10 kilograms from low levels on an occasional basis. She is fit for light level type work within the above restrictions. She should change posture regularly during her working day, particularly if doing prolonged computer work. She should work at a work station customised for her needs, with the computer terminal at the right height.[685]
[684] Exhibit P10 p 208.
[685] Exhibit P10 p 214.
It is difficult to reconcile the defendant’s submission that the second plaintiff suffers from no impairment of her earning capacity, either as an administrative assistant/bookkeeper and/or style coach[686] with the evidence, particularly in light of Dr Jackson’s general agreement with Dr Bastian’s assessment of partial incapacity and restrictions.
[686] Defendant’s Written Outline of Closing Submissions [13.6], [13.8].
In his report, Dr Jackson expressed the opinion that the injuries do appear to have impacted upon the second plaintiff’s ability for her employment, such as operating a computer – using both a mouse and keyboard is stated to be difficult. This involves her right elbow and her right shoulder. He considered there was potential for improvement with time and appropriate treatment. He said long‑term, he would not expect any significant influence on her employability.[687]
[687] Exhibit P10 p 229.
Dr Jackson gave evidence that Dr Bastian is well placed to make recommendations or prescribe restrictions for work. He considered the series of restrictions (as set out in Dr Bastian’s report dated 6 April 2019) were reasonable based on Dr Bastian’s findings. Dr Jackson agreed the second plaintiff was fit for light-level work.[688]
[688] T1184-1185.
Ms Morgan was of the view that the second plaintiff met most of the manual handling requirements for activity in the light category, apart from the static strength ratings for bench and knuckle lifts. The limitations support her concerns about coping adequately with the demands of full-time retail work. The second plaintiff wanted to try and grow her small business because it was more rewarding and less painful than the static administration work for her husband. An ergonomic workstation was recommended which might reduce her symptoms.[689]
[689] Exhibit P10 p 254.
I agree with the submission of the second plaintiff, that the second plaintiff has restrictions for administrative work, and that she is not fit for full-time retail work.[690] I accept the evidence of Dr Bastian.
[690] Outline of Second Plaintiff’s Written Closing Submissions [199].
The earnings of the second plaintiff prior to the incident, and after the incident, show that she has, on average, been able to maintain her net income despite her incapacity. This is most likely due to her commencing her small business in 2015. As Ms Morgan noted ‘this demonstrates a good level of commitment to returning to paid work’.[691]
[691] Exhibit P10 p 254.
As a partner in Lay It On Floors, the second plaintiff does not seek damages arising from the first plaintiff’s injuries and any loss to the business.
Past Loss of Earning Capacity
The assessment of damages for loss of earning capacity is not an exact science, but is governed by considerations of practical common sense in the context of the circumstances of the case.[692] It is necessary to consider what the second plaintiff might have earned had she not suffered the injuries, compared with what she is likely to earn in her injured condition.[693] This is not merely an arithmetic exercise as a loss of earning capacity is not equal to a loss of earnings.[694]
[692] Medlin v State Government Insurance Commission (1995) 182 CLR 1, 6.
[693] Todorovic v Waller (1981) 150 CLR 402, 412.
[694] Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649, 658.
In relation to the second plaintiff’s past loss of earning capacity, she gave evidence that she intended to return to retail work performing similar hours after the birth of her daughter.[695] She said that historically, she had enrolled her children in childcare at the age of two. She also provided between five and 10 hours of administrative services to Lay It On Floors.
[695] T427, T429, T484.
At the date of the accident, the second plaintiff’s daughter was six months old. I find that, but for the accident, the second plaintiff would have enrolled her daughter in childcare and returned to retail work in 2016. I accept that in the years 2016-2019, the second plaintiff would have worked similar hours in a similar role as she did in 2013.
The second plaintiff commenced her own business in 2015, the year after the accident. The business produced a net loss in the 2015 and 2016 financial years, and made a small profit in the subsequent years, of $6,037, $5,356 and $6,860.[696] The profit produced by the second plaintiff’s business in the years leading up to the trial is less than the second plaintiff had previously earnt through retail work. The second plaintiff only partly mitigated her loss.
[696] As at February 2019, for which the second plaintiff estimated the end of year profit to be $8,000; T561.
I also take into account that the second plaintiff may not have returned to salaried retail employment to the same degree, on account of being the primary caregiver to three young children.
In all the circumstances, I allow $10,000 for past loss of earning capacity.
Future Loss of Earning Capacity
In relation to future earning capacity, the second plaintiff gave evidence that prior to the accident, she intended to return to retail work, increasing her hours and responsibilities as her children grew older. Taking into account her work history and education, I accept this was not a wishful or fanciful expectation on her behalf. The expert evidence makes it clear that there will be limitations and restrictions which may no longer make this achievable. The second plaintiff has, in part, mitigated her loss by commencing her own styling business.
The second plaintiff gave evidence that her new business is starting to build up which has been a gradual process. She said that she now dedicates approximately 20 hours of work each week to running her styling business. She agreed that the business’s most profitable year to date was the 2019 financial year which, at February 2019, had returned a profit of $6,860. The second plaintiff estimated that the end of year profit would be approximately $8,000.[697] I find that it will take some significant time for the business to grow to a level of profitability equivalent to that achievable, had the second plaintiff worked the same hours in retail, if at all.
[697] T561 lines 19-32.
The second plaintiff had previously enjoyed permanent part-time salaried employment.[698] She has started her own business and partially mitigated her loss. However, she has lost the benefit of a secure and salaried wage and the benefits attached to permanent employment.
[698] T427 lines 7-8.
I find that the second plaintiff has suffered a loss of her future earning capacity as a result of her injuries. I accept that she has mitigated this loss to an extent. I take into account the possibility that full-time or managerial work may not have eventuated and, alternatively, that the second plaintiff’s styling business may not continue to grow. In all the circumstances, including the relevant taxation implications, I allow $40,000 for the second plaintiff’s loss of future earning capacity.
Loss of Superannuation Benefits
The second plaintiff submits she would have been paid superannuation on her earnings, pursuant to the Superannuation Guarantee Charge Act 1992, and the Superannuation Guarantee (Administration) Act 1992, She claims 11% of her net loss of earning capacity, namely $8,250 by way of loss of superannuation benefits.[699]
[699] Outline of Second Plaintiff’s Written Closing Submissions [201]-[202].
In accordance with the practice adopted by this and other courts, I award the second plaintiff a sum calculated by reference to 11% of the second plaintiff’s net past loss of earning capacity ($10,000), namely $1,100.
I assess damages for future loss of superannuation in the sum of $4,400, being 11% of the award made for damages for future loss of earning capacity ($40,000).
Past Gratuitous Assistance
The second plaintiff claims $30,000 for past gratuitous assistance.
After the incident, the second plaintiff had difficulty with providing care for the children, hanging out clothes, washing, changing the bed linen, vacuuming, mopping, cleaning bathrooms and washing windows.[700]
[700] Ibid [206].
The second plaintiff gave evidence her mother assisted whenever she could to cook, clean (particularly the floors), hang out washing, fold clothes, put things away, feed the children and do the shopping. In the first four weeks, she was helping 2-3 hours each day. She was always there on weekends to help if she was not working. After that, where she could, she continued to help three to four times a week for about three hours at a time.[701]
[701] T473-475.
Mrs Riezzo gave evidence that after the incident, she took two weeks off work in order to provide help around the family home.[702]
[702] T585 lines 10-14.
The second plaintiff employed a cleaner for three hours a week, from 28 August 2014.[703] Her mother continued to help by bathing the children, making dinner, shopping and general tidying. Mrs Riezzo gave evidence that after the first few weeks she helped in other ways like bathing the children, washing clothes, meal preparation, and assisting with the vacuuming and shopping. She continued to do that for months following the incident.[704]
[703] Exhibit P37.
[704] T585 line 20 – T586 line 2.
The second plaintiff stopped the paid cleaner in about 2017 when they moved to the smaller home.[705]
[705] T475 line 26 – T477 line 3.
The second plaintiff gave evidence her mother continued to help between 2‑4 hours per fortnight, with tasks such as washing, cleaning, vacuuming, sweeping, washing dishes, preparing food, laundry and shopping.[706] At the time of trial, Mrs Riezzo gave evidence she helps for about 2-3 hours per week with picking up clothes, hanging and removing the washing from the clothes line and vacuuming.[707]
[706] T477, 487.
[707] T587.
The second plaintiff gave evidence they had ‘enormous help’ from family and friends to move house in August 2014 (packing boxes, moving furniture, lifting boxes).[708] Mrs Riezzo gave evidence she helped them move home, including packing boxes, using her car as transport and scrubbing bathrooms to get the house ready for sale.
[708] T478-479.
The defendant submits that a nominal allowance for only the first few weeks after the incident may be justified. The defendant refers to the differences between the evidence of the second plaintiff and the evidence of her mother, Mrs Riezzo regarding the estimated assistance. There were discrepancies, but that is understandable given they were estimates over a period of years and were an attempt to average the help over that time. I do not consider the estimates were deliberately exaggerated.
There was consensus in the medical opinion, that the second plaintiff’s injuries would have restricted her ability to perform domestic tasks.[709]
[709] See Dr Teh’s Report, Exhibit P10 p 172; Dr Bastian’s Report, Exhibit P10 p 203; Dr Jackson T1168.
The second plaintiff claims on the basis of an hourly rate of $46.10.[710]
[710] Outline of Second Plaintiff’s Written Closing Submissions [204].
I have considered the claim by the second plaintiff as set out in her written submissions.[711]
[711] Ibid [214]-[220].
I will allow 21 hours per week for the first two weeks, which is $1,936.20 as Mrs Riezzo took two weeks off work to provide assistance. I will allow six hours per week for the period from the third week after the incident until the employment of the cleaner. That is, because Mrs Riezzo had returned to work and was also caring for her husband. That is, $46.10 x 6 hours x 18 weeks = $4,978.80. I will then allow one hour per week from 29 August 2014 until judgment, which equals $46.10 x 1 hour x 325 weeks (that is to 20 November 2020) = $14,982.50. This comes to a total of $21,897.50.
I allow $21,897.50 for past gratuitous assistance.
Future Services
The second plaintiff submits that a capitalised total of $100,186 should be the subject of a modest reduction for contingencies and ageing.[712] This is based on Ms Morgan’s estimate of $102.65 to $145.49 as an average weekly cost for garden/home/vehicle maintenance, cleaning, seasonal/periodic cleaning, and shopping.[713]
[712] Ibid [221]-[232].
[713] Exhibit P10 p 257.
The defendant submits the second plaintiff has been able to maintain two homes for two years without such assistance.[714] However, the medical experts considered the second plaintiff would have difficulty with domestic tasks due to her right shoulder injury. For example, Dr Jackson considered the second plaintiff’s difficulty with the domestic tasks are likely to be associated with pain, given her impingement condition of her right shoulder. Dr Jackson went on to indicate that he is very much against recommending help for a person because rehabilitation means getting a person back to all activity, and the moment you provide assistance, things do not improve. That is Dr Jackson’s general approach.[715]
[714] T1390 lines 16-35.
[715] T1176-1180.
The first plaintiff gave evidence that ‘Rachel was the inside of the house, I was the outside of the house’.[716] The evidence from the second plaintiff was consistent with her tasks being ‘inside the house’,[717] both before and after the incident. On that basis, I will make some allowance for seasonal/periodic cleaning and cleaning. The weekly cost of the estimated assistance for the seasonal periodic cleaning is calculated based on 6-12 hours every six months at $54.95 per hour, being $13.74 - $27.48 per week. The weekly cost claimed for cleaning is calculated based on 3-4 hours every six weeks at $54.95 per hour, being $27.47 - $36.63 per week. I will allow 1.5 hours per fortnight (3/4 of an hour per week) at $54.95 per hour, for all cleaning for life. The 5% multiplier for a 38 year-old female until death is 976.[718] I will reduce the amount by approximately 15% for contingencies.
[716] T171 lines 4-5.
[717] T471-473.
[718] Vincents Forensic Services Litigation Tables April 2018.
I will allow $35,000 for future services.
Equipment
The second plaintiff claims an amount for equipment as recommended by Ms Morgan[719] between $2,980 and $3,360.[720] On reviewing the items claimed, I do not consider it is appropriate to make an allowance for items related to ‘outside’ work, nor do I allow the robotic vacuum cleaner. I will allow $955.
Special Damages
[719] Exhibit P10 p 259.
[720] Outline of Second Plaintiff’s Written Closing Submissions [233]-[238].
The second plaintiff claims $18,438.24 under this head of damage.[721] The second plaintiff gave evidence about the claimed services and expenses.[722]
[721] Ibid [239]-[244]; The schedule of special damages is set out in Exhibit P37.
[722] T499-507.

The defendant submits any entitlement to special damages ought to be confined to those incurred in 2014, and three subsequent general practitioner attendances (in January 2016 and January 2019) and associated costs of examinations (in January 2016). The defendant submits no allowance ought to be made for costs of pain-relief medication claimed to be consumed by the second plaintiff, given the challenge to her credibility and the absence of any evidence of such expenses.[723]
[723] Defendant’s Written Outline of Closing Submissions [16.2(d)].
The second plaintiff has not claimed for her pain-relief medication. The list of expenses (including for cleaning, physiotherapy and massage) is generally reasonable. The defendant’s expert witness, Dr Jackson, agreed that physiotherapy was standard treatment.[724] An example of the modest nature of the claimed amounts includes the absence of any claim for pain-relief medication and the second plaintiff’s evidence that she stopped paying for cleaners because they moved house and they felt it was a financial drain.[725]
[724] T1167.
[725] T508 lines 5-7.
There is no evidence to suggest that the costs incurred by the second plaintiff for yoga are in excess of that which would have been incurred had the incident not occurred. Her evidence was that she was extremely proficient in yoga prior to the incident.
As such, I allow $16,046.24 for special damages.
Future Treatment and Medical Expenses
The second plaintiff claims an allowance of $25,000.[726]
[726] Outline of Second Plaintiff’s Written Closing Submissions [245]-[251].
The recommendations of Dr Bastian, which are relied on by the second plaintiff,[727] are set out in his first report of 2015. Some of those recommendations were acted upon and have been allowed as special damages.
[727] Ibid [245].
The second plaintiff claims an award for recurring physiotherapy, massage, pain medication, pilates/yoga, general practitioner consultations (two per year), a rehabilitation physical consult (once per year), an upper-limb surgeon consult (once per year) and costs in relation to the TENS machine. The recurring items come to $57.83 per week. Using a 5% multiplier for life at 976, the total claimed is $56,442.08.
The one-off items total over $10,000. The second plaintiff submits the expert witnesses were not cross-examined as to the reasonableness of the treatment recommended.[728]
[728] Ibid [247.6].
The defendant submits no allowance should be made for future medical treatment either because the second plaintiff does not experience any or any significant ongoing symptoms or because, given the second plaintiff’s history in not following advice, it is not likely that the expenses will be incurred in the future.[729]
[729] T1388-1389; Defendant’s Written Outline of Closing Submissions [14].
I will allow physiotherapy at six sessions per year, but do not make any allowance for massage treatment or yoga/pilates. There has been no evidence about the need for the replacement of a TENS machine prior to trial.
In all of the circumstances, I allow $29.86 per week. Using a 5% multiplier for life at 976, the total is $29,143.36.[730]
[730] Noting that these items would have been incurred from the date of trial, but have not been included in the component for past special damages.
For the one-off items, I do not allow the review by a psychologist. The balance of the items claimed comes to $5,815.20 - $8,815.20. Added together, the amount for recurring and one-off items is approximately $35,000 - $38,000.
Allowing a reduction for contingencies, I consider that the amount claimed by the second plaintiff of $25,000 for this head of loss is reasonable.
I allow the sum of $25,000.
Interest on Past Losses
The second plaintiff is entitled to interest on past losses. In relation to past economic loss, past loss of superannuation benefits and special damages, the appropriate rate is 6.5% per annum.[731] In relation to past gratuitous assistance, the appropriate rate of interest is 4% per annum.[732] I award a sum of $11,657.[733]
Summary
[731] Outline of Second Plaintiff’s Written Closing Submissions [252].
[732] Calvaresi & Rota Forma Pty Ltd v Lawson (1995) 184 LSJS 147.
[733] (($10,000 + $1,100 + $16,046.24) x 0.065 (rate) x 6.63 (years)) / 2 + ($21,897.50 x 0.040 (rate) x 6.63 (years)) = $11,656.55, say $11,657.

Pain and Suffering and Loss of Amenities                   $21,850

Past Loss of Earning Capacity                   $10,000

Future Loss of Earning Capacity                   $40,000

Past Superannuation   $1,100

Future Superannuation   $4,400

Past Gratuitous Assistance             $21,897.50

Future Services                   $35,000

Equipment   $955

Special Damages             $16,046.24

Future Treatment and Medical Expenses                   $25,000

Interest on Past Losses                   $11,657

Total           $187,905.74
Judgment

I assess the first plaintiff’s damages in the sum of $478,617.23.
I assess the second plaintiff’s damages in the sum of $187,905.74.
Orders
I make the following orders:
1       There will be judgment for the first plaintiff in the sum of $478,617.23.
2       There will be judgment for the second plaintiff in the sum of $187,905.74.
3       I will hear the parties as to costs.

Pain and Suffering and Loss of Amenities	$21,850
Past Loss of Earning Capacity	$10,000
Future Loss of Earning Capacity	$40,000
Past Superannuation	$1,100
Future Superannuation	$4,400
Past Gratuitous Assistance	$21,897.50
Future Services	$35,000
Equipment	$955
Special Damages	$16,046.24
Future Treatment and Medical Expenses	$25,000
Interest on Past Losses	$11,657
Total	$187,905.74