HODGES -v- HICKS [2025] WADC 8

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION : PERTH
CITATION : HODGES -v- HICKS [2025] WADC 8
CORAM : PALMER DCJ
HEARD : 18-22, 25-26, 28 NOVEMBER & 16 DECEMBER 2024
DELIVERED : 24 FEBRUARY 2025
FILE NO/S : CIV 3450 of 2018
BETWEEN : SUSAN MICHELLE HODGES
Plaintiff
AND
MARILYN EDWINA HICKS
Defendant
Catchwords:
Negligence – Motor vehicle accident – Nature of injuries caused by the accident – Pre-existing injuries – Assessment of damages
Legislation:
Civil Liability Act 2002 (WA)
Result:
Damages assessed
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Representation:
Counsel:
Plaintiff
:
Ms B E Rogers
Defendant
:
Mr D R Clyne
Solicitors:
Plaintiff
:
Soul Legal
Defendant
:
Hall & Wilcox (Perth)
Case(s) referred to in decision(s):
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281
City of Stirling v Tremeer (2006) 32 WAR 155
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
East Metropolitan Health Service v Ellis (by his Next Friend Christopher Graham Ellis) [2020] WASCA 147
Ellis (by his Next Friend Christopher Graham Ellis) v East Metropolitan Health Service [2018] WADC 36
Footscray Football Club Ltd (ACN 005 226 595) v Adam Kneale [2024] VSCA 314
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85
Purkess v Crittenden (1965) 114 CLR 164
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Stojceska v Muharemovic [2017] WADC 9
Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182
The Bishop of the Roman Catholic Diocese of Wagga Wagga v TJ (a pseudonym) [2024] VSCA 262; (2004) 74 VR 612
Van der Velde v Halloran [2011] WASCA 252
Veitch v Connor [2023] WADC 38
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Watts v Rake (1960) 108 CLR 158
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Table of Contents
Introduction …………………………………………………………………………………………………………………. 4
The injuries that the plaintiff alleged she sustained in the accident ……………………………………… 5
The plaintiff’s health prior to the accident ………………………………………………………………………… 7
The medical treatment that the plaintiff received after the accident …………………………………… 11
Causation …………………………………………………………………………………………………………………… 22
The lay evidence regarding the accident and its effect on the plaintiff ……………………………….. 28
The medical opinion regarding the cause of the plaintiff’s knee injury ………………………………. 31
The plaintiff’s case on the cause of the plaintiff’s knee injury ……………………………………………. 43
The defendant’s case on the right knee …………………………………………………………………………… 45
The reliability of the plaintiff’s evidence ………………………………………………………………………… 46
Conclusion: the accident made a material contribution to the plaintiff’s knee injury ……………. 49
The medical opinion regarding the cause of the plaintiff’s back, neck and shoulder injuries …. 52
The plaintiff’s case on causation of the plaintiff’s neck, right shoulder and back injuries ……… 57
The defendant’s case on the plaintiff’s other injuries ………………………………………………………… 59
Conclusion regarding the plaintiff’s neck, right shoulder and back ……………………………………. 61
Non-pecuniary loss ……………………………………………………………………………………………………… 63
Future medical treatment and travel ………………………………………………………………………………. 64
Past and future care and assistance ………………………………………………………………………………… 70
Special damages …………………………………………………………………………………………………………. 75
Findings about the plaintiff’s qualifications, employment history and historical earnings …….. 80
Lay evidence regarding the plaintiff’s economic loss claim ………………………………………………. 87
The medical opinion regarding the effect of the knee injury on the plaintiff’s work capacity … 88
The employment evidence ……………………………………………………………………………………………. 91
The plaintiff’s claim for past loss of earning capacity ………………………………………………………. 96
The plaintiff’s claim for future loss of earning capacity ………………………………………………….. 103
Conclusion ……………………………………………………………………………………………………………….. 106
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PALMER DCJ:
Introduction
1
On 2 October 2015, the defendant was driving behind the plaintiff on Yangebup Road in Yangebup when the plaintiff’s car stalled at an intersection. The defendant was not paying adequate attention and she drove into the back of the plaintiff’s car at a low speed, causing a collision.
2
The defendant has admitted that the accident was caused by her negligence. These reasons concern the assessment of damages to which the plaintiff is entitled.
3
The plaintiff alleged that she injured her knee, neck, right shoulder and back in the accident. She alleged that the impact of her knee on the steering column accelerated the degeneration of her right knee and resulted in symptomatic osteoarthritis.1
4
The defendant admitted that the plaintiff suffered a whiplash injury to her neck and lower back and a modest blow to her right knee. She claimed that any injuries that the plaintiff sustained in the accident were modest and that the plaintiff’s right knee was already arthritic.2 She also alleged that if the plaintiff suffered any injuries, loss or damage, they were caused, or significantly contributed to, by the plaintiff’s pre-existing medical conditions.3
5
Although the plaintiff has continued to work following her accident and is currently employed full-time, she alleges that the injuries that she sustained in the accident have significantly diminished her earning capacity. She alleges that the osteoarthritis in her knee prevents her from pursuing fly-in/fly-out (FIFO) work in the mining industry. She also says that she is unable to pursue a business that she ran giving cardio-pulmonary resuscitation (CPR) training.
6
The defendant denies that the plaintiff has suffered any meaningful economic loss.
1 Amended Statement of Claim dated 19 November 2024 (Statement of Claim), par 4.
2 Defendant’s Closing Submissions dated 9 December 2024 (Defendant’s Closing Submissions), par 1.
3 Amended Defence dated 20 November 2024 (Defence), par 9.
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The injuries that the plaintiff alleged she sustained in the accident
7
The plaintiff alleged that the accident caused bruising and patellofemoral cartilage damage to her right knee. She alleged that the patellofemoral cartilage damage accelerated the degeneration of her knee resulting in progressive tricompartmental osteoarthritis.4
8
The plaintiff also alleged that she injured her neck, right shoulder and back in the accident. Specifically, she alleged that she suffered:
(a) the exacerbation of a soft tissue whiplash injury in her neck, spondylosis with loss of disc height and a C4/C5 disc injury resulting in nerve root changes;5
(b) a soft tissue injury in her right shoulder, a partial thickness tear of the anterior supraspinatus fibres with associated tendinopathy and/or an injury to the long head of the biceps;6 and
(c) a soft tissue injury to her upper, mid and lower back.7
9
The Amended Defence did not admit that the plaintiff injured her right knee in the accident.8 In the defendant’s closing submissions, the defendant admitted that the plaintiff suffered a modest blow to her right patella. The defendant submitted, however, that the plaintiff’s right knee was already arthritic and characterised the plaintiff’s injuries as modest.9
10
When counsel for the defendant closed the defendant’s case orally, he accepted that it was inevitable that a finding would be made that the plaintiff injured her knee in the accident and that that injury brought forward what would otherwise have occurred.10
11
Although the Amended Defence did not admit that the plaintiff had injured her neck, shoulder or back,11 in the defendant’s written closing submissions she admitted that the plaintiff suffered a modest whiplash injury to her neck and lower back but maintained that the effects of this injury were transitory.12
4 Amended Statement of Claim dated 19 November 2024 (Statement of Claim), par 4.1.
5 Amended Statement of Claim, par 4.2.
6 Amended Statement of Claim, par 4.3.
7 Amended Statement of Claim, par 4.4.
8 Amended Defence dated 20 November 2024 (Amended Defence), par 4.
9 Defendant’s Closing Submissions, par 1.
10 ts 602.
11 Amended Defence, par 3.
12 Defendant’s Closing Submissions, pars 1, 92 – 123.
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12
The defendant alleged that if the plaintiff suffered any injuries, loss or damage, they were caused, or significantly contributed to, by the plaintiff’s pre-existing injuries, unrelated medical conditions, or unrelated events.13 The defendant particularised those pre-existing injuries, unrelated medical conditions and events as being:
(a) degenerative right knee with osteoarthritis;
(b) cervical spine causing neck pain requiring cervical spine chiropractic adjustments;
(c) a symptomatic right shoulder;
(d) chronic low back pain requiring chiropractic adjustments to the lumbar vertebra and thoracic back pain, requiring thoracic vertebra chiropractic adjustments;
(e) chronic and longstanding morbid obesity; and
(f) stress, anxiety, loss of sleep, tiredness and depression (with associated workers’ compensation claims).14
13
The defendant’s written closing submissions suggested that the extent to which the accident caused, aggravated or initiated the plaintiff’s right knee osteoarthritis and the extent to which it became symptomatic were the central issues for determination in this case.15 Whether the accident caused the plaintiff any significant lasting neck or shoulder injury, or back pain was also in issue.
14
Given the nature of the dispute between the parties about the injuries that the plaintiff sustained in the accident and the differing opinions expressed by the various medical experts who gave evidence, it is necessary to begin by considering the plaintiff’s health prior to the accident and the medical treatment that she received both before and after the accident.
15
I make the findings at [16] – [100] below about the plaintiff’s health prior to the accident and the treatment that the plaintiff received before and after the accident.
13 Amended Defence, par 9.
14 Amended Defence, particulars to par 9.
15 ts 124.
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The plaintiff’s health prior to the accident
2 June 2006 – the plaintiff’s knees were X-rayed and she began attending the Kardinya Chiropractic Clinic
16
The plaintiff has a history of knee pain.
17
On 2 June 2006, an X-ray was performed of both of the plaintiff’s knees.16 In a report about the X-ray addressed to Dr Irene Fruzynski at the Reynolds Road Medical Centre, Dr Rodney Butler (who seems to be a radiologist) recorded:
(a) ‘clinical details’ as ‘pain in knees, greater on left than the right’; and
(b) findings that bilaterally the joint space of all three compartments were preserved and there was no evidence of a degenerative arthropathy and no osteochondral lesion, or intra-articular ossified body.
18
Dr Butler commented that bilaterally there was no significant bone or joint abnormality. He said that a CT arthrogram would be necessary to assess internal derangement of the knee.
19
The same day, the plaintiff began attending the Kardinya Chiropractic Clinic and completed a health questionnaire.17 The questionnaire recorded that:
(a) she had had significant back and shoulder pain which had been ongoing for 20 years; and
(b) she had had two car accidents and had fallen from horses about twelve times. At trial, the plaintiff said that she only fell from horses twice and it was an error to record that she had fallen from horses twelve times.18
2006 – 2015 – the plaintiff received treatment at Kardinya Chiropractic Clinic
20
The plaintiff saw Dr David Lelek, a chiropractor at the Kardinya Chiropractic Clinic, 51 times between 2006 and the accident on 2 October 2015. The treatment that Dr Lelek administered consisted primarily of chiropractic adjustments to the 2nd to 4th cervical vertebra, 6th to 8th thoracic vertebra, and 4th to 5th lumber vertebra.19
16 Exhibit 1.
17 Exhibit 39.
18 ts 197.
19 Exhibit 38.
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2011 – the plaintiff started to gain weight
21
In about 2011, the plaintiff started gaining weight even though she thought that she was not eating much. The plaintiff attributes this weight gain to a gallbladder condition that she was subsequently diagnosed as suffering from.20 The plaintiff’s weight became an ongoing health issue for her.
16 September 2013 – the plaintiff saw a general practitioner about her weight gain
22
On 16 September 2013, the plaintiff saw Dr Gehad Hassanein at the Jupiter Medical Centre for, amongst other things, problems with her weight. At the time she weighed 117 kg and had a BMI of 45.1. The doctor referred the plaintiff to a dietician.21
February to May 2014 – the plaintiff saw general practitioners about stress and her weight
23
On 5 February 2014, the plaintiff saw Dr Mahbud Talukder at the Jupiter Medical Centre about problems she was having at work at Notre Dame University. The plaintiff told the doctor that she felt bullied at a workplace meeting. The doctor noted that she seemed teary and unable to cope with stress. He provided her with a medical certificate.22
24
On 10 February 2014, the plaintiff again saw Dr Talukder about the issues that she was experiencing at work. He gave her another medical certificate.23
25
On 13 March 2014, the plaintiff saw Dr Vinod Nambiar (at the same practice) about the issues that she was experiencing at work and was given a further medical certificate.24
26
On 1 May 2014, the plaintiff saw Dr Sujatha Kanukutla, at the same practice. That doctor noted, amongst other things, that the plaintiff had a problem with being overweight which was aggravating her lower back pain but she was seeing a chiropractor which helped. The doctor referred the plaintiff to a chiropractor and a dietician.25
20 ts 86 – ts 87, ts 203.
21 Exhibit 14, page 225.
22 Exhibit 14, pages 225 – 226.
23 Exhibit 14, page 226.
24 Exhibit 14, page 226.
25 Exhibit 14, page 226 – 227.
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13 May 2014 – the plaintiff’s gallbladder was removed
27
On 13 May 2014, the plaintiff’s gallbladder was removed.26
1 October 2014 – a chiropractic full spine, pelvis X-ray was performed
28
On 1 October 2014, a chiropractic erect X-ray of the full spine, pelvis and both hips was performed by Capital Radiology.27
29
In a report that day Dr Neil Berlinski, a radiologist, observed in relation to the plaintiff’s cervical spine, loss of the cervical lordosis and multilevel facet joint degenerative changes and degenerative change at C1/C2. In relation to the plaintiff’s lumber spine and hips, he noted a narrowed L5/S1 disc space with facet joint degenerative changes.
26 November 2014 – the plaintiff injured her knee while moving pot plants
30
On 26 November 2014, the plaintiff injured her knee while lifting heavy pot plants at home. She applied basic first aid but when her injury did not resolve, she went to see a general practitioner.28
28 November 2014 – the plaintiff consulted a general practitioner about her knee and had an X-ray
31
On 28 November 2014, the plaintiff saw Dr Bob Oumo at the Jupiter Medical Centre about her injured knee.29
32
Dr Oumo recorded that the plaintiff had given a history of twisting her knee while lifting heavy pot plants at home two days earlier and that the plaintiff felt like she had ‘done something in there’.
33
Dr Oumo examined the plaintiff’s knee and found her to be limping badly, with a swollen right knee, apparent bruising and ‘RROM’ (which I infer means restricted range of movement).
34
Under diagnosis Dr Oumo recorded ‘r/o ligament/meniscal damage’. I infer that the abbreviation ‘r/o’ means ‘rule out’ and Dr Oumo wanted to rule out ligament or meniscal damage.
35
Dr Oumo ordered an X-ray and CT scan of the plaintiff’s right knee and prescribed Panadeine Forte and Tramadol.
26 Exhibit 14, page 227.
27 Exhibit 65; ts 348.
28 ts 77 – ts 79; Exhibit 8, page 407 and Exhibit 9.
29 Exhibit 8, page 407.
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36
An X-ray was performed on the plaintiff’s right knee at Global Diagnostics in Kwinana that day. In a report, Dr Alex Meakin, a consultant radiologist reported that the X-ray demonstrated normal alignment and joint fluid, with no bone or joint abnormality.
1 December 2014 – an X-ray and CT arthrogram of the plaintiff’s right knee was performed
37
On 1 December 2014, a CT arthrogram was performed on the plaintiff’s knee at Global Diagnostics (the December 2014 CT Arthrogram). As is discussed in greater detail below, this CT was to become a significant point of reference for the medical experts who commented about the condition of the plaintiff’s knee before the accident.
38
In a report on the December 2014 CT Arthrogram (the December 2014 CT Arthrogram Report) Dr Reena Srivatava, a consultant radiologist, commented as follows:30
Findings:
Artefacts degrade images however no definite tear is identified in the menisci, Tibiofemoral cartilages are intact. There is subchondral sclerosis in the tibial condyle. There is fraying in retropatellar cartilage with some fissures in the trochlear cartilage.
The cruciate ligaments are intact within the limits of the study. The patellar and the quadriceps tendons appear intact.
A very small Baker’s cyst is noted. There was moderate joint effusion. No definite intra-articular loose bodies identified. No definite tear identified to the collateral ligament.
Comment:
Minimal fissures in the cartilage at the patellofemoral joint. There was moderate joint effusion. No tears identified to the menisci or to the cruciate ligaments within the limits of the study. A very small Baker’s cyst has been demonstrated.
39
Whether Dr Srivatava’s commentary properly reported the extent of the injury shown on the December 2014 CT Arthrogram is controversial. As is discussed in greater detail below, some of the medical experts who have subsequently reviewed the December 2014 CT Arthrogram thought that Dr Srivatava underreported the extent of the degenerative change in the plaintiff’s right knee.
30 Exhibit 8, page 410.
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5 December 2014 – the plaintiff saw a general practitioner about the imaging
40
On 5 December 2014, the plaintiff returned to see Dr Oumo to discuss the results of the CT arthrogram.31 He recorded that he told the plaintiff that no tears were seen, there were minimal fissures in the cartilage at the patellofemoral joint and minimal effusion. He gave the plaintiff a medical certificate from 5 December 2014 until 12 December 2014.
24 June 2015 – the plaintiff saw a general practitioner about her weight and back and knee pain
41
On 24 June 2015, the plaintiff saw Dr Shiva Sethuraman at the Jupiter Medical Centre. The doctor noted that the plaintiff had issues with obesity, chronic low back pain and knee pains and that the plaintiff had been referred to a dietician and a chiropractor. The doctor diagnosed the plaintiff as having moderate chronic low back pain.32
Late 2015 – other visits to the general practitioner prior to the accident
42
The plaintiff saw a general practitioner at the Jupiter Medical Centre on eight further occasions prior to 2 October 2015 for various reasons unrelated to any back or knee pain.33
The medical treatment that the plaintiff received after the accident
6 October 2015 – the plaintiff sees a general practitioner
43
On 6 October 2015, the plaintiff saw Dr Hassanein at the Jupiter Medical Centre about the accident.
44
Dr Hassanein noted that the plaintiff had neck pain on her right side and shoulder but she had not lost consciousness and had injured the ‘same knee in Dec 2014’.34 The plaintiff recalls that she told Dr Hassanein about injuring her knee previously but thought that she said that this happened in November, not December.35
31 Exhibit 8, page 408.
32 Exhibit 14, page 228.
33 Exhibit 14, pages 228 – 230.
34 Exhibit 14, page 231.
35 ts 92.
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45
Dr Hassanein noted that the plaintiff had no neck stiffness, no meningism, no rash, no photophobia and some restricted movements in her neck and right shoulder.36
46
The plaintiff’s recollection is that Dr Hassanein told her to rest and take some pain medication.37 Dr Hassanein’s notes recorded that he prescribed 30 mg of Panadeine Forte four times a day.38
Late 2015
47
For a period of time after the accident, the plaintiff was not able to walk up stairs at work, sit or stand for long periods but she did not take any time off work.39
48
On 27 October 2015, the plaintiff saw Dr Sethuraman at the Jupiter Medical Centre after she had been seen by the Emergency Department in Rockingham for low back pain which was associated with a urinary tract infection. The doctor’s notes do not mention any injuries associated with the car accident.40 The day prior to this attendance the plaintiff withdrew from her enrolment in a masters course she was enrolled in.41
49
On 2 November 2015, the plaintiff saw Dr Sethuraman again regarding tests associated with her urinary tract infection. The doctor’s notes do not mention any injuries associated with the car accident.42
50
On 13 November 2015, the plaintiff saw Dr David Lelek.43 He treated the plaintiff’s back but not her knees.44
22 February 2016 – the plaintiff complained to a general practitioner about neck and knee pain
51
On 22 February 2016, the plaintiff attended the Jupiter Medical Centre and saw Dr Nambiar.
36 Exhibit 14, page 231.
37 ts 92.
38 Exhibit 14, page 231.
39 ts 93.
40 Exhibit 14, page 231.
41 ts 207.
42 Exhibit 14, page 233.
43 Exhibit 3.
44 Exhibit 15.
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52
Dr Nambiar noted that the plaintiff was suffering right sided neck discomfort and had occasional spasms and constant clicking and cracking of knees and discomfort. He recorded that the plaintiff had been to see a chiropractor who had advised deep tissue massage before further sessions.45
53
Dr Nambiar’s notes record that his examination of the plaintiff’s back revealed that she had a full range of movement over her neck, ‘no c spine tenderness’ and she was tender over the trapezius.46
54
Dr Nambiar’s notes record that his examination of the plaintiff’s knee revealed that:
(a) she walked with a normal gait;
(b) there was no redness or bony deformity;
(c) there was a full range of active movements;
(d) the plaintiff was tender over the medial joint line and ‘inf’ (presumably inferior) patellar tendon and the surrounding soft tissue;
(e) there was no ligament laxity; and
(f) she was able to bear full weight.47
55
Dr Nambiar noted that the plaintiff was suffering from a tender inferior patellar area and suggested that she might be suffering from patellar tendonitis. He requested an ultrasound of the plaintiff’s knee.48
March 2016 – the plaintiff saw a general practitioner about insomnia and anxiety
56
The plaintiff attended the Jupiter Medical Centre twice in March 2016 first on 5 March and then again on 14 March. The notes of these visits do not mention the plaintiff complaining about her neck or knee but they do mention the plaintiff having difficulty sleeping and being stressed.49
45 Exhibit 14, pages 233 – 234.
46 Exhibit 14, page 233.
47 Exhibit 14, pages 233 – 234.
48 Exhibit 14, page 234.
49 Exhibit 14, pages 234 – 235.
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57
On 5 March 2016, the plaintiff saw Dr Hassanein about various matters, including difficulty sleeping well. He prescribed the plaintiff Temazepam, a sleeping tablet.50
58
On 14 March 2016, the plaintiff saw Dr Michael Gendy about being very stressed due to family court proceedings and not sleeping well. He noted that the plaintiff said that the sleeping tablet was not working and he provided her with a medical certificate.51
20 May 2016 – ultrasound of plaintiff’s knees
59
On 20 May 2016, an ultrasound was performed of the plaintiff’s right knee pursuant to the request made by Dr Nambiar in February.52
60
In a report dated 23 May 2016, 53 Dr Avl Saks reported that:
(a) there was no significant effusion present in the suprapatellar bursa;
(b) the medial and lateral collateral ligaments were normal;
(c) the quadriceps and patellar tendons were normal and the inferior aspect of the patellar tendon demonstrates a normal appearance;
(d) no obvious meniscal pathology was noted;
(e) the popliteal fossa was normal, with no Baker’s cyst, haematoma or aneurysm noted; and
(f) there was no significant abnormality in the patellar region or elsewhere within the knee.
29 May 2016 – the plaintiff is referred to Dr Buelow, orthopaedic surgeon
61
On 29 May 2016, the plaintiff saw Dr Talukder. During that visit, Dr Talukder discussed the ultrasound performed on 20 May with the plaintiff. The notes of that consultation included the following:54
Had an MVA in October last yr–rear end collision
Rt knee ,neck [sic] and Rt shoulder pain
R kne [sic] US done–NAD
Discussed
50 Exhibit 14, page 234.
51 Exhibit 14, page 235.
52 Exhibit 14, page 273.
53 Exhibit 14, page 273.
54 Exhibit 14, page 235.
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62
Dr Talukder’s notes also record that he discussed the plaintiff’s obesity with her. They record the plaintiff’s weight as 121 kg with a BMI of 45.5 and that she had been trying to lose weight by changing her lifestyle but that her back and knee pain affected her physical activity and job.
63
Dr Talukder referred the plaintiff to Mr Jens Ulrich Buelow.55
2 June 2016 – the plaintiff has another motor vehicle accident
64
On 2 June 2016, the plaintiff had a further motor vehicle accident. The plaintiff’s car was a write-off.56
65
The plaintiff’s chiropractor, Dr Lelek, considered that she had shown good improvement prior to this further accident. He thought this subsequent accident aggravated her neck, mid-back and lower back.57
66
The plaintiff says, however, that she did not suffer any injury as a result of this further accident.58
October 2016 – the plaintiff sees Dr Buelow, orthopaedic surgeon and has surgery
67
On or around 3 October 2016, the plaintiff saw Dr Buelow (the orthopaedic surgeon to whom Dr Talukder had referred the plaintiff in May). In a report to Dr Talukder dated 3 October 2016,59 Dr Buelow said that when he saw the plaintiff, she:
(a) had a knee that was so sore that she could not do stationary cycling or ride her horse;
(b) had difficulty squatting and walking up or down stairs;
(c) felt grinding behind her right kneecap and it was quite sore; and
(d) could not do her normal work or first aid training (as this involved squatting and kneeling).
68
Dr Buelow said that the plaintiff presented with a mildly restricted range of motion from zero to 125 degrees, with patellofemoral crepitus, increased Q angle to suggest that there is some maltracking, mild knee effusion and ligaments were intact but meniscal signs were not convincing. He said that the plaintiff was overweight.
55 Exhibit 14, page 235.
56 ts 102 – ts 103.
57 Exhibit 15, page 17.
58 ts 102 – ts 103.
59 Exhibit 2, page 277.
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69
When he gave evidence Dr Buelow said that a normal range of motion was between 130 to 135. He said that he had suspected maltracking when he saw the plaintiff but that this had not ultimately been demonstrated on subsequent investigation.60
70
Dr Buelow said that he had organised a patellofemoral CT tracking study to assess the degree of maltracking and also an MRI scan. He said that he would review the plaintiff once this had been done and keep Dr Talukder informed of her progress.
71
A CT scan61 for maltracking and an MRI62 were performed on the plaintiff’s knee on 5 October 2016 (the October 2016 MRI). This MRI was significant because it revealed osteoarthritis in the plaintiff’s knee.
72
On 17 October 2016, the plaintiff saw Dr Buelow again. That day he wrote a further report to Dr Talukder.63 In that report, Dr Buelow indicated that:
(a) the plaintiff’s right knee MRI revealed:
(i) focal chondral wear overlying the patellar apex and lateral patellar facet;
(ii) high grade chondral wear and articular surface osteophyte involving the medial trochlear facet;
(iii) the menisci were intact and the lateral compartment structures were well preserved and there was no ligamentous damage; and
(b) the patellofemoral CT tracking study revealed normal tubercle lateralisation values and there was some mild patellar shift on the left, without tilt, with quadriceps contracted.
73
Dr Buelow said that the plaintiff was keen to proceed with an arthroscopy to have the damaged cartilage debrided and he recommended that he perform a lateral release procedure at the same time. He indicated that he had scheduled her for surgery.
60 ts 446 – ts 447.
61 Exhibit 17.
62 Exhibit 18.
63 Exhibit 2, page 282.
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Late 2016 – the plaintiff saw general practitioners for other non-accident related reasons
74
On 8 September 2016, 18 October 2016, 24 June 2017 and 28 August 2017, the plaintiff saw doctors at the Jupiter Medical Centre for various matters unrelated to the plaintiff’s car accident.64
June 2018 – October 2018 – the plaintiff sought treatment from her general practitioner for work-related stress
75
On 27 June 2018, the plaintiff saw Dr Sethuraman regarding stress she was experiencing because of bullying at work. A WorkCover first certificate of capacity was issued associated with the commencement of a workers’ compensation claim. Dr Sethuraman suggested that she review the plaintiff in two weeks.65
76
On 9 July 2018, the plaintiff saw Dr Sethuraman again. The doctor’s notes recorded that the plaintiff was still feeling anxious and had to attend the emergency department a few days before she saw Dr Sethuraman. Dr Sethuraman provided the plaintiff with a WorkCover certificate of capacity and suggested that she review the plaintiff again in three weeks.66
77
On 31 July 2018, the plaintiff saw Dr Sethuraman again. The doctor’s notes recorded that the plaintiff was still suffering from anxiety from bullying at work. Dr Sethuraman gave the plaintiff extended sick leave for one month and another WorkCover certificate of capacity. The notes also referred to the possibility of the plaintiff suffering from an epigastric hernia and an ultrasound was performed.67
78
On 2 August 2018, the plaintiff saw Dr Sethuraman again to discuss the results of the ultrasound. The plaintiff was referred to Fiona Stanley Hospital.68
79
On 30 August 2018, the plaintiff saw Dr Sethuraman again. The notes record that the plaintiff was still feeling anxiety because of bullying at work and the doctor provided her with a WorkCover certificate of capacity giving her a further two months off work. The notes also record that the plaintiff was suffering from right knee
64 Exhibit 14, pages 235 – 242.
65 Exhibit 14, page 242.
66 Exhibit 14, pages 242 – 243.
67 Exhibit 14, page 243.
68 Exhibit 14, pages 243 – 244.
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pain, mainly on weight bearing, walking and climbing. The doctor
recorded no symptoms of ligament or meniscal damage.69
80
On 4 September 2018, 10 September 2018 and 14 September 2018, the plaintiff saw various doctors at the Jupiter Medical Centre for various matters unrelated to the plaintiff’s car accident.70
81
On 18 September 2018, the plaintiff saw Dr Chen regarding anxiety and depression associated with her workplace bullying. The plaintiff was suffering from insomnia, an inability to do simple tasks, loss of concentration, fatigue and irritability, feelings of worthlessness and hopelessness and was unable to go back to work due to stress. The plaintiff was provided with a WorkCover certificate of capacity and referred to a psychologist.71
82
On 17 October 2018, the plaintiff saw Dr Nambiar about various issues including her weight. The doctor noted that the plaintiff had been unable to exercise since her motor vehicle accident in 2015 and had been gaining weight. The plaintiff weighed 134.2 kg. The doctor referred the plaintiff to a chiropractor and to a bariatric surgeon.72
30 August 2018 – the plaintiff saw a general practitioner
83
On 30 August 2018, the plaintiff saw Dr Sethuraman for various matters including her anxiety at work and her right knee pain. The plaintiff was prescribed Mersyndol for the pain.73
22 October 2018 – Dr Buelow reviews the plaintiff again prior to surgery
84
On 22 October 2018, Dr Buelow met with the plaintiff and prepared a report to Dr Talukder that day.74 In that report, he noted that it had taken a while for the surgery that he recommended to be approved and her knee had worsened in the meantime.
30 October 2018 – Dr Buelow performs arthroscopy and lateral release
85
On 30 October 2018, Dr Buelow performed an arthroscopy and lateral release on the plaintiff’s right knee. In a report to Dr Talukder of the same date,75 Dr Buelow reported that:
69 Exhibit 14, page 244.
70 Exhibit 14, pages 244 – 246.
71 Exhibit 14, page 246.
72 Exhibit 14, pages 246 – 247.
73 Exhibit 14, page 244; ts 125 – ts 126.
74 Exhibit 2, page 289.
75 Exhibit 2, page 294.
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(a) arthroscopy of the plaintiff’s right knee confirmed quite severe patellofemoral cartilage damage. There was a 3 sq cm grade IV defect in the centre of the trochlea and grade III cartilage damage with delaminating cartilage on the patella apex;
(b) careful chondroplasties were performed. The unstable edges of the defect on the trochlea were debrided until stable edges and stable surfaces were achieved. Loose fragments were removed;
(c) in the medial compartment medial femoral condyle there was also grade III cartilage damage and in a small area grade IV. Careful chondroplasties were performed. The medial tibial plateau was intact. The medial meniscus was stable. The lateral compartment and lateral meniscus were normal. Cruciate ligaments were intact; and
(d) following chondroplasties and removal of loose fragments, he performed a lateral release procedure.
86
When Dr Buelow gave evidence, he explained that the lateral release that he performed was intended to change the pressure behind the kneecap by releasing a retinaculum on the inside and outside.76
November and December 2018 – Dr Buelow reviews the plaintiff
87
On 5 November 2018, the plaintiff was reviewed by Dr Buelow. In a report to Dr Talukder,77 Dr Buelow reported that the plaintiff had recovered well from her lateral release procedure and she still reported grinding and pain behind her kneecap (which he observed is to be expected).
88
On 3 December 2018, the plaintiff was reviewed by Dr Buelow again. In a report to Dr Talukder,78 Dr Buelow reported that the plaintiff was making steady progress, she still described a degree of anterior knee pain but things were improving and she was fit to return to work from 2 December 2018.
16 May 2019 – the plaintiff is reviewed by Dr Buelow again
89
On 16 May 2019, the plaintiff was reviewed by Dr Buelow again. In a report to Dr Talukder,79 Dr Buelow reported that:
76 ts 449.
77 Exhibit 2, page 295.
78 Exhibit 2, page 297.
79 Exhibit 2, page 307.
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(a) the plaintiff had not made any significant progress since his last review as she did not have time to do physiotherapy because of a hernia operation;
(b) the plaintiff was massively overweight and she was on the wait list for bariatric surgery;
(c) the plaintiff insisted that something was wrong with her knee. She described anterior knee pain when she walked, sat or got up from a sitting position. She said this was a different pain to what she had before and was keen to have this investigated and to have another MRI scan;
(d) clinically she had a normal range of motion in her knee. There was patellofemoral crepitus. She described pain anterior to and below the kneecap, consistent with the grade IV cartilage damage that she had in her trochlea and the grade III damage around the patellar apex. There was no significant effusion or swelling; and
(e) Dr Buelow had sent the plaintiff for a follow up MRI scan and a Durolane injection.
16 July 2019 – MRI performed on the plaintiff’s right knee
90
On 16 July 2019, an MRI was performed on the plaintiff’s right knee.80
91
In a report about this MRI prepared by Dr Dirk Sweeney, Dr Sweeney observed that the scan showed:
(a) diffuse moderate grade chondral wear over the entire central aspect of the MFG and this had progressed in the interval. There was mild subarticular marrow oedema involving the medial tibial rim;
(b) moderate grade chondral wear had progressed within the medial patellar facet and there was a persisting chondral fissuring at the patellar apex; and
(c) full thickness chondral wear and articular surface osteophyte had progressed at the trochlear apex.
80 Exhibit 81.
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22 July 2019 – the plaintiff is reviewed by Dr Buelow again
92
On 22 July 2019, the plaintiff was reviewed by Dr Buelow again. In a report to Dr Talukder,81 Dr Buelow reported that:
(a) the plaintiff had a Durolane injection the week before but said she had not experienced any improvement and thought her knee was a little worse;
(b) an MRI was performed that confirmed a progression of tri-compartmental degenerative changes;
(c) Dr Buelow discussed further treatment options including a replacement knee but that given she was under 50 and overweight the risk was that she would need a revision knee replacement within 8 years;
(d) the plaintiff was waitlisted to see a bariatric surgeon and this should be the priority; and
(e) he did not think that another arthroscopy would make a difference.
93
When Dr Buelow gave evidence, he said that he did not recommend that the plaintiff have a knee reconstruction at this stage because her clinical situation did not justify her having knee replacement surgery. He thought that her knee was still better than an artificial knee would have been.82
14 November 2020 – the plaintiff sees a general practitioner after fall
94
On 14 November 2020, the plaintiff saw Dr Mamukuyomi after falling. The plaintiff injured her left knee.83
March 2021 – the plaintiff’s knee gave way
95
In March 2021, the plaintiff had a fall at home when her right knee gave way. An MRI was performed of the plaintiff’s knee.84
96
The plaintiff also experienced other falls but the precise dates of these were unclear.85
81 Exhibit 82.
82 ts 451 – ts 452.
83 Exhibit 30, pages 325 – 326; ts 126 – ts 127.
84 ts 127; Exhibit 24.
85 ts 128.
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18 August 2021 – MRI of lumbar spine
97
On 18 August 2021, an MRI was performed of the plaintiff’s lumbar spine.86 This scan revealed:
(a) transitional anatomy with sacralisation of L5 vertebra;
(b) bilateral subarticular recess narrowing with impingement of both descending L5 nerve roots;
(c) a left extraforaminal disc-osteophyte complex at the L1/L2 level possibly impinging extraforaminal portion of left exiting the L1 nerve root; and
(d) mild left L3/L4 facetal arthropathy.
21 August 2021 – CT of both hips
98
On 21 August 2021, a CT was performed of both of the plaintiff’s hips. These scans revealed degenerative changes involving both hip joints especially in the anterosuperior quadrants, worse on the right side.87
21 February 2022 – spine CT
99
On 21 February 2022, a CT was performed of the plaintiff’s cervical and thoracic spine. The CT of the cervical spine revealed a partially compressed exiting right C5 root within its foramen. The CT of the thoracic spine revealed no overt untoward feature, a shallow coronal curve with a degree of degenerative change from T2 – T10 and possible left T4 and T5 root partial deformity.88
Causation
Section 5C of the Civil Liability Act
100
Section 5C(1) of the Civil Liability Act 2002 (WA) (Civil Liability Act) provides:
A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements –
(a) that the fault was a necessary condition of the occurrence of the harm (factual causation); and
86 Exhibit 26.
87 Exhibit 27.
88 Exhibit 28.
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(b) that it is appropriate for the scope of the tortfeasor’s liability to extend to the harm so caused (scope of liability).
101
In Wallace v Kam89 the High Court explained the separate nature of the enquiries as follows:90
The common law of negligence requires determination of causation for the purpose of attributing legal responsibility. Such a determination inevitably involves two questions: a question of historical fact as to how particular harm occurred; and a normative question as to whether legal responsibility for that particular harm occurring in that way should be attributed to a particular person. The distinct nature of those two questions has tended, by and large, to be overlooked in the articulation of the common law. … Statute now requires that the two questions be kept distinct.
102
The test of factual causation in s 5C(1)(a) of the Civil Liability Act is to be determined by the but for test: but for the negligent act or omission, would the harm have occurred?91 It is a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.92
103
It is not necessary for a defendant’s negligent act or omission to be the sole cause of a plaintiff’s injury. Causation will be established if the relevant act or omission contributed materially to the damage suffered.93 It is sufficient for the plaintiff to prove that the fault of the defendant was ‘a necessary condition of the occurrence of the harm’, as opposed to, for example, ‘the necessary condition’ of the occurrence of the harm.94
104
With regard to the proof of factual causation, in Ellis (CA), the Court of Appeal made the following observations:95
… it is clear, and there can be no doubt, that mere proof by a plaintiff of the possibility that a defendant’s breach caused the plaintiff to suffer harm is insufficient. The court must be satisfied that it is more probable than not that the defendant’s breach caused the relevant harm; it is not sufficient to conclude that the breach may have been a cause of the harm.
89 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 (Wallace).
90 Wallace [11] – [12].
91 Wallace [16]; Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 [45] (judgment of the court); Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182 [20] (French CJ, Gummow, Crennan & Bell JJ); East Metropolitan Health Service v Ellis (by his Next Friend Christopher Graham Ellis) [2020] WASCA 147 (Ellis (CA)) [600]; Veitch v Connor [2023] WADC 38 (Veitch) [173].
92 Veitch [173]; Wallace [16].
93 Van der Velde v Halloran [2011] WASCA 252 [95]; City of Stirling v Tremeer (2006) 32 WAR 155 [71].
94 Veitch [173]; Ellis (CA) [597] – [600].
95 Ellis (CA) [263] – [264].
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At the same time, it is also well-established that causation may be proved by inference. If direct proof is not available, an inference of causation may be drawn if the circumstantial evidence is sufficiently strong and coherent to support a definite inference to that effect. Before such an inference can be drawn, there must be more than two conflicting inferences of equal probability.
105
Section 5C(4) of the Civil Liability Act provides that for the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.
106
Section 5D of the Civil Liability Act provides that the plaintiff bears the onus of proving on the balance of probabilities any fact relevant to the issue of causation. The issue of causation involves a question of fact on which expert opinion evidence may be received.96
Pre-existing injuries and hypothetical alternative scenarios
107
A negligent defendant must take its victim as the defendant finds him or her and pay damages accordingly.97
108
The plaintiff submitted that if she made out a prima facie case of injury by the defendant’s negligence, the disabilities that followed that injury are presumed to have been caused by it. She argued that in that situation, if the defendant contends otherwise, the defendant has an evidential burden to show that the disabilities were caused by a pre-existing injury.98 In support of this proposition the defendant referred to the decisions of the High Court in Watts and Purkess and a decision of Staude DCJ in Stojceska v Muharemovic.99
109
The defendant’s closing submissions referred to the High Court’s decision in Malec v JC Hutton Pty Ltd100 and submitted that the principles in that case applied here.101 In Malec Deane, Gaudron and McHugh JJ said:102
96 Ellis (by his Next Friend Christopher Graham Ellis) v East Metropolitan Health Service [2018] WADC 36 [814] and the authorities referred to there.
97 Watts v Rake (1960) 108 CLR 158, 159 (Watts); Purkess v Crittenden (1965) 114 CLR 164, 168 (Purkess).
98 Plaintiff’s Closing Submissions, par 111.
99 Stojceska v Muharemovic [2017] WADC 9 [279].
100 Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 (Malec).
101 Defendant’s Closing Submissions, pars 48 – 49.
102 Malec (643).
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[I]n respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9 per cent – or very low – 0.1 per cent. But unless the chance is so low as to be regarded as speculative – say less than 1 per cent – or so high as to be practically certain – say over 99 per cent – the court will take that chance into account in assessing the damages.
110
Brennan and Dawson JJ said:103
The judgment of the majority in the Full Court seems to us to overlook the difference between the fact that the [plaintiff] had not been working for some time before the trial and an evaluation of the plaintiff’s earning capacity which was destroyed in consequence of the defendant’s negligence. The fact that the plaintiff did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred. By contrast, earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false – for the plaintiff has been injured – the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past.
111
Their Honours also said:104
In assessing the plaintiff’s earning capacity in the present case, what had to be evaluated was the prospect that the deteriorating back condition would have precluded him from engaging in gainful employment had he not contracted brucellosis. An evaluation of that prospect had to be made. To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation.
103 Malec (639) – (640).
104 Malec (640).
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112
The interaction between the principles in Malec and the High Court’s earlier decisions in Watts and Purkess was considered by the New South Wales Court of Appeal in Seltsam Pty Ltd v Ghaleb.105 In that case, Ipp JA with whom (Mason P agreed) said the following about the interaction of those principles:
104 What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the ‘disentangling’ evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
105 Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of ‘disentanglement’ discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations – not proof on a balance of probabilities.
106 Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.
107 Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A preexisting condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.
105 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 (Seltsam).
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108 As was pointed out in Newell v Lucas [1964-5] NSWR 1597 (at 1601 per Walsh J, with whose judgment Hardie and Asprey JJ agreed), the court must determine whether a comparison may be made between the plaintiff’s condition prior to the injuries sustained by the defendant’s negligence (including the plaintiff’s economic and other prospects in that condition) and the plaintiff’s condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.
109 Of course, if the evidence does not adequately establish the pre-existing condition or its possible consequences (as was the case in Purkess v Crittenden), it would not be possible to carry out such a comparison and assessment. In regard to the possible consequences, a scintilla of evidence would not suffice. The evidence must be such that a reasonable person could draw from it the inference that the possible consequences contended for by the defendant existed (see McCormick, Evidence, 5th ed, para 338, p.511).
113
Ipp JA said that according to Malec:
(a) in the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring;
(b) the court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred;
(c) the court must form an estimate of the likelihood of the possibility of alleged future events occurring; and
(d) these matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.
114
This analysis has been regularly followed by courts in New South Wales and by the Court of Appeal in Victoria.106 While I have been unable to identify any consideration of Seltsam by the Court of Appeal in this state (at least in this context) the approach suggested by Ipp JA has been followed by two intermediate courts of appeal and, with respect, seems correct and consistent with High Court authority to me.
106 Footscray Football Club Ltd (ACN 005 226 595) v Adam Kneale [2024] VSCA 314 [659] – [660]; The Bishop of the Roman Catholic Diocese of Wagga Wagga v TJ (a pseudonym) [2024] VSCA 262; (2004) 74 VR 612 [148] – [149].
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The lay evidence regarding the accident and its effect on the plaintiff
115
The plaintiff gave evidence about the accident and its effect on her. In addition, she called three lay witnesses who spoke about the effect that they witnessed the accident had on her.
The plaintiff’s evidence
116
The plaintiff gave the following evidence about the accident and its effect on her.
117
During the accident on 2 October 2015, her right knee struck the steering column and the seatbelt pulled on her right shoulder across the base of her neck.107
118
Once the shock wore off, she started stiffening up a bit and her knee started swelling. All across the base of her neck, shoulder and down the right-hand side of her spine and down her shoulder blade started to burn.108
119
She did not take any time off work after the accident but had difficulty walking up stairs or standing for long periods. She also was not able to deliver first aid because she was not able to kneel or squat.109
120
In 2015, prior to the accident, she was able to exercise rigorously as part of efforts to lose weight.110
121
She twisted her right knee previously in November 2014, while she was moving pot plants. She felt a twinge in her knee, put ice on it and applied some basic first aid. She went to see her general practitioner a couple of days later.111
122
Her general practitioner sent her for an X-ray and a CT scan. He told her that she had no damage to her knee and to continue with first aid treatment and she was provided with some medication. She was given a medical certificate stating that she was unfit for work from 5 December 2014 to 12 December 2014.112
107 ts 92.
108 ts 92.
109 ts 93 – ts 94.
110 ts 87 – ts 88; Exhibit 11.
111 ts 77.
112 ts 78; Exhibit 8, page 413.
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123
Her symptoms were gone in a few days to a week, and she did not go back to the doctor again.113
124
On 7 December 2014 she posted on Facebook about topical anti-inflammatories definitely working and that she was able to bend her knee again.114
125
In 2018, the plaintiff’s leg gave way and she had a fall.115
126
When the plaintiff turned 50 in 2022, she decided to participate in a series of activities including go-karting, visiting the treetop walk in Kings Park, Bells Rapids, the Whitsundays, flying a helicopter, driving a V8 supercar and a rally car, skydiving, driving in an off-road buggy, jet skiing and gliding.116
127
When the plaintiff went go-karting she needed help getting up and down from the kart.117
128
The plaintiff needed assistance to get on and off the tender boat in the Whitsundays and needed to sit near the captain while sailing and her knee was sore afterwards.118
Ms Kathleen Culkin
129
The first lay witness called by the plaintiff was Ms Kathleen Culkin. She gave the following evidence.
130
Ms Culkin was a former work colleague of the plaintiff between 2009 and 2011 and 2015 and 2017. They were working together when the plaintiff had her accident on 2 October 2015.119
131
After the accident the plaintiff had difficulty walking up stairs and had to walk differently. The plaintiff stopped demonstrating resuscitation because she could not kneel or walk down the stairs to the training area.120
113 ts 79.
114 ts 79 – ts 80; Exhibit 9.
115 ts 125; Exhibit 14, page 244.
116 ts 215 – ts 220.
117 ts 221.
118 ts 222.
119 ts 239.
120 ts 240 – ts 241.
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132
In the six months prior to the accident, she had not observed the plaintiff having any problem with her knee, neck, back or shoulder.121
Ms Alyce Budz
133
The second lay witness called by the plaintiff was Ms Alyce Budz. She gave the following evidence.
134
Ms Budz was a friend of the plaintiff who saw her regularly at social occasions.122
135
The plaintiff helped Ms Budz with packing up her house in 2011 which involved a lot of kneeling. Ms Budz did not observe the plaintiff having any mobility issues at that time.123
136
After the accident the plaintiff had a lot of swelling in her knee and as time went on it got progressively worse and she walked with a limp.124 Ms Budz recalled having to assist the plaintiff with laying pavers and stones at her house.125
137
The plaintiff could not sit on high bar stools and she needed help getting off a boat in the Abrolhos Islands in 2020 and could not participate in stand-up paddleboarding. She cannot wear flippers and has to bring a bigger bed to go camping.126
138
The plaintiff fell over while they were in the Abrolhos Islands which left her with a swollen knee.127
139
Prior to the accident the plaintiff would be in the mosh pit for concerts but now had to sit in the stand.128
140
Ms Budz participated in various activities that the plaintiff participated in when she turned 50 including gliding. The plaintiff had to use her good leg to push off.129
141
Ms Budz also attended a birthday weekend celebration during which the plaintiff had difficulty getting out of the pool.130
121 ts 243.
122 ts 266.
123 ts 266 – ts 267.
124 ts 267.
125 ts 272.
126 ts 268 – ts 269.
127 ts 269.
128 ts 269 – ts 270.
129 ts 270.
130 ts 270.
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142
The plaintiff now walks more slowly.131
Ms Justine Dunlop
143
The third lay witness called by the plaintiff was Ms Justine Dunlop. She gave the following evidence.
144
Ms Dunlop is a friend of the plaintiff who has known her since university in 2007.132 She caught up with the plaintiff about every six months after the accident.133
145
Prior to the accident she saw the plaintiff painting and going up and down ladders without a problem.134
146
Ms Dunlop thought the plaintiff was someone who loved the outdoors.135
147
Ms Dunlop recalls an incident after the plaintiff’s accident where she became uncomfortable sitting on chairs for a long period of time.136
The medical opinion regarding the cause of the plaintiff’s knee injury
148
The reports of various medical experts were tendered during the trial and a number were called to give evidence about the cause of the plaintiff’s knee injury.
Dr Heather Campbell
149
Dr Heather Campbell was a Consultant Occupational Physician who reviewed the plaintiff at the request of the defendant’s solicitors on 19 August 2016.137
150
Unfortunately, Dr Campbell had passed away by the time that the trial commenced. A report that she prepared dated 23 August 2016 was admitted into evidence by consent and pursuant to s 79C of the Evidence Act 1906 (WA) (Evidence Act).138
131 ts 272.
132 ts 372.
133 ts 375.
134 ts 373.
135 ts 374.
136 ts 374 – ts 375.
137 Exhibit 80.
138 ts 442 – ts 443.
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151
Dr Campbell noted that the accident appeared to have been very low impact. Although Dr Campbell accepted that the accident may have caused the plaintiff some temporary discomfort, she did not think that the accident either aggravated any pre-existing injury, or left the plaintiff with a lasting injury. She thought that the plaintiff’s symptoms were likely to relate to patellofemoral degeneration associated with the plaintiff’s weight and prior history.
Associate Professor Hardisty
152
Associate Professor Hardisty is an orthopaedic surgeon who reviewed the plaintiff at the request of the plaintiff’s solicitors on three occasions, first in June 2017 and then on 8 January 2018 and 18 October 2024. He prepared five reports dated 26 June 2017,139 31 May 2018,140 10 August 2020,141 3 November 2023142 and 18 October 2024.143 Associate Professor Hardisty’s report dated 31 May 2018 responded to Dr Campbell’s report.
153
Associate Professor Hardisty disagreed with Dr Campbell. He considered that there was ‘no doubt’ that the plaintiff’s knees were injured given the nature of the accident and the appearance of her knee after the accident.144
154
Associate Professor Hardisty accepted that the plaintiff might have been suffering from osteoarthritis in her right knee before the accident. He accepted that the December 2014 CT Arthrogram revealed that the plaintiff was suffering from some chondral (cartilage) degeneration consistent with osteoarthritis at that stage.145
155
He said, however, that you could not tell from a CT arthrogram whether the plaintiff was symptomatic.146 He said that you cannot extrapolate clinical symptoms from imaging and that a patient might be asymptomatic despite the fact that an image revealed osteoarthritis. He thought that the plaintiff could plausibly have been asymptomatic with a knee that appeared to be in the condition shown in the December 2014 CT Arthrogram.147
139 Exhibit 49.
140 Exhibit 50.
141 Exhibit 52.
142 Exhibit 54.
143 Exhibit 56.
144 Exhibit 50.
145 ts 309. See also ts 323 – ts 324.
146 ts 309. See also ts 323 – ts 324.
147 ts 305 – ts 306.
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156
Associate Professor Hardisty said that direct blows to the kneecap often cause problems in the kneecap. He said that in the plaintiff’s case, the blow was at a slightly oblique angle and it could have caused slide or friction which can result in a cartilage injury. He said that such an impact had the capacity to cause an asymptomatic knee to become symptomatic.148 He thought that the blow that the plaintiff received to her kneecap in the accident accelerated the progression of the plaintiff’s right knee osteoarthritis by making her asymptomatic knee become symptomatic.149
157
Associate Professor Hardisty said a patient with symptomatic patellofemoral arthritis would be expected to experience continued swelling and complaints of the knee catching or giving way and would be expected to attend a general practitioner for treatment.150
158
Associate Professor Hardisty said that at the plaintiff’s age you would be reluctant to consider a total knee replacement but if the pain was intractable, interfering with her life and preventing her from working, a total knee replacement would be considered.151
159
Associate Professor Hardisty said that even if the plaintiff had not injured her knee in the accident, she would probably have needed a knee replacement in 10 – 15 years from the accident anyway.152 He said that he thought that the accident brought forward the need for a knee replacement by 2 – 5 years.153
160
Associate Professor Hardisty said that if a knee was replaced when a patient was 65 years old, it might last between 15 and 20 years. He said, however, that when someone’s knee is replaced when they are in their 40s or 50s, the knee wears out quicker and would only last between 10 and 15 years.154
161
Associate Professor Hardisty disagreed with Dr Mark Hamlin’s opinion (discussed below) that the degree of patellofemoral arthropathy was similar between the two separate examinations. He said that you could not satisfactorily compare a CT and an MRI as the modalities
148 ts 307 – ts 307.
149 ts 311.
150 ts 307.
151 ts 312.
152 ts 311 – ts 312, ts 321, ts 327 – ts 329.
153 ts 321, ts 327 – ts 329.
154 ts 315.
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were different.
155 He thought that Dr Hamlin’s opinion carried less weight because he was not musculoskeletal trained.156
162
Associate Professor Hardisty accepted that weight can accelerate osteoarthritis.157 He accepted that her weight had contributed to her symptoms.158
163
During cross-examination, Dr Martyn Flahive’s opinion (see below) that the changes between the December 2014 CT Arthrogram and the October 2016 MRI represented natural progression, was put to Associate Professor Hardisty. He said in response that the plaintiff was obese and had some degeneration in 2014 but he said that she had a high level of function before the accident.159
164
In Associate Professor Hardisty’s report dated 18 October 2024, he said that given the two years elapsing between the December 2014 CT Arthrogram and the October 2016 MRI, it cannot be definitively said that the changes represent natural progression, and the changes cannot be distinguished from exacerbation or aggravation from the motor vehicle accident from 2015.160
165
Dr Flahive’s opinion that it would be impossible for the medial femoral condyle and the tibiofemoral condyle to be impacted during the accident161 was also put to Associate Professor Hardisty. He said it was not possible to say that. He said that the plaintiff’s injury was a twisting and oblique injury to the patellofemoral joint which would have caused the knee to rotate. He said that the twisting could have caused damage to the medial femoral condyle.162
Dr Benjamin Witte
166
Dr Benjamin Witte is an orthopaedic surgeon who reviewed the plaintiff twice at the request of the Insurance Commission of Western Australia (ICWA) on 29 August 2018 and 18 March 2020. He prepared two reports addressed to the ICWA dated 5 September 2018163 and 7 April 2020.164 Dr Witte then reviewed the plaintiff again
155 ts 323.
156 ts 323.
157 ts 326.
158 Exhibit 56.
159 ts 326.
160 Exhibit 56.
161 ts 570.
162 ts 577 – ts 578.
163 Exhibit 71.
164 Exhibit 73.
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on 31
October 2024 at the request of the plaintiff’s solicitors and prepared a report that day.165
167
Dr Witte broadly agreed with Associate Professor Hardisty’s opinion and followed a similar reasoning process. He considered that the plaintiff’s symptoms were caused by the accident and the impact of her knee on the dashboard. He thought that the accident was the predominant cause of her ongoing symptoms, although he also thought her weight may have contributed to her condition.166 He described the cause of the plaintiff’s knee injury as ‘multifactorial’.167
168
Dr Witte accepted that the plaintiff had osteoarthritic degenerative changes in her right knee prior to the accident.168 He agreed that the December 2014 CT Arthrogram Report169 failed to properly recognise the damage shown on the arthrogram.170 He said that the December 2014 CT Arthrogram confirmed that there was chondral damage before the accident.171 He did not consider that the damage meant that the plaintiff would necessarily have been symptomatic, however.172
169
Dr Witte thought that the cartilage behind the patella in the December 2014 CT Arthrogram appeared fairly normal but looked damaged in October 2016 MRI. He described it as disorganised as if it had been ripped, squashed and pushed out of position. He thought that the appearance of the cartilage was consistent with a traumatic injury.173
170
Dr Witte expressed the opinion that the chondral changes in the patellofemoral joint of the right knee prior to the accident, would have predisposed someone to suffer significant ongoing symptoms and problems from a relatively minor injury (particularly a direct blow to the patella, such as hitting the dashboard/steering column).174
165 Exhibit 76.
166 Exhibits 71 and 73.
167 ts 379 – ts 381.
168 ts 379 – ts 381.
169 Exhibit 8, page 410.
170 ts 401 – ts 402.
171 Exhibit 76.
172 ts 382.
173 ts 384.
174 Exhibit 76.
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171
Dr Witte said that the force of the blow to the knee during the accident could have impacted the soft tissue at the front of the knee and squashed the cartilage between the kneecap and the femur. He thought the accident was a cause of the injury suffered by the plaintiff.175 He considered that the accident exacerbated and worsened the injury and precipitated symptoms.176
172
Dr Witte said that prior to the accident the plaintiff had not experienced significant symptoms in her right knee. He observed that this was evident from the plaintiff’s general practitioner notes. He said that his interpretation of the notes and history the plaintiff gave was that the general trajectory of her leisure time, knee symptoms and ability to work changed following the accident.177
173
Dr Witte said that significant osteoarthritis in one compartment of the knee can provoke deterioration in other compartments. He said that therefore the worsening of the patellofemoral chondral surfaces and the development of osteoarthritis in one compartment could well have contributed to the deterioration of the knee in general.178
174
Dr Witte said that the pattern of deterioration, particularly in the patellofemoral and medial compartments, revealed that there was definitely an underlying genetic component. He said that the plaintiff’s chronic weight problem had contributed to her worsening right knee symptoms as it had increased the wear and tear on that joint.179
175
Dr Witte said it was difficult to tell whether the incident when the plaintiff injured her knee in 2014 caused the injury that could be seen on the December 2014 CT Arthrogram.180
176
Dr Witte thought that there were changes in the patellar cartilage that looked significantly worse on the October 2016 MRI compared to the December 2014 CT Arthrogram. He thought that the changes looked as if they might be traumatic and caused by the accident. He said that slow deterioration of the cartilage tends to cause thinning whereas the image looked disorganised and squashed.181
175 ts 383 – ts 384.
176 ts 379 – ts 381.
177 Exhibit 76.
178 Exhibit 76.
179 Exhibit 76.
180 ts 381 – ts 382.
181 ts 382 – ts 384.
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177
Dr Witte thought that the plaintiff would likely require a total knee replacement.182 Like Dr Hardisty, he thought it was quite possible that the plaintiff would have required a total knee replacement even if the accident had not occurred. He said that in 2014 he would not have thought that the plaintiff would have needed a knee replacement for 10 or 15 years.183
178
Dr Witte said that the condition of the plaintiff’s left knee provided a useful comparison as to what her knee might have looked like if it were not for the accident. He said that he did not think that the left knee needed replacement in the short to medium term.184
Dr Benjamin Kimberley
179
Dr Benjamin Kimberley reviewed the plaintiff on 11 October 2024 at the request of her solicitors and prepared a report the same day.185 He prepared a supplementary report on 15 November 2024.186 He had a similar opinion about the cause of the plaintiff’s right knee injury to Associate Professor Hardisty and Dr Witte.
180
Dr Kimberley thought that the plaintiff’s knee injury was caused by the accident. He said that there had been some minor right knee pre-existing degeneration which was asymptomatic that had been rendered symptomatic by the accident and had continued to deteriorate.187
181
Dr Kimberley thought that the plaintiff had moderate to severe arthritis in her right knee before the accident and he said that she had lost cartilage in certain areas. He said that this meant that the accident may have impacted other tissues.188 He thought that the twisting position of the accident might mean that any blow was on the left side.189
182
Dr Kimberley thought that the accident had caused a significant degeneration of the plaintiff’s right knee.190
182 ts 386 – ts 388.
183 ts 388.
184 ts 389.
185 Exhibit 62.
186 Exhibit 63.
187 Exhibit 62.
188 ts 355.
189 ts 347.
190 ts 347.
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183
Dr Kimberley said that cartilage does not heal like skin and once there is a bit of damage, then this leads to more rapid wear over time. He described it as a snowball effect. He said that knee replacement surgery was the only option.191
184
Dr Kimberley said that a patient’s age would affect the timing of surgery. He said that before surgery, he would advise treatment that might improve the patient’s position without surgery, including injections, bracing and weight loss. He thought that the plaintiff was capable of undertaking a rehabilitation program.192
Dr Jens-Ulrich Buelow
185
Dr Jens-Ulrich Buelow also gave evidence. He was the orthopaedic surgeon who treated the plaintiff and performed surgery on her right knee on 30 October 2018. Knee surgery is his specialty.193
186
The plaintiff was initially referred to Dr Buelow by her general practitioner, Dr Talukder in 2016. Dr Buelow saw the plaintiff at least three times prior to the surgery. He also reviewed the plaintiff post-operatively on at least four occasions on 5 November 2018, 3 December 2018, 16 May 2019 and 22 July 2019. He reviewed the plaintiff again on 14 October 2024, shortly before the trial started.
187
In Dr Buelow’s report to Dr Talukder following the surgery on 30 October 2018, Dr Buelow reported that when he performed the surgery he noted a 3 sq cm grade IV defect in the centre of the trochlea and grade III cartilage damage with delaminating cartilage on the patella apex.194
188
When Dr Buelow saw the plaintiff in 2019, he thought she might need a knee replacement at about age 60.195
189
Dr Buelow was provided with the December 2014 CT Arthrogram by the time he reviewed the plaintiff on 14 October 2024.196 He said that the December 2014 CT Arthrogram showed some grade IV damage in the trochlea measuring 1.2 cm x 1.3 cm. He said that this was in the area where the knee would have impacted the dashboard and
191 ts 355.
192 ts 355 – ts 356.
193 ts 445.
194 Exhibit 2, page 294.
195 ts 452.
196 ts 453.
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it might be expected that the impact would damage the trochlea
(although the December 2014 CT Arthrogram revealed that there was damage there already).197
190
Dr Buelow agreed that a patient with cartilage damage like that revealed by the December 2014 CT Arthrogram might not report pain. He said that he had no doubt that the accident aggravated the plaintiff’s symptoms.198
Dr Heng Tan
191
Dr Heng Tan is an occupational physician who reviewed the plaintiff at the request of the plaintiff’s solicitors on 17 September 2024. He prepared a report the same day.199 His opinion was similar to that of the experts already mentioned.
192
Dr Tan thought that the knocking of the plaintiff’s knee against the steering column during the accident caused it to become symptomatic.200
193
Dr Tan thought that the force of the car hitting the back of the plaintiff’s car would have forced her forward and impacted around the kneecap region.201
194
Dr Tan thought that the December 2014 CT Arthrogram revealed some degeneration prior to the accident. He reviewed the plaintiff’s medical records and considered that her injury at that time resolved without treatment. He also considered it relevant that the plaintiff was able to perform CPR prior to the accident.202 He considered that there was no evidence of the right knee being chronically painful, or any evidence of the right knee causing any significant restrictions to her day-to-day activities.203
195
Dr Tan said that a person with symptomatic arthritis would have morning stiffness, an inability to kneel and a swollen knee intermittently if they had to stand for a long time or had to squat or kneel.204
197 ts 453, ts 455 – ts 456.
198 ts 457.
199 Exhibit 46.
200 Exhibit 46.
201 ts 276 – ts 277.
202 ts 278 – ts 279.
203 Exhibit 46.
204 ts 282.
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196
Dr Tan thought that there may have been a number of contributors to the plaintiff’s osteoarthritis but he thought that the accident was a significant contributor. This opinion was based on the differing condition of the plaintiff’s knee before and after the accident. He thought that the changes shown on the December 2014 CT Arthrogram were mild and the fact that after four years there was bone on bone suggested that an intervening factor had accelerated the arthritis.205
197
Dr Tan thought that over time the plaintiff would have developed symptomatic arthritis anyway and by her late 50s or 60s, she would have had an arthritic knee.206 He said that it is not recommended that someone in their 50s have a knee replacement.207
Dr Martyn Flahive
198
Dr Martyn Flahive is a consultant occupational physician who reviewed the plaintiff twice at the request of the defendant’s solicitors on 13 May 2020 and 12 August 2024. He also prepared five reports for the defendant’s solicitors dated 29 May 2020,208 27 September 2022,209 12 August 2024,210 11 October 2024211 and 16 October 2024.212
199
Dr Flahive said that when he saw the plaintiff on 13 May 2020, she did not provide him with a history of injuring her knee in 2014.213
200
At the time, he thought it likely that the plaintiff’s osteoarthritis pre-dated the accident. He thought it was unusual for the plaintiff to have developed such severe osteoarthritis after such a low-speed accident. He said that that did not mean that the accident was immaterial, but he thought that other factors would have been relevant to the progression of the osteoarthritis, particularly as it had only been five years since the accident. He did seem to accept, however, that it was possible that the injury had been exacerbated by the accident. In terms of treatment, he expressed the view that the focus should be on weight loss.214
205 ts 279.
206 ts 279.
207 ts 283.
208 Exhibit 85.
209 Exhibit 86.
210 Exhibit 87.
211 Exhibit 88.
212 Exhibit 89.
213 ts 472.
214 Exhibit 85; ts 470.
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201
By the time that Dr Flahive prepared his report dated 27 September 2022, he had reviewed the December 2014 CT Arthrogram. He said that he thought that the December 2014 CT Arthrogram revealed chondral pathology (most notable in the patellofemoral joint) and early osteoarthritis. He thought that the disease was established and likely symptomatic prior to the accident and that the plaintiff’s present symptoms were unrelated to the accident.215
202
Dr Flahive reviewed the plaintiff again on 1 August 2024. In his report dated 12 August 2024, he said that he:
(a) found it difficult to accept that the injury to the plaintiff’s knee in 2014 was a minor strain as asserted;
(b) thought that the injury aggravated the chondral pathology that has continued since;
(c) thought it clear on reviewing the imaging that the loss of a large area of the patellofemoral joint cartilage pre-dated the accident and cannot be attributed to that accident;
(d) considered that Dr Buelow, Dr Witte and Associate Professor Hardisty had not been provided with all of the imaging and he thought that their opinions regarding causation were tainted by heuristic and confirmation bias. He referred to the persistent view that if it were not for the accident, the plaintiff would not have developed knee osteoarthritis. He said that this view was not supported by the radiological evidence;
(e) expressed the view that the plaintiff’s injury was caused by her weight;
(f) said that he found it difficult to find any rational argument that the accident had been material in either causing her cartilage changes, the progression of her knee arthropathy, or her knee symptoms and disability; and
(g) accepted that the plaintiff may have exacerbated her right knee pain in the accident but thought that the effect of this would have been overwhelmed by other factors, such that there was no material association between the accident and her osteoarthritis.216
215 Exhibit 86.
216 Exhibit 87.
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203
Dr Flahive said that when he saw the plaintiff in 2020 and 2024 she was unable to kneel, walked with a limp and had difficulty climbing up and down stairs.217
204
Dr Flahive’s report dated 11 October 2024 commented on Dr Tan’s report. He said that Dr Tan had not had the opportunity to review all of the imaging available. He said that it was difficult to accept that chronic change developed in a few months, and he thought that the condition of the plaintiff’s knee in 2016 was consistent with the changes identified in the December 2014 CT Arthrogram.218
205
When Dr Flahive was asked to explain his conclusions at trial, he placed significant emphasis on the plaintiff’s weight. He accepted that the knock on the knee might have aggravated the plaintiff’s knee but he said that it was not the driving force of her knee pathology. In terms of treatment, he thought that the focus should be on weight loss.219 At one point he said that it would be impossible for the medial femoral condyle and the tibiofemoral condyle to be impacted during the accident.220
206
Dr Flahive said the osteoarthritis in the plaintiff’s knee in 2014 was likely to progress.221 He said that it was inevitable that the plaintiff’s knee would become symptomatic.222
Dr Mark Hamlin
207
Dr Mark Hamlin is a radiologist who prepared a report providing his interpretation of the December 2014 CT Arthrogram and the October 2016 MRI at the request of the defendant’s solicitors. He prepared a report dated 29 October 2024.223
208
Dr Hamlin thought that the December 2014 CT Arthrogram revealed advanced patellofemoral osteoarthritis, associated with regions of full thickness chondral loss. He said that the October 2016 MRI revealed severe patellofemoral chondromalacia, grade IV. He said that there was focal high grade chondrosis of the medial femoral condyle posteriorly, approaching full thickness.224
217 ts 504.
218 Exhibit 88; ts 502 – ts 503.
219 ts 499 – ts 501.
220 ts 570.
221 ts 501.
222 ts 522.
223 Exhibit 79.
224 Exhibit 79.
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209
Dr Hamlin said that while the imaging modalities of CTs and MRIs are not comparable, the degree of patellofemoral arthropathy appeared similar between the December 2014 CT Arthrogram and the October 2016 MRI.225
210
Dr Hamlin said that the findings of progressive patellofemoral chondrosis and medial femoral condyle chondrosis are on the balance of probabilities secondary to longstanding overloading of the right knee joint due to body habitus and potentially previous repetitive injuries. He thought that the accident may have accelerated the patellofemoral arthropathy due to the direct impact on the patellofemoral joint.226
211
Dr Hamlin said that the 5 October 2016 MRI scan did not demonstrate features to suggest post-traumatic sequela, however a fracture or bone marrow oedema pattern would have resolved in the 12-month interim between the accident and the MRI. He said that it is not possible to entirely exclude the potential for a significant injury to have occurred to the patellofemoral joint during the accident.227
212
Dr Witte’s comments about the cartilage appearing ripped were put to Dr Hamlin. Dr Hamlin said that the 2016 MRI showed fissuring which is more consistent with cartilage injured by wear and tear. He said that fissuring involved micro cracks in the cartilage and fluid entering those cracks and causing cartilage loss.228
The plaintiff’s case on the cause of the plaintiff’s knee injury
213
The plaintiff submitted that there is no substantial dispute between any of the experts that the plaintiff was suffering tricompartmental osteoarthritis. She argued that it was apparent from the various post-accident MRI scans that the plaintiff suffers osteoarthritis across all three knee compartments including degeneration of the patellofemoral cartilage.229
214
The plaintiff contended that the accident aggravated her symptoms. She relied on the evidence given by Dr Buelow, Associate Professor Hardisty, Dr Tan and Dr Witte in this regard.230
225 Exhibit 79.
226 Exhibit 79.
227 Exhibit 79.
228 ts 583.
229 Plaintiff’s Closing Submissions, pars 82 – 85.
230 Plaintiff’s Closing Submissions, pars 130 – 141.
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215
The plaintiff submitted that the court should find that the plaintiff did not have symptomatic knee osteoarthritis between December 2014 and 1 October 2015.231 She argued that save for the isolated report in the plaintiff’s general practitioner notes about ‘knee pains’, there is no evidence that the plaintiff suffered from symptomatic osteoarthritis in her right knee prior to the accident.232
216
The plaintiff submitted that the primary contemporaneous record relied upon by both parties in respect of causation of the knee injury was the December 2014 CT Arthrogram. The plaintiff argued that the experts agreed that the reporting radiologist at that time had under-reported the extent of the cartilage damage within the knee joint.233
217
The plaintiff referred to the evidence given by the various experts about the extent of the chondral loss. She submitted that there was no need for the court to make a specific finding as to whether or not there was full thickness chondral loss on the December 2014 CT Arthrogram. She argued that the crucial factor was whether the accident had a symptomatic effect on the plaintiff.234
218
The plaintiff referred to the evidence that she gave that she recovered from the 2014 incident and returned to normal activities after a few days, or a week.235 She submitted that the orthopaedic surgeons as well as Dr Hamlin and Dr Flahive agreed that the knee did not present as ‘perfectly healthy’ but that a patient with those scans could still be asymptomatic.236
219
The plaintiff contended that there was no evidence to support Dr Flahive’s conclusion that she was likely symptomatic prior to the accident.237 She referred to Dr Tan’s evidence that the available records did not suggest that she required significant treatment after the 2014 incident and relied on his opinion that it would be unusual for someone with severe symptomatic arthritis to be able to kneel regularly and conduct CPR training.238
231 Plaintiff’s Closing Submissions, par 112.
232 Plaintiff’s Closing Submissions, par 113.
233 Plaintiff’s Closing Submissions, par 115.
234 Plaintiff’s Closing Submissions, pars 116 – 120.
235 Plaintiff’s Closing Submissions, par 121; ts 79.
236 Plaintiff’s Closing Submissions, par 123; ts 306, ts 458, ts 511, ts 523.
237 Plaintiff’s Closing Submissions, par 129; Exhibit 84.
238 Plaintiff’s Closing Submissions, par 122; ts 279.
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220
The plaintiff also relied on Associate Professor Hardisty’s opinion that he did not consider that the plaintiff had pre-existing symptomatic problems with her right knee.239
221
The plaintiff referred to evidence that she gave that the knee pain reported prior to the accident was in her legs, concentrated around the knees and was different to the pain she experienced after the accident.240
The defendant’s case on the right knee
222
The defendant relied upon Dr Flahive’s opinion that there was significant pre-existing degeneration.241 She submitted that Dr Buelow agreed with Dr Flahive’s assessment and referred to the evidence given by Dr Buelow that the December 2014 CT Arthrogram revealed grade IV damage.242 She also relied on Dr Witte’s evidence that there was a large chondral defect that was not far off grade IV.243
223
The defendant submitted that Associate Professor Hardisty’s evidence was that the accident exacerbated an existing problem.244 She referred to the evidence given by Dr Hamlin that there was a grade IV full thickness loss of cartilage and that the fissuring on the October 2016 MRI scan revealed wear and tear.245
224
The defendant submitted that Dr Flahive’s opinion that there had been pre-existing osteoarthritis in the knee was correct. The defendant also drew attention to the evidence that Dr Flahive gave that it would be impossible for the medial femoral condyle and the tibiofemoral condyle to be impacted during the accident.246 The defendant argued that this was relevant because by 2016 when the 5 October 2016 MRI was performed, there was clear degeneration in those other joints which it was submitted could not possibly have been caused by the accident.247 The defendant noted that that opinion was put to Associate Professor Hardisty who said it was not possible to say what Dr Flahive said because it was not proven.248
239 Plaintiff’s Closing Submissions, par 127; Exhibit 50.
240 Plaintiff’s Closing Submissions, par 128; ts 205 – ts 206.
241 Defendant’s Closing Submissions, par 132.
242 Defendant’s Closing Submissions, par 133; ts 454.
243 Defendant’s Closing Submissions, par 135; ts 464 – ts 468.
244 Defendant’s Closing Submissions, par 136; ts 577.
245 Defendant’s Closing Submissions, pars 137 – 139; ts 582 – ts 585.
246 ts 570.
247 Defendant’s Closing Submissions, par 142; Exhibit 87.
248 Defendant’s Closing Submissions, par 143; ts 577 – ts 578.
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225
The defendant also relied on the opinion of Dr Hamlin.249
226
The defendant submitted that it was clear on all of the evidence that at best, the accident may have aggravated the degeneration of the patella joint only and may have exacerbated symptomology. It was argued that in real terms it has done no more than accelerate the need for a knee replacement that would in any event have inevitably been required due to the already degenerate condition of the plaintiff’s knee.250
227
The defendant submitted that it was undeniable that the plaintiff had pre-existing degeneration due to her weight causing enormous additional load on her knees. The defendant accepted that the plaintiff has pain in her knee but argued that that would have inevitably occurred because of her weight.251
The reliability of the plaintiff’s evidence
228
In the defendant’s opening submissions, the defendant indicated that the plaintiff’s credibility would be ‘significantly challenged’. The defendant also submitted that the histories that the plaintiff provided to the medical experts were inaccurate with the result that the expert opinion was flawed and should be accorded negligible weight.252
229
Ultimately, however, the Defendant’s Closing Submissions only expressly challenged the plaintiff’s credibility in one respect. The defendant described as a ‘recent invention’ any suggestion that the plaintiff wished to pursue FIFO work. The defendant submitted that evidence that the plaintiff gave that she could not start FIFO work until her daughter turned 18 was ‘without merit’.253
230
The plaintiff gave evidence that when she enrolled in her Masters of Science and Environmental Engineering, she had in mind that she could go into mining once her daughter turned 18. She also referred to moving into FIFO work once her daughter turned 18.254
249 Defendant’s Closing Submissions, par 144.
250 Defendant’s Closing Submissions, par 154.
251 Defendant’s Closing Submissions, pars 155 – 156.
252 Defendant’s Opening Submissions dated 28 October 2024, pars 3 – 4; ts 31.
253 Defendant’s Closing Submissions, par 65.
254 ts 65 – ts 66, ts 68.
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231
The defendant referred to evidence that the plaintiff gave that her daughter stopped living with her when she was around 9 or 10 years old, in about 2012 – 2013.255 When it was put to the plaintiff that there had been nothing to prevent her from pursuing FIFO work after her daughter stopped living with her, she said that this ‘did not matter’ as her daughter could have come home at any time. The plaintiff said that her daughter was back and forward a few times.256
232
I did not find it implausible that the plaintiff might have thought about working FIFO in the mining industry when she enrolled in her Masters of Science and Environmental Engineering. The mining industry is a significant employer in this state and the plaintiff currently works at a mining company. I am not satisfied that the plaintiff’s evidence that she had thought about FIFO work was a recent invention.
233
I do, however, have difficulty accepting the plaintiff’s evidence that she could not pursue FIFO work because she was concerned that her daughter could come home ‘at any time’. While I accept that the possibility that her daughter might return would have been an issue for the plaintiff to consider, if the plaintiff did not have custody of her daughter, parental responsibilities did not prevent her from pursuing FIFO work.
234
The plaintiff’s answer to counsel’s question struck me as self-serving and argumentative. This contributed to my general impression that the plaintiff was heavily invested in her claim and had difficulty not assuming the role of advocate.
235
There were three other matters that added to this impression.
236
First, at one point during the trial, while I was discussing with the plaintiff’s counsel the relevancy of Facebook posts the plaintiff wished to tender, the plaintiff interrupted my discussion with counsel to address me directly about why she considered the evidence relevant. It was necessary for me to explain to the plaintiff that her role was that of witness, not advocate.257
237
Secondly, some of the expert witnesses called by the plaintiff described the plaintiff seeking to correct statements in their reports that she disagreed with,258 or providing them with unsolicited information
255 Defendant’s Closing Submissions, par 65; ts 207 – ts 208.
256 ts 207 – ts 208.
257 ts 90.
258 ts 213, ts 291.
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that she considered relevant despite being asked to communicate with
her solicitors, rather than the experts directly.259
238
Thirdly, when the plaintiff was asked about Dr Lelek’s opinion that she was improving prior to the second accident, she said that she disagreed but that was ‘his opinion’. This response again seemed argumentative to me.260
239
My impression that the plaintiff had difficulty not assuming the role of advocate caused me to approach her evidence with a degree of caution.
240
The Defendant’s Closing Submissions did not repeat the submission made in opening that the expert medical opinions should be accorded negligible weight because the histories that the plaintiff provided were inaccurate. The closing submissions did, however, refer to the provision of different histories as one of the problems of the case.261
241
The defendant submitted that the plaintiff did not tell Dr Campbell about injuring her knee in November 2014, told Dr Buelow that she had no prior issues with her knee and Dr Hardisty on 31 May 2018 that she did not have pre-existing, symptomatic problems with her right knee. The defendant submitted that this was inconsistent with what the plaintiff had told Dr Campbell in October 2016.262
242
The plaintiff submitted that her cross-examination about what she told the experts was limited and any assertion she gave an inaccurate history could not be made out.263
243
The plaintiff gave evidence that the history Dr Campbell recorded was not what she told Dr Campbell.264 As Dr Campbell had passed away, she was not available for cross-examination. Her report was tendered into evidence under s 79C of the Evidence Act. I am not prepared to attach any weight to the history recorded by Dr Campbell in circumstances in which the accuracy of what was recorded was disputed and the plaintiff was unable to cross-examine her. I am not prepared to find that the evidence that the plaintiff gave was inaccurate because of what Dr Campbell recorded.
259 ts 259 – ts 260.
260 ts 201.
261 Defendant’s Closing Submissions, par 125.
262 Defendant’s Closing Submissions, pars 37, 127 – 128; Exhibit 50.
263 Plaintiff’s Closing Submissions, pars 8 – 22.
264 ts 212.
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244
Dr Buelow265 and Dr Hardisty266 said that the plaintiff told them that she was symptom-free prior to the accident. If she did, I am not satisfied that such a history was materially inaccurate. The evidence suggests that the plaintiff was generally asymptomatic before the accident.
245
As the defendant did not submit in closing that the expert opinions should be accorded negligible weight because the histories that the plaintiff provided were inaccurate, it was not clear to me that that submission was maintained. To the extent that it was, I do not accept that submission.
246
The facts or assumptions upon which a doctor’s opinion is based do not need to correspond with complete precision to the facts proven at trial. It is sufficient that the facts or assumptions proven are ‘sufficiently like’ the facts or assumptions in the opinion to render the opinion of value.267
247
In this case, by the time the various medical experts gave evidence at trial they were fully appraised of the plaintiff’s medical history. I am satisfied that the facts and assumptions proven at trial were such that the opinions had value.
Conclusion: the accident made a material contribution to the plaintiff’s knee injury
248
I find that during the accident the plaintiff struck her right knee on the steering column and that her knee started swelling shortly after the accident. I accept the evidence that the plaintiff gave to this effect.268 That evidence was not challenged in cross-examination. The evidence is also consistent with Dr Hassanein’s notes of her visit to see him on 6 October 2015 which record that the plaintiff complained of a right sore knee following the accident.269
249
There was broad consensus between the experts that the plaintiff had osteoarthritis in her right knee prior to the accident and I find accordingly.
265 ts 448.
266 Exhibit 50.
267 Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 [66] (Heydon J); Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [64].
268 ts 92.
269 Exhibit 14, page 231.
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250
Associate Professor Hardisty, Dr Witte, Dr Kimberley, Dr Buelow and Dr Tan were all of the opinion that the accident aggravated that osteoarthritis and caused the plaintiff’s knee to become symptomatic. They reasoned that the impact of the plaintiff’s knee on the steering column was the likely cause of her knee becoming symptomatic because her knee became symptomatic after that impact and such an impact could render an asymptomatic knee, symptomatic.
251
Dr Campbell expressed a contrary view. She did not think that the accident either aggravated any pre-existing injury or left the plaintiff with a lasting injury. I am not prepared to attach any significant weight to her opinion. There was controversy about whether the history she recorded in her report was accurate. Her report also did not explain her reasons for reaching her conclusion and she was not available for cross-examination.
252
Both Dr Hamlin and Dr Flahive seemed to acknowledge the possibility that the accident could have contributed to the plaintiff’s injury, but they attached more significance to the plaintiff’s weight as a contributing cause. Dr Hamlin seemed less strident in his views than Dr Flahive. Dr Hamlin accepted that the accident may have accelerated the patellofemoral arthropathy due to the direct impact on the patellofemoral joint.
253
On balance, I find the reasoning of Associate Professor Hardisty, Dr Witte, Dr Kimberley, Dr Buelow and Dr Tan more persuasive than that of Dr Flahive and Dr Hamlin. This is because their opinion explains the timing of the change in the plaintiff’s capacity after the accident, while Dr Hamlin’s and Dr Flahive’s opinion did not.
254
Underlying Dr Flahive’s evidence seemed to be a suggestion that the plaintiff was minimising her symptoms prior to the accident. It was not put to the plaintiff in cross-examination that she was minimising her symptoms and she made no concession that she had.
255
While there was some limited evidence that the plaintiff had issues with her knee before the accident, the evidence did not suggest that she required any significant treatment.
256
The plaintiff had both of her knees X-rayed in 2006 (although at that stage the pain was recorded as being in the left knee).270 There is no evidence that she required treatment for her knees at that time.
270 Exhibit 1.
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Although she saw Dr
Lelek, a chiropractor, he was treating her back. Although the plaintiff injured her knee in 2014, again there was no suggestion that she required any significant treatment. She saw her general practitioner about back and knee pain in June 2015 but again, the treatment seems to have concerned her back.
257
The plaintiff’s evidence did not suggest that she was symptomatic and her evidence drew some support from the lay witnesses she called. Although I have indicated that I have approached the plaintiff’s evidence with a degree of caution, her evidence seemed broadly consistent with her medical records.
258
By contrast, the medical evidence reveals that after the accident, it was necessary for the plaintiff to repeatedly see a general practitioner and be referred to an orthopaedic surgeon, who performed surgery.
259
It did not seem to be really disputed that before the accident the plaintiff could perform CPR and after the accident she could not.
260
I also considered that as orthopaedic surgeons Associate Professor Hardisty, Dr Witte, Dr Buelow and Dr Kimberley were in a superior position to comment about the cause of the plaintiff’s knee injury than Dr Flahive (who was an occupational physician) and Dr Hamlin (a radiologist).
261
I did not find Dr Flahive’s evidence that it would be impossible for the medial femoral condyle and the tibiofemoral condyle to be impacted during the accident persuasive. The reasoning behind this assertion was not properly explained and was inconsistent with the evidence of Associate Professor Hardisty that the force of the impact could have caused twisting. As Associate Professor Hardisty suggested, Dr Flahive’s opinion seemed speculative.
262
I find therefore that the impact of the plaintiff’s knee on the steering column during the accident caused the plaintiff’s knee to become symptomatic.
263
While I accept the evidence given by a number of the medical witnesses, that the plaintiff’s weight might have contributed to her injury, it is not necessary for the plaintiff to establish that the accident was the sole cause of the plaintiff’s injury. I am satisfied that the accident made a material contribution to the plaintiff’s injury.
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The medical opinion regarding the cause of the plaintiff’s back, neck and shoulder injuries
Dr Campbell
264
When Dr Campbell reviewed the plaintiff on 19 August 2016, she recorded the plaintiff as describing extensive pain extending from the right side of her neck down the posterior aspect of the entire right side of her body to the ankle. She also described pain in the right scapula as being the most severe with discomfort experienced in the region of the right lower trapezius muscle with rotation of her neck.271
265
Dr Campbell said that her diagnosis was of extensive pain without localisation, or neurological deficit affecting the neck and back. She said that it was possible that Ms Hodges experienced some temporary discomfort but she was unable to relate her ongoing symptoms to the accident.
Associate Professor Hardisty
266
When Associate Professor Hardisty reviewed the plaintiff in June 2017, he said:272
(a) the plaintiff was still experiencing pain when she was involved in the second accident on 2 June 2017. He said that she had problems with intermittent back and neck pain but most of her problems were with her right knee;
(b) the plaintiff had sustained soft tissue injuries to the back and neck;
(c) the plaintiff’s back caused a problem if she had to sit for any prolonged period, or she had to twist;
(d) the plaintiff had aching around her neck if she had to sit at a desk for any period of time;
(e) when he examined her, he found her:
(i) back movement to be reasonable given her obesity; and
(ii) neck movements restricted with rotation and flexion up to 30%.
271 Exhibit 80.
272 Exhibit 49.
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267
In his report dated 10 August 2020, Associate Professor Hardisty said that:273
(a) a patient with knee osteoarthritis can also have it elsewhere;
(b) people with degenerative knees who are limping will get intermittent back ache which is more often than not soft tissue in nature. However, with aging comes degeneration of the back and a significant limp can exacerbate a degenerative back condition;
(c) hip pain can be multifactorial but without the presence of arthritis in the hip, the hip pain is in relation to trochanteric bursitis that can affect either hip; and
(d) the plaintiff’s symptoms of low back pain and hip pain are more likely than not related to her right knee and degenerative arthritis.
268
When Associate Professor Hardisty reviewed the plaintiff on 3 November 2023,274 he thought that:
(a) the plaintiff’s back issues were unlikely to be related to the accident. He noted that the plaintiff had long-term back problems for which she had been seeking treatment;
(b) the plaintiff’s cervical spine injuries were an exacerbation of a previous whiplash injury; and
(c) her right shoulder was unimpaired.
269
Associate Professor Hardisty said that the exacerbation of her whiplash injury was likely to settle down, but she would be left with some residual stiffness in her cervical spine. He said that the pain in the interscapular region was likely to lessen with regular treatment but it had the potential to not fully resolve.
273 Exhibit 52.
274 Exhibit 54; ts 201.
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Dr Witte
270
When Dr Witte examined the plaintiff on 29 August 2018, he did not find any significant abnormality in the plaintiff’s head, neck or upper limbs and her spine seemed satisfactory.275 In cross-examination, however, he said that as he had seen the plaintiff to examine her knee, he might only have given the other parts of her body a cursory examination and would not have examined them formally.276
Dr Tan
271
In his report dated 17 September 2024, Dr Tan expressed the opinion that:
(a) given the longstanding history of diffuse spinal pain and stiffness, and the low energy collision, the plaintiff’s injuries constituted a whiplash type of soft tissue injury involving the cervical, thoracic and lumbar spine;
(b) given the prior historical records of chiropractic treatment and the circumstance of the crash, he did not consider that the impact of the accident contributed to the ongoing symptoms; and
(c) there may have been a transient exacerbation, with an increase of pain and stiffness for 1 – 2 years post-accident.277
272
Dr Tan’s said that a whiplash injury presents as non-specific pain of the neck and shoulder and it can be hard to distinguish whether it is pain from the neck or shoulder.278
273
Dr Tan thought that it was plausible that the plaintiff might have suffered a soft tissue injury from the seatbelt in the accident. He said that the recommended treatment for this type of injury was conservative treatment with anti-inflammatories and simple analgesia, followed by a period of strengthening exercises. He said that if an injury were not treated it could extend the time for recovery. He said there was no harm in chiropractic treatment in the acute phase but he did not support it as a long-term treatment.279
275 Exhibit 71.
276 ts 385.
277 Exhibit 46.
278 Plaintiff’s Closing Submissions, par 86; ts 281.
279 ts 281 – ts 282.
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274
Dr Tan thought that the whiplash injury might cause a degree of pain and stiffness for up to 12 months.280
Dr Flahive
275
When Dr Flahive saw the plaintiff in May 2020,281 he said that she described pain in her right posterior shoulder region, with a constant burning sensation at a level of 4-5/10, although if she had a remedial massage it could increase to 10/10. He said that she said the pain was variable, depending on whether she had had to work.
276
In the part of Dr Flahive’s report dated 29 May 2020 in which he recorded his assessment of the plaintiff, he recorded her as having sustained a strain injury to her right shoulder and having a whiplash type neck injury.
277
Later in his report he observed that it was important to question whether there were other factors present that explained the continuation of her shoulder symptoms. He said that there was little underlying pathology to account for those symptoms and he suspected that they related to muscular and postural fatigue. He said there had been an overreliance on chiropractic treatment and massage therapy which he thought had little long-term benefit. He recommended an exercise programme.
278
When Dr Flahive saw the plaintiff again in August 2024,282 he said that the plaintiff was still complaining of pain around the top and back of her right shoulder and pain around both hips and the buttock area.
279
Dr Flahive said that the plaintiff’s right hip pain may be related to her lumbar spine pathology and there was little to suggest that it was materially related to the accident.
280
He said that investigations of her right shoulder had only revealed mild subacromial bursitis that he thought was of questionable clinical relevance. He expressed the opinion that the plaintiff’s right shoulder pain was likely to be muscular in nature and was best addressed through a more active programme of exercise. He thought it unlikely that the accident had any role in these continuing symptoms and thought there was more proximate factors relating to her work, static postures and limited exercise.283
280 ts 289.
281 Exhibit 85.
282 Exhibit 87.
283 Exhibit 87.
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281
At trial Dr Flahive, said that having reviewed the imaging, he thought that the plaintiff’s shoulder injury was a chronic injury most likely related to aging that had developed over time through the activities of daily living. He said that it was not a traumatic injury. He said that if the injury had been related to the accident it would have progressed to a more severe injury. He attached significance to the fact that the plaintiff had had a full range of shoulder movement after the accident.284
Dr Kimberley
282
The plaintiff called Dr Benjamin Kimberley, an orthopaedic surgeon to give evidence about her back, neck and shoulder. He reviewed the plaintiff on 11 October 2024 and prepared a report the same day. 285
283
Dr Kimberley thought that the plaintiff had injuries to her cervical spine, shoulder and left knee as a consequence of the accident.286
284
Dr Kimberley said that shoulder problems can sometimes be overlooked. He felt that the plaintiff’s shoulder had been neglected and he could not see any reason for her injury, other than the accident.287 He also said that the pain described by the plaintiff was in the trapezial region and he sees a lot of patients who get ‘protective guarding’ and their shoulder pain manifests in other areas of their body.288
285
Dr Kimberley said that an MRI of the plaintiff’s shoulder performed on 17 October 2024 showed labral tearing, rotator cuff tearing, biceps tearing and AC joint arthropathy in the tight subacromial space. He said that there was nothing in the plaintiff’s history to suggest that there was a shoulder problem previously. He said that he thought that it was quite possible that this injury was caused by the accident.289
286
Dr Kimberley thought that the plaintiff had signs of degenerative change in the lower back and it was possible that this was exacerbated by the accident.290
284 ts 505 – ts 507.
285 Exhibit 62.
286 ts 347.
287 ts 367; Exhibit 62.
288 ts 371.
289 ts 351 – ts 352. See also Exhibit 62.
290 ts 354.
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287
Dr Kimberley said that the MRI scan of the plaintiff’s hip revealed that she had a labral tear in the hip. He said that the tear may have been from the accident but it was very hard to determine that. He said that it could have had other causes. He said that it was possible that the knee could become symptomatic because the knee did not extend.291
288
Dr Kimberley did not appreciate that the plaintiff had had a second accident in 2016 when he prepared his report. He accepted in cross-examination that this accident could have exacerbated things.292 He said it was hard to be precise about the neck and back. He accepted that there had been issues in the past, a second accident and degeneration.293 He accepted that the plaintiff could have been injured through other activities.294
The plaintiff’s case on causation of the plaintiff’s neck, right shoulder and back injuries
289
The plaintiff submitted that the evidence established that she injured her neck, right shoulder and back in the accident.295
290
With regard to her neck, she relied on the evidence that she gave that following the crash she experienced pain and stiffness across the base of her neck. She also referred to the fact that the general practitioner notes recorded her complaining of neck pain after the accident and that she was referred to medical massage treatment by her general practitioner.296
291
The plaintiff relied on Dr Tan’s evidence that she suffered a spinal whiplash injury and argued that that evidence was consistent with Associate Professor Hardisty’s diagnosis that the plaintiff had re-injured her cervical spine and Dr Campbell’s diagnosis of extensive pain affecting the neck and back.297
292
The plaintiff argued that by the time she was assessed by Dr Kimberley in 2024, she had a very modest improvement in the range of motion of her neck. She submitted that it was not until February 2022 that she was referred for imaging of her neck which revealed spondylosis with loss of disc height and C4/C5 disc and nerve root changes.298
291 ts 354.
292 ts 365 – ts 366.
293 ts 367 – ts 377.
294 ts 369.
295 Plaintiff’s Closing Submissions, par 102.
296 Plaintiff’s Closing Submissions, par 85; Exhibit 14, pages 231, 233, 235 and 272-3 and Exhibit 25.
297 Plaintiff’s Closing Submissions, pars 86 – 89.
298 Plaintiff’s Closing Submissions, par 91; Exhibit 28.
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293
With regard to the plaintiff’s shoulder, she relied on the evidence that she gave about the condition of her shoulder after the accident. She also relied upon the general practitioner notes which recorded her complaining of a shoulder injury after the accident.299
294
The plaintiff submitted that in 2016 Dr Campbell diagnosed a strain injury to her right shoulder300 and in 2024 Dr Kimberley301 considered that the right shoulder had deteriorated over time, causing difficulty with overhead activity and heavy lifting.302
295
The plaintiff contended that Dr Kimberley’s evidence that her right shoulder had not been adequately investigated to determine the true nature of her injuries was critical. She submitted that Dr Kimberley confirmed that there was some degree of damage to the right shoulder.303
296
With regard to the plaintiff’s back, she submitted that Dr Lelek indicated that the plaintiff complained to him of lower back pain on 13 November 2015. The plaintiff also relied on Dr Lelek reporting that the plaintiff’s pain did not diminish with rest or anti-inflammatory medication, and the fact that she sought chiropractic care to alleviate her symptomatology. The plaintiff referred to Dr Lelek’s evidence that by June 2016 her lower back was still quite painful.304
297
The plaintiff also relied on evidence that she gave that the chiropractic treatment provided some immediate relief for muscle tension but her soft tissue pains in her back were not improving and she returned to her general practitioner in February 2016.305
298
The plaintiff submitted that Associate Professor Hardisty diagnosed her as suffering from soft tissue injuries to the back and neck.306
299
The plaintiff submitted that by October 2018, she again sought referral to her chiropractor for treatment of ongoing back pain as her shoulder, neck and back pains were worsening.307 She referred to the
299 Plaintiff’s Closing Submissions, pars 92 – 93; Exhibit 14, pages 231 and 235; ts 92.
300 Exhibit 80.
301 Exhibit 62.
302 Plaintiff’s Closing Submissions, par 94.
303 Plaintiff’s Closing Submissions, par 95; Exhibits 62 and 67.
304 Plaintiff’s Closing Submissions, par 96; Exhibit 15, page 14.
305 Plaintiff’s Closing Submissions, par 97; ts 102, ts 97.
306 Plaintiff’s Closing Submissions, par 98; Exhibits 49 and 52.
307 Plaintiff’s Closing Submissions, par 99; Exhibit 25; ts 157.
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notes of her general practitioner that recorded her complaining of back
pain in 2020 which resulted in her being referred for CT imagining in 2021.308
The defendant’s case on the plaintiff’s other injuries
300
The defendant admitted that the plaintiff suffered a whiplash injury to her neck and lower back in the accident,309 but maintained that the effects of this injury were transitory.
301
The defendant submitted that there is no cogent evidence establishing any causative effect between the plaintiff’s ongoing complaints of neck, shoulder, hip, thoracic and lumbar spine pain and the accident. The defendant contended that the injuries which may have occurred in the accident were very modest exacerbations of pre-existing issues with those areas of the spine and which were effectively asymptomatic at the time of her second motor vehicle crash in June 2016.310
302
The defendant also submitted that there is no indication that those injuries have in any way impacted upon her working capacity or enjoyment of life. The defendant argued that to the extent those areas may be symptomatic until more recent times then they are more likely due to ongoing degeneration related to age.311
303
The defendant accepted that the plaintiff injured her neck in the accident and noted that the plaintiff complained to her general practitioner that she had a sore neck and right knee.312
304
The defendant’s case was that any neck injury was transitory. She submitted that after seeing her general practitioner in the immediate aftermath of the accident, the only treatment that the plaintiff sought for some time was treatment from Dr Lelek. The defendant referred to the fact that that treatment was for the cervical thoracic and lumbar spine but not the knee and that the defendant had been seeing Dr Lelek for similar complaints prior to the accident and since 2006.313 The defendant also relied on Dr Lelek’s opinion that his treatment of the plaintiff resulted in good improvement
308 Plaintiff’s Closing Submissions, pars 100 – 101; Exhibit 30, page 323, Exhibit 26.
309 Defendant’s Closing Submissions, par 1.
310 Defendant’s Closing Submissions, par 122.
311 Defendant’s Closing Submissions, par 123.
312 Defendant’s Closing Submissions, par 93; Exhibit 14, page 232; Exhibit 3; Exhibit 15, page 17.
313 Defendant’s Closing Submissions, pars 94 – 95; Exhibit 38.
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until she was involved in a second motor vehicle accident on 2
June 2016 which aggravated her neck, mid back and lower back.314
305
The defendant relied on:
(a) Dr Campbell’s evidence that it was unlikely that the accident caused an aggravation of any pre-existing injury and/or condition;315
(b) the fact that when the plaintiff saw Dr Buelow on 17 October 2016 about her right knee, he did not deal with any other issue and did not record any complaints about the neck, back or shoulder;316
(c) Associate Professor Hardisty’s evidence that:
(i) the plaintiff had long-term problems with her back and had been seeking treatment for some years and that in his opinion her back complaints were the natural progression from those ongoing issues. He said it was unlikely these were accident related;
(ii) the plaintiff’s complaints about her spine were an exacerbation of a previous whiplash injury; and
(iii) her right shoulder was unimpaired;317
(d) Dr Tan’s opinion that he did not consider that the accident was the cause of the symptoms in the cervical, thoracic and lumbar spine (although there might have been a transient whiplash effect);318
(e) Dr Witte’s evidence that when he reviewed the plaintiff on 29 August 2018 he did not find any significant abnormality in her head, neck, or upper limbs and thought her spine seemed satisfactory.319
306
The defendant also relied on the evidence of Dr Flahive:
(a) that the shoulder pain was muscular and was unlikely to be related to the accident;320
314 Defendant’s Closing Submissions, par 94; Exhibit 15.
315 Defendant’s Closing Submissions, pars 96 – 98.
316 Defendant’s Closing Submissions, par 99.
317 Defendant’s Closing Submissions, pars 100 – 101; Exhibit 49; Exhibit 54.
318 Defendant’s Closing Submissions, pars 102 – 103; Exhibit 46.
319 Defendant’s Closing Submissions, pars 104 – 105; Exhibits 70, 73 and 76.
320 Defendant’s Closing Submissions, pars 115 – 116 and 120; Exhibits 84 and 87.
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(b) that it was unlikely that the plaintiff’s requirement for lower back treatment was related to the accident;321 and
(c) that there was little to suggest that the hip pain reported was materially related to the accident;322
307
The defendant submitted that the only witness who gave any evidence about these injuries being potentially accident related was Dr Kimberley. The defendant contended that it is not apparent from the history given to Dr Kimberley that he was aware of the prior chiropractic treatment that the plaintiff had received.323 She also argued that Dr Kimberley failed to fully engage with the question of causation.324
308
The defendant noted that Dr Kimberley was unaware of the plaintiff’s motor vehicle accident in June 2016 but accepted that it could have ‘stirred things up’. The defendant submitted that this was wholly inadequate.325
Conclusion regarding the plaintiff’s neck, right shoulder and back
309
The plaintiff alleged that the accident caused her to suffer:
(a) an exacerbation of a soft tissue whiplash injury in her neck, spondylosis with loss of disc height and/or a C4/C5 disc injury resulting in nerve root changes;326
(b) a soft tissue injury in her right shoulder, a partial thickness tear of the anterior supraspinatus fibres with associated tendinopathy and/or an injury to the long head of the biceps;327 and
(c) a soft tissue injury to her upper, mid and lower back.328
310
I am satisfied that it is more likely than not that the plaintiff suffered soft tissue injuries to her neck, right shoulder and back from the accident and that the neck injury was an exacerbation of a pre-existing injury. I find accordingly.
321 Defendant’s Closing Submissions, par 117; Exhibits 86 – 87.
322 Defendant’s Closing Submissions, pars 117 – 119; Exhibits 86 – 87.
323 Defendant’s Closing Submissions, pars 106 – 109.
324 Defendant’s Closing Submissions, pars 111 – 112.
325 Defendant’s Closing Submissions, pars 113 – 114.
326 Amended Statement of Claim, par 4.2.
327 Amended Statement of Claim, par 4.3.
328 Amended Statement of Claim, par 4.4.
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311
The plaintiff told her general practitioner about neck pain on her right side and shoulder and that she had a sore neck.329 Both Associate Professor Hardisty and Dr Tan thought that she sustained a whiplash injury in the accident.
312
Although the plaintiff sought to rely on the opinion expressed by Dr Campbell, I am not certain that that opinion assists the plaintiff much. Dr Campbell’s conclusion seemed to be that any injury was not related to the accident. As Dr Campbell was not available to explain her reasoning or be cross-examined, I am not prepared to attach too much weight to her opinion in any event.
313
I am not satisfied that it is more likely than not that the accident caused the plaintiff to suffer spondylosis with loss of disc height and a C4/C5 disc injury resulting in nerve root changes.
314
When he gave evidence at trial Dr Kimberley did discuss the results of an MRI revealing spondylosis with loss of disc height and a C4/C5 disc injury resulting in nerve root changes. His evidence did not go as far as saying that these injuries were caused by the accident. Rather, he seemed to accept that it was difficult to know nine years later. 330
315
No other expert opined that the accident caused the plaintiff to suffer spondylosis with loss of disc height and a C4/C5 disc injury resulting in nerve root changes.
316
I am also not satisfied that it is more likely than not, that the accident caused the plaintiff to suffer a partial thickness tear of the anterior supraspinatus fibres with associated tendinopathy and/or an injury to the long head of the biceps.
317
While I accept that the MRI performed in October 2024 might have revealed a shoulder injury, that MRI was performed nine years after the accident. Dr Flahive seemed to think that any injury was the result of degenerative change. Although Dr Kimberley seemed to have a different view, even he accepted that it was very hard to determine whether the shoulder injury was related to the accident. Significantly, he accepted that there could have been other causes of the injury, including the plaintiff’s subsequent car accident. Given this concession, and the significant amount of time that had passed after the
329 Exhibit 14, page 231.
330 ts 349 – ts 350; Plaintiff’s Closing Submissions, par 165.
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accident before the plaintiff was seen by
Dr Kimberley, I was not satisfied that it was more likely than not that the alleged shoulder injury was caused by the accident.
318
The plaintiff had a long history of back pain for which she was obtaining regular treatment from a chiropractor prior to the accident. Both Associate Professor Hardisty and Dr Tan were of the opinion that any continuing pain was unlikely to have been related to the accident.
319
Dr Kimberley did not go as far as saying that the plaintiff’s ongoing back pain was caused by the accident. He merely said this was a ‘possibility’. I am not satisfied on the basis of the identification of this possibility that it is more likely than not that any ongoing back pain was caused by the accident.
320
Further, while I have found that the plaintiff suffered a whiplash injury in the accident, I am not satisfied that that whiplash injury caused the plaintiff any lasting injury or was the cause of any ongoing symptoms. In this regard, I accept the evidence of Dr Tan that there may have been a transient exacerbation, with an increase of pain and stiffness for 1 – 2 years post-accident.
321
To the extent that Dr Tan’s evidence was inconsistent with that of Dr Kimberley’s, I prefer Dr Tan’s evidence. Dr Tan’s evidence seemed broadly consistent with the views of Associate Professor Hardisty and Dr Flahive. I found Dr Kimberley’s evidence less persuasive because of the limitations of his evidence and the concessions that he made.
Non-pecuniary loss
The plaintiff’s claim
322
As the plaintiff’s claim is in respect of bodily injury caused by a motor vehicle, the amount of damages to which she might be entitled for non-pecuniary loss is restricted to a proportion of a maximum amount, currently set at $485,000.00. The maximum amount may only be awarded in the most extreme case. The amount of damages to be awarded is otherwise determined as a proportion of the maximum amount according to the severity of the non-pecuniary loss.331
323
The plaintiff submitted that non-pecuniary loss should be assessed at not less than 20% of the most extreme case.332
331 Motor Vehicle (Third Party Insurance) Act 1943 (WA) (Motor Vehicle Third Party Insurance Act), s 3C.
332 Plaintiff’s Closing Submissions, pars 296 – 301.
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324
The defendant submitted that for the exacerbation of her right knee, she should not be entitled to damages for all of her injuries of more than 15% – 16% of the worst-case scenario.333
325
The defendant submitted that the accident caused a modest exacerbation of the plaintiff’s neck and back problems which were longstanding and for which she had previously received chiropractic treatment.334
Assessment
326
The accident caused bruising and swelling to the plaintiff’s knee and led to it becoming symptomatic and painful. The plaintiff also sustained soft tissue injuries to her neck (exacerbating a pre-existing injury), right shoulder and back.
327
Although the plaintiff only required modest medical treatment in the immediate aftermath of the accident, she required more significant treatment for her knee, including surgery.
328
The accident rendered the plaintiff’s asymptomatic osteoarthritis symptomatic. This has meant that she has had to endure knee pain and discomfort for nine years. Her knee symptoms have impacted her lifestyle and have prevented her from engaging in some of the pre-accident activities that she used to engage in.
329
That said, it does not seem to me that the plaintiff’s lifestyle has been crippled by her injuries. She was able to travel widely and engage in a variety of activities for her 50th birthday, even if some activities had to be modified. The plaintiff seems to have been able to have continued to live an active lifestyle.
330
In my view the plaintiff’s damages should be assessed at 15% of the worst case. I therefore assess the plaintiff’s entitlement at $47,250.00 (taking into account the deduction that must be made).
Future medical treatment and travel
The medical opinion on future medical costs
331
Associate Professor Hardisty said that before the plaintiff had surgery, she would need to have a structured physiotherapy program, use a brace to support her knee and try cortisone and synvisc
333 Defendant’s Closing Submissions, par 166.
334 Defendant’s Closing Submissions, par 147.
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injections.
335 He said that the plaintiff would need to attend a medical practitioner around the time of a knee replacement336 and that most patients needed physiotherapy and hydrotherapy.337
332
Associate Professor Hardisty said that after an operation most patients will report pain for between 3 – 6 months. He said that for the first 6 – 12 weeks they will require opiates. He said that patients would likely require Panadol and anti-inflammatories for 3 – 6 months and would get their prescriptions from a general practitioner.338
333
In his report dated 10 August 2020, Associate Professor Hardisty339 said that:
(a) the current cost of a total knee replacement is $4,090.00 with hospital fees of $25,000.00 for anaesthetic, surgical assistance, prosthetic and theatre fees;
(b) total knee replacements can expect to function well for up to 15 to 20 years and the average time for revision in 85% – 90% of patients is 15 years;
(c) the plaintiff is likely to be around 60 – 65 years of age when a revision procedure may be required; and
(d) the plaintiff would be in hospital for five days and would need crutches for six weeks.
334
When Dr Witte saw the plaintiff on 29 August 2018, he thought that she would require a total knee replacement and that given her age, she would require a revision replacement approximately 15 years later.340
335
When Dr Witte gave evidence, he confirmed that he thought that the plaintiff would require a total knee replacement. He thought, however, that the plaintiff should delay such a replacement to allow her to lose weight. He suggested that she exercise, take anti-inflammatories, use a brace, heat packs and Panadol. He said he was not a big believer in injections.341
335 ts 313.
336 ts 314.
337 ts 314.
338 ts 314.
339 Exhibit 52.
340 Exhibit 71.
341 ts 386 – ts 388.
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336
In his report dated 17 September 2024, Dr Tan estimated the cost of a total knee replacement at between $25,000.00 and $30,000.00 and the cost of post-operative physiotherapy at $3,000.00.342 He recommended that the plaintiff strengthen her knee through exercise rehabilitation and weight loss. He also thought post-operatively that she should have a synvisc injection. He thought that long-term massage was not going to lead to long-term benefits.343
337
Dr Kimberley thought that the plaintiff might require surgery within the next five years or possibly earlier. He thought that a replacement knee would cost approximately $35,000.00 and rehabilitation afterwards would be approximately $2,000.00.344
338
Dr Kimberley thought that the plaintiff needed to have regular physiotherapy and an exercise program to treat her cervical spine. He thought that the plaintiff needed 1 – 2 years of physiotherapy.345
339
Dr Kimberley thought that the amount of damage to the plaintiff’s shoulder was enough to consider surgery. He thought that she should start with a period of physiotherapy which should go for six months minimum but if she did not improve then surgery should be considered.346
340
Dr Kimberley expressed the opinion that ongoing treatment for the right shoulder was difficult to predict. He thought that physiotherapy would likely last 1 – 2 years and cost between $5,000.00 and $6,000.00. He said that should Ms Hodges require shoulder surgery, which would be most likely arthroscopic-type surgery, this would be between $12,000.00 and $14,000.00.
The plaintiff’s claim
341
The plaintiff claimed a total of $70,328.00 for future medical treatment costs associated with her knee, shoulder and neck. This was comprised of:
(a) two years of exercise physiotherapy program for treatment of the shoulder and neck;
(b) arthroscopic shoulder surgery in two years;
342 Exhibit 46.
343 ts 285.
344 Exhibit 62.
345 ts 350.
346 ts 353.
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(c) a total knee replacement, including general practitioner, radiologist, crutches, medication and post-operative physiotherapy and hydrotherapy; and
(d) a second total knee replacement, including general practitioner, radiologist, crutches, medication and post-operative physiotherapy and hydrotherapy.347
342
The plaintiff submitted that her pre-existing injuries did not detract from the defendant’s liability. She argued that the defendant bore the evidentiary burden of establishing when the plaintiff’s osteoarthritis would otherwise have become symptomatic and she would have required a total knee replacement. She contended that the evidence did not permit the determination with ‘certainty’ when the plaintiff’s osteoarthritis would have become symptomatic.348
343
The plaintiff submitted that the court should be guided by the condition of her left knee. She argued that the condition of that knee reveals if it were not for the accident, she would not have required a total knee replacement for 5 – 10 years. She contended that it was open to the court to find that she would not have experienced osteoarthritis in the right knee until, at least, the present day and likely longer into the future.349
344
The plaintiff argued that when her left knee was examined by Dr Campbell in August 2016 and Dr Witte in 2018 they did not identify any problem with it. She referred to evidence given by Dr Witte that the plaintiff’s left knee did not require replacement in the short to medium term.350 She submitted that while Dr Flahive recorded the plaintiff experiencing some left knee pain in 2020, this had resolved by 2024 and Dr Kimberley also did not find any issues with her knee in 2024.351
345
Further, the plaintiff contended that there was no definitive evidence concerning when she would have required a total knee replacement if the accident had not occurred. She argued that the evidence did not establish a concrete timeframe for when a knee replacement would have been required and she referred to the evidence of Dr Buelow, Dr Witte, Associate Professor Hardisty and Dr Kimberley.352
347 Plaintiff’s Closing Submissions, par 373; Amended Substituted Particulars of Damage filed Pursuant to Rule 45C(3) of the District Court Rules dated 4 December 2024 (Particulars of Damage), pars 8 – 14.
348 Plaintiff’s Closing Submissions, pars 188 – 218.
349 Plaintiff’s Closing Submissions, pars 228 – 229.
350 Plaintiff’s Closing Submissions, pars 220 – 222.
351 Plaintiff’s Closing Submissions, pars 224 – 227.
352 Plaintiff’s Closing Submissions, pars 230 – 236.
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346
The plaintiff relied on the evidence of Associate Professor Hardisty in relation to the costs of a total knee replacement.353
347
The plaintiff also sought a revision knee replacement as part of her claim on the basis that she would have an initial replacement as soon as she could afford it.354
348
The plaintiff relied on the evidence of Dr Kimberley about the need for shoulder surgery and post-operative physiotherapy. She submitted that his evidence about the recommended treatment was not challenged.355
The defendant’s position
349
The defendant’s position was that the plaintiff would always have needed a total knee replacement but that the need for surgery had been brought forward. The defendant referred to the evidence of Dr Buelow and Associate Professor Hardisty in this regard.356
350
The defendant submitted that the appropriate way to compensate the plaintiff was by applying the tables in Luntz, Assessment of Damages for Personal Injury and Death,357 to calculate the difference between the present value of money if it had been paid when it will now need to be expended and the value of that money when it would otherwise have needed to be expended. On this basis, she contended that the additional cost caused by the acceleration of the need for both knee replacements was $5,624.00 and even allowing for contingencies, could not be more than $10,000.00.358
351
The defendant contended that the evidence otherwise established that any other treatment costs were unrelated to the accident and no other future medical expenses should be awarded.359
Assessment
352
In my view, the plaintiff’s submission that the defendant bore a significant evidential burden and needed to establish with certainty when the plaintiff’s osteoarthritis would have become symptomatic,
353 Plaintiff’s Closing Submissions, par 375; Exhibit 56.
354 Plaintiff’s Closing Submissions, par 378; Exhibit 52.
355 Plaintiff’s Closing Submissions, pars 379 – 382.
356 Defendant’s Closing Submissions, pars 180 – 181.
357 Table 1, page 1127 of 5th Edition.
358 Defendant’s Closing Submissions, pars 180 – 187.
359 Defendant’s Closing Submissions, par 188.
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overstates the position. The correct approach is that identified by
Ipp JA in Seltsam. As the court is considering a hypothetical situation (rather than a matter of past historic fact) the court is required to take account of the possibilities.
353
It is important to recall that the accident did not cause the plaintiff’s osteoarthritis. All of the medical experts accepted that the plaintiff had osteoarthritis before the accident.
354
Each of Associate Professor Hardisty, Dr Witte, Dr Tan and Dr Flahive seemed to think that the plaintiff would have developed symptomatic osteoarthritis anyway. Dr Tan and Dr Flahive said as much. Both Associate Professor Hardisty and Dr Witte gave evidence that the plaintiff would have required a total knee replacement anyway. It was implicit in this view that the plaintiff’s knee would have become symptomatic by that stage (otherwise the surgery would have been unnecessary). This evidence was not really challenged and no contrary evidence was led.
355
Nor is there any obvious reason to doubt the experts’ opinions that a person with asymptomatic osteoarthritis might go on to develop symptomatic osteoarthritis. Indeed, the plaintiff’s argument that, if it were not for the accident, her right knee would have degenerated at the same rate as her left knee, assumed that her right knee would have degenerated in any event.
356
Associate Professor Hardisty’s evidence was that the accident brought forward the need for a knee replacement by 2 – 5 years.360 That evidence seems to be the clearest evidence of how the accident accelerated the need for knee replacement surgery. His evidence did not seem to be contradicted by either Dr Witte, or Dr Tan, or any of the other experts. I accept his evidence in this regard.
357
It was not clear to me that the plaintiff’s submissions about comparing her right knee to her left knee were intended to suggest that Associate Professor Hardisty’s evidence should be rejected. I am not prepared to reject his evidence on such a basis.
358
It is true that Dr Witte said that the condition of the plaintiff’s left knee provided a useful comparison.361 He did not, however, clearly or directly address when he thought the plaintiff’s right knee might have become symptomatic, or the degree to which the need for surgery had been accelerated.
360 ts 321, ts 327 – ts 329.
361 ts 389.
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359
To the extent that the plaintiff’s submissions about her left knee were addressed to the assessment of non-pecuniary loss, I have assessed non-pecuniary loss on the basis of the injuries that I have found she actually suffered as a consequence of the accident. I did not consider it appropriate to reduce the damages for non-pecuniary loss to account for a hypothetical possibility.
360
The situation is different in relation to the cost of future surgery, however. The uncontradicted expert evidence was that the plaintiff would have required a knee replacement anyway and that the effect of the accident was to bring forward the need for that surgery.
361
In such circumstances it seems to me that the plaintiff is entitled to compensation for the fact that she is likely to need a total knee reconstruction, or reconstructions, earlier than she otherwise would have. I do not consider that she should be compensated on the basis that she should recover the entire cost of the surgery that would have been required in any event.
362
I will award a global sum of $12,500.00 to recognise that the plaintiff is likely to need a total knee reconstruction, or reconstructions, earlier than she otherwise would have.
363
I do not consider that the plaintiff is entitled to any award for the future treatment of her shoulder, neck or back because I am not satisfied that the need for any such treatment was caused by the accident.
364
If I had accepted that the need for treatment of the plaintiff’s shoulder and neck was caused by the accident, I would have allowed a sum of $5,000.00 for physiotherapy and $7,000.00 for the shoulder arthroscopy (after applying the appropriate net present value discounts). Although Dr Kimberley’s evidence about the costs of this treatment was not challenged, I would have discounted the cost of the shoulder arthroscopy to take account of the fact that it might not be required if the physiotherapy was successful.
Past and future care and assistance
The evidence regarding gratuitous services
365
The plaintiff gave evidence that in 2016 she told Dr Campbell that she found heavy cleaning and lawnmowing difficult. She said she was
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unable to squat, kneel or get down to floor level. She said that she
needed assistance with cleaning and lawn mowing.362
366
In Dr Campbells’ subsequent report, she recorded the plaintiff as saying that she does her own housework. The report states that she does not perform gardening because she employs a contractor. It does not state that she cannot undertake gardening. Dr Campbell concluded that she did not require any assistance.363
367
The plaintiff gave evidence that in 2017, she also told Associate Professor Hardisty that she needed assistance with cleaning and gardening.364 In his report dated 26 June 2017, he said that:
(a) the plaintiff maintained that:
(i) she had been able to perform domestic duties apart from those that require her to squat down such as getting into lower cupboards, scrubbing duties and this sometimes includes cleaning toilets and bathrooms; and
(ii) she has had trouble with gardening and household maintenance but does not have a great deal to do with respect to this; and
(b) he did not believe that the plaintiff required any active assistance with household gardening and maintenance.365
368
The plaintiff also gave evidence about telling Dr Witte that she needed assistance with cleaning and gardening in 2018.366 In his report dated 29 August 2018, he said that he did not consider that the plaintiff required domestic assistance.367
369
When Dr Witte saw the plaintiff again on 18 March 2020, however, he said that she reported being able to do minor housework but needing help for heavy housework which she ‘sometimes’ had to pay for and that she needed help in the garden. He did not express an opinion about whether such assistance was required.368
362 ts 106 – ts 107.
363 Exhibit 80.
364 ts 120.
365 Exhibit 49.
366 ts 128.
367 Exhibit 71.
368 Exhibit 73.
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370
When Dr Flahive reviewed the plaintiff on 13 May 2020, she told him that she was continuing to perform household chores but needed assistance with the heavier chores. She also said that she had a contractor perform lawnmowing and gardening twice a month during the summer and once a month during the winter. In his report dated 29 May 2020, he expressed the view that the plaintiff was fit to undertake her normal domestic activities.369
371
In his report dated 3 November 2023, Associate Professor Hardisty recorded the plaintiff as saying that she was able to do all the activities of daily living, but since the accident she had a cleaner for 4 – 5 hours per fortnight and a gardener who mows the lawns once a fortnight during the summer period. He did not express an opinion about the need for such services.370
372
In his report dated 12 August 2024, Dr Flahive recorded the plaintiff as saying that she continued to do some household chores but she had a cleaner once a fortnight for four hours to do heavy cleaning. He said that she also said she had a gardener to mow the lawns but for a couple of weeks had been unable to have the contractor come out and had had to mow the lawn herself. He concluded that the plaintiff was able to perform her domestic duties.371
373
In his report dated 17 September 2024, Dr Tan expressed the opinion that given the state of the plaintiff’s right knee, she required 2 – 3 hours per fortnight of assistance with gardening and domestic cleaning.372
374
When Dr Tan gave evidence, he said that he thought the plaintiff would require domestic assistance if she needed to attend to anything low lying. He said that she might need help with spring cleaning or gardening. He said that he could not identify the particular point in time when this need arose but thought around the time of her knee arthroscopy (late 2018) and estimated her need at about two hours per week.373
369 Exhibit 85.
370 Exhibit 54.
371 Exhibit 87.
372 Exhibit 46.
373 ts 285 – ts 286.
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375
In his report dated 11 October 2024, Dr Kimberley said that he thought that it was reasonable for the plaintiff to receive some domestic and gardening assistance and this would be likely to be required for the foreseeable future until definitive treatment was provided.374
The plaintiff’s claim
376
The plaintiff claimed past paid care and assistance in the sum of $7,254.35. This was for the cost of some house cleaning and gardening that the plaintiff says she has had to pay for in the amount of $5,694.50 and interest on that sum of $1,559.85.375 The plaintiff also claimed the sum of $43,855.60 for future care for:
(a) cleaning on at least a quarterly basis and 2 – 3 hours/fortnight of gardening and mowing lawns; and
(b) three hours per day over six weeks whilst on crutches following a total knee replacement.376
377
The plaintiff did not directly address her need for domestic assistance when she gave evidence. The plaintiff was asked, however, about what she told certain of the doctors. In closing, she relied upon this evidence as evidence of the gratuitous assistance that she required. In addition, she relied upon statements that the doctors who reviewed her recorded her as making (even though in certain cases she was not asked about those statements when she gave evidence).377
378
The plaintiff submitted that in order to succeed, she only needed to prove the subjective need for any services.378
379
The defendant referred to the differing opinions of the experts. She submitted that there had merely been a progression in what would otherwise have been a need for services given the degenerate arthritis that existed in the knee.379
380
The defendant submitted that if what the plaintiff told Dr Hardisty in 2023 was correct, she did not really need services until that time and if she had been paying someone to mow the lawn, then that may be a matter of personal choice. The defendant contended that a modest
374 Exhibit 62.
375 Plaintiff’s Closing Submissions, par 383; Particulars of Damage, pars 15 – 24.
376 Plaintiff’s Closing Submissions, par 384; Particulars of Damage, pars 25 – 28.
377 Plaintiff’s Closing Submissions, pars 389 – 396.
378 Plaintiff’s Closing Submissions, par 397.
379 Defendant’s Closing Submissions, pars 190 – 196.
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$5,000.00 for past and future services would be appropriate if the
finding is simply of an accelerated need rather than the creation of a need.380
Assessment
381
The plaintiff’s evidence about needing domestic assistance was limited to confirming what she told Dr Campbell in 2016,381 Associate Professor Hardisty in 2017382 and Dr Witte in 2018.383 She did not give evidence that what she told them was true. Nor did she give evidence that she required domestic assistance, or that she paid someone to provide such assistance. No documentary evidence was tendered to prove that she had paid for any domestic assistance, or the amount she paid for that assistance.
382
Despite what the plaintiff told Dr Campbell in 2016, Associate Professor Hardisty in 2017 and Dr Witte in 2018, none of them thought that the plaintiff required domestic assistance at that time. While Associate Professor Hardisty and Dr Witte later mentioned that the plaintiff reported requiring assistance, they did not then express an opinion that such assistance was required at that later stage. Nor did the plaintiff address through her evidence what she told them on those later occasions.
383
Dr Flahive did not consider that the plaintiff required domestic assistance. Dr Tan and Dr Kimberley did. However, although Dr Flahive, Dr Tan and Dr Kimberley recorded in their reports what the plaintiff told them, when the plaintiff gave evidence she did not confirm what she told them, say that what she told them was correct, or that she actually required the domestic assistance they described.384
384
Even though the reports of Dr Flahive, Dr Tan and Dr Kimberley were tendered without objection, I am not prepared to attach much weight to the unsworn out of court hearsay statements that they attributed to the plaintiff about her need for domestic services. Significantly, the plaintiff did not repeat those statements under oath when she gave evidence.
380 Defendant’s Closing Submissions, pars 197 – 198.
381 ts 106 – ts 107.
382 ts 120.
383 ts 128.
384 ts 166 (Dr Tan).
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385
I am not satisfied on the evidence that the plaintiff requires any significant domestic assistance.
386
The plaintiff did not directly address in any proper detail the need for such assistance when she gave evidence as might be expected. Dr Flahive did not think she required any assistance and I am not satisfied that Associate Professor Hardisty, or Dr Witte, expressed the view that they thought she did.
387
While it is true that Dr Tan and Dr Kimberley thought she might need such assistance, the weight to be attached to their evidence is greatly reduced by the failure of the plaintiff to provide any evidence that she actually received the assistance that was the basis of their opinion.
388
As I have mentioned, the defendant submitted that an award of $5,000.00 for past and future care and assistance would be appropriate if I found that the accident accelerated the degeneration of the plaintiff’s knee. Given that I have made such a finding and given the limited evidence adduced at trial that the plaintiff required domestic assistance, I will make an award of $5,000.00.
Special damages
The medical evidence relevant to special damages
389
Each of Associate Professor Hardisty, Dr Witte, Dr Kimberley and Dr Tan expressed some support for either chiropractic treatment, or massage therapy, as a complimentary therapy. Dr Flahive saw no value in either treatment.
390
Associate Professor Hardisty supported chiropractic treatment and massage therapy if it gave patients symptomatic relief.385
391
Dr Witte supported remedial massage therapy.386
392
Dr Tan thought that chiropractic treatment would be appropriate in the acute phase but not as a long-term measure and said it was not shown to give long-term benefits.387
393
Dr Kimberley said that chiropractic treatment and massage therapy had a role as an adjunct to the main treatment.388
385 ts 312, ts 331 – ts 332.
386 ts 388.
387 ts 281 – ts 282.
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394
Dr Flahive did not consider there was a benefit in chiropractic treatment,389 or massage therapy.390 He considered that bariatric surgery was an effective treatment for the plaintiff’s knee pain.391 In his report dated 29 May 2020, he had suggested that bariatric surgery should be a strong consideration for the plaintiff.392
395
Associate Professor Hardisty also thought that bariatric surgery was an appropriate way of reducing the load on the plaintiff’s knee and addressing her knee pain.393 He also thought that physiotherapy to delay surgery would be appropriate.394
396
Dr Kimberley considered that physiotherapy would be an appropriate treatment for the plaintiff’s back.395
The plaintiff’s claim
397
The plaintiff claimed a total of $58,613.00 for past medical expenses, treatment expenses, travel costs and other treatment expenses comprised of the following:396 Item Amount
Chiropractic treatment expenses
$3,607.62
Massage expenses
$14,254.49
Orthopaedic consultations and imaging
$1,130.64
Pharmacy and ancillary
$754.00
Bariatric and weight loss expenses
$20,913.47
Physiotherapy
$1,045.39
Travel and parking expenses
$4,304.29
Interest on past medical and travel expenses
$12,603.12
388 ts 358.
389 ts 563 – ts 564.
390 ts 501; Exhibit 87.
391 ts 501, ts 549 – ts 551.
392 Exhibit 85.
393 ts 329 – ts 330.
394 ts 312 – ts 313, ts 328.
395 ts 350 – ts 353; Exhibit 62.
396 Plaintiff’s Closing Submissions, par 309; Particulars of Damage, pars 4 – 7.
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398
The defendant accepted the plaintiff’s quantification of these sums and that they had in fact been incurred.397
399
With regard to her chiropractic and massage expenses, the plaintiff relied on evidence that she gave that she sought massage and chiropractic treatment for management of her symptoms and that these treatments provided symptomatic relief. She also relied on evidence from some of the orthopaedic surgeons that they would support any treatment which provided symptomatic relief and managed pain.398
400
With regard to the orthopaedic consultations and imaging, the plaintiff submitted that she was entitled to recover the cost of consulting an orthopaedic surgeon because she suffered an injury to her right knee.399
401
Relying on the evidence of Dr Flahive, the defendant argued that chiropractic treatment and remedial massage had no real therapeutic benefit for the plaintiff.400 She submitted that the ICWA had already paid for the chiropractic treatment from 13 November 2015 to 7 October 2016 and it was unclear whether the plaintiff had paid the balance.401
402
The defendant submitted that the ICWA has already paid for Dr Buelow’s surgery, as well as the post-surgical physiotherapy and hydrotherapy he recommended, until 10 December 2019. She submitted that the treatments that the plaintiff received after that date were unrelated to the accident, or contrary to recommended advice, including the cost of consulting Dr Piers Yates (an orthopaedic surgeon).402
403
With regard to her claims for pharmacy and ancillary costs, the plaintiff submitted that she had given evidence that she had pain and needed analgesia.403
404
The plaintiff claimed that she was entitled to the cost of the bariatric surgery as it was necessary to reduce the load on her knee.404
397 Defendant’s Closing Submissions, par 170.
398 Plaintiff’s Closing Submissions, pars 404 – 405.
399 Plaintiff’s Closing Submissions, par 406.
400 Defendant’s Closing Submissions, pars 168 – 169.
401 Defendant’s Closing Submissions, pars 171 – 172.
402 Defendant’s Closing Submissions, pars 174 – 175.
403 Plaintiff’s Closing Submissions, par 407.
404 Plaintiff’s Closing Submissions, pars 408 – 409.
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405
The defendant denied any liability for that surgery, or any dietician appointments. She submitted that the plaintiff had had a long battle with obesity. 405
406
The defendant submitted that the amounts of unpaid travel would not be more than $2,000.00.406 The plaintiff submitted that the travel and parking expenses had already been agreed and as such, subject to proof of the harm arising, the plaintiff had met her burden.407
Assessment
407
I do not consider that the defendant’s attack on the efficacy of the chiropractic treatment and massage therapy is a reason to deny the plaintiff recovery of those costs.
408
While Dr Flahive was critical of the long-term efficacy of these treatments, each of Associate Professor Hardisty, Dr Witte, Dr Kimberley and Dr Tan considered that such treatments had therapeutic value to relive symptoms as a complimentary treatment. I accept their evidence in this regard.
409
The plaintiff used the chiropractic treatment and massage therapy to relieve her back, neck, hips and shoulder symptoms.408 The plaintiff was receiving chiropractic treatment for her back for many years prior to the accident.
410
I have found that the accident caused soft tissue injuries to her neck (which was an exacerbation of a pre-existing injury), right shoulder and back but I was not satisfied that these injuries caused the plaintiff any lasting injury, or had any lasting effect.
411
I am satisfied that the plaintiff should be entitled to recover the cost of some chiropractic treatment and massage therapy for one year after the accident but for no longer. I am not satisfied that treatment after that point was caused by the accident. Dr Tan was of the opinion that the accident may have caused an increase of pain and stiffness for 1 – 2 years post-accident only.409 In light of this evidence, I consider that an award of treatment for one year would be appropriate.
412
Given the amounts claimed in the Plaintiff’s Special Damages Book (including for associated travel) this sum amounts to $1,617.53.
405 Defendant’s Closing Submissions, pars 176 – 177.
406 Defendant’s Closing Submissions, pars 178 – 179.
407 Plaintiff’s Closing Submissions, par 410.
408 ts 102, ts 140, ts 147, ts 156 – ts 157.
409 Exhibit 46.
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413
The defendant did not seem to challenge the plaintiff’s claim for pharmacy expenses. The amount claimed is a modest sum which it seems likely that the plaintiff would have incurred. I am satisfied that the plaintiff should be entitled to recover the amount claimed.
414
I am also satisfied that the plaintiff should be entitled to recover the costs of seeking the medical treatment claimed. This includes the cost of seeing Dr Yates for a second opinion.410 Dr Yeats seems to have been consulted about the plaintiff’s knee and I do not consider that the fact that the plaintiff sought a second opinion was unreasonable, or should disentitle her from recovering the cost for doing so.
415
I am also satisfied that the plaintiff should be entitled to recover the cost of the bariatric surgery and dietician appointments claimed. While it may be that the plaintiff had a longstanding issue with obesity, this does not alter the fact that there was a link between the plaintiff’s knee becoming symptomatic and the need for such surgery. Both Associate Professor Hardisty and Dr Flahive thought that surgery was an appropriate treatment to reduce the load on her knee and thereby reduce her pain.
416
The plaintiff’s submissions did not explain the basis upon which the physiotherapy costs were claimed. While it is true that Associate Professor Hardisty supported physiotherapy to delay knee surgery, there was also evidence that the plaintiff needed physiotherapy for her back. I do not consider that the plaintiff’s ongoing back problems were related to the accident. The evidence did not seem to establish why the costs claimed were incurred. I am therefore not prepared to award the plaintiff the physiotherapy costs claimed.
417
That the plaintiff incurred the travel expenses she did was not in dispute and I will award her those costs.
418
I will also award the plaintiff interest at 3% on the amounts that I have assessed in the sum of $7,757.08 calculated as follows:
$28,729.93 x 0.03 = $861.89
$861.89 x 9 years = $7,757.08.
410 ts 148.
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419
In summary therefore, I award the following for special damages: Item Amount
Chiropractic and Massage Expenses
$1,617.53
Orthopaedic Consultations and Imaging
$1,130.64
Pharmacy and Ancillary
$754.00
Bariatric and Weight Loss Expenses
$20,913.47
Travel and parking expenses
$4,304.29
Interest on past medical and travel expenses
$7,757.08
TOTAL
$36,447.01
Findings about the plaintiff’s qualifications, employment history and historical earnings
420
I make the findings at [421] – [457] below about the plaintiff’s qualifications, employment history and historical earnings.
The plaintiff’s qualifications
421
The plaintiff holds a number of qualifications including:411
(a) a Bachelor of Science in Environmental Science from Murdoch University conferred on 13 January 2008;
(b) a Post Graduate Diploma in Health, Safety and Environment from Murdoch University conferred on 27 February 2009;
(c) a Graduate Diploma in Education from Murdoch University conferred on 27 January 2010;
(d) various diplomas and certificates in training and assessment;
(e) a diploma in neurolinguistic programming; and
(f) a diploma in quality auditing.
411 Exhibits 4 and 19.
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422
The plaintiff has also completed a variety of units of competency, including units offered by the Royal Life Saving Society of Western Australia in relation to CPR and first aid. She has also completed various training and professional development courses.412
The plaintiff’s employment history
423
The plaintiff started working casually as a strapper and stable hand at the age of 12. She worked in that position between October 1984 and March 1986.413
424
Between March 1987 and January 1988, the plaintiff worked in casual positions at a Chicken Treat restaurant and a record shop.414
425
Between March 1988 and October 1991, the plaintiff worked in roles as a hairdresser and studied hairdressing at TAFE.415
426
Between October 1991 and December 1991, the plaintiff worked assaying gold samples for Rapley Wilkinson Laboratories, Malaga.416
427
Around this time the plaintiff decided she wanted to go to university and enrolled at Tuart College as a mature age student. She wanted to study veterinary science but only achieved the grades to get into biological science at Murdoch University. After she enrolled she decided to pick up a second major in environmental science.417 The plaintiff started her degree in biological sciences in 1993.418
428
Between November 1993 and August 2005, the plaintiff worked in 27 different roles in various occupations including hospitality, photography, surveying, hairdressing, strapping horses and as a stable hand and as a graphic designer. Many of those roles were short-term roles.419
429
In February 2003, the plaintiff gave birth to her daughter.420
412 Exhibit 19.
413 Exhibit 19; ts 36.
414 Exhibit 19; ts 36 – ts 37.
415 Exhibit 19; ts 37.
416 Exhibit 19, page 798.
417 Exhibit 19; ts 37.
418 ts 64.
419 Exhibit 19, pages 798 – 796; ts 38 – ts 40.
420 ts 172.
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430
Between October 2006 and December 2006, the plaintiff worked as an acting senior education officer at the Boronia Pre-Release Centre for Women.421 The plaintiff also did some work at Bandyup Women’s Prison.422
431
In 2007, the plaintiff graduated from Murdoch University with a Bachelor of Science in Environmental Science with a minor in conservation biology.423
432
In 2008, the plaintiff completed a Postgraduate Diploma in Health, Safety and the Environment at Murdoch University.424
433
In 2009, the plaintiff completed a Graduate Diploma in Education at Murdoch University.425
434
Between 2006 and 2009, the plaintiff held various casual positions, including positions as a lecturer, administrator and graphic designer.426
435
Between March 2008 and October 2009, the plaintiff worked part-time as an industry training officer but was made redundant.427
436
Between December 2009 and July 2011, the plaintiff worked providing training at Community and Youth Services.428
437
Between 25 July 2011 and 13 October 2011, the plaintiff worked for Bridgeworks Employment and Training as WA State Training Co-ordinator but was made redundant.429 The plaintiff found this position through a friend. It was a higher paying position than her previous role.430
438
Around this time, the plaintiff enrolled in a Masters of Science and Environmental Engineering on a part-time basis.431
421 Exhibit 19, pages 795 – 796.
422 ts 41 – ts 43.
423 ts 64.
424 ts 64.
425 ts 64.
426 Exhibit 19, pages 795 – 796.
427 Exhibit 19, page 794; ts 174.
428 Exhibit 19, page 794; ts 66 – ts 67, ts 174.
429 Exhibit 19, pages 793 – 794.
430 ts 67, ts 175.
431 ts 65 – ts 66, ts 68.
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[2025] WADC 8 [AC] Page 83
439
Between December 2011 and June 2013, the plaintiff worked for Esset Australia, first as WA team leader for six months and then as WA manager for 12 months.432 The plaintiff resigned from this job.433
440
Between 4 June 2013 and 30 June 2014, the plaintiff worked for the University of Notre Dame.434 The plaintiff felt that she was being bullied and lodged a grievance. She also took stress leave from her work.435
441
The plaintiff then performed contract work for her business but was not employed.436 She was also involved in managing construction work on her home until May 2015.437
442
Between 21 January 2015 and 20 April 2015, the plaintiff worked for the Civil Contractor’s Federation as RTO manager.438 The plaintiff was made redundant from this position.439
443
Between 21 April 2015 and 5 January 2017, the plaintiff worked for Community and Youth Training Services as an operations manager, compliance officer, training co-ordinator, records manager, trainer and assessor (performing all positions concurrently) until she was made redundant.440 The plaintiff held this position when she had the accident.
444
Between 6 February 2017 and 30 August 2017, the plaintiff worked for the Pharmacy Guild of Western Australia as a contract compliance officer on a six-month fixed term contract.441
445
Between 4 September 2017 and 30 November 2018, the plaintiff worked for the Institute of Health and Nursing Australia as Perth campus manager.442 The plaintiff made a worker’s compensation claim that she was the subject of bulling and stopped attending work in June 2018 and began taking leave. Her workers compensation claim was settled on 31 October 2018.443
432 Exhibit 19, page 793; ts 66.
433 ts 175.
434 Exhibit 19, pages 792 – 793.
435 ts 175 – ts 177; Exhibit 14, page 225.
436 ts 177.
437 ts 81 – ts 84; Exhibit 10.
438 Exhibit 19, page 792.
439 ts 84 – ts 85, ts 179.
440 Exhibit 19, page 792; ts 85, ts 180.
441 Exhibit 19, pages 791 – 792; ts 180.
442 Exhibit 19, page 791; ts 121.
443 ts 179 – ts 180.
[2025] WADC 8
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[2025] WADC 8 [AC] Page 84
446
Between 4 December 2017 and 22 February 2019, the plaintiff worked for Aveling as a compliance manager.444 The plaintiff resigned from this position because she had difficulty walking around the complex.445
447
The plaintiff then worked from home for about six months doing contract work.446
448
Between 17 July 2019 and 14 May 2021, the plaintiff worked for the Department of Fire and Emergency Services as the manager of training product development.447 The plaintiff reported a number of inappropriate behaviours from staff and there was a lengthy grievance hearing but the plaintiff’s claims were dismissed.448
449
Between 17 July 2021 and 10 June 2022, the plaintiff worked for Fenner Dunlop Australia Pty Ltd as a RTO and systems specialist.449
450
Between 13 June 2022 and December 2022, the plaintiff worked for Falck Pty Ltd as a training and HSEQ manager. She found out about this job through a friend. She resigned from this position because she felt the role was structured in a way that made her responsible for compliance without giving her the authority that she considered was needed to make necessary changes.450
451
The plaintiff then did business training in neuro-linguistic programming.451
452
In January 2023, the plaintiff was employed as a HSEQ advisor for Central Earthmoving.452 This was a FIFO position. At a client meeting the plaintiff was provided with the client mobilisation requirements which included a current first aid certificate. She advised Central Earthmoving that she would not be able to update her first aid certificate because she could not kneel. Central Earthmoving were happy with this and they did not ask her to renew her certificate but the client did. The plaintiff then resigned. She had been employed for 3 – 4 days.453
444 Exhibit 19, page 791.
445 ts 131, ts 180 – ts 181.
446 ts 131, ts 180 – ts 181.
447 Exhibit 19, page 791.
448 ts 181 – ts 182, ts 183 – 185.
449 Exhibit 19, pages 790 – 791; ts 159 – ts 160, ts 183.
450 Exhibit 19, page 790; ts 160 – ts 161, ts 183.
451 ts 161 – ts 162.
452 Exhibit 19, page 790.
453 ts 162, ts 186.
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[2025] WADC 8 [AC] Page 85
453
The plaintiff did further consulting work during 2023.454
454
Since November 2023, the plaintiff has worked for Ora Banda Mining as a HSET systems co-ordinator. This is a Perth based position.455
455
In addition to being employed, the plaintiff has also run various businesses on a part-time basis. This included providing first aid training from 2006 until the accident in 2015.456 It also included some graphic design work457 and neuro-linguistic programming.458
The plaintiff’s historical earnings
456
The plaintiff’s earnings for the financial years between those ending 30 June 2012 and 30 June 2024 were as follows: Year Income Deductions Taxable Income Net Earnings
2012459
$76,894.00
$32,463.00
$44,431.00
$38,912.46
2013460
$81,721.00
$33,817.00
$47,904.00
$40,788.20
2014461
$95,826.00
$19,443.00
$76,383.00
$60,011.53
2015462
$91,544.00
$12,108.00
$73,671.00
$58,180.93
2016463
$30,170.00
$15,312.00
$15,312.00
$15,312.00
2017464
$59,878.00
$9,421.00
$50,457.00
$42,511.48
2018465
$89,529.00
$15,603.00
$73,926.00
$58,353.05
2019466
$26,070.00
$3,182.00
$22,888.00
$21,997.28
2020467
$116,442.00
$7,707.00
$108,735.00
$81,006.05
454 ts 163.
455 Exhibit 19, page 790; ts 163.
456 ts 44, ts 69, ts 75 – ts 76.
457 ts 69, ts 75.
458 ts 161 – ts 162.
459 Exhibit 5.
460 Exhibit 6.
461 Exhibit 7.
462 Exhibit 12.
463 Exhibit 16.
464 Exhibits 21 and 22.
465 Exhibit 23.
466 Exhibit 29.
467 Exhibit 31.
[2025] WADC 8
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[2025] WADC 8 [AC] Page 86
Year Income Deductions Taxable Income Net Earnings
2021468
$128,893.00
$10,924.00
$117,969.00
$89,162.08
2022469
$113,999.00
$10,881.00
$103,188.00
$79,184.90
2023470
$79,993.00
$6,634.00
$73,299.00
$59,009.83
2024471
$154,044.00
$15,198.00
$138,846.00
$102,405.98
457
During each of the financial years ending 30 June 2012 to 30 June 2024, the expenses incurred by the businesses run by the plaintiff exceeded the income generated, so that they made a loss. The losses made were as follows: Year Loss
2012472
$3,340.00
2013473
$21,146.00
2014474
$4,313.00
2015475
$5,775.00
2016476
$6,121.00
2017477
$4,794.00
2018478
$4,724.00
2019479
$9,734.00
2020480
$22,940.00
2021481
$17,195.00
468 Exhibit 33.
469 Exhibit 34.
470 Exhibit 36.
471 Exhibit 37.
472 Exhibit 5.
473 Exhibit 6.
474 Exhibit 7.
475 Exhibit 12.
476 Exhibit 16.
477 Exhibits 21 and 22.
478 Exhibit 23.
479 Exhibit 29.
480 Exhibit 31.
481 Exhibit 33.
[2025] WADC 8
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[2025] WADC 8 [AC] Page 87
Year Loss
2022482
$11,236.00
2023483
$12,761.00
2024484
$1,461.00
Lay evidence regarding the plaintiff’s economic loss claim
The plaintiff’s evidence
458
The plaintiff was born on 25 January 1972.485 She gave evidence about her qualifications, employment history and historical earnings. I have already made findings about those matters and have accepted the evidence that the plaintiff gave.
459
The plaintiff gave evidence that her knee injury meant that she was no longer able to perform first aid training.486
460
The plaintiff also relevantly gave evidence that Ora Banda offers other positions on a FIFO basis but that she has not applied for these because she has not been cleared for an onsite position and she has only been cleared for an office-based position. The plaintiff gave evidence that she did not think she would satisfy the requirements of an Ora Banda medical assessment.487
Ms Kathleen Culkin
461
It will be recalled that Ms Culkin worked with the plaintiff for a number of years. She said that she never had any concerns about the plaintiff’s performance and said that she dealt with other people openly and honestly. She said that the plaintiff did not have problems with other people but she said that other people resented the fact that she knew a lot about accreditation.488
462
Ms Culkin said that the plaintiff did not have any disputes that required a formal mediation process. She also thought the plaintiff did not suffer from stress.489
482 Exhibit 34.
483 Exhibit 36.
484 Exhibit 37.
485 Exhibit 19; ts 35.
486 ts 93 – ts 97.
487 ts 164 – ts 166.
488 ts 243, ts 245.
489 ts 244.
[2025] WADC 8
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[2025] WADC 8 [AC] Page 88
The medical opinion regarding the effect of the knee injury on the plaintiff’s work capacity
Associate Professor Hardisty
463
Associate Professor Hardisty thought that the plaintiff would be unable to do repetitive squatting or get up or down to demonstrate CPR.490 He also thought that the plaintiff would have difficulty using stairs on any mine site.491
464
Associate Professor Hardisty said that after recovering from the surgery, most patients’ knees would improve for a period of up to two years. He said that not everyone would get a full range of motion back. He said that the plaintiff might still have difficulty squatting and kneeling and going up and down stairs. He said that 50% of people cannot kneel after surgery.492
Dr Witte
465
Dr Witte said that the plaintiff’s trouble kneeling meant that she would have difficulty performing CPR.493 He said that 60% or 70% of patients who have a knee replacement can kneel. He said he thought that the plaintiff might be able to perform CPR after a knee replacement.494
Dr Tan
466
In his report dated 17 September 2024,495 Dr Tan said that the plaintiff had told him that she had been unable to continue in a FIFO role because she was unable to renew her first aid certificate. Dr Tan expressed the opinion that the plaintiff’s concerns were valid and reasonable.
467
In his report, he said that to be ‘physically capable’ the plaintiff must complete first aid training and in cases of emergency evacuate from site and perform CPR. He said that with such severe arthritis the plaintiff would be physically hindered from doing this and it would be unsafe for her to undertake a health and safety role. He also said that depending on the site, the plaintiff might need to walk on uneven ground or climb ladders.496
490 ts 313.
491 ts 313.
492 ts 314 – ts 315.
493 ts 385.
494 ts 389 – ts 390.
495 ts 284 – ts 285.
496 Exhibit 46. See also ts 284.
[2025] WADC 8
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[2025] WADC 8 [AC] Page 89
468
At trial, Dr Tan said that as an occupational physician he was aware of the requirements a person must meet to obtain a ‘role in mining’. He said that the requirements would depend on the role.497
469
At trial, Dr Tan said that he spent two years living in Port Hedland with BHP Billiton and FMG and worked alongside health and safety officers.498 In his report he said that he had worked in the mining industry for 10 years and had lived in Port Hedland for 12 months.499
470
Dr Tan said that he had experience in conducting medical assessments for persons going onto a mine. He said that the assessment required people to squat, crouch, duck walk and perform a step test. He did not think that the plaintiff would pass a medical examination for someone going onto a mine site.500
471
Dr Tan thought that the plaintiff would be fit to perform a Perth based role like the one that she was performing.501
472
Dr Tan thought that after a total knee replacement the plaintiff’s pain would improve. He thought that even after a replacement she might not pass a functional capacity test because of her body weight.502
473
Dr Tan said that a person with end stage arthritis would not be able to perform CPR.503
Dr Kimberley
474
Dr Kimberley said that whether the plaintiff was capable of performing FIFO work would depend on the nature of the work. He said that she might be able to perform work that was mostly sedentary and lightly physical. He also said that there were aspects of a functional assessment that the plaintiff might have been unable to do, such as push ups.504
475
Dr Kimberley thought that the plaintiff would be unable to complete CPR, or work somewhere where it was necessary for her to be able to perform CPR.505
497 ts 284.
498 ts 284.
499 Exhibit 46.
500 ts 284 – ts 285; Exhibit 46.
501 ts 288.
502 ts 286.
503 ts 283.
504 ts 357.
505 ts 356 – ts 357.
[2025] WADC 8
PALMER DCJ
[2025] WADC 8 [AC] Page 90
476
Dr Kimberley thought that with rehabilitation and perhaps surgery, the plaintiff’s shoulder and neck would improve such that these would not prevent her from performing CPR. He thought that she would recover 80/90% of normal function.506
Dr Flahive
477
Dr Flahive said that in the past he had worked for BHP on site and had experience conducting medical assessments and they were something he was familiar with.507
478
He did not think that the plaintiff’s shoulder pain prevented her from undertaking normal duties.508
479
Dr Flahive said that whether or not someone was required to undertake a medical assessment that required them to squat would depend on their role. He did not think squatting, kneeling or climbing ladders would need to be tested if the role was a sedentary role, particularly a management role.509
480
Dr Flahive said that he did not think that everybody on a mine site needed to be first aid trained. He said it was unlikely that mining companies required all personnel to have a first aid certificate.510
481
Dr Flahive was asked about medical assessment guidelines prepared by Ora Banda that the plaintiff had referred to.511 He said that he did not think that someone visiting site and attending the administration office would necessarily have to undertake a medical assessment. He accepted, however, that the plaintiff would not be able to do some of the things identified in the document. He said that people with disabilities can be authorised to attend mine sites, although he said that such people might need to be supervised.512
482
Dr Flahive seemed to think that the plaintiff could perform CPR.513
506 ts 357 – ts 358.
507 ts 551 – ts 553.
508 ts 508.
509 ts 553 – ts 555.
510 ts 555 – ts 556.
511 Exhibit 35.
512 ts 555 – ts 558.
513 ts 560.
[2025] WADC 8
PALMER DCJ
[2025] WADC 8 [AC] Page 91
The employment evidence
Mr David McDonald
483
Mr McDonald is a career counsellor based in Queensland who prepared a report on behalf of the plaintiff.514
484
Mr McDonald said that he held a Bachelor of Education which qualified him to give careers advice in Western Australia. Career counselling involves advising people what career they should pursue.515
485
Mr McDonald was asked about the HSET roles at Ora Banda mining. He said that the office-based roles were general manager and then co-ordinator HSET and then FIFO roles which were manager, superintendent and then advisor. He was asked about the hierarchy and answered that it depended upon how they structured it and then offered an ‘educated guess’.516
486
Mr McDonald said that his research did not reveal any data which suggested that having a masters degree had any ‘qualifying guidance’ towards getting a particular position within the health and safety field.517
487
Mr McDonald was asked about the extent to which the plaintiff was qualified for FIFO roles. He said that he did not expect that she would be allowed on a mine site, or any worksite because of the limitations on her mobility. He said that her physical capacity would be assessed in a medical assessment.518
488
Mr McDonald was asked about the factors relevant to assessing the fitness of a person for work. He said that he could only go ‘by what’s published’ and said that he did not have any experience regarding the actualities of such assessments, although he had been on sites as a tradesperson.519
514 Exhibits 41 and 42.
515 ts 247 – ts 248.
516 ts 249 – ts 250.
517 ts 249.
518 ts 250 – ts 251.
519 ts 252. See also Exhibit 41, pages 10 and 11.
[2025] WADC 8
PALMER DCJ
[2025] WADC 8 [AC] Page 92
489
Mr McDonald said that he contacted a government department about regulations or statutory requirements but could not remember exactly what he was told but thought it was that the mine operator was responsible for fitness.520
490
Mr McDonald said that he thought that the plaintiff’s current position was commensurate with superintendent. He said that he thought that the chances of the plaintiff progressing to a manager position was nil.521
491
Mr McDonald referred to a job description for a manager position that required 10 years of experience within the resources industry. He said that he could read that ‘any way he wanted to’ in terms of the experience required but he had no knowledge of someone being a manager who had not worked as a worker.522
492
Mr McDonald said that some employers might compromise on some requirements but he did not think that they would compromise on health and safety.523
493
Mr McDonald was asked to comment on salaries. He seems to have searched for advertisements for job vacancies for HSET salary roles. This produced the following results:524
Western Australia525
FIFO (WA)526
Average
$118,493.54
$78.15
Median
$115,028.00
$75.00
Low
$76,032.00
$50.00
High
$170,000.00
$110.00527
Award (base)
$1,251.80 per week
N/A
520 ts 252.
521 ts 252.
522 ts 253.
523 ts 253.
524 Exhibit 41, page 9; ts 254 – ts 255.
525 Taken from 41 available market salaries, inclusive of FIFO.
526 Taken from nine market salaries, designated as FIFO only.
527 This hourly external contractor rate is an all-inclusive contractor fixed-period rate (12 months), no penalties, allowances or additional benefits apply. The yearly salary on this rate is calculated to $230,230.00.
[2025] WADC 8
PALMER DCJ
[2025] WADC 8 [AC] Page 93
494
Mr McDonald said this was only a ‘guide’ and that the information available to him was limited as the mining industry does not share a lot of information.528 He said that there were variables that were not easily measured.529 He said that the salary that the plaintiff was currently receiving fell within the range of the salaries in the table he had prepared.530
495
Mr McDonald also referred to the Hays Salary Guides which he said were well respected. He said that these guides showed salary increases for the financial years ending 2024 and 2025.531
496
Mr McDonald said that the next progression in the plaintiff’s career depended on their experience. He said that if someone did not have experience on a mine site, they would need to progress to an advisor position which was a lower role before they could progress to a higher role. He said that someone might then progress to a manager position once they had the necessary experience.532
497
Mr McDonald said that he doubted that Ora Banda mining would employ the plaintiff as a superintendent, so she would need to step sideways, or take a demotion, if she wanted to go onsite.533 He said that she might be considered for an advisor role, or a co-ordinator role, depending on her experience. He said that he did not think that someone would be made a superintendent on a mine site, if they had never stepped on a mine site before.534
498
Mr McDonald said that the Perth based position of HSE general manager was not within the plaintiff’s skills and experience. He said that he thought that this role required site-based experience.535
499
Mr McDonald accepted that there were metropolitan roles that did not require site-based experience and not all roles on site were advertised as requiring a first aid certificate. He said that if you were working in a mining rescue team you would be expected to have a first aid certificate but that he had been to many mine sites without a first aid certificate.536
528 ts 255.
529 Exhibit 41, pages 194 – 195.
530 Exhibit 41, page 194.
531 ts 256; Exhibit 41, page 195.
532 ts 256 – ts 257.
533 ts 257.
534 ts 256 – ts 257.
535 ts 257 – ts 258.
536 ts 258 – ts 259.
[2025] WADC 8
PALMER DCJ
[2025] WADC 8 [AC] Page 94
500
In his report, Mr McDonald observed that the plaintiff’s career had taken numerous paths over time, with some directions appearing to be conflicting or in flux. He said that she was unable to answer clearly, when asked simple vocational questions. He said that he thought this demonstrated an element of ‘career distress’ which might require vocational intervention.537
501
Mr McDonald said that the plaintiff’s career progression prospects were ‘pretty good’ and there was a prospect that she might obtain a role at a larger company with a pay rise. He said that her likely salary might increase to between $140,000.00 and $170,000.00.538
Mr John Shaddick
502
Mr John Shaddick is a recruiter from Sundstrom Recruitment. Sundstrom Recruitment is a company that specialises in health and safety recruitment in Western Australia and Queensland, with a focus on senior roles within the mining industry.539 He was called to give evidence by the plaintiff.540
503
Mr Shaddick said that typically there are site-based roles which report to operational leaders in corporate, who are in leadership positions and are the head of function. He said that these roles involve the setting of strategy for the business which is implemented at site level. He said that there might also be co-ordinator roles and some administrative roles.541
504
Mr Shaddick thought most roles were based on site and only 10% – 20% of the company’s safety team would be based in Perth.542
505
Mr Shaddick said that it was advantageous that the plaintiff had an undergraduate degree and qualifications in training.543 He said that the plaintiff was a viable candidate for a site-based health advisory role. He said that those roles paid between $140,000.00 to $150,000.00 but he thought the plaintiff might earn $150,000.00 with her qualifications.544
537 Exhibit 41, page 7; ts 259 – ts 260.
538 ts 260 – ts 261; Exhibit 41, page 210.
539 ts 332; Exhibit 60.
540 Exhibit 59.
541 ts 334.
542 ts 334.
543 ts 334 – ts 335.
544 ts 335.
[2025] WADC 8
PALMER DCJ
[2025] WADC 8 [AC] Page 95
506
Mr Shaddick said that the progression typically went from advisor to senior advisor. He said that some businesses had superintendent of health and safety above that. He said on larger sites there could be a senior advisor position, or a site-based safety manager.545
507
Mr Shaddick said that the next career progression would be a leadership position back in Perth. He said that this position would move away from operational safety and would involve delivering strategy with the senior management team.546
508
Mr Shaddick said he thought that 3 – 5 years’ experience was required to become a superintendent. He expected that such a person might earn between $175,000.00 and $200,000.00 plus bonuses.547
509
Mr Shaddick was asked whether a job applicant might obtain a role that they could not fulfill. He said no.548
510
Mr Shaddick said that if a job had a site fitness requirement, the job applicant would need to pass that requirement. He said that each company had different parameters and the requirements were not hard and fast.549
511
Mr Shaddick said that a general manager might earn $250,000.00 plus superannuation.550
512
Mr Shaddick said that if the plaintiff were to work on site with her current level of experience, she might be able to obtain a position as a site safety advisor and earn between $150,000.00 and $175,000.00.551
513
Mr Shaddick said that a candidate would require a minimum of five years’ experience to be a superintendent.552
514
Mr Shaddick said that the position of manager above superintendent was rare and not every site would have one. He said they would likely have significant on site experience.553
515
Mr Shaddick said that the plaintiff’s current role where she gets paid $145,000.00 was well renumerated.554
545 ts 336.
546 ts 336 – ts 337.
547 ts 336.
548 ts 336.
549 ts 337.
550 ts 338.
551 ts 340.
552 ts 340 – ts 341.
553 ts 342.
[2025] WADC 8
PALMER DCJ
[2025] WADC 8 [AC] Page 96
The plaintiff’s claim for past loss of earning capacity
The plaintiff’s claim
516
The plaintiff claimed $225,901.79 (inclusive of interest) for past loss of earnings.555 This claim related to an alleged:
(a) lack of competitiveness on the open labour market to obtain FIFO roles from January 2021; and
(b) loss of earning capacity to undertake first aid training in her ‘off-swing’ weeks from that time when it was contended that the business would have become profitable.556
517
The plaintiff alleged that if it were not for the defendant’s negligence, she would have commenced working in a FIFO role from about January 2021 and would have had a greater earning capacity to run her first aid training business in her off-swing weeks.557
518
She claimed that she would have earned a base salary of $169,000.00 from January 2021. This figure was based on the salary she would have received at Central Earthmoving as an HSEQ Advisor.558
519
For the period October 2015 to 30 June 2021, the plaintiff also claimed $13,037.00 for her first aid training business in the six-month period commencing when she would have commenced FIFO work.559
520
The plaintiff relied on Dr Tan’s evidence to establish that she would not be able to complete a functional capacity test to work on a mine site.560
521
She submitted that the starting point for the assessment of damages was the difference between her earning capacity if she had not been injured and her current earning capacity. She acknowledged that there are inherent elements of uncertainty and conjecture in making the present assessment.561
554 ts 342.
555 Plaintiff’s Closing Submissions, pars 302 – 306; Particulars of Damage, pars 29 – 60.
556 Plaintiff’s Closing Submissions, par 303.
557 Plaintiff’s Closing Submissions, pars 315 – 316; Particulars of Damage, par 39.
558 Plaintiff’s Closing Submissions, pars 317 – 318; Exhibit 91, page 678.
559 Plaintiff’s Closing Submissions, par 320.
560 Plaintiff’s Closing Submissions, pars 274 – 279.
561 Plaintiff’s Closing Submissions, pars 321 – 322; Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281 [26].
[2025] WADC 8
PALMER DCJ
[2025] WADC 8 [AC] Page 97
522
The plaintiff claimed between $25,000.00 and $30,000.00 net per year, for the period from 1 July 2021 to trial, other than for the financial year ending 30 June 2023. For that financial year (which was the year she left Central Earthmoving) she claimed $96,000.00.562
523
The plaintiff did not place any particular reliance on the fact that she withdrew from her masters degree. She submitted that she had not undertaken any work in the environmental science field and the focus should be on the career she pursued in the training, assessment, health, safety and compliance fields.563
524
With regard to the plaintiff’s first aid business, the plaintiff acknowledged that she had conceded in cross-examination that her business had not made a profit but she argued that this did not mean that the business might not have made a profit if she had been able to devote more time to it once she was working FIFO.564
525
The plaintiff also submitted that whether the plaintiff had made a profit was not the only consideration. She submitted that the court must also consider the value of her lost earning capacity and the plaintiff’s business’s income yield.565
The defendant’s case
526
The defendant contended that the plaintiff’s earning and employment after the accident did not demonstrate any real variation to that prior to the accident. She submitted that the plaintiff continued to change jobs on a regular basis for reasons that included an inability to get on with fellow employees. The defendant contended that the plaintiff’s post-accident employment pattern was wholly unrelated to the accident.566
527
The defendant seemed to accept that the knee injury might have prevented the plaintiff from squatting and kneeling so that she was unable to perform first aid training but submitted that the plaintiff never earned a profit from this business. The defendant argued that no award of economic loss should be made in relation to the plaintiff’s first aid business.567
562 Plaintiff’s Closing Submissions, par 323.
563 Plaintiff’s Closing Submissions, pars 308 – 310.
564 Plaintiff’s Closing Submissions, par 366.
565 Plaintiff’s Closing Submissions, pars 367 – 372.
566 Defendant’s Closing Submissions, par 63.
567 Defendant’s Closing Submissions, pars 61 – 64.
[2025] WADC 8
PALMER DCJ
[2025] WADC 8 [AC] Page 98
528
The defendant referred to particulars that the plaintiff had filed in 2020 (which were subsequently amended) which stated that she was working towards a change in career to environmental science and environmental management work and submitted that that had now been abandoned in full. The defendant submitted that the plaintiff’s actual earnings were more than the amounts claimed in these particulars.568
529
The defendant submitted that there was no evidence that the plaintiff ever attempted to fulfill the requirements of a valid first aid certification, or a pre-accident medical. The defendant referred to evidence that Dr Flahive gave that:569
(a) the physical requirement of a medical varied depending on what particular work people were being inducted to do on the mine site;570
(b) he did not think that the plaintiff would have had difficulty getting certification to work as a health and safety officer;571 and
(c) he thought that the plaintiff would have been able to demonstrate CPR.572
530
The defendant submitted that there was only a very remote possibility of the plaintiff being able to perform FIFO work given her weight, neck and back problems and lack of experience.573
Whether the plaintiff lacked competitiveness in the open labour market for FIFO roles from 2021
531
The plaintiff’s claim for loss of earning capacity was predicated on the proposition that her injury meant that she lacked competitiveness on the open labour market for FIFO roles from 2021. The plaintiff’s case seemed to be that she would have pursued FIFO work if it were not for the fact that the accident had rendered her incapable of doing so.
532
As I have already indicated, I did not find it implausible that the plaintiff might have thought about working FIFO in the mining industry. That she secured a FIFO role at Central Earthmoving in 2023 is consistent with the plaintiff having such an interest at that stage.
568 Defendant’s Closing Submissions, pars 66 – 68.
569 Defendant’s Closing Submissions, pars 80 – 83; ts 558.
570 ts 558.
571 ts 558.
572 ts 560.
573 Defendant’s Closing Submissions, par 85.
[2025] WADC 8
PALMER DCJ
[2025] WADC 8 [AC] Page 99
533
Although the plaintiff’s claim for past economic loss seemed to assume that she would have started working FIFO in 2021, there was no evidence that she took any steps to seek FIFO work at that stage. The plaintiff’s evidence was that in 2021 and 2022 she worked for the Department of Fire and Emergency Services, Fenner Dunlop Australia Pty Ltd and Falck Pty Ltd. It was only when she resigned from Falck in December 2022 (because she was dissatisfied about the way in which the role was structured) that there is any evidence that she actively pursued a FIFO role. That evidence was in the form of the fact that she secured the FIFO role at Central Earthmoving in January 2023.
534
The fact that the plaintiff secured a FIFO role at Central Earthmoving seems inconsistent with the proposition that her injury meant that she lacked competitiveness on the open labour market for FIFO. This is particularly so, when it is considered that she left Falck in December 2022 and secured employment at Central Earthmoving in January 2023. Not only did she obtain a FIFO role after leaving Flack, she did so in a short amount of time.
535
Further, the fact that the plaintiff was employed by Central Earthmoving to work FIFO seems inconsistent with the proposition that her osteoarthritis meant that she was incapable of doing FIFO work. That Central Earthmoving employed the plaintiff reveals that they did not consider that she was incapable of working FIFO.
536
The plaintiff was never assessed by Central Earthmoving as being unable to fulfill a FIFO role. The plaintiff’s evidence was that she resigned when Central Earthmoving’s client asked her to update a first aid certificate. Notably, the plaintiff’s evidence was that Central Earthmoving were ‘happy’ with her not having a current first aid certificate.574 As the defendant submitted, the plaintiff never attempted to update her first aid certificate.
537
Nor is there any evidence that the plaintiff has ever been refused FIFO work. The plaintiff’s evidence was that she did not apply to work FIFO with Ora Banda (where she currently works) because on her own assessment she did not think she would pass the medical.575 Ora Banda have never refused her such employment.
574 ts 183.
575 ts 164 – ts 166.
[2025] WADC 8
PALMER DCJ
[2025] WADC 8 [AC] Page 100
538
The plaintiff has also never been the subject of a mine site medical assessment which she has failed. I attach little weight to the plaintiff’s opinion that she would have been unable to satisfy Ora Banda’s requirements. No one was called from Ora Banda who could properly comment on those requirements, including the circumstances in which they applied, or any exceptions.
539
The plaintiff’s case relied heavily on the evidence of Dr Tan to establish that she could not work FIFO because she would be unable to pass a medical assessment and be cleared to attend site.
540
Two observations may be made about Dr Tan’s evidence.
541
First, to some extent Dr Tan’s report dated 17 September 2024 seemed to assume that in order to be ‘physically capable’ of working on a mine site a person must have a current first aid certificate and be able to perform CPR. I was not satisfied that only persons with a current first aid certificate and who were able to perform CPR can work FIFO.
542
This proposition did not seem to find support amongst the other experts. Further, if a current first aid certificate was essential, it is hard to understand how the plaintiff secured FIFO employment with Central Earthmoving and why they were ‘happy’ with her not having a current first aid certificate.
543
Secondly, as Dr Kimberley and Dr Flahive said and Dr Tan acknowledged, whether or not the plaintiff was capable of performing FIFO work would depend on the particular role in question. I found Dr Tan’s evidence too general to be helpful, or particularly persuasive.
544
As Dr Flahive explained in some detail and I found persuasive, whether or not the plaintiff was capable of working FIFO would depend on the specifics of the role. This evidence seemed consistent with Mr Shaddick’s evidence that each company had different parameters and the requirements were not hard and fast. It also seemed consistent with the fact that the plaintiff was able to only recently obtain FIFO employment with Central Earthmoving despite her osteoarthritis.
545
The plaintiff did not seem to rely on Mr McDonald’s opinion that the plaintiff would not pass a medical assessment. Given that Mr McDonald had no experience in conducting medical assessments, I do not attach any weight to his opinion in this regard.
[2025] WADC 8
PALMER DCJ
[2025] WADC 8 [AC] Page 101
546
Ultimately, I am not persuaded that the evidence establishes that the plaintiff’s injury meant that she lacked competitiveness on the open labour market for FIFO roles from 2021.
547
Further, while I accept that the plaintiff’s osteoarthritis might have prevented her from performing some FIFO roles like those that required her to climb ladders, I am not persuaded that the evidence establishes that she was incapable of performing any FIFO work, or attending any mine site. Nor do I consider that the evidence establishes that she could not pursue some office based FIFO roles.
Assessment
548
The plaintiff gave evidence that she had been unable to perform CPR since the accident. Associate Professor Hardisty, Dr Witte and Dr Kimberley all accepted that she would be unable to perform CPR, although Dr Flahive expressed a contrary view.
549
I am satisfied that the plaintiff has been unable to perform CPR. I do not consider that Dr Flahive’s view is a sufficient reason to reject the plaintiff’s evidence that she was unable to perform CPR and had been since the accident. Her evidence was consistent with the opinions of the other medical experts.
550
I find that the plaintiff has been unable to perform CPR since the accident. I also find that the plaintiff has therefore been unable to conduct her first aid business since then.
551
The plaintiff sought a significant amount of damages associated with her inability to conduct her first aid business. She claimed that she would have conducted even more CPR training once she worked FIFO and her business would have become profitable.
552
The plaintiff’s submissions did not identify any evidence to suggest that the increase in the number of sessions that she provided would have rendered her business profitable. This submission appeared to be a matter of assertion only.
553
Neither the plaintiff’s first aid business, nor any of her other businesses have ever made a profit. It is therefore difficult to accept that the loss of her capacity to pursue her first aid business caused her to suffer any meaningful financial loss.
[2025] WADC 8
PALMER DCJ
[2025] WADC 8 [AC] Page 102
554
Further, I have concluded that the accident merely accelerated the plaintiff’s osteoarthritis. It is necessary to take into account the possibility that the plaintiff may have developed symptomatic osteoarthritis in any event.
555
In such circumstances, while I consider it appropriate to make some award to recognise the loss of the plaintiff’s capacity to conduct her first aid business, I consider that the award should be a modest global sum. I will award the plaintiff the sum of $5,000.00 for the loss of her capacity to pursue her first aid business since the accident.
556
The plaintiff also sought damages calculated on the basis of the difference between the salary that she would have earnt at Central Earthmoving and her current salary.
557
I do not consider that this is an appropriate basis to calculate the plaintiff’s economic loss. I am not satisfied that the plaintiff lost the opportunity to pursue her job at Central Earthmoving because of her knee injury. Central Earthmoving did not terminate her position because of her inability to obtain a first aid certificate. She resigned. There was no evidence from Central Earthmoving that she was unable to perform the role for which she had been employed.
558
As I have already indicated, I am not persuaded that the evidence establishes that the plaintiff’s injury meant that she lacked competitiveness on the open labour market for FIFO roles, or that the plaintiff’s knee makes her incapable of working FIFO.
559
Even if she was, it would be necessary to take into account the strong possibility that she would not continue with FIFO work for an extended period. She has no experience working FIFO to demonstrate that she is well suited to such work and can tolerate it. Her employment history also reveals a tendency to change jobs regularly. Mr McDonald thought she might be suffering from career distress.
560
Further, the incentives for the plaintiff to work FIFO were not obvious. Mr Shaddick said that she was currently earning something similar to what she would earn on site. This seemed consistent with Mr McDonald’s analysis. Mr McDonald also said that because of her lack of experience, she might be required to take a demotion if she were to take a FIFO job.
[2025] WADC 8
PALMER DCJ
[2025] WADC 8 [AC] Page 103
561
I accept, however, that the plaintiff’s knee injury brought forward her incapacity to pursue some jobs including, for example, jobs that involve climbing ladders. I consider that the plaintiff is entitled to an award of an amount to recognise the loss of her capacity to pursue such work. I will award a global sum of $10,000.00 in this regard.
562
I will therefore award the sum of $15,000.00 for past economic loss. This sum is inclusive of superannuation and interest.
The plaintiff’s claim for future loss of earning capacity
The plaintiff’s claim
563
The plaintiff claimed $423,935.00 for future loss of earnings, based on an assumption that, if it were not for the accident, the plaintiff would have progressed to a management position.576
564
The plaintiff submitted that damages should be assessed on the basis that from about 2024, she would have worked in a senior safety advisor, or safety superintendent role and held that role for at least seven years. She argued that such a role would have paid $175,000.00 gross per year. She also contended that she would have made business income in the sum of $44,850.00 gross, so that her annual net loss would be about $35,000.00.577
565
The plaintiff submitted that it was apparent from her resume that since as early as 2011 she had attained management roles, including as a training and HSEQ manager at Falck Pty Ltd. She relied on the evidence from Mr Shaddick and Mr McDonald to argue that the plaintiff had the background to progress to a senior leadership position.578
566
The plaintiff argued that with three years’ experience as a safety advisor from about 2021, then a further seven years’ experience as a senior advisor or safety superintendent, she would have progressed to a manager role at or about age 60. She argued that she would have made $200,000.00 gross per year and business income of $44,850.00 gross. She submitted that her annual net loss was therefore about $48,000.00 plus superannuation over 10 years from age 60 to retirement age.579
576 Plaintiff’s Closing Submissions, par 342.
577 Plaintiff’s Closing Submissions, pars 343 – 344.
578 Plaintiff’s Closing Submissions, pars 345 – 349.
579 Plaintiff’s Closing Submissions, pars 351 – 352.
[2025] WADC 8
PALMER DCJ
[2025] WADC 8 [AC] Page 104
567
The plaintiff relied on evidence that Mr McDonald gave that while these roles are available in Perth, without having site-based experience a management role would not be within the plaintiff’s skills and experience.580
568
The plaintiff also referred to evidence that Mr Shaddick gave that:
(a) drew a distinction between the plaintiff’s management experience in her previous roles and having site-based leading of teams’ experience which was a key requirement for the Perth based management roles;581
(b) there was very limited to nearly negligible chance for someone without site-based experience to achieve those roles;582 and
(c) the plaintiff has all the relevant academic qualifications for this role, it is the lack of site-based experience that precludes her progression into this role.583
569
The plaintiff accepted that there were a number of factors, some of which were unknown that would impact on her career progression. She submitted that contingencies should be applied to reflect these unknown factors. Her damages calculations included a 3% contingency and her submissions addressed the possibility of a 6% or 10% contingency. She also submitted that the court might award a lump sum to deal with the incalculable loss of earning capacity which it was argued should not fall below $400,000.00.584
The defendant’s case
570
The defendant submitted that the plaintiff would suffer no future economic loss. She argued that the plaintiff’s present earnings are as high as could reasonably be expected given her vocational antecedents and her sense of grievance which was unlikely to engender long-term employment leading to promotions with the same employer.585
571
The plaintiff argued that the defendant’s assertion was unfounded on the evidence. She submitted that it was evident from her resume that she has held a number of positions in excess of 12 months, including achieving internal promotion within Fenner Dunlop.586
580 Plaintiff’s Closing Submissions, par 353; ts 259.
581 Plaintiff’s Closing Submissions, par 354; ts 340.
582 Plaintiff’s Closing Submissions, par 354; ts 340.
583 Plaintiff’s Closing Submissions, par 355; ts 337.
584 Plaintiff’s Closing Submissions, pars 357 – 364.
585 Defendant’s Closing Submissions, pars 89 – 91.
586 Plaintiff’s Closing Submissions, par 325.
[2025] WADC 8
PALMER DCJ
[2025] WADC 8 [AC] Page 105
572
The defendant referred to evidence that Dr Witte gave that the plaintiff might be able to perform CPR after a total knee replacement.587
573
The defendant submitted that for the plaintiff to have 10 years’ experience to obtain a higher position as Mr McDonald described would mean that she would be almost 60 when she obtained that position.588
Assessment
574
I am not satisfied that the plaintiff should be entitled to a significant award for future loss of earning capacity for four reasons.
575
First, like the plaintiff’s claim for past loss of earning capacity, the plaintiff’s claim for future loss of earning capacity seems predicated on the proposition that her injury meant that she lacked competitiveness on the open labour market for FIFO roles, or that her knee makes her incapable of working FIFO. As I have indicated, I was not satisfied of either matter.
576
Further, the medical evidence suggests that in the future a total knee replacement will increase the functionality of her knee. This would increase the plaintiff’s capacity to pursue FIFO work.
577
Secondly, I have accepted the medical evidence that the accident accelerated the progress of the plaintiff’s osteoarthritis. It is necessary to account for the likelihood that the plaintiff’s knee would have become symptomatic in any event.
578
Thirdly, the plaintiff’s claim again assumed that she would have remained committed to a career in health and safety working FIFO for an extended period. As I have already indicated, I consider that the evidence suggests that there was a strong possibility that the plaintiff would not have worked FIFO for an extended period.
579
Fourthly, I did not find the plaintiff’s case that she would have assumed a senior management role particularly persuasive either. Even if the evidence of Mr McDonald and Mr Shaddick is accepted and the plaintiff was qualified for a management position, it does not necessarily follow that she would have been able to obtain such a position. Some of the positions under discussion were very senior positions. Being qualified for a role, particularly a senior role, does not necessarily mean that a person will obtain that role.
587 Defendant’s Closing Submissions, par 78.
588 Defendant’s Closing Submissions, par 87.
[2025] WADC 8
PALMER DCJ
[2025] WADC 8 [AC] Page 106
580
Ultimately, I consider that the plaintiff is only entitled to a modest award of damages to recognise that the acceleration of her right knee osteoarthritis might continue to have an effect on her earning capacity in the future. I will therefore award a further global amount of $10,000.00 for future loss of earning capacity. This sum is inclusive of superannuation.
Conclusion
581
In summary, for the reasons given above, I have assessed the damages to which the plaintiff is entitled as follows: Item Amount
Non-pecuniary loss
$47,250.00
Future medical treatment and travel
$12,500.00
Past and future care and assistance
$5,000.00
Special damages
$36,447.01
Past loss of earning capacity
$15,000.00
Future loss of earning capacity
$10,000.00
Total
$126,197.01
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
GS
Associate to the Hon Justice Palmer
24 FEBRUARY 2025