Milne v SDN Children’s Services and BRC Recruitment Pty Ltd

HIS HONOUR: By an Amended Statement of Claim filed on 1 September 2022 (“the ASOC”), Cheryl Anne Milne (“the plaintiff”) commenced negligence proceedings against SDN CHILDREN'S SERVICES ABN 23000014335 (“the first defendant”) and BRC Recruitment Pty Limited (“the second defendant”).

The proceedings arose from a slip and fall by the plaintiff (“the incident”) on 1 February 2016 when employed by the second defendant, a recruitment agency, to work under a labour hire arrangement as a cook at the premises of the first defendant, SDN Children’s Services Childcare Centre at 5 Belmore Road, Riverwood New South Wales (“the Centre”). The premises were operated by the first defendant as a childcare centre.

The plaintiff claimed that, in the course of her employment as a cook in the kitchen of the Centre, she slipped on a "cellophane" noodle and then fell resulting in injuries (there was also a reference to some fluid being at the location of the fall).

The first defendant filed a defence on 14 December 2021 in response to the Statement of Claim filed by the plaintiff on 12 December 2018. The first defendant named the second defendant as the plaintiff’s employer and relied on s 151Z(2) of the Workers Compensation Act 1987 (NSW) (“WCA”) claiming that any damages that may be awarded to the plaintiff ought to be reduced to the extent of the second defendant’s liability. Accordingly, the plaintiff filed the ASOC naming the second defendant as a party to the proceedings and as the plaintiff’s employer.

The plaintiff filed a Notice of Motion on 31 March 2023 seeking leave of the Court, pursuant to s 151D of the WCA, to commence Court proceedings against the second defendant for damages in respect of injuries received by the plaintiff in the employ of the first defendant at the Centre. The second defendant filed a cross-claim on 8 March 2023 naming the first defendant as a cross-defendant. The first defendant filed a defence to the cross-claim on 15 February 2024.

Subject to some later discussion of some legal principles, the second defendant had a non-delegable duty of care to the plaintiff as her employer to, inter alia, provide her with a safe place of work and a safe system of work. That duty is onerous but is fact dependant.

Further, any assessment of damages against the second defendant will be pursuant to section 151 of the WCA as opposed to the first defendant's assessment which will be calculated in accordance with the Civil Liability Act 2002 (NSW) (“CLA”) as amended.

Nonetheless, for the plaintiff to succeed, she must establish that any breach is causative.

The lay evidence for the plaintiff was given by herself and her daughter. The plaintiff's evidence in chief consisted of an Evidentiary Statement dated 29 July 2020 ("Evidentiary Statement") which had annexed a Statutory Declaration ("Statutory Declaration") and a Supplementary Evidentiary Statement dated 7 August 2023 ("Supplementary Evidentiary Statement") together with some oral evidence.

The plaintiff’s daughter, Brooke Mitchell (“Ms Mitchell”) gave an Evidentiary Statement dated 7 August 2023.

Both the plaintiff and her daughter were required for cross-examination.

The first defendant relied upon the evidence of the Director of the first defendant at the Centre at the time of the incident was Ruth Wilson (“Ms Wilson”). She made an Evidentiary Statement on 29 November 2023 (“Ms Wilson Evidentiary Statement”) and was also the subject of cross-examination at these proceedings.

Both parties called expert liability evidence.

The plaintiff relied upon the report of Mr Neil D Adams (“Mr Adams”) of 12 April 2022 (“the Adams report”). The first defendant relied relied upon the report of Mr Carl Strautins (“Mr Strautins”) of 14 August 2022 (the Strautins Report”).

There was a conclave of the experts bearing upon the question of liability. A joint report was prepared by Mr Adams and Mr Stautins dated 7 December 2023 (“the first joint report”).

A further joint report was produced on 12 February 2024 (“the second joint report”). The liability experts were not required for cross-examination.

The Court recently made observations about the credit assessments in Wang v Fan [2024] NSWSC 1339. I adopt those observations for the purposes of this judgment.

The plaintiff had a history of dishonesty or misconduct in employment.

Instances of such conduct by the plaintiff are outlined below:

Whilst not charged with respect to the third mentioned actions, this evidence is, in my view, also suggestive of unsavoury behaviour and is relevant to the plaintiff’s credit.

Those matters indicate the need to treat the plaintiff’s evidence with some caution. They do not, in my view, warrant global adverse credit findings as to the plaintiff’s evidence.

Rather the assessment of the plaintiff’s evidence should be undertaken by reference to particular aspects of her evidence, albeit after approached with the caution I have expressed above. It is useful to make that particular assessment to have regard to three components of the plaintiff’s evidence:

As to the first aspect, the senior counsel for the defendant, Mr N Polin described the plaintiff’s various accounts as to her fall as “pretty bizarre”.

Senior Counsel for the plaintiff, Mr T Barry with whom Mr T Meakes of counsel appeared, accepted that some aspects of the mechanism of the fall were unclear to the plaintiff at the time of hearing, which was “somewhat unsurprisingly given that the plaintiff was being asked to recall details of an event which occurred unexpectedly, very quickly, and more than eight years previously”.

The plaintiff’s version of events was disputed by the first and second defendant as to the mechanism of injury and the plaintiff was cross-examined in relation to the particular way in which she fell. In my view, there were deficiencies in her recollection of aspects of the mechanism of injury at the time of hearing and inconsistencies between the evidence she gave in her written Evidentiary Statements and Statutory Declaration and the evidence she gave in cross-examination. For reasons later given, some of the accounts given by the plaintiff do strain credulity and may not be accepted.

However, I do not consider the plaintiff was dishonest. Rather, the plaintiff appeared confused and expressed difficulties with recollection. However, as I have noted, her accounts are, at first, difficult to reconcile. At the least, the evidence must, for these reasons, be treated cautiously because these considerations raise significant questions as to the reliability of part of her evidence. However, there are other parts of the plaintiff’s evidence which were corroborated by the evidence of Ms Wilson who I find to be an honest and reliable witness. In that respect, the plaintiff’s evidence may be accepted where there is such corroboration by Ms Wilson.

As to the plaintiff’s credit as a witness, I agree with the first defendant’s submissions as to the plaintiff’s credit with respect to the surveillance footage evidence.

It is also clear that the plaintiff has continued to work in some capacity running a stall at local markets subsequent to her fall.

When confronted with this evidence she simply said it was in fact her family that ran the market stall and she only ever provided very little assistance at times. Her evidence is not credible by reference to the surveillance footage itself or objective matters. For example, it is only the plaintiff’s phone number that was displayed on the business promotion in exhibits 1 and 2. Business reviews by customers are confined to the plaintiff.

These considerations, and the unreliability of the plaintiff’s daughter, result in the conclusion that the plaintiff was, in fact, a significant contributor to the businesses at the markets.

I will make further observations about the plaintiff’s evidence below, but at this juncture it is sufficient to find that the plaintiff was not frank with many of the doctors she saw in relation to these proceedings including as to the work she performed at the markets as recorded in the surveillance footage.

During the course of the hearing the plaintiff abandoned her claim in relation to any psychiatric injury. Nonetheless, there remained in the Court Book the joint report of three psychiatrists: Dr Alyosha Jacobson, Dr Doron Samuell and Dr Frank Chow produced after a conclave conducted on 15 February 2024 (“the joint psychiatric report”). The joint psychiatric report was ultimately admitted into evidence as having some evidentiary weight (see transcript 25 March 2024, p 192, line 5 to 29).

In the joint psychiatric report, the psychiatric experts made a preliminary statement. The first defendant relied upon that aspect of the preliminary statement where the experts opined that there has been “an established pattern of dishonesty”. The basis for that statement is not entirely clear and for that reason it should receive no weight. However, the psychiatrists earlier observations in the preliminary statement should, in the present context, receive some weight. The experts raised concerns as to the reliability of the plaintiff, particularly as to the narrative provided by the plaintiff which was inconsistent with surveillance records. The psychiatrists were also concerned about the limited prior psychological “health seeking behaviour” and the “limited observations of the Plaintiff being mentally unwell”. These observations are consistent with the lack of candour displayed by the plaintiff in dealing with other medical professionals.

Little more is required in reaching a conclusion as to the lack of credibility of Ms Mitchell than her assertion that she has not seen her mother limp before the fall. This evidence contradicted her mother and Ms Wilson. The limp was not minor but significant.

That said, the question of balance, or rather the plaintiff’s lack of balance and the first defendant’s knowledge of it, prior to the fall, is relevant to the question of liability.

The plaintiff had a pre-existing problem with her balance. As Ms Wilson stated in her evidence:

She was taken to the entry at p 428 of the Court Book. That page was part of an incident investigation report prepared for the second defendant by Ms Wilson. In answering a proforma question as to other contributing factors to the incident Ms Wilson stated that it had been discussed at the first defendant’s “WHS Inspection that [the plaintiff’s] knee was bothering her – she was unable to stand on it for long periods impacting her balance potentially”. I note that the entry immediately following in the proforma document was “Outline recommendations” to which Ms Wilson replied: “cellophane noodles are new to the menu and have been removed from the menu”.

Ms Wilson agreed with the effect that this was likely to have on the plaintiff. Her evidence in that regard was as follows:

The plaintiff's pre-incident medical issues and health are dealt with in significantly more detail below, but I note for present purposes that the plaintiff came under the care of her general practitioner, Dr Mainul Joarder. It was submitted by senior counsel for the plaintiff that evidence showed that the plaintiff had a pre-existing weakness and osteoarthritis in the femoral condyle of her left knee. It was also submitted that this was the cause of her balance impairment. I accept those submissions as they are consistent with my later findings as to the medical evidence both referrable to the question of liability and damages.

The plaintiff is a 60-year-old woman, born on 22 October 1963. The plaintiff is in a de facto relationship and has 2 adult children, a daughter and a son.

At the time of the incident the plaintiff resided at Hannans Road in Riverwood in New South Wales with her partner and daughter. At the time of this hearing, the plaintiff resided at Horsley in New South Wales.

The plaintiff was born in Camden Hospital and resided in Campbelltown until year 6 when her family relocated to Shellharbour. The plaintiff attended Lake Illawarra High School until year 10.

The plaintiff noted in her Statutory Declaration that she obtained qualifications including “Typing and Office/Reception Duties Certificate; Computing Certificate; Menu Planning, Nutrition and Hygiene Certificate”.

From 1990 until around 2009, the plaintiff undertook mainly administrative work. Since 2009, the plaintiff had been working as a cook in childcare centres.

The plaintiff summarised her employment history in her Supplementary Evidentiary Statement as follows:

The plaintiff commenced employment with the second defendant on 16 September 2015 after she viewed an advertisement placed by the second defendant for the purposes of obtaining casual employment.

The plaintiff was a labour hire employee of the second defendant. The second defendant had policies on Work Health and Safety and kept records of site inspections they undertook at companies they were contracted with. The second defendant was approached by the first defendant for the purposes of providing a casual cook to their Centre.

The first defendant provided care for a range of children including children with disabilities and children from vulnerable families. The Centre catered for around 60 children aged from 6 weeks to 5 and a half years old.

On 28 September 2015, the plaintiff was contracted to work at the Centre and commenced employment on a casual basis as a cook to prepare meals for all of the preschool children. The plaintiff had been working at the Centre for approximately 4 months prior to the incident.

The plaintiff was the only cook at the Centre and worked the hours from 8:00am to 2:00pm. In her Statutory Declaration, the plaintiff identified her duties as a cook included cooking, cleaning, delivery of food to rooms, occasional shopping for food.

The plaintiff worked in the kitchen as a cook that was located in the south-easterly corner of the Centre.

Photograph 1 (below) is the floor plan of the Centre and became Exhibit 5 in the proceedings. The plaintiff was shown that document during cross-examination. An extract of that exchange is as follows:

Photograph 2 (below) is a photograph of the kitchen at the Centre where the incident occurred (I note in this respect the photograph was taken in 2022 with the addition of floor mats).

The layout of the kitchen was essentially the same at the time of the inspection with the plaintiff and the plaintiff’s expert, Mr Adams on 23 November 2021 as it was at the time of the incident.

Mr Adams provided a description of the layout in the Adams report. The kitchen had sinks and a dishwasher positioned against its westerly wall, a long preparation bench with cupboards underneath, and an oven and a cook top positioned against its southerly wall, the pantry entrance positioned in the Centre of the easterly wall, and a refrigerator, a short preparation bench with cupboard underneath and the main kitchen entrance, positioned along the northerly wall. During the inspection, the plaintiff noticed there was a small cabinet next to the dishwasher and a rubbish bin on the right-hand side which were not present at the time of the incident. The floor was unchanged, although the plaintiff indicated in evidence that when she worked in the kitchen, floor mats were not provided. During cross-examination the plaintiff also indicated that, at the time of the incident, the trolleys were situated behind the kitchen bench that was below the window on the southerly wall.

Photograph 3 (below) is an additional black and white photograph of the kitchen at the Centre taken in 2022 extracted from page 6 of Mr Adams report and relied upon by the plaintiff in evidence. This photo indicates the location of the windows were directly above the long preparation bench on the southerly wall.

The evidence makes clear that the first defendant had control of the system of work under which the plaintiff was required to perform her duties.

Ms Wilson’s evidence was:

As Director of the Centre, Ms Wilson worked closely with the plaintiff. Ms Wilson was asked what her opinion of the plaintiff was and her interactions with her. During cross-examination, she stated:

The plaintiff was an experienced cook and had previously worked in child care kitchens for other employers, where she had been inducted, including as to work, health and safety issues. She agreed that she would have complained as to any apparent safety issues. The plaintiff may have complained to Ms Wilson or Ms Natalie Brightly, a representative of the second defendant, but did not. However, as I will discuss, a noodle falling on the kitchen floor was difficult to detect.

The first defendant conducted regular assessments and relied upon the plaintiff, as the cook, to ensure spillages were cleaned, and more generally, the kitchen floors kept clean, a responsibility the plaintiff undertook conscientiously, on Ms Wilson’s evidence, even on the day of the incident.

As submitted by the first defendant, the meals in the Centre would be prepared in the kitchen and then taken out to be served to the children in the playrooms. The floor of the aisles in the Centre and the playrooms was a lino-type floor, similar to the kitchen floor. The plaintiff accepted that, as the food was transferred from the kitchen to the playrooms, there was also the potential for food to be spilt on those floors at any time.

The first defendant submitted:

I will commence the assessment of these propositions by first turning to parts of the plaintiff’s evidence.

First, the plaintiff gave evidence in cross-examination as follows:

Secondly, there was further cross-examination relevant to the issues raised by the first defendant as follows:

The additional dimension to the plaintiff’s evidence regarding that referred to in the first defendant’s submission was, that even with meticulous cleaning, it was conceivable that a translucent noodle will go undetected. However, there is a further aspect of the system of work not captured or adequately captured in the cross-examination of the plaintiff.

The system of work involved the plaintiff, after morning tea, preparing 60 meals in, as Ms Wilson put it, “a fairly short period of time after”.

The food was prepared by the plaintiff on the kitchen bench under the window on the southern side of the kitchen. Three trolleys would then be positioned by the plaintiff (one for each room) and the bowls filled with food for service, which would then be transferred from the bench to the trolleys by the plaintiff turning around from the bench to place the bowls on the trolleys immediately behind her.

When asked about the plaintiff’s problem with balance Ms Wilson gave the following evidence as to the intensity of the work:

On 1 February 2016, the plaintiff started work at approximately 8:00am. She began her usual routine of preparing food for the children; first morning tea, which involved tasks such as cutting and preparing fruit, baking muffins and then delivering morning tea by means of 3 trolleys taken to the 3 childcare playrooms. When questioned about her routine on this particular day during cross-examination, the plaintiff responded:

After morning tea was served, the plaintiff started on preparation for lunch. On the day of the incident, the lunch time meal was beef and vegetables with “cellophane” noodles (“the noodle dish”).

Ms Wilson was asked in cross-examination as to why the noodles were referred to as “cellophane”. In that respect, she responded:

The plaintiff’s evidence was that she had a large pot for the meat and the vegetables and a separate pot large pot for the noodles. She cooked the meat, then mixed the vegetables in with the meat. The plaintiff then cooked the noodles in the separate pot and strained the noodles. Next, she mixed the noodles with the meat and vegetables in a separate large bowl before ladling out served sizes into smaller bowls. The plaintiff’s preparation of lunch was undertaken on the benchtop below the window.

Once the noodle dish was served in the smaller bowls, the plaintiff stated that she transferred those bowls onto the trolleys. She initially faced the window holding two bowls of the noodle dish and then transferred the two bowls onto the trolleys that were directly behind her. The plaintiff’s answers in cross-examination in this respect were as follows:

The plaintiff stated in her Statutory Declaration at [11]:

In the plaintiff’s Supplementary Evidentiary Statement of 7 August 2023, the plaintiff provided a more detailed description of the mechanics of injury in (at [49] – [61]):

As indicated above, in her Statutory Declaration, the plaintiff stated that she struck her left knee against the cupboard when she initially fell forward. In the Supplementary Evidentiary Statement, the plaintiff indicated that she struck the bench twice. The first strike being when she initially fell forward and the second strike being after failing to regain her balance and falling backward. In that Statement, the plaintiff only stated that she struck both her right leg and left leg on her second falling motion backward. The plaintiff did not directly mention her striking either knee.

The plaintiff was asked in examination-in-chief what she observed when she looked at her shoe after her fall. That exchange is extracted below:

The plaintiff's evidence was that she was wearing "Croc Kitchen shoes" at the time of the incident provided at [62] of her Supplementary Evidentiary Statement. That is extracted below:

The plaintiff was meticulously taken through her movements leading up to the fall in cross-examination and, in particular, examined on the description she gave in her Supplementary Evidentiary Statement. In response she gave the following accounts. First, the plaintiff gave the following evidence:

When questioned further about her Supplementary Evidentiary Statement, the plaintiff gave the following evidence:

Later in cross-examination, the plaintiff was unclear in her recollection of the way in which she stepped to turn around:

The reference to the top of “page 192” is a reference to the plaintiff’s evidentiary statement of 7 August 2024. The text reads: “and I took a small step with my right leg then turned and made a larger step with my left leg.”

When questioned further about the precise mechanics of her fall, the plaintiff gave the following evidence:

The plaintiff stated she slipped forward into the counter, bounced off the counter, tried to regain her balance and then fell backwards with the two bowls.

At that point of the cross-examination, the precise mechanics of the plaintiff’s fall again became unclear to her, and she could not recall whether her right leg had also struck the bench. That exchange is extracted below:

It was then suggested to the plaintiff that she did not hit the bench at all. The plaintiff did not accept that proposition. She gave the following evidence:

When asked about the position of her legs while on the floor, the plaintiff gave the following evidence:

There was an exchange in relation to where her head struck after her fall. That is extracted below:

The plaintiff was questioned on how her fall could that have happened without spilling any food out of the bowls she was holding. Her response was as follows:

The plaintiff stated in her Supplementary Evidentiary Statement at [56]:

No parties advanced submissions or cross-examined the witnesses on the specific mechanics of the plaintiff crawling toward the kitchen door and perhaps moving out of the position in which she originally fell or the position near the preparation bench where Ms Wilson found her.

Given Ms Wilson’s quick attendance to the kitchen (the plaintiff said a few minutes after the fall which seems exaggerated given Ms Wilson responded to a loud noise which alerted her to action), and the plaintiff was rendered in a supine position or on her side near to the bench, I find the plaintiff’s account of crawling to the kitchen door quite improbable unless there was very little movement actually involved.

Ms Wilson did not witness the plaintiff fall. However, about 11:00am Ms Wilson walked into the kitchen because she heard a “whoomph” type noise that came from the kitchen.

In the Ms Wilson Evidentiary Statement, Ms Wilson gave the following evidence as to her observations upon attending the kitchen:

I will return to a statement made by Ms Wilson in 2018 (the tender of which was contested) but note that in that statement Ms Wilson stated that she saw a wet mark on the kitchen floor near the plaintiff’s foot. She did not recall “seeing the noodle anywhere around her”.

An incident report was prepared by Ms Wilson which recorded the incident having occurred at 11am on 1 February 2016 and was reported at 11:04am that day. The accident was described as the following:

In the same report, in answer to the proforma prompt of ‘how’, Ms Wilson recorded “slipped on a noodle” and as to the “Location on Body” she entered “left knee – outside/lower”.

In examination-in-chief, Ms Wilson made the following observations after she walked into the kitchen:

In cross-examination Ms Wilson, however, gave the following evidence as to the presence of a noodle at the point of the fall:

Ms Wilson was taken to a particular aspect of the incident by senior counsel for the plaintiff. That exchange is as follows:

When cross-examined on the location of the skid mark that she saw, Ms Wilson gave the following evidence:

Counsel for the first defendant questioned Ms Wilson on her observations on the plaintiff’s position when she arrived, which is extracted as follows:

When cross-examined on the evidence she gave in her Evidentiary Statement as to the position she found the plaintiff in after the fall, Ms Wilson gave the following response:

The plaintiff stated in her Supplementary Evidentiary Statement (at [65]):

The plaintiff was questioned on that exchange in cross-examination. The plaintiff responded as follows:

Ms Wilson was cross-examined on her interaction with the plaintiff following the fall and, in particular, the conversation with the plaintiff regarding the incident report. Ms Wilson responded that she called an ambulance and waited with the plaintiff. She further gave the following evidence:

I prefer Ms Wilson’s account of that discussion. Her explanation was plausible whereas the plaintiff’s account of a discussion of the mats, while waiting in pain for an ambulance, was not and was self-serving.

As to the visibility of the noodles used at the time of the incident, Ms Wilson corroborated the plaintiff’s evidence in that regard where she stated:

On the final day of hearing, after the close of the evidence and during the course of oral submissions, senior counsel for the plaintiff sought to have admitted into evidence a statement of Ms Wilson dated 2 February 2018 (“the Statement”).

The first and second defendants objected to the tender. In the result, the Statement, which consisted of 83 paragraphs over 12 pages, was marked as MFI 2 and the decision as to the receipt of the Statement was deferred until the parties had filed supplementary written submissions on that issue. Those submissions were filed on 18 April 2024, in the case of the plaintiff; 2 May 2024, in the case of the second defendant and 6 May 2024, in the case of the first defendant.

This section of the judgment resolves that question which is also connected to the question of liability.

As earlier mentioned, there is in evidence Ms Wilson’s Evidentiary Statement, on which she was cross-examined on 8 March 2024.

On the same day, the Court directed the parties to exchange opinion as to what should remain in the Court Book and, if there was a dispute, then the court would make the appropriate rulings (the Court had earlier raised the issue of the Court Book on 6 March 2024 and returned later to that question as discussed below).

On that day the proceedings were adjourned until 24 March 2024.

Before turning to the relevant events occurring during that adjournment, I propose to turn to the Statement both in terms of its relative location in the materials filed before the Court and the plaintiff’s reliance upon it.

The Statement appeared in two places in the original Court Book at Tab 14 and at Tab 89.

Tab 14 contained pages 151 to 163 which consisted of only the Statement (“the Tab 14 pages”).

Tab 89 contained pages 1067 to 1324 and consisted of a Workers Compensation Investigation Report including annexures. The Statement appeared at pages 1093 to 1105 (“the Tab 89 pages”).

In closing submissions, senior counsel for the plaintiff placed reliance on two passages from the Statement.

First, he relied, in the plaintiff’s written closing submissions, on Ms Wilson’s description of what she saw and heard as to the incident. This was found at pars [42] – [44] of the Statement as follows:

Secondly, reliance was also placed on par [51] of the Statement in the plaintiff’s closing submissions. That aspect of the Statement was as follows:

Returning to the sequence of events leading to the final form of the Court Book (Exhibit 6), the parties both placed reliance upon communications between their solicitors whose object was, in accordance with the directions of the Court, to reduce the Court Book to those materials on which the parties intended to rely in their respective cases.

In that respect, I observe that, when the Court Book was tendered in its final form to the Court as Exhibit 1. the Statement did not appear.

On 8 March 2024, the plaintiff's solicitor (Mr Nick Jones) provided a list of documents which he said should be removed from the Court Book.

In the introduction to that email, Mr Jones stated that “the following documents to be withdrawn from the Court Books”. The Tab 14 pages were not mentioned. Tab 89 was proposed to be removed but the Tab 89 pages were to be exempted. This was indicated by the words “except pages 1093 – 1495”. As mentioned, the Statement appeared within those pages and, hence, at that stage, the Statement was to remain as part of the residue of Tab 89. I will refer to this email as the “8 March email”.

In the absence of any response to the 8 March email, the solicitors for the plaintiff sent an email to the solicitors for the defendants on 15 March 2024. The plaintiff submitted that a response was received within an hour. That response was from the second defendant’s solicitors which indicated that their position would be made known in the following week.

The second defendant's solicitors then agreed to prepare an amended Court Book.

At 8:47 AM on 20 March 2024, the solicitors for the second defendant communicated a joint position for the defendants in respect to the 8 March email to the solicitors for the plaintiff as to the Court Book contents (“the earlier 20 March email”). In that email, the second defendant listed the defendants’ response to the plaintiff’s proposed amendments to the Court Book which relevantly included:

It is plain from the structure of that document that the non-bolded entries in the list concerned the plaintiff’s proposal for amendments and the bolded entries represented the response from the defendants. It follows that the following position existed at the time of the earlier 20 March email:

The solicitors for the plaintiff responded at 4:59 PM on the same day (the later 20 March email”). The plaintiff also produced a list introduced by the words “Using the numbers in your email relating to the documents which are controversial our response is as follows”.

The first entry in the later 20 March email was cross-referenced to item 3 on the earlier 20 March email, thereby commencing at Tab 23. In other words, by the omission of a reference to earlier items including Tab 14 the solicitors for the plaintiff raised no objection to the removal of Tab T4.

The plaintiff did respond to the defendants’ response to item 9 (Tab 89). Relevantly, the plaintiff stated, inter alia, “[w]e agree to the removal of 1067 to 1259”, being the first proposal for removal in the defendants’ earlier response. The Statement being at pages 1093 to 1105 fell within that range.

The plaintiff submitted, correctly in my view, that the plaintiff’s solicitor had accepted by the later 20 March email that Tab 14 would be removed from the Court Book, namely, the Statement appearing in that Tab would be removed.

However, the plaintiff also submitted that the plaintiff’s solicitor had, in that respect, made an erroneous statement in that respect. I will discuss that contention below but there is nothing in the record of exchange between the parties up to the tendering of the Court Book in its final form which would suggest that the lawyers for the plaintiff communicated or held that position.

Senior counsel for the plaintiff also submitted, as to Tab 89, that “there was no objection to its being included in the material that the defendants wanted to tender”. The plaintiff went further to submit there was an agreement between the parties “that the same statement would remain as part of the Court Book from pages 1093 to 1105”, being a reference to the Statement (or MFI 2). That submission cannot be sustained on the evidence before the Court, namely, the relevant concurrence being given to the defendants’ response to item 9.

Whilst not strictly necessary, that conclusion is fortified by the communication from the second defendant to all of the parties on the following day in which it is indicated that two copies of the amended Court Book would be printed which with such Court Book “removing all material that has been agreed by all three parties that can be removed” and replacing them with blank pages. The list of documents to be removed included Tab 14 and Tab 89 from pages 1067 to 1259, which included the Tab 89 pages.

Further confirmation is available from the terms of a document entitled “Joint Schedule as to Objections to the Court Book” (“Joint Schedule”) dated 22 March 2024 and signed by senior counsel for the plaintiff and solicitors for the defendants. That document does not mention, as matters in dispute, either the omission of Tab 14 or the Tab 89 pages. Given the immediately preceding document of 21 March 2024, it must follow that no dispute existed at that time as to the exclusion of the Tab 14 pages and the Tab 89 pages.

At the resumed hearing on 25 March 2024, the Court made the following observation:

Senior counsel for the first defendant then addressed the contents of Tabs 23 to 38, being the first Tabs in the Joint Schedule shown as containing disputed matters. At transcript 182, line 46, the Court made rulings in relation to those documents and a further ruling at transcript 183, line 34, in relation to Tabs 36 and 37.

The plaintiff was correct to submit that the transcript recorded that the Court then proceeded to deal with other documents which were not part of the controversy working, ad seriatim, through the documents in accordance with the Tab numbers. The plaintiff also submitted that “None of the parties sought a ruling in relation to documents in the Tabs that preceded Tab 23”. That naturally derived from the fact that there were no disputes as to Tabs prior to Tab 23.

Counsel for the second defendant, Mr S Flett, stated at that time:

What Mr Flett dealt with in that submission was the remaining part of Tab 89 that was in dispute. The plaintiff submitted that what had been agreed to be removed did not include MFI 2 but on the chronology provided above that statement cannot be correct.

The Court then made a ruling in relation to pages 1278 to 1314.

At transcript page 189, line 11, the Court stated:

Senior counsel for the first defendant, then raised what he said was a general objection under s 60 of the Evidence Act 1995 (NSW) dealing with an exception to the hearsay rule where documents are admitted for a non-hearsay purpose.

At transcript page 190 on that same day, the following exchanges occurred:

The final discussion in relation to the Court Book appears on transcript 230:

The reservation given to senior counsel in the final extract from the transcript above was one to ensure that the Court Book received was in conformity with the consent arrangements between the parties and the rulings of the Court as to disputed matters and not to revisit agreements that had already been reached and documented as between the parties.

The Court Book was then tendered and marked Exhibit 6.

The Court ordered written submissions to be filed by the parties before 24 April 2024. The plaintiff provided submissions on 16 April 2024. The Statement in Tab 14 was not raised. Nor was it in relation to Tab 89. However, the written submission did refer to paragraphs [42] – [44] of the Statement and, in a footnote, referred to p 157 in Tab 14 of the original Court Book.

The plaintiff submitted that the completed Court Book were not delivered to the plaintiff's solicitors until 8 April 2024 or her counsel until 9 April 2024 but both of those dates were prior to the filing of the plaintiff’s closing submissions.

The plaintiff also submitted that t he final version of the Court Book was not delivered to the chambers of Senior Counsel for the plaintiff until after the written submissions for the plaintiff had been subject to their first drafting. It must follow, however, from that submission that the senior counsel was in receipt of the Court Book prior to the filing of the closing written submission.

The matter next came before the court on 30 April 2024 when further oral submissions were heard. Tab 14 was not raised until the oral submissions had been completed that day when the plaintiff's senior counsel, as earlier mentioned, sought to tender the Statement.

The plaintiff’s submissions as to the appropriateness of receiving into evidence the Statement were expressed in various parts of the plaintiff’s written submissions which I have variously referred to above. In summary, the contentions advanced by the plaintiff were as follows:

I shall deal with each of those propositions in the order appearing in the above quote:

Those assessments, however, are not the end of the consideration of the objection by the defendants to the admission of the Statement. Those further considerations are best reflected in the submissions by the defendants opposing the admission of the Statement. The basis for the objection were as follows:

The first two propositions may be readily accepted based on the above analysis, provided that the reference to the Court Book was intended to refer to the final form of the Court Book in Exhibit 6.

The third proposition is, however, incorrect if it is advanced, as I understand it to be, as an absolute proposition.

It is plain that Ms Wilson was, in fact, cross-examined as to pars [43] and [44] of the Statement for the following reasons.

First, Ms Wilson was cross-examined about the location of the wet mark that she referred to in par [44] and was as follows:

Secondly, Ms Wilson was asked in cross-examination whether the plaintiff had said "Those damn noodles" and she stated "[s]he might have, I'm not sure". That is a reference to par [44] of the Statement.

Thirdly, Ms Wilson was cross examined as to her statement about the position of the plaintiff when she found her in the kitchen. The cross-examination was as follows:

That cross-examination related to par [43] of the Statement. Whilst par [35] of the Ms Wilson Evidentiary Statement referred to the plaintiff, when found by Ms Wilson, being in a “splits position” as well as her legs extending “outwards each way”. The reference to her right leg being bent underneath and the left leg being outstretched only appeared in par [43] of the Statement. However, there is no inconsistency in her evidence in that respect.

As to the fourth contention relied upon by the defendants, it is necessary to have regard to the significance of the Statement, or rather part of it, to the plaintiff’s case. The plaintiff made the following submissions in her supplementary written submissions:

I substantially agree with the submission of senior counsel for the plaintiff as to extracted par [32] above although I do not consider that Ms Wilson’s statement at par [32] of her Evidentiary Statement is necessarily inconsistent with the remainder of her evidence.

Ms Wilson was cross-examined as to her evidence in par [44] of the Statement and confirmed that she did not recall seeing the noodle. In my view, Ms Wilson’s statement at par [37] of her Evidentiary Statement reflects the contemporaneous account given to her by the plaintiff a short time after the fall. That accounts for her evidence given in cross-examination as to the statement she made to the plaintiff at the time. She said to the plaintiff that you “slipped on the only thing that was on the floor because it was just so clean”. I understand that evidence to be a confirmation to the plaintiff as to her indications of slipping on a noodle when she had observed a wet patch and nearby mark and the floor was otherwise clean.

As to par [33] of the plaintiff’s supplementary written submissions, the plaintiff did give evidence including her evidence in chief that she observed the noodle in the tread of her shoe. Notwithstanding, the supplementation of that evidence at the commencement of her oral evidence, there was no cross-examination of the plaintiff in that respect. I, therefore, accept the evidence, particularly as it pertains to a noodle which was plainly the source of the slip.

It should be noted, however, that the plaintiff also gave an embellishment in her evidentiary statement that both she and Ms Wilson had observed the noodle in the tread of her shoes. Ms Wilson did not recall observing the noodle in the plaintiff’s shoe. Apart from accepting Ms Wilson as a witness of credit, I consider the evidence given by the plaintiff in that respect to be implausible. It is most unlikely that Ms Wilson, having been confronted with what was apparently a serious accident, would spend time with the plaintiff observing the content of her shoe. The addition of the reference to Ms Wilson’s observations in the Evidentiary Statement, was, in my view, most likely designed to give credibility to the plaintiff’s account.

It seems reasonably clear from the above analysis that the passages relied upon from the Statement by the plaintiff were pars [42] to [44] and the further evidence, found at par [51], concerning noodles being withdrawn from the menu. Par [42] to [44] seem to have been relied upon in the plaintiff’s case as to where and how the plaintiff fell and as to the fall occurring as a result of a slip on a noodle located on the floor of the kitchen, even though Ms Wilson had not seen the noodle herself.

There is no proper basis established by the plaintiff to tender the whole of the Statement. The Statement is substantial and was agreed to be removed from the Court Book by the plaintiff. There was sufficient opportunity for the plaintiff to adjust her position prior to the filing of closing written submissions, let alone before the close of oral submissions. No different position has been demonstrated in that respect for par [51] of the Statement.

However, the position of pars [43] and [44] of the Statement warrants a different conclusion. The reliance upon those aspects of the Statement was flagged in closing submissions of the plaintiff, albeit on a mistaken belief as to this remaining in the Court Book. More importantly, the content of those statements was the subject of cross-examination. In substance, the content of the Statement in those paragraphs was, for the most part, otherwise in evidence through the cross-examination. I admit those two paragraphs of the Statement which shall be marked as Exhibit 7 in the proceedings. The plaintiff should bring in a document reflecting exhibit 7 for the Court’s records within the timetable fixed by the directions appearing at the end of this judgment.

The following discussion does traverse some evidence which relates to the question of damages. The discussion at this juncture is not designed to address the nature and extent of any injury sustained by the plaintiff but whether, in fact, the plaintiff sustained an injury which was not insignificant. The discussion will also be refined in the later discussion of damages.

An ambulance arrived a short time after the incident and ambulance officers assessed the plaintiff at the Centre. The plaintiff presented with lateral left knee pain at the time of the fall to the ambulance officer. Those ambulance records stated:

When the plaintiff was asked in cross-examination about what she told the ambulance officers, the following exchange took place:

The plaintiff thereafter was taken to Bankstown Lidcombe Hospital (“Bankstown Hospital”) via ambulance for further assessment where it was noted that she was experiencing “left lateral knee pain”. It was further noted that she “denied direct injury to the knee and feels like she may have pulled it during the fall”.

The plaintiff was asked about her attendance at hospital, and she was shown Bankstown Hospital records in relation to her incident. The following exchange took place:

In her Supplementary Evidentiary Statement, the plaintiff gave evidence that all she could remember at the time was that she was “in a state of shock” and felt like she was “hyperventilating” and “had a lot of pain in my knee”.

An X-ray was taken of the plaintiff’s left knee which identified no fractures. The plaintiff was subsequently discharged with Panadeine Forte, a knee brace and crutches and advised to get an MRI if pain had not dissipated within 1 to 2 weeks.

The second defendant disputed the plaintiff’s submission of allegedly striking her left knee at the time of the incident. It was submitted that the plaintiff made no complaint to Ms Wilson about striking her left knee and the contemporaneous histories set out in the ambulance and Hospital records on the day of the incident make no mention of the plaintiff striking her left knee.

The second defendant submitted the plaintiff was extensively cross-examined on the mechanism of injury. It was submitted that the plaintiff's answers in cross-examination demonstrated “that the Plaintiff was unable to logically explain how her knee could have impacted on a hard surface at the time of the incident and the contemporaneous material should be preferred”. Upon my review of the plaintiff’s evidence as to the mechanism of the fall, and having regard to my findings of credit with respect to the plaintiff, I agree with that submission.

I accept the submission of the plaintiff as to authority bearing upon the assessment of the mechanism of injury and the concomitant implications for the question of liability.

The onus lies on the plaintiff to prove her case against the first defendant. In Rallis v Pang [2003] NSWCA 202 at [26], Tobias JA stated:

In Shoalhaven City Council v Pender [2013] NSWCA 210 (“Shoalhaven City Council v Pender”) at [47], McColl JA stated:

However, I do not accept the submission of the first defendant that the plaintiff has failed to identify, with sufficient precision, where in the kitchen she fell. The plaintiff’s evidence, as corroborated by Ms Wilson, was:

As to the other circumstances of the fall, the evidence revealed:

Having regard to these considerations, I will make the finding proposed by the plaintiff (described as “Finding 1”) but amend the finding by virtue of my finding as to the location of the fall. That finding appears below.

The plaintiff suffered an injury to her left knee when she slipped and fell on fluid and a piece of food, namely, a cellophane noodle, close to the preparation bench on the southern side of the kitchen at approximately 11.00am on 1 February 2016 while employed as a cook by the second defendant at the premises of the first defendant.

Mr Adams inspected the Centre and, in particular, the floor in the kitchen. He was informed by the plaintiff that the floor had not been modified in any relevant way since the day of the incident. He then proceeded to take various measurements of slip resistance on the floor.

Mr Adams described the floor of the kitchen in the following way:

After setting out a table of his measurements of skid resistance values, Mr Adams made the following statement:

I shall refer to the guide mentioned by Mr Adams in that part of his report as “HB 197”. The standard known as ‘AS 4663:2013 Slip resistance measurement of existing pedestrian surfaces’ shall be referred to as “AS 4663”. Mr Adams then opined that the total risk that a slip might occur on any given surface was dependant on the frictional characteristics of that particular surface as well as a range of other contributing factors such as the presence and nature of any potential lubricants. He indicated that this principle was acknowledged in a relevant standard: AS 4663. Mr Adams opined that the current standards set out the required test equipment and methodology while HB 197 contains tables against which test results may be compared to assess the contribution of the risk of slipping that pedestrian surfaces might be expected to make relative to other potential contributing factors.

Mr Adams opined that, as a result of his measurements, the floor in the kitchen of the Centre was not capable of meeting the minimum recommended level of slip resistance of a coefficient of friction of 0.60 at the time of his inspection. Furthermore, the presence on kitchen floors of materials with greater lubricating potential than water was predictable such that a slip could easily occur if a worker’s foot landed even a relatively small piece of lubricating contaminant. This was the case even though the kitchen floor was adequately slip resistant when wet with water.

From this position, Mr Adams opined that “suitable means of safe passage in the kitchen entails flooring that is inherently slip resistant in the presence of the types of contaminants that will very likely reach the floor from time to time, or matting that allows such contaminants to fall through or be absorbed…”.

Mr Adams considered that the reasonable preventative measures that were available to the defendants included:

Mr Adams was of the view that it was not realistic to expect workers to manage the risk of slip and fall by means of continually exercising the caution required to avoid a risk that they faced time and time again when doing routine work. This specifically included continually dealing with food dropped on the floor. He stated:

Mr Adams was of the opinion that the risk of slipping would have been reduced, albeit not eliminated, if the flooring was installed in conformity with HB 197.

Mr Strautins referred to AS 4663 as being the applicable standard for the flooring in the kitchen of the Centre but mentioned that it was not mandatory and had no compliance criteria. He indicated that AS 4663 referred to HB 197 for guidance on interpretation of test results concerning slip resistant values.

A kitchen catering for a childcare facility according to Mr Strautins would require a level of slip resistance for a new surface to be “an oil-wet inclining platform test R11 as outlined in HB 197…”. Mr Strautins was unclear whether the floor of the kitchen in the Centre achieved that classification but sought clarification because a description received with respect to the document referred to R10.

As to the consideration of a noodle falling on the kitchen floor and its affect in relation to the slip resistance of the floor Mr Strautins opined (I’ve suggested some edits but wasn’t able to fully check as the reports weren’t in my copy of the CB):

In relation to controlling the hazard of the noodle, Mr Strautins opined:

Mr Strautins was not made aware of any intrinsic or biological factors in relation to the plaintiff’s health status that may have increased the risk of falling.

In conclusion, Mr Strautins stated that if a noodle was squashed by a foot there needed to be a sufficient volume for the contaminant to flow into the profile of the floor “or within the tread of the shoe and allow sufficient contain between the foot and the floor”.

As to preventative measures, Mr Srautins stated:

As the second joint report contained a number of areas of agreement, it is appropriate to firstly identify the consensus between the experts.

The area of agreement were as follows:

The second Joint report then proceeded to deal with two issues as follows:

I will return separately to the question of the installation of mats which was the focus of the first joint report and deal firstly with the answer to those two questions. As to the first issue, and subject to wear and tear, Mr Adams stated that it was likely that the floor would have had greater volumetric displacement and thereby reduced the risk of slipping on a noodle, particularly if a modest amount of spillage had occurred. Mr Adams was of the opinion that the risk of slipping would have been reduced, albeit not eliminated, if the flooring was installed in conformity with HB 197.

On the other hand, Mr Strautins held the view that, if the surface met the R11 classifications, then the risk was acceptable and “anything more [was] a matter of hindsight”. However, slip resistance reports would be necessary to provide an indication whether the surface was within the measurement uncertainty of R11.

As the slip resistance of the surface had not been verified, on face value the slip resistance was sub-optimal if it achieved R10. If R11 material had been supplied because there was a lack of a volumetric displacement requirement “it is more probable than not that the probability would have marginally reduced if at all”. Mr Strautins opined that the incident would not have been prevented in that event, “particularly if the reported result was within measurement uncertainty”.

As to the second issue, Mr Adams stated:

As to Mr Strautins, he observed:

As to the first joint report, the experts were asked the following question:

Mr Adams answered that question in the affirmative and Mr Strautins in the negative.

The reason for Mr Adam’s opinion, in that respect, was, in substance, as follows (without repeating the earlier debate about putting in place administrative controls requiring the plaintiff to take various steps in monitoring and cleaning):

Mr Strautins opinion, in this respect, was as follows:

It was pleaded that both the first and second defendant owed the plaintiff a duty of care. Further, it was pleaded that the plaintiff suffered serious injuries and consequent loss and damage by reason of the negligence of the first defendant.

The particulars of negligence of the first defendant were as follows:

The particulars of the negligence of the Second Defendant were pleaded as follows:

The following statements were contained in the first defendant’s Defence:

The defendant denied all the allegations of negligence by the plaintiff and did “not admit the plaintiff suffered injury, loss and damage in the manner pleaded in the statement of claim and statement of particulars”.

The first defendant’s Defence additionally stated the following:

The second defendant’s Defence denied it owed the plaintiff a duty of care and denied that the fall occurred.

The second defendant’s Defence included the following:

The liability of the first defendant involves the application of the common law as amended by the CLA.

The CLA does not contain a definition of the circumstances under which a duty of care arises. The common law imposes a duty of care on occupiers in relation to the static conditions of the premises.

The formulation of the relevant duty of care is clear. As McColl JA repeated in Shoalhaven City Council v Pender at [48]:

The duty of care extends to activities conducted on the premises: Burton v Brooks [2011] NSWCA 175.

The first defendant’s duty covered not only the static conditions of the Centre but, also the system of delivery of the services: Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 at [26]-[27] (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ).

There would not seem to be a dispute in this matter as to the existence of a duty of care owed by the first defendant to the plaintiff as an occupier. The duty arose by reason of the first defendant’s occupation of the premises at which the plaintiff was required to work. As earlier discussed, the first defendant established a system to which the plaintiff was required to conform; the plaintiff being engaged with the first defendant under a labour hire arrangement between the first and second defendants.

As the first defendant established and maintained a system of work, as part of the operating system of the Centre, it had an obligation to exercise reasonable care that its system did not expose the plaintiff, who operated under that system, to reasonably foreseeable risk of physical injury. Likewise, the first defendant as occupier was responsible for creating and maintaining a safe place of work for the plaintiff. It had an obligation to exercise reasonable care that the system of work did not expose the plaintiff in working there to reasonably foreseeable risk of injury. The first defendant, however, argued that the scope of the duty of care did not extend to it in the circumstances of the case.

I note, in that respect, as Leeming JA said in Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 at [53]:

The first defendant submitted that, realistically, the only way a fall could eventuate at the time of the incident was by the plaintiff failing to take reasonable care for her own safety. That proposition was advanced on the basis that she had slipped on a contaminant that she spilt on the floor. Further, it was submitted that the risk, being the risk of a worker at the Centre slipping on food or solid contaminant on the floor was, therefore, outside any duty of care owed by the first defendant as an occupier because the scope of that duty of care was ‘delimited’ by the assumption that the worker would take reasonable care for her own safety. It was on this basis that it was submitted that the Court should find, in the circumstances, that the first defendant owed no relevant duty of care to the plaintiff.

I propose to commence the discussion of that issue by examining the question of risk of injury, even though that issue will have ramifications for the breach of any duty.

In that respect, I agree with the submission of the first defendant that, as a starting point, the plaintiff is required to identify, and articulate clearly, the “risk of harm” in respect of which, it is alleged, a defendant was obliged to take precautions. It is only through the correct identification of the risk of harm that an assessment of the reasonable response can be made: Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 (“Dederer”), [59]-[61] (Gummow J). The description should identify the “true source of potential injury”: Dederer, 351 [60] (Gummow J). It is only if “the relevant risk is identified with sufficient precision” that one can “determine what, if any, reasonable precautions ought to have been taken in order to avert it”: Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90, [98].

At least in the present case, it is also appropriate to mention the judgment of Campbell J in Bridge v Coles Supermarkets Australia Pty Ltd (No 3) [2017] NSWSC 1800 in which his Honour considered the manner in which a relevant risk of harm needed to be identified (at [44]):

It is also relevant to consider the recent judgment of the High Court in Tapp v Australian Bushmen’s Campdraft and Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11 where Gordon, Edelman and Gleeson JJ stated (at [106]-[107] and [125]):

The plaintiff contended that the risk of harm in the present matter should be identified as follows:

The first defendant submitted:

The debate in that respect needs to be considered in the light of the agreed position between the experts which I have earlier set out. In summary, the experts concluded:

In those circumstances, it appears to me that the formulation of the risk of injury by the first defendant is appropriate as being sufficiently commensurate with the essential facts of this case. Having said that, the plaintiff’s articulation of the risk is essentially the same though it adds enhancement to the risk relating to spillage of noodles from bowls and an element of aggravation of the risk concerning “the known pre-existing arthritis to the plaintiff’s knee”.

In the light of the plaintiff’s pleadings that the system and place of work dictated by the first defendant was not reasonably safe, having regard to the reasonably foreseeable risk of contaminants being on the floor of the kitchen creating the reasonably foreseeable risk of slipping leading to a fall, I reject the first defendant’s submission that the risk was one that fell outside the duty of care owed by the first defendant as an occupier because the only way a fall could eventuate was by the plaintiff failing to take reasonable care for her own safety.

Such a failure could only arise if the reasonably foreseeable risk had not been prevented by the first defendant.

The system of work involved the plaintiff preparing multiple meals under pressure of work. The risk of contaminant falling on the floor in the transfer of meals from the bench to the trolleys was not only reasonably foreseeable but virtually inevitable. So too was the likelihood that a fall of a contaminant on the floor might be undetected by the plaintiff. That is so for two reasons:

The first defendant had a duty of care for the plaintiff to make and keep the floor of the kitchen safe from the risk of slipping and falling on contaminants.

As noted above, the CLA does not contain a definition of the duty of care but it does contain a definition of "negligence". The definition of negligence is in terms of the standard of care. This is because s 5 of the Act defines negligence in the following terms:

Under the expression “duty of care” the CLA then identifies certain statutory criteria by which the standard of care for “negligence” is measured.

Section 5B relevantly states:

In this case, the Court is not concerned with subsection (d) but the evidence established that the application of the "general principles" to the facts results in a finding of liability against the first defendant for reasons I explain below.

In a broad sense, I accept the following submissions made by the first defendant:

The first defendant made submissions in support of the contention that, having regard to the provisions of ss 5B – 5H of the CLA, as well as general law principles, the first defendant was not liable.

However, before turning to the particular submissions advanced by the first defendant under the provisions of the CLA in that respect, it is appropriate to mention some further aspects of the first defendant’s submissions as to the mechanism of the fall. I will approach those propositions in two parts.

The first aspect of the first defendant’s submissions were as follows:

The first three of those propositions may be accepted and are established by the factual findings made earlier in this judgment. The last proposition was the subject of earlier discussion which is unnecessary to repeat at this juncture.

There were then further propositions advanced as follows:

I will return to those arguments momentarily but some preliminary observations should be made. As discussed in relation to the examination of the duty of care, the first contention advanced by the first defendant sits ill with the agreement of the experts that the risk of slipping on a contaminant on the kitchen floor that was not noticed would be “relatively high” compared with the surface contaminated with water. The plaintiff was not challenged on her evidence, and I accept her evidence, as follows:

That evidence needs to be understood in the light of the first defendant acceptance that the plaintiff was an experienced cook who had worked in many childcare kitchens for other employers.

As to the second proposition, it may be noted that the first defendant did install mats in the kitchen after the incident. Ms Wilson’s evidence on this question was confined to the mats in the kitchen at the Centre. As for mats in other centres, she gave evidence that mats are installed but her evidence was incomplete as to the reason for the installation.

As to Ms Wilson’s evidence as to the Centre and the installation of mats, I agree with the submission advanced by the plaintiff that the evidence led orally from Ms Wilson was as to her understanding and the reason for the use of the mats was not said to be the sole reason for the mats being installed in the kitchen after the incident. The relevant fact in issue was whether the mats were put there to avoid a slip and fall or were put there to both avoid slip and fall accidents and to provide a more comfortable standing surface. The first defendant had a capacity to prove the reason or reasons why mats were installed after the plaintiff’s accident but merely led Ms Wilson’s evidence as to her limited understanding and not evidence as to the fact per se: Blatch v Archer (1774) 1 Cowp 63; 98 ER 969.

The installation of mats after the incident demonstrates the feasibility of their installation.

I will rule on s 5C of the CLA but would note one aspect in that context.

Although s 5C of the CLA says, in terms, that subsequent taking of action that would have avoided the risk of harm does not, of itself, give rise to liability. However, in this case there is an absence of any evidence negating the "of itself" qualification. This gives rise to the inference that the mats were put in place to avoid an accident of the kind that was suffered by the plaintiff and thereby constitute an admission of the failure to take a precaution that a reasonable person in the position of the first defendant would have taken.

The third proposition advanced on behalf of the first defendant seems to be that because there had been no prior or post slips in the kitchen it followed there was no indication that the surface was unsafe or inherently slippery.

The capacity of the floor to be slippery was, in part, demonstrated by the Australian standard for commercial kitchens itself. The evidence was that the floor did not comply with the standard. In any event, the evidence was that the contaminant which was the source of the injury in this case had not been previously used and it is the contaminant, as opposed to water or fluids, which was productive of an elevated risk.

I will return to the question of the plaintiff’s balance impairment but the issue raised by the first defendant in this submission takes no account of the fact that the Director of the first defendant knew that the plaintiff had such an impairment. The question of safety in this case needs to be examined in that light. Mr Strautins did not take into account this consideration in his assessment of any particular issues related to immobility or a difficulty with balance.

As a preliminary to the discussion of the question of a breach of duty, the first defendant made the following submissions in the context of the expert evidence:

The first defendant made the following particular submissions as to the introduction of mats:

As to the particular submissions made in relation to s 5B of the CLA, the first defendant made the following submissions in addition to its submissions as to the failure of the plaintiff to take reasonable care for her own safety:

The first defendant also made submissions about the operation of ss 5D and 5E of the CLA in the present case. It was submitted that:

In my view, the first defendant’s submissions as to foreseeability should be rejected not only because the spillage of food on the kitchen floor was foreseeable, it was actually part of the first defendant’s case, as advanced by it in cross-examination, that there was a potential for food to spill from the bowls transferred to the trolleys and that, if the food fell to the fall, there became a slipping hazard. On the facts of this case as I have earlier found, the system of work and the place of work made spillages on the kitchen floor reasonably foreseeable. It is strictly unnecessary to so find but the prospects of spillages were highly likely. The experts found that the spillages of contaminants elevated the risk of a slip and fall on the floor over that of water and other water like substances. The floor surface was of a sufficient resistance to prevent spilling on water but not so in the case of food contaminants.

For reasons I have earlier discussed, the absence of prior recorded slips does not mean that the risk of the plaintiff slipping on the floor was unforeseeable or insignificant.

Those conclusions are sufficient to satisfy the requirements of s 5B(1)(a) and (1)(b) of the CLA.

The question then arises for the purposes of s 5B(1)(c), whether a reasonable person, in the position of the first defendant, would have taken the precautions of installing a commercial standard kitchen floor or of placing mats. In that latter respect, I note that the plaintiff pleaded, as particulars of negligence, a failure to provide any floor mats. In the present case, I conclude that the applicable consideration is a failure to place mats in the location they were placed after the incident on the kitchen floor.

I conclude that the application of reasonable foresight should have led to the provision of a mat in the place where the plaintiff was working at the time of the incident and the failure to so provide constituted a breach of the first defendant’s duty which I have identified earlier.

In providing my reasons for that conclusion, I shall traverse matters relevant to the question of causation, s 5C and the issue of the taking of a precaution by placing mats so that when the system of work required, as it did by the transferring of many bowls of noodles from the bench to a trolley located behind the plaintiff the foreseeable risk of a slip and fall accident would be obviated.

There is real substance in the submission by the plaintiff that the facts and circumstances of this matter may have obviated the need for the plaintiff to draw upon expert evidence in establishing whether spilling a noodle or noodle soup containing translucent noodles on a floor created the risk of injury which should be avoided by reasonable care: Australian Oil Refinery Pty Ltd v Bourne (1980) 54 ALJR 92 at [93]. This comment relates to the risk associated with the spillage of cellophane noodles onto a kitchen floor which were difficult to detect where no mat was in place.

In any event, in my view, on balance, the expert evidence of Mr Adams which I accept establishes that conclusion.

I have earlier summarised the expert evidence in this matter. Without repeating that summary, Mr Adam’s opinion was that the kitchen floor where the plaintiff slipped and fell was sufficiently slip resistant to provide safe movement when walking or generally undertaking the type of movement engaged in by the plaintiff on a floor upon which there was water or a water-like substance but did not effectively control the risk that she might sustain injury as a result of slipping on an unseen contaminant of the type found in this matter as a result of the introduction of a new food item in the kitchen menu (which fell on the floor of the commercial kitchen). As Mr Adams opined, those circumstances constituted a potential hazard which required identification and risk assessment (none of which occurred in this case) and the risk of slipping and falling was predictable.

Mr Strautins did not conduct any independent examination or test upon the floor and ultimately remained uncertain as to whether the floor had a greater non-slip capacity at the R11 level. However, he did accept that the risk of slipping on a contaminant, such as a noodle on the floor of the kitchen that was not noticed, would be relatively high compared with a surface contaminated with water or a water like substance that the slip resistant qualities of the floor were designed to address.

There is another difficulty with Mr Strautins’ opinion. Both experts agreed that the total risk that a slip might occur on any given surface was dependent on, not only the frictional characteristics of that particular surface, but a range of other contributing factors. The nature of the activity engaged in, such as turning or exerting other forces on the surface, and particular attributes of the worker such as their gait, mobility, pathologies and body weight [2] was relevant in that respect.

In circumstances where the system of work required the plaintiff to turn to place bowls of food on a trolley behind her and where she had a pre-existent disability of gait (known to the first defendant) which contributed to the occurrence of the incident. These were both relevant considerations for Mr Strautins’ assessment but they were not taken into account by him. I am not critical of Mr Strautins as he did not have material to address that question and did not.

The next question is whether the introduction of mats, at the place where they were located after the incident, would have obviated the slip and fall by the plaintiff operating under the system of work that I have described above.

In terms of lay evidence, the plaintiff and Ms Wilson were of a common view that the placement of the mats in those locations would have avoided the incident. Ms Wilson’s evidence was as follows:

Mr Adams’ opinion was that there were two available reasonable preventative measures which were set out in the summary of the expert evidence, at [196] above, namely, flooring that was sufficiently slip resistant and matting that was specifically designed to minimise slipping risk.

The plaintiff relied upon both of those measures. My judgment as to reasonably preventative measures concerns only the second mentioned measure. As to the first, I have some reservations as to whether the flooring at the requisite level set out in HB197 for commercial kitchens would have provided sufficient slip resistance in the case of a contaminant such as the noodle.

Mr Adams’ opinion was that the provision of mats with perforations or profiles would allow dropped items to fall or be pushed through the holes where they will not be interposed between the shoe sole and the pedestrian surface. This was an engineering control which, in my view, represented a high likelihood of being effective in controlling the slipping risk. As Mr Adams opined, the use of suitable mats was not a novel approach to the predictable risk of slipping in commercial kitchens.

Whilst Mr Strautins stated in the first joint report that there was no meaningful benefit in the use of mats for flooring in the immediate case of managing the risk of slipping because the matting did not “eliminate the risk of slip”, that opinion must be understood, in my view, in the light of Mr Strautins’ view that the reduction of risk of slipping from a mat is offset by the risk of a trip and not to a general view held by Mr Strautins as to the effectiveness of the matting reducing the risk of a slip in a commercial kitchen. That is because in Mr Strautins report, as earlier set out, he stated that, regardless of the type of flooring, “the slip resistance if mats were provided should be at least R11 slip resistance” and “[a] profiled mat would have prevented a slip in this instance, at the expense of increased risk of slipping”.

As to the risk of tripping, I agree with Mr Adams that there was not the offset identified by Mr Strautins because the mats installed after the incident had beveled edges and were in stark black colour in contrast to the remainder of the floor.

The first defendant relied upon the authority in Dunn. However, this authority does not assist the first defendant. In that case the primary judge held that there was no negligence by the defendant because the mat did not present a tripping hazard. The Court of Appeal disagreed. Critical to the Court of Appeal's opinion was that the tripping hazard was created by the fact that two mats were placed on top of each other.

Tobias JA (with whom Giles and Bryson JJA agreed) stated:

The primary judge found, in that case, if there had been a single beveled mat no tripping hazard would have been created.

As earlier mentioned, the first defendant’s case with respect to mats was, in substance, that if mats were to be used to eliminate the risk of slipping from food, it would be necessary to have mats over every area where the plaintiff worked.

I do not accept the first defendant’s approach in that respect.

The photographs appearing earlier in this judgment which were derived from the expert liability report on behalf of the first defendant (Mr Strautins’ report) shows that mats were placed after the incident at a location in front of the bench, on the southern wall and in front of the machine in that same area. These areas represented then a significantly greater risk of slip and fall from undetected contaminants falling on the floor where work was being performed because of the system of work operated by the first defendant in moving prepared meals from the preparation bench to the trolleys. The plaintiff’s case was not that a reasonable precaution would have required mats in all areas of the kitchen, or in the surrounding corridors, or children’s rooms. The precaution was that the mats would be placed where the risk was not insignificant having regard to the provisions of s 5B(1)(b) of the CLA.

That consideration also involves the nature of the work being, as Ms Wilson described it, “intense”, particularly when the preparation and service of lunch was required after morning tea. Returning to the question of tripping, in those circumstances a comparison of a risk of tripping from a beveled mat compared with the risk of a slip and fall while transferring 60 bowls of food in a short period of time from the preparation bench to the trolleys behind the plaintiff demonstrates that the reasonable precaution would have been installing the mats.

A further consideration, in this respect, is the nature of the food stuff which was being transferred under the system of work earlier described in this judgment. The noodle was translucent or transparent and on the floor surface of a light colour would easily not been seen. Ms Wilson seemed to confirm that position.

Lastly, and as I have earlier discussed with respect to the expert opinions, the plaintiff’s physical disposition is relevant to this consideration. The evidence was that the first defendant knew, through its Director, that the plaintiff had a pre-existing problem with her balance. The Director of the first defendant, Ms Wilson, knew that the plaintiff’s knee was “bothering her” and was “unable to stand… for long periods” which impacted “her balance”. The existence of a problem with balance raised the likelihood of a slip and fall.

Whilst I have expressed some real caution about the plaintiff’s account of the fall, there would appear to be at least an element of the fall on her account consistent with her losing balance. I agree with the submission of the plaintiff that Ms Wilson had identified in her Accident/incident Investigation Report, that there was knowledge of the plaintiff’s balance problems and that, in the result, a much higher standard of care was owed to her as a worker with a pre-existing disability in comparison to a worker about whom there was no knowledge of a particular vulnerability. [3]

For completeness I note the first defendant’s reliance on ss 5D and 5E of the CLA and, in that respect, the need to prove that any established breach of care caused the “accident” as earlier mentioned.

In the light of the foregoing analysis, the first defendant’s submission that the floor was “never slippery” cannot be accepted, particularly when regard is had to contaminants. The second submission that there was no prior slips or falls has been earlier addressed. I mention in particular at this juncture that the circumstances here arising resulted from a change of food that was being prepared and also the plaintiff’s pre-existing balance impairment.

Finally, the first defendant submitted that the mat would need to be placed at the precise location of the plaintiff’s fall. Just what is intended by the reference to precise in that respect is not entirely clear. However, as I have earlier discussed, in relation to the manner of the fall, the mats were placed at a location after the incident which was entirely consistent with the location where I have found the fall occurred on the evidence. I note the area circled by Mr Adams in the photograph of the mats subsequently installed.

As to factual causation, in my view, the plaintiff has demonstrated that the first defendant breached its duty of care, as an occupier of the premises, by failing to provide a floor surface in the kitchen which was reasonably safe for persons required to work in the kitchen. In particular, the first defendant failed to install appropriately placed mats in the Centre’s kitchen.

At the close of the first defendants written submissions on breach, it was submitted that “any possible breach… could not be considered to be causally connected to the plaintiff’s injury”. This was predicated on the basis that the presence of water on the floor of the kitchen did not make it unreasonably slippery. I have earlier, in substance, rejected that submission. In any event, I accept the following submission in reply by the plaintiff:

I agree with the submission advanced by the plaintiff that the Court should make an additional finding that the first defendant was in breach of its duty in relation to the system of work under which the plaintiff was required to perform her duties. The first defendant knew the plaintiff was vulnerable to falling through lack of balance. The system of work required the plaintiff to transfer a large number of bowls of cooked noodles from a bench to a trolley behind her in a relatively short period of time. As I have found, there was a risk which was not insignificant, that in that process noodles may spill on the floor and that, in that event, the plaintiff would most likely not see the substance because the noodle was translucent resulting in a serious injury. Any inadvertence was to be expected when performing a task of that nature in a short period.

Further, there was no mat to capture any food or fluid that inadvertently fell from one of the bowls while being transferred. The plaintiff slipped on a noodle and perhaps the fluid around it and was unable to regain her balance in circumstances where she had a pre-existing balance impairment. She fell to the floor sustaining an injury to her left knee.

In the circumstances, it was negligent for kitchen mats to not to have been installed by the first defendant where the slippage occurred.

I make no finding as to negligence because of a failure to comply with the relevant Australian standards because the floor was otherwise slip resistant in relation to fluids.

Counsel for the second defendant made the following submissions on liability:

For the purposes of resolving the question of liability with respect to the second defendant, the submissions as to the relevant legal principles raised by the second defendant may be accepted, provided it is understood that the second defendant was a labour hire company that had a contractual relationship with the first defendant for the provision of staff to the Centre and, further, the second defendant had a contractual relationship with the plaintiff, namely, a contract of employment.

As earlier mentioned, the duty imposed upon the second defendant was imposed by the common law by reason of the fact that a work injury damages claim invokes the common law and not the CLA.

In reaching my conclusion, I proceed upon the basis that the first defendant had complete control of the physical features of the premises including the floor surface. Further, the first defendant had control of the system of work under which the plaintiff was required to work.

I accept the submission of the plaintiff, however, that those factors do not provide a complete defence in circumstances where the employer had a non-delegable duty (as described in Pollard and Marketform) and where the content of the employer’s liability was no more than to take reasonable care for the safety of the employee in all the circumstances of the case.

Whilst the second defendant did not know and had no means of knowing that the floor in the kitchen did not comply with the Australian Standard for commercial kitchens, the second defendant did know that the plaintiff was vulnerable to falling because of a pre-existing disability to her left knee and did know, by virtue of its own inspection of the kitchen premises prior to the incident, that no mats were in place.

Whether or not the plaintiff had reported an occupational deficiency or made a complaint as to an issue in that respect, the employer was required to take reasonable steps to protect their employee in circumstances where there was a demonstrable vulnerability which plainly effected the plaintiff’s balance. The fact that the plaintiff was able to discharge her duties, albeit with some difficulties in mobility did not alter the fact of that inherent vulnerability. There was no evidence that mats exposed a worker with such a disability to greater harm. Rather the evidence might suggest that the mats, by their softening effect, may have assisted the plaintiff in managing her disability.

I do not repeat but apply in the case of the second defendant my reasoning as to the breach of a duty of care with respect to the first defendant vis-à-vis the failure to install mats. No different conclusions are warranted with respect to the second defendant particularly where the second defendant relied in substantial measure upon the first defendants’ case in that respect.

The content of the duty owed by the second defendant was to ensure that reasonable care was taken of its employee. For the above reasons, and those earlier provided with respect to the liability of the first defendant, in my view, the second defendant failed to do so and is liable for the injury to the plaintiff. In particular, the second defendant breached its duty of care to the plaintiff to ensure that reasonable care was taken in relation to the system of work that was in place in the kitchen at the Centre in that it failed to ensure that mats were in place where the inadvertent spillage may occur.

I note that, at the end of the second defendant’s submissions, as I have summarised them, contentions were advanced by the second defendant as to the mechanism leading to the injury. The second defendant there made a submission disputing that the plaintiff struck her left knee at the time of the incident. I accept those submissions in supplementation of the earlier reasons I have given in that respect.

I do not, however, accept the submission of the second defendant that the injury suffered was mild and transient based on my later findings as to the medical evidence under the heading damages. In my any event, the acceptance by all experts that the plaintiff suffered a lateral tibial plateau fracture as of the result of the slip and fall is sufficient to establish that the injury sustained was not insignificant, irrespective of the period of recovery which was estimated by some of the orthopaedic surgeons who gave their views in the course of concurrent evidence.

The first defendant’s submissions with respect to contributory negligence were as follows:

Neither the first nor the second defendant made any oral submissions alleging contributory negligence against the plaintiff and in the result, Mr Barry SC made no submissions in reply. In the circumstances, therefore, my reasons for finding that neither defendant had satisfied the onus that it bore that the plaintiff was guilty of contributory negligence may be shortly stated.

Those reasons are as follows and are adoptive of the plaintiff’s submissions in this respect:

Following my finding on liability against the first and second defendants in favour of the plaintiff, it is necessary to layout some further factual background in relation to the plaintiff’s previous health, specifically in relation to her left knee, and the medical evidence and opinions of the medical experts in relation to the plaintiff’s injuries resulting from the incident to enable the Court to undertake the assessment of damages to be awarded to the plaintiff.

The Court was provided with large amounts of medical evidence including medical assessments and reports, joint reports arising from expert conclaves and the concurrent evidence of those experts.

The joint reports relating to the plaintiff’s left knee was as follows:

The plaintiff’s ‘Patient Health Summary’ from the Allison Crescent Medical Centre records the plaintiff’s medical history. In relation to the plaintiff’s left knee, her pre-existing condition before the incident was as follows:

Radiologists Dr Bowden and Prof Pitman provided individual reports and a joint report on the plaintiff’s left knee. This included the pathology of the plaintiff’s knee prior to the incident.

In Prof Pitman’s report of 21 October 2023 (“Prof Pitman’s Report”), in answer to the question “What pathology, if any, was present in the plaintiff’s left knee in the following periods: (i) Prior to the incident on 1 February 2016…” he stated:

In Dr Bowden’s report of 24 January 2024 (“Dr Bowden’s Report”), in answer to the question “Please identify the pathology in Ms Milne’s left knee prior to the accident on 1 February 2016” he stated:

In concurrent evidence, Dr Bowden stated the plaintiff “already had a meniscal deficiency, her medial meniscus was already probably torn and deficient”.

In the Joint Radiology Report, Dr Bowden and Prof Pitman agreed:

Additionally in the Joint Radiology Report, to the question “Do you consider that the plaintiff suffered from preexisting conditions with respect to her knee?”, the following answer was given:

In concurrent evidence, Prof Pitman and Dr Bowden agreed that in June 2015 the plaintiff had a mild depressed osteochondral fracture in her medial femoral condyle.

Dr Machart, an Orthopaedic Surgeon and knee specialist, wrote an "INDEPENDENT MEDICO-LEGAL REPORT" addressed to QBE after reviewing the plaintiff on 18 February 2016. Dr Machart wrote the following in relation to the plaintiff’s pre incident knee health:

Dr Vijay Panjratan, an orthopaedic surgeon, also reviewed the plaintiff on 8 February 2018. Dr Panjratan's report was provided as evidence in the Court Book by the second defendant, but no particular submission or reliance was placed upon that report by the defendants. Dr Panjratan did not appear to have the 2015 X-ray of the plaintiff’s left knee, however, stated the following in relation to the previous injury:

It is unclear how Dr Panjratan reached this conclusion and I have given it little weight.

Prof Shatwell, an orthopaedic surgeon, after his review of the plaintiff wrote the following concerning the plaintiff’s ‘past medical history’:

Despite those opinions, the pre-existing condition of osteoarthritis in the left knee did not appear to prevent the plaintiff from carrying out her duties at the Centre although, as I have found, her balance was impaired as a result. As I have also mentioned, Ms Wilson, in cross examination, stated as follows:

Dr Endrey-Walder, a “General and Trauma Surgeon”, also reviewed the plaintiff’s past medical history and commented on the X-ray performed in September 2015 of the plaintiff’s left knee:

Dr Endrey-Walder also stated in concurrent evidence that the 2015 X-rays of the plaintiff left knee represented a “reasonably normal x-ray of a lady who was in her 50’s at the time”.

From the evidence before the Court, a total left knee replacement was not proposed by the plaintiff’s treating doctors prior to the incident.

As earlier discussed, the incident occurred on 1 February 2016 at the Centre and the plaintiff was taken to hospital by an ambulance to be treated. I have earlier discussed various medical records created immediately in the aftermath of the incident and the defendant’s cross-examination in relation to aspects of those records. I do not repeat them here. Rather this section of the judgment supplements my earlier discussion with an avoidance of repetition except to maintain a coherent narrative.

The ambulance notes from 1 February 2016 regarding the plaintiff’s injury were as follows:

Documentation from the hospital records the plaintiff was triaged at 12.38PM by a registered nurse. The ‘Triage Comment’ stated the following:

Senior counsel for the plaintiff submitted that the word “no” was omitted from the triage comment before the words ‘obvious deformity’, demonstrating that it was written “in some haste”.

An X-ray was performed at the hospital around 1pm on that day. The “REPORT TEXT” by Dr Thomas Mathews was as follows:

An emergency department discharge referral authored by “Indikadahena, vidyangee imesha (Intern)” was as follows:

The plaintiff was discharged from the hospital on the same day.

The knee pain did not dissipate and on 7 February 2016, the plaintiff consulted her GP, Dr Joarder. The notes record “h/o fall & injury to left knee at work-on 01/02/2016, went to Bankstown hospital by ambulance. X-ray-as per pt nil fracture”.

The plaintiff went to the GP again on 9 February 2016 where Dr Joarder referred the plaintiff for an MRI, however, was “waiting on insurence (sic) approval”. The GP also noted “pain continues, limping, difficulty on walking and bearing weight” and “plan, rest, zima splint, analgesic, MRI, if needed r/v by knee specialist”.

On 11 February 2016 QBE workers compensation insurance (“QBE”) approved the MRI which the plaintiff had on 12 February. That MRI showed a displaced fracture of the left tibial plateau and bone bruising of the medial femoral condyle.

As earlier mentioned, two radiologists Prof Pitman and Dr Bowden produced reports in relation to the plaintiff’s left knee as well as producing a Joint Radiology Report and concurrent evidence which I will discuss below.

In Prof Pitman’s Report, he gave the following answers to questions:

In Dr Bowden’s Report, he gave the following answers to questions:

The plaintiff was referred to Dr Tan and Dr Machart, both orthopaedic surgeons. Numerous other orthopaedic surgeons were engaged by the parties to provide opinions regarding the injury of the plaintiff’s left knee.

I also note at this juncture that Dr Tan was the plaintiff’s primary treating orthopaedic surgeon, however, did not contribute to the orthopaedic surgeons’ conclave or give oral evidence. Dr Tan provided medical reports to QBE. Neither Dr Endrey-Walder nor Prof Shatwell treated the plaintiff.

On 18 February 2016 Dr Tan wrote:

On 17 March 2016 Dr Tan wrote:

On 2 June 2016 Dr Tan wrote:

On 16 June 2016 Dr Tan wrote:

QBE declined to cover the plaintiff’s total left knee replacement and on 14 July 2016 Dr Tan wrote to Sutherland hospital to request an urgent knee replacement as a public patient for the plaintiff within 30 days.

The total left knee replacement was performed by Dr Tan on 10 August 2016.

On 29 September 2016 Dr Tan saw the plaintiff for a follow-up and wrote the following ‘medical report’ to QBE:

On 13 December 2016 Dr Tan saw the plaintiff for another follow-up appoint and wrote the following ‘medical report’ to QBE:

As earlier mentioned, Dr Machart wrote an “INDEPENDENT MEDICO-LEGAL REPORT” (dated 19 February 2016) addressed to QBE after reviewing the plaintiff on 18 February 2016 (“Dr Machart’s first report”). He subsequently wrote a number of supplementary reports on 5 April (“Dr Machart’s second report”), 20 May (“Dr Machart’s third report”), and 7 July 2016.

I also note, as earlier mentioned, that Dr Machart additionally contributed to the Joint Orthopaedic surgeon report and gave oral evidence as part of the concurrent evidence of orthopaedic surgeons.

Dr Machart wrote a further “INDEPENDENT MEDICAL EXAMINATION” addressed to the second defendant’s solicitor, on 10 November 2021. This report was followed up by a letter titled “FILE REVIEW” on 4 July 2022 which focused on Dr Machart’s review of the surveillance footage of the plaintiff’s activities walking and carrying items at a markets in March and April 2022. Dr Machart wrote an additional letter to Mr Studdert concerning the plaintiff dated 4 September 2023.

Some important aspects of Dr Machart’s first report were as follows:

Dr Machart’s received Dr Tan’s letter of 17 March 2016 as well as the following documents:

With those documents provided, Dr Machart’s second report contained the following overall “comment”:

Dr Machart’s third report responded to issues raised by a case manager at QBE. The following question, inter alia, was answered as follows:

Another expert, Dr Endrey-Walder, a “General and Trauma Surgeon” wrote four reports addressed to the plaintiff’s solicitors after reviewing the plaintiff on 20 March and 5 October 2020 and 11 April 2023. The reports were respectively dated 24 March (“the 24 March Endrey-Walder Report”), 3 August (“the 3 August Endrey-Walder Report”) and 8 October 2020 (“the 8 October Endrey-Walder Report”) and 11 April 2023 (“the 11 April Endrey-Walder Report”).

The 24 March Endrey-Walder Report was written after the initial consultation with the plaintiff and after commenting on the ‘history and incident’, ‘radiological investigations’, ‘present condition and complaint’, ‘past and personal history’ and ‘physical examination’, he stated the following “opinion”:

The 3 August Endrey-Walder Report responds to the report of Dr Vijay Panjratan of 8 February 2018.

The 8 October Endrey-Walder Report was written after a review consultation with the plaintiff where the following opinion was formed:

Dr Endrey-Walder was later provided with two surveillance reports of footage from 24 January and 22 April 2022 (“the surveillance reports”) of the plaintiff’s “activities at the Kiama Seaside Markets where, I understand Ms. Milne, she would occasionally give a hand at a stall which is basically a ‘hobby’ business of her family”. The 11 April Endrey-Walder Report included the following observations and “opinion”:

The plaintiff relied on a “MEDICAL ASSESSMENT CERTIFICATE” of Dr Yiu-Key Ho, an “orthopaedic specialist”, who examined the plaintiff on 22 April 2022. In that certificate Dr Ho stated she “probably would only” deduct ¼ for pre-existing condition.

The first defendant placed reliance on the expert evidence of Prof Shatwell, who examined the plaintiff on 19 September 2022 and produced an initial report on 20 September 2022 (“Prof Shatwell’s first report) and a secondary report (“Prof Shatwell’s second report”) with further documentation provided on 20 July 2023. Both reports were addressed to the first defendant’s solicitors.

Prof Shatwell’s first report records the plaintiff’s ‘history’ which included a detailed examination of the plaintiff’s MRI scan and report by radiologist, Dr Faisal Rashid of 12 February 2016 as well as ‘comment’ by Prof Shatwell. Prof Shatwell noted the following:

Prof Shatwell’s first report then summarised Dr Tan’s letters in relation to the plaintiff’s left knee condition and made a responding ‘comment’:

Prof Shatwell’s first report also responded to some questions which were, inter alia, as follows:

Prof Shatwell’s second report was prepared after he was supplied with additional medical material as well as the surveillance footage and reports. Prof Shatwell reviewed the notes from the plaintiff’s visit to St George Hospital in 2015 after a child ran into her left knee with a shopping trolley. He extracted the physiotherapists notes on that occasion, with some of his own interpretations indicated by the square brackets, as follows:

Prof Shatwell also provided responses to questions which included, inter alia, the following:

I note a report of Dr David Maxwell, an orthopaedic surgeon, was also included in the “First Defendant’s Expert Medical Evidence” in the Court Book. However, no submissions were advanced in relation to that report.

The plaintiff relied on an additional expert opinion report of Dr Vijay Maniam, an orthopaedic surgeon who examined the plaintiff on 3 March 2022. Dr Maniam wrote the following “conclusions”:

The plaintiff placed reliance on the report of Dr Mastroianni, a consultant occupational physician, dated 6 July 2017 which was addressed to Alliance Compensation Litigation Lawyers. Dr Mastroianni appeared to have available to him the “Reports of Dr Tan”, “X-ray reports” and “MRI dated 14/2/16”. Dr Mastroianni’s overall “Opinion” on that report was as follows:

In the Joint Radiology Report, Dr Bowden and Prof Pitman gave the following relevant questions and answers:

In Prof Pitman’s answer to question 6, he provides four reasons why the fall in the incident did not materially contribute to the need for the total left knee replacement (the reference to “right knee” was plainly a mistake as the opinion related to the left knee). Those four reasons also constituted the basis as to why Prof Pitman was of the view that the pre-existing pathology was not materially aggravated by the fall. I will return to the four reasons later in this judgment but they correspond to the second to fifth paragraphs of the answer to question 6.

Dr Bowden and Prof Pitman expanded on their Joint Radiology Report during their concurrent evidence given on 6 March 2024. In relation to the question 6, Prof Pitman made the following observations:

Dr Bowden, in relation to the same question, made the following observations:

However, later in cross-examination Dr Bowden did communicate some hesitation in relation to the specific pathology caused by the incident:

Both experts confirmed that there was “only area of pathology that relates to the need for the knee replacement, and that is the medial femoral condyle osteochondral collapse” and that the issue in dispute was “whether this incident materially aggravated that condition?”. Dr Bowden was of the view that “the injury that [the plaintiff] sustained materially contributed in a significant manner to her Medial Femoral condyle pathology” while Prof Pitman believed “that the index injury 1 February 2016 did not materially contribute to the whole (sic) in the medial femoral condyle, and it is the medial femoral condyle hole that was the trigger for knee replacement”.

Early in the concurrent evidence, the experts agreed that in June 2015 the plaintiff had a mild depressed osteochondral fracture in her medial femoral condyle.

However, towards the end of the concurrent evidence, in commenting on whether the incident caused “this gutter shaped hole in the medial femoral condyle”, Prof Pitman raised the reliability of the X-ray taken in June 2015 and the possibility that the hole was already present at that time:

Dr Bowden also had a chance to respond to the concern Prof Pitman raised about the 2015 X-ray:

Under cross-examination, counsel for the plaintiff asked Prof Pitman some questions in relation to MFI B, C and D, being MRI images of the plaintiff’s left knee of 12 February 2016, and the significance of the treating doctor’s opinion compared to a doctor providing an opinion later in time:

Counsel for the first defendant also asked Dr Bowden about the incident, the mechanism of the injury and the reliability of the medical records:

Dr Bowden was critical of the hospital’s medical records and stated the following:

Finally, Dr Bowden was asked to respond to two reasons Prof Pitman provided to assert that the medial femoral condyle osteochondral collapse was not caused by the injury, being:

Senior counsel for the first defendant submitted that Dr Bowden had only responded to one of Prof Pitman’s reasons but it is reasonably clear that he was addressing the first and third reasons given by Prof Pitman in the Joint Radiologist Report. He addressed the second and fourth reasons, which were, in summary:

In relation to the first Pitman reason raised by Prof Pitman, Dr Bowden said the following:

In relation to the second Pitman reason raised, Dr Bowden said the following:

Dr Bowden was questioned further in relation to his comment in the Joint Radiology report that “the extent of wedge-shaped depression of the medial femoral chondral is a very unusual pattern that matches the contour of the anteromedial corner of the medial tibial condyle” (emphasis added) where he stated the following:

In relation to the Orthopaedic Surgeons evidence, the plaintiff called Dr Endrey-Walder, the first defendant called Prof Shatwell and the second defendant called Dr Machart. The concurrent evident was given on 25 March 2024.

In the Joint Orthopaedic Surgeon Report, the following questions and answers, inter alia, were given:

The experts were given the opportunity to discuss the Joint Orthopaedic Surgeon Report further in the concurrent evidence.

Prof Shatwell, Dr Machart and Dr Endrey-Walder all agreed that the fracture of the lateral tibial plateau had nothing to do with the need for a knee replacement. However, the experts had different opinions on the length of time it would take to recover from this injury. Prof Shatwell was of the opinion a patient suffering this condition could achieve a pain free state within 6 to 8 weeks of the injury, while Dr Machart opined there is “an enormous variation in that average time to healing of bone” and ultimately gave the range of two to four months to recover. Dr Endrey-Walder was more uncertain and stated, “I cannot say how long it takes for it to settle down” and “just how long it takes to settle down, that depends on a lot of things. It depends on how much the person is spending on their feet, how heavy they are et cetera, et cetera.”

The experts all agreed that the ambulance officer’s notes of “slight tenderness on palpitation of the left lateral knee, otherwise nil other tenderness” was consistent with the lateral plateau fracture.

Prof Shatwell, Dr Machart and Dr Endrey-Walder all agreed that the need for the total knee replacement was as a result of the medial femoral condyle damage, however, there was, as I will discuss, a disagreement regarding whether the incident caused or materially contributed to that damage, namely, the osteochondral depression of the medial femoral condyle.

Counsel for the first defendant drew attention to the fact that the hospital records from 1 February 2016 do not record that the plaintiff suffered any medial knee pain. Dr Shatwell specifically quoted the Emergency Department office’s description of the injury that included “No pain or medial tenderness”. Dr Endrey-Walder was reluctant to place much significance on the absence of any medial knee pain recorded in the hospital notes which is evident in the following extract of the concurrent evidence:

Prof Shatwell was of the view that the plaintiff had significant pathology in the medial side of her left knee prior to the injury while Dr Endrey-Walder described the two X-ray reports of 2015 as showing a “reasonably normal x-ray of a lady who was in her 50s at the time”, however, did later accept the pre-incident pathology showed “relatively mild medial femoral condylar, osteochondral depression”.

Senior Counsel for the first defendant focused on the first, second and fourth Pitman reasons to suggest that the depression was not caused or exacerbated during the incident and asked the orthopaedic surgeons to provide their comments.

As to the first Pitman reasons, Dr Endrey-Walder responded as follows:

There was no apparent disagreement from Prof Shatwell or Dr Machart as to the validity of the first Pitman reason.

As to the second Pitman reason, Mr Polin stated “it’s suggested that that damage [medial femoral condyle damage] was done by the impact from the tibia below it” and then drew attention to Prof Pitman’s reasoning that the medial femoral condyle deformity “in between or just above the tibia and within the medial femoral condyle is an area of cartilage, loose cartilage” and “that if indeed that damage had been caused in the incident, that cartilage would’ve been forced out by the impact”.

Mr Polin and Dr Endrey-Walder had the following discussion regarding Prof Pitman’s reasoning (although I note the transcript incorrectly states Dr Machart was providing these responses):

As to the fourth Pitman reason, Dr Endrey-Walder, Prof Shatwell and Dr Machart gave the following evidence (I again note that Dr Endrey-Walder has been incorrectly recorded as Dr Machart at the beginning of this extract):

Following this evidence, counsel for the defendant cross-examined Dr Endrey-Walder further on the mechanism of the incident and the resultant injury:

Senior counsel for the first defendant concluded by asking the experts a question regarding the physiological way the pre-existing condition and injury would have presented. This evidence was as follows:

Prof Shatwell and Dr Machart concluded that the absence of left medial knee pain following the fall meant that there was no damage to the medial compartment at the time of the fall. The evidence of those doctors was as follows:

Whilst occasioned by some lack of clarity, it would appear that Dr Endrey-Walder had the same view:

Counsel for the plaintiff asked some final questions of the experts regarding the cause of her current disabilities in relation to her left knee. This evidence was as follows:

In relation to damages, the plaintiff submitted, correctly in my view, that “the issues that arose in relation to damages are different between the plaintiff and each of the defendants”.

At the outset, the plaintiff submitted that “[t]he damages to be awarded against the second defendant are limited to past and future economic loss but unlike the first defendant causation is not in issue. The reasons for this are that by its conduct the second defendant has admitted the causal relationship between the injury at work to the plaintiff on 1 February 2016 and the need that it thereby gave rise to for treatment including three of the four surgical procedures that the plaintiff required.” The plaintiff qualified this contention with the following submissions:

Following that conclusion the plaintiff made submissions, in relation to the first defendant, on the casual relationship between the fall on 1 February 2016 and the need for surgery on 10 August 2016:

Senior Counsel for the plaintiff then made submissions specifically on the radiological evidence:

In reply submissions, the plaintiff made the following supplementary submissions:

The first defendant’s submissions concerning the medical evidence were as follows:

The parts of the second defendant’s written submissions traversing the same terrain were as follows:

The legal test for causation is set out in s 5D of the CLA:

Subsection (1)(b) and subsections (2), (3) and (4) of s 5D of the CLA are not relevant but s 5D(1)(a) captures what the common law referred to as the "but for'' test: Nguyen v Cosmopolitan Homes [2008] NSWCA 246.

The relevant principles as to resolving questions of causation were stated in the plaintiff’s submissions, without demur from the defendants. I have earlier incorporated the plaintiff’s statement of those principles in the summary of the plaintiff’s submissions and I adopt them for the purposes of determining the relevant issues of damages and, in particular, causation in this matter.

The question of damages is materially impacted by significant medical causation issues.

As previously mentioned, there was no issue that the lateral tibial plateau fracture in the plaintiff’s left knee was causally related to her fall.

It was generally accepted that that injury was caused by the twisting of the plaintiff’s leg during the fall. That assessment is consistent with my earlier factual findings.

I have found that the evidence does not sustain that the plaintiff hit her knee during the fall either on the bench on the southern wall of the kitchen or on the floor of the kitchen.

There was common ground that this pathology had nothing to do with the plaintiff’s need for a subsequent total left knee replacement. Rather, the reason the plaintiff needed a total left knee replacement was because of a second pathology in the left knee, namely, a medial femoral condyle osteochondral collapse (and displacement).

Dr Tan advised that there should be a total left knee replacement as a result of this condition. There was no dispute that the plaintiff underwent surgery some 6 months after the fracture was detected. The surgery was unsuccessful. In the result, there were further surgeries and, ultimately, there was developed a severe infection, namely, septicaemia.

There was no dispute that the plaintiff had a pathology in her left knee prior to the incident although there was a dispute as to the nature and extent of that pathology. The radiologists in conclave agreed that the plaintiff already had a depressed osteochondral fracture of her medial femoral condyle. The radiology experts described this condition as being “mild on the X-ray dated 18 June 2015”. It was described as a comparatively “early medial compartment degenerative change”. It was also agreed that the plaintiff had “mild to moderate patellofemoral degenerative changes at the time of her index fall”.

The central medical causation issue then was whether the medial femoral condyle osteochondral collapse was a result of the injury sustained during the incident. Adopting the terminology used in Dr Tan’s letter to QBE of 16 June 2016, the question could be refined to whether the plaintiff had propagated or extended the subchondral injury to a fracture (or collapse) as a result of the incident.

Mr Barry was correct to submit that the issue for determination by the Court was not whether the plaintiff would have needed a total knee replacement at some stage because of the pre-existing arthritis before the incident but whether the incident and, on his case, the treatment thereafter of immobilisation and splinting, bore a causal relationship to “the 1.5cm displacement” which Dr Tan believed required “TKR [total knee replacement]”.

I have earlier set out the plaintiff’s approach to that question.

Ultimately, the plaintiff contended that the Court should find that the fall occasioned on 1 February 2016 caused a material aggravation of the pre-existing osteoarthritis in the plaintiff’s left knee resulting in a total knee replacement surgery on 10 August 2016 from which the plaintiff had a poor outcome.

The first defendant contended that the Court should find as follows:

Consistent with my earlier findings, I agree with the first and third proposition. The fourth proposition does require some modification for acceptance. As previously mentioned, Prof Shatwell estimated 6 to 8 weeks for recovery from the injury. Dr Machart estimated 2 to 4 months, noting there was “enormous variation in the average time to” recovery. Dr Endrey-Walder thought that more uncertainty attached to any estimate and that the period required for the injury to settle down may be longer in the case of a heavier person which is applicable in this case.

On balance, the period of recovery associated solely with the lateral tibia plateau fracture would seem to be in the order of four months.

What remains from Mr Polin’s submission then is the contentious proposition contained in par [2] of my note of his submission. That question will be addressed in the balance of this consideration.

In that respect, I propose to first address the circumstances of the condition of the plaintiff’s left knee prior to the incident.

I have earlier given a detailed account of the relevant medical record, the circumstances of an injury sustained in 2015 and the joint opinions of the radiologists.

Mr Polin’s submissions, in this respect, were as follows:

It is true that the plaintiff had been experiencing difficulties with her left knee for some period of time, had been unable to stand on it for substantial periods of time and it impacted her balance. She walked with a limp similarly to the walking pattern observed in surveillance videos taken after the accident. However, the plaintiff was correct to submit that her condition did not prevent her from carrying out her duties consistently to a high standard. Those duties involved standing during her shifts.

It is also true that the plaintiff had experienced an injury (a moderate supra-patellar bursitis) and pain associated with the left knee in 2015. However, this bare fact needs to be understood in the context of the medical evidence; an exercise undertaken by counsel for the plaintiff. The closer analysis of that medical evidence and the inferences that may be drawn from it are as follows:

That factual and medical history needs to be assessed in the light of the joint assessment by the expert radiologists that the depressed osteochondral fracture of the medial femoral condyle was, as at 18 June 2015, mild.

There could be little doubt that the condition of osteoarthritis evolved in severity from mid-2015 but as Prof Pitman opined the condition is a “degenerative, progressive, slow condition”. It appeared to be managed by conservative medical treatment and not, at that stage, by total knee replacement.

I next turn to the circumstances immediately after the incident.

I have earlier set out in some detail the medical records for the period of treatment immediately following the incident.

I agree with the submission advanced on behalf of the first defendant that many of the records produced in the treatment of the plaintiff in this period are not consistent with left medial knee pain. I do not accept submissions advanced by the plaintiff which sought to diminish the significance of those records. For example, it was submitted that a record was taken by a registered nurse rather medical practitioner.

I note that Prof Shatwell made an observation in his first report that the reference in the discharge report to a “slight tenderness on palpation of left knee” was not consistent with an acute fracture of the lateral tibial plateau as opposed to a soft tissue injury with underlying degenerative change. However, during the concurrent evidence of the orthopaedic surgeons, Prof Shatwell accepted the entry in the discharge report was consistent with a fracture to the lateral tibial plateau albeit as a result of a twisting injury. Otherwise, that reference in the discharge report is neutral so far as some indication of a condition relating to the medial femoral condyle.

Of greater significance is the reference by Dr Mathews in a “Report Text” to “osteochondritis dissecans of the articular margin of the medial femoral condyle”. Whilst he raised the matter as a suspicion, the alert was raised at 1pm on the day of the incident as a result of the receipt of an X-ray of the same day. That X-ray was not available to the radiologists who participated in the radiologist conclave.

The observations by Dr Mathews takes on even greater significance when regard is had to the various reports and communications by Dr Tan as part of his role as the plaintiff’s treating doctor for her left knee from mid-February 2016.

Dr Tan was able to compare the "suspicious" X-ray of 1 February 2016 with its differential diagnosis of an insufficiency fracture of the medial femoral condyle with the 1.5cm fracture shown in the X-ray dated 14 March. It was from that analysis Dr Tan was able to reach his ultimate conclusion as to the nature of the pathology of the plaintiff’s left knee and questions of causation. I will return to Dr Tan’s reports.

The next juncture in my analysis is to return to the discussion of the expert evidence.

At the risk of some repetition, and without detracting from the earlier fuller summary of the medical evidence, what appears below, by way of emphasis, are some primary aspects of those medical opinions which bear upon the medical issue and, in particular, the question as to whether the injuries sustained as a result of the incident significantly exacerbated the pre-existing medial femoral condyle osteochondral pathology.

I will commence with aspects of the expert evidence which are supportive, even if with reservation, of a conclusion that there was an exacerbation of the plaintiff’s pre-existing medial femoral condyle osteochondral pathology as a result of the incident.

I have referred above to the radiology notes made by Dr Mathews and his suspicion as to damage to the medial femoral condyle arising from the incident. It may also be noted that Dr Mathews observed, “[d]ifferential considerations are spontaneous osteonecrosis and insufficiency fractures”.

In Dr Bowden’s primary report he stated: “Based on the information and serial left knee imaging examinations presented to me to review and ‘balance of probabilities’, Ms Milne's documented workplace injury on 1 February 2016 significantly exacerbated pre-existing medial femoral condylar weight-bearing surface subchondral insufficiency-type fracture and collapse/fragmentation, while contributing to development of advanced medial compartment degeneration and directly resulting in undisplaced lateral tibial condylar subchondral insufficiency-type fracture.”

In a letter to QBE dated 2 June 2016, Dr Tan stated: “[i]t was then though that she suffered a varus valgus injury to her left knee in February 2016, resulting in a lateral tibial plateau fracture and an insidious occult fracture of the medial femoral condyle, which had become displaced following her period of wearing the splint and protected weight-bearing. Due to the displacement of the fracture, she definitely requires a total knee replacement, to allow her to return back to her pre-morbid condition as soon as possible.” Dr Tan further stated: “The x-rays performed in October 2015 reported some minor irregularity in the medial femoral condyle. The deformity seen in X-rays performed in March 2016, is definitely a new injury and the fracture line is an acute fracture line. In conclusion Mrs Milne suffered a severe injury to her left knee resulting in a fracture of the left tibial plateau and an evolving injury to her left femoral condyle, which was not evident in her x-rays prior to her fall. The medial femoral condyle subsequently fatigued and fractured off. She has now a completely incongruous knee which is unstable and giving her severe pain and disability.”

In another letter to QBE dated 16 June 2016, Dr Tan stated: “I reviewed the x-rays of her left knee performed in July 2015 at St George Hospital. There is a slight irregularity in the contour of the medial femoral condyle in the AP views. This is different when compared to her recent x-rays. She had an x-ray performed in Bankstown Hospital on 1/2/16 following her fall. It is the first time I have seen these X-rays today and the AP films show a definite change from July 2015. The slight irregularity of the medial femoral condyle now has a step deformity.” Further, Dr Tan stated: “She returned to see me six weeks following her initial consultation with an x-ray of the left knee which shows a definite step. When compared to the x-rays from 14/3/16 to the x-rays performed on 2/2/16, there is definitely a difference in the depth of the step and the knee has progressed into varus. Therefore, the scenario is that she did have some chondral injury to her left knee previously, but she was coping well with this until the fall at work in February 2016. She has propagated or extended the subchondral injury to a fracture.”

In Dr Machart’s first report he stated: “[t]he incident on 01/02/16 was a subacute injury, causing sprain, and probably temporary aggravation of the osteoarthritis. There is fragmentation on the medial meniscus. This may be part of osteoarthritis or may be a new injury. It is not possible to tell. She could be submitted to an arthroscopy if the symptoms do not settle within the next couple of weeks, and are focussed around the medial joint. She is about to see an orthopaedic surgeon”.

In Dr Yiu-Key Ho’s ‘medical assessment report’, she stated she "probably would only deduct ¼ for pre-existing condition.”

In Prof Shatwell’s first report he stated: “[t]he diagnosis is a poor result from knee joint replacement surgery for gross degenerative joint disease which developed in 2015 and worsened in early 2016.” Prof Shatwell also stated: “[t]he fall described, in my opinion, exacerbated symptoms relating to the underlying pathology of osteonecrosis which led to a need for joint replacement surgery at the time of the incident had it occurred or not.” Further Prof Shatwell also stated: “[t]he incident that occurred on 1 February 2016 did not, as previously stated, generate a need for surgical treatment of the left knee. Thee (sic) fall described caused a minor increase in symptoms related to extensive degenerative change in the knee caused by avascular necrosis of the medial femoral condyle and also in the lateral compartment with a subchondral insufficiency fracture.”

In Dr Maniam’s report she stated: “[t]he major knee injury occurred on 1/2/2016 where the injuries related to the following: aggravation of pre-existent degenerative disease, fracture of the left lateral tibial plateau and fracture of the medial femoral condyle with displacement superimposed on the osteochondritis desiccants.” Dr Maniam also stated: “[b]ased on the dynamics of the history of the accident and the knowledge of the documentation, l am of the opinion that following the incident on 1/2/2016, a chain of events occurred resulting in the requirement for multiple operations and complicated by sepsis, obesity, cardiac abnormality, and diabetes. The attributability is that the incident of 1/2/2016 has been responsible towards the events described. The occupation appears to have been a substantial contributing factor. It is not reasonable that Dr You-Ky Ho (sic) has deducted 25% of the problems in the knee to be due to preexisting causes.”

In the Joint Radiology Report, Dr Bowden stated that he “feels that the index fall likely materially contributed to both her medial femoral and lateral tibial condylar pathology.” He also stated “[o]n balance of probabilities, he feels that the injury likely materially contributed to the medial femoral condylar pathology in a significant manner.”

During concurrent evidence Dr Bowden stated, “I believe the injury that she sustained materially contributed in a significant manner to her medial femoral condyle pathology”.

During concurrent evidence Dr Bowden also stated, “[s]o, regardless of any bone marrow oedema pattern, which is quite theoretical in a way, and in the absence of any other significant interval injury in that period between June 2015 and February 2016, you'd have to assume that the fall that was sustained at the childcare centre significantly exacerbated the medial femoral condyle osteochondral fragmentation and depression. I think the undispalced lateral femoral condyle or subchondral insufficiency fracture is another finding of her injury at that time. I think probably the true answer is that she sustained that directly at the time of the injury while exacerbating a pre-existing injury of her medial femoral condyle in a rather significant manner that materially contributed to her knee pathology and accelerated the knee replacement.”

During concurrent evidence, when addressing the second Pitman reason, Dr Bowden stated, “[i]t doesn't perfectly match it, but in a woman that already had, I guess, osteochondral disease over the medial femoral condyle, it's very easy to imagine that a twisting type injury could have impacted it into the anteromedial aspect of a medial tibial condyle, and - and it's significantly exacerbated that depression, … what really makes this a bit firmer is just when you compare directly the X ray obtained in June 2015 to the one in March 2016. There's a gross difference there, and we have to somehow account for it, and without knowing that she had another significant injury or was completely overusing her knee and was in a lot of pain leading up to the injury, it's hard to understand how that got there.”

In the Joint Orthopaedic Surgeon Report, in answer to the question “[d]id the fall on 1 February 2016 materially contribute to the need for the total knee replacement surgery performed by Dr Tan on 10 August 2016?”, Dr Machart answered, “[d]ifficult to be certain. The injury could have caused the knee replacement to be needed sooner than otherwise, although it is evident that at the time of the injury there was already substantial arthritis, apparently sufficient for her to know that knee replacement was on the cards irrespective of the injury.”

In the Joint Orthopaedic Surgeon Report, in answer to the question “Would the plaintiff have required a knee replacement irrespective of the fall on 1 February 2016. If yes, by when would she have required it? If not, why not?”, Dr Machart answered, “[y]es. Not sure when it would have been required. It is possible that it was brought forward by the injury.”

Dr Mastroianni, an occupational physician, stated: “As a result of the fall Ms Milne sustained a fracture of the left knee. X-ray revealed presence of pre-existing osteoarthritis in the knee. The need for the surgery was a consequence of the fractures sustained in the fall and not because of pre-existing osteoartaritis.”

I turn then to extracts from the evidence of the medical experts who rejected that the incident resulted in any significant or material exacerbation the plaintiff’s pre-existing injury.

In Prof Pitman’s primary report he stated the medial femoral condyle osteochondral depression “was first visible on 18 June 2015. It is progressive (as demonstrated on serial imaging). Once osteochondri tis (sic) dissecans occurs, it usually follows a progressive degenerative course, which it did in this case. Imaging evidence conclusively shows it was not caused by the index incident. Imaging evidence also suggests the index incident did not exacerbate it (as there is no bone marrow oedema extending away from the defect or elsewhere in the medial compartment)”.

In the same report, Prof Pitman stated: the “[t]hree compartment chondropathy (cartilage degeneration)” was “first visible on 18 June 2015. Chondropathy is the first step in the evolution of osteoarthritis. It is a degenerative, progressive, slow condition. The commonest pattern is more severe in the medial compartment and least severe in the lateral compartment, and this particular knee follows this pattern. Imaging evidence conclusively shows the index incident did not cause it. There is no evidence that the index incident affected or altered the progression of the chondropathy to osteoarthritis evolution.”

In Dr Machart’s third report, in answer to the question “Whether a total knee replacement is reasonable and necessary as a result of the fall on 1 February 2016”, he stated that “TKR is a reasonable treatment option. TKR treatment of osteoarthritis and of the avascular segment in the medial femoral condyle. TKR is not for the tibial plateau fracture, which is now healed. TKR will cure the osteoarthritis. The indications for the TKR are osteoarthritis and avascular necrosis, both pre-dating the fall on 01/02/16, and therefore not necessary (sic) as a result of the fall.”

In Prof Shatwell’s first report he stated “These changes of ostenecrosis are not caused by trauma. They are caused by overload of the subchondral trabecular bone causing a segment of bone to lose its blood supply and become more brittle with localised collapse of the cancellous bone beneath the subchondral bone plate leading to subchondral fractures and depression of the overlying articular cartilage with the developed of an osteochondral defect. Osteonecrosis very commonly affects the weight-bearing portion of the medial femoral condyle, especially in females, who are three times more likely to develop the condition than men.”

Additionally, In Prof Shatwell’s first report in answer to the question “[w]hether the injuries and disabilities complained of by the plaintiff are related to the subject incident”, he answered, “[t]he incident that occurred on 1 February 2016 did not, as previously stated, generate a need for surgical treatment of the left knee. Thee (sic) fall described caused a minor increase in symptoms related to extensive degenerative change in the knee caused by avascular necrosis of the medial femoral condyle and also in the lateral compartment with a subchondral insufficiency fracture”.

In Prof Shatwell’s second report he stated, “x-rays show degenerative changes particularly in the medial compartment”.

In the Joint Radiologist Report, Prof Pitman stated he “feels the index fall did not materially contribute to the need for the plaintiff's total knee replacement.” Prof Pitman elaborated on that conclusion by discussing the four Pitman reasons in the Joint Radiology Report and concurrent evidence as previously outlined in this judgment.

In the Joint Orthopaedic Surgeon Report, Prof Shatwell stated “I do not think the fall described contributed to the need for knee replacement which was due to occur at some stage around the time she injured her knee.”

In the Joint Orthopaedic Surgeon Report, in answer to the question “Would the plaintiff have required a knee replacement irrespective of the fall on 1 February 2016. If yes, by when would she have required it? If not, why not?”, Prof Shatwell stated, “[t]he degree of arthritic change in the left knee was such that the plaintiff would have required a knee replacement irrespective of the fall. I do not consider the severity of the injury to her knee described by the examination findings of the Ambulance officers and Emergency Department Doctors indicates the injury was severe enough to change the natural history of her severely arthritic knee.”

In support of the fourth Pitman reason, in concurrent evidence, Prof Shatwell stated “[y]ou would virtually have to dislocate the knee to cause the damage to the medial femoral condyle by impaction of the upper tibia. There would be huge amounts of oedema and disrupted ligaments associated with that injury that would also be a huge amount of bone oedema from the striker as well as the struck. So, both the medial femoral condyle and the tibial femoral condyle would show signs of bone oedema where this had happened. The depression is typical of a condition we call osteonecrosis. It is not typical of a condition due to a fracture, certainly not an acute fracture.”

Further in concurrent evidence, in answer to the question “Do you maintain your opinion that the pathology that's seen in the medial femoral condyle in the scan of February 2016 was not caused or materially contributed to by the actual fall?”, Prof Shatwell stated “There was no change as far as the MRI scans show to the medial side of the knee, there is no oedema in the medial tibial plateau, there is no oedema beneath the fragment that is embedded or impacted in the medial femoral condyle. There's no sign of acute injury, there was no clinical sign of injury to the medial side of the knee.”

When Dr Machart was asked whether he agreed with Prof Shatwell’s above statement, Dr Machart stated: “I agree with what Dr Shatwell said. And I would like to actually add a little bit to it. You really have to see this, to be able to imprint the corner of the tibial condyle into the defect would require for the tibia to go 45 degrees outwards and an enormous compression. You just try and picture that corner of the tibia to be right inside that crater, where would the leg be?”. Dr Machart further stated, “[y]ou'd have to put the corner of the tibia, which is on the left-hand side of the picture, presumably the corner, that's the only thing that could have possibly made that crater because the tibia is otherwise flat. It would have to be a corner that caused this. Now, you put that corner of the tibia right inside the crater, what will happen to the rest of the leg? It would be 45 degrees sideways. There's no way that could have happened.”

Having provided that overview, I return to the analysis of the medical evidence about whether there was an exacerbation of the medial femoral condyle osteochondral pathology caused by the incident and whether, in the result, the fall caused a chain of events leading to the total knee replacement.

Dr Tan compared the X-ray of the plaintiff’s left knee in July 2015 with an X-ray taken at Bankstown hospital on the day of the incident. He observed that there was a slight irregularity in the contour of the medial femoral condyle revealed in the earlier X-ray but that, on 1 February 2016, a “step deformity” was revealed.

Dr Tan also compared the X-ray taken on 14 March 2016 with comparative X-rays of the plaintiff’s right and left knees on 2 February 2016 to conclude there was a definite difference in the depth of the “step” and the knee had progressed to “varus”.

This analysis by Dr Tan proceeded on the correct assumption that, notwithstanding the “chondral injury” to the plaintiff’s left knee previously, she had been coping well at work until her fall.

The fracture failed to improve by the application of a brace or splint and the plaintiff experiencing significant post injury pain despite taking pain killers. It was on these bases that Dr Tan formed the strong view that a total knee replacement was required. He observed that the plaintiff had suffered a significant deformity in her medial femoral condyle by 6 weeks after the incident. Based on these considerations, Dr Tan was firmly of the view that the plaintiff had, by virtue of the fall on 1 February 2016, “propagated or extended the subchondral injury into a fracture”.

There is considerable force in the plaintiff’s submissions that substantial weight needs to be afforded to Dr Tan’s opinions, so described, as the treating doctor of the plaintiff who was the only orthopaedic surgeon to have reviewed the X-ray of the plaintiff’s knee taken on 1 February 2016.

The first defendant is correct to submit that Dr Tan did not address the particular issues of causation raised in the report of Prof Pitman (as he did not participate in the orthopaedic surgeon conclave) but it is incorrect to submit that Dr Tan did not express a view as to causation or that the view he expressed was devoid of consideration of the relevant X-rays and imaging comparing the pre and post injury state of the plaintiff’s left knee. In fact, Dr Tan essentially proceeded upon a review of the suspicions raised by Dr Mathews and undertook differential considerations of the osteonecrosis and insufficiency fractures.

As noted above, Prof Shatwell accepted there was an exacerbation of the prior underlying pathology of osteonecrosis but his view was that the change was minor and did not contribute or contribute materially to the need for a total knee surgery (which Prof Shatwell considered was necessary to treat the condition of the plaintiff’s left knee).

Prof Shatwell’s view was predicated on the notion that the “avascular necrosis” had been symptomatic since June 2015. This was predicated on a report of Dr Rashid of 12 February 2016. Prof Shatwell did not have the advantage of the X-ray taken on 1 February 2016.

In expressing this opinion, Prof Shatwell opined that the observation in the discharge report of tenderness of palpation of the left lateral knee was not consistent with an acute fracture in the lateral tibial plateau as opposed to soft tissue damage. Prof Shatwell later expressed a different view that accepted the existence of the fracture in that respect.

Prof Shatwell expressed the view that Dr Tan’s opinion that there was a definite change between July 2015 and 1 February 2016, based upon X-rays performed in July 2015 and 1 February 2016, constituted an “oversimplification” of Dr Rashid’s report, notwithstanding that Prof Shatwell had not examined the X-ray on 1 February 2016.

I acknowledge, however, that Prof Shatwell’s view was predicated upon Dr Rashid’s report of 12 February 2016 (some 11 days after the incident). This led him to an assessment that the changes of osteonecrosis were “not caused by trauma” but by an overload of the subchondral trabecular bone causing a segment of the bone to lose blood supply. He also opined that the incident did not generate the need for surgical treatment of the knee based on “the circumstances of the fall”. He stated that the total knee replacement surgery would have been required in any event.

It is not entirely clear what Prof Shatwell was referring to in terms of the circumstances of the fall. In the Joint Orthopaedic Report, he simply noted that the fall was “unwitnessed”. He also observed that the knee replacement was due to occur “at some stage around the time she injured her knee” although the basis for that statement was also not provided by Prof Shatwell.

Those uncertainties associated with Prof Shatwell’s opinions are amplified by reference to his second report. In that report he suggested that there was a significant deterioration of the plaintiff’s osteoarthritis between July 2015 and 1 February 2016. In that respect, he noted that pain had been present since November 2014 and an X-ray and MRI scan had been advised by her GP at that time. I have earlier discussed the state of the applicant pain and treatment around mid-2015 as being less significant than appears to have been taken into account by Prof Shatwell. In any event, he pointed to a better picture being of her deterioration being provided by her absences from work during that period. Again, as discussed above, the absences from work due to difficulties with the plaintiff’s left knee were minimal in the 2015 period.

In my view, Prof Shatwell’s analysis was undermined, to a degree, by his overestimation of the severity of the applicant’s pre-existing pathology in the period from mid-2015 to the date of the fall although his evidence as to the likely progression of the plaintiff’s pathology in that respect is of significance as is his prediction that in all likelihood a total knee replacement would be required “at some stage” although his estimation of that stage being 1 February 2016 is questionable.

In the concurrent evidence Prof Shatwell stated that, having regard to the fourth Pitman reason, there was no clinical sign of injury to the medial side of the knee as there was no oedema in the medial tibial plateau or beneath the fragment that impacted the medial femoral condyle.

Mr Barry submitted that there was no dispute as to bone bruising on the medial femoral condyle in the fall. It is true that Prof Pitman stated there was some bone marrow oedema in the medial femoral condyle after the incident. He stated in the Joint Radiology Report that there was bone marrow oedema surrounding the osteochondral depression although he assessed the bruising as being “mild and minimally extensive”. He also considered that that bruising may have related to the pre-existing osteochondral depression of the severity found in the MRI’s taken after the injury. This opinion was brought to bear in the first Pitman reason. Some real caution needs, therefore, to be taken in formulating a conclusion based on bone bruising to the medial femoral condyle.

On the other hand, Dr Bowden described the type of analysis undertaken by Prof Pitman with respect to bone marrow oedema as “theoretical” and that the medial femoral condyle osteochondral impact was very extensive. Furthermore, there is some force in Mr Barry’s reliance upon the plaintiff requiring splints at all times from 1 February 2016 to 14 March 2016 and that the plaintiff was in severe pain and suffering disability during that period and continuing until 10 August 2016.

A significant feature of the medical evidence in this matter are the four Pitman reasons as to why the fall did not materially contribute to the need for the plaintiff’s total knee replacement. That forensic analysis plainly contributes to an assessment of the extent to which any pre-existing pathology in the left knee of the plaintiff contributed to the need for a total knee replacement. I have earlier discussed these reasons in detail and consider they are reasonably significant in my assessment of the medical causation question.

However, and notwithstanding the apparent logical force in Prof Pitman’s reasons, there are countervailing considerations which must be balanced in reaching an overall conclusion as to medical causation.

Prof Pitman acknowledged that, in assessing the need for a total knee replacement, due respect should be given to the clinical assessments made by the plaintiff’s treating orthopaedic surgeon, Dr Tan.

Of greater significance is the question posed by Dr Bowden who rejected substantial parts of Prof Pitman’s analysis and his overall conclusion. That question was put in a somewhat colloquial way as follows: “does anyone have any other explanation about how that defect got there? Is there any other theories? I don’t know any”.

That relevant question was posed in the following relevant context:

I do not consider that the aforementioned analysis warrants an outright rejection of Prof Shatwell or Prof Pitman’s evidence going to the question of medical causation but it does mean that their opinions that there was, in substance, no causal connection between the damage sustained by the plaintiff through the incident and the need for a total knee replacement must be treated with considerable reservation. That is particularly so when the opinion of Dr Tan is brought to account.

Dr Machart’s opinion tended to coincide with Prof Shatwell’s but he did concede that there was sufficient exacerbation from the damage caused by the fall as to accelerate the need for a total knee replacement.

I do not repeat, but take into account, my earlier discussion of the respective medical opinions as to whether there was or was not an exacerbation of the pre-existing pathology in the plaintiff’s left knee brought about by the fall.

I return then to the second summarised contention by the first defendant inviting the Court to find that the plaintiff did not suffer any injury to the area of the medial femoral condyle as a result of the incident. I reject that submission if it is intended to exclude any form of material exacerbation of the pre-existing condition in that respect.

The second defendant submitted that, at its highest, the incident resulted in a limited aggravation of the plaintiff’s underlying arthritis, properly acknowledging that in the conclave Dr Machart conceded that the total knee replacement surgery may have been possibly brought forward.

I have already set out the second defendant’s alternative submission based upon a finding by the Court that the total knee replacement surgery had been brought forward.

In my view, the evidence does ultimately point to a total knee replacement surgery being required at some stage as a result of her pre-existing condition but the evidence does not sustain that that procedure was required at or about the time of the incident. Rather the condition was being managed reasonably successfully at that time.

Whether or not the total knee replacement was needed to be brought forward, as submitted by the second defendant, the conclusion I have reached is that the need for a total knee replacement arose from a material exacerbation of the pre-existing osteoarthritis as a result of the incident. I consider, therefore, that part of the finding as to medical causation sought by the plaintiff may be made, namely, that the fall by the plaintiff on 1 February 2016 caused a material aggravation of the pre-existing osteoarthritis in the plaintiff’s left knee resulting in a total knee replacement surgery on 10 August 2016.

The plaintiff also sought that the Court find, additionally, that the incident had resulted in a total knee replacement surgery, “from which the plaintiff had a poor outcome”. In my view, the evidence does not sustain that the knee infection which occurred some two years after the operation was not a consequence of the operation. That condition and the subsequent knee operation may not be causally linked to the incident. That much is sustained by the evidence of both Prof Shatwell and Dr Machart.

Before turning to the heads of damage, I propose to deal with two matters raised by the parties, namely, issues concerning Fox v Wood (1981) 148 CLR 438; [1981] HCA 41 (“Fox v Wood”) and s 151Z of the WCA.

As to the first matter, the plaintiff submitted that the defendants had not contested the approach adopted by the plaintiff and that any component of the judgment, in that respect, should be dealt with after judgment is delivered. I propose to adopt that approach.

As to the second matter, the second defendant is correct to submit that the question of the operation of that provision (and the cross-claim) should be dealt with after the determination of the claim presented by the plaintiff.

The second defendant also dealt with the judgment of the NSW Court of Appeal in Synergy Scaffolding Services Pty Ltd V Alelaimat (No. 2) [2024] NSWCA 11 (“Synergy 2”). The second defendant canvased the four possibilities discussed in Synergy 2 which depended upon findings of liability. In the present case, the Court has made findings consistent with the fourth possibility, namely, that both the first and second defendants were liable.

In the light of such a finding, the second defendant submitted that the following considerations arose:

The second defendant addressed those prospects in a further aspect of its submissions as follows:

As to the question of apportionment, the first defendant made the following submissions as to relevant principles:

Broadly speaking, I accept the approach preferred by the second defendant with respect to the operation of s 151Z(1) but would be prepared to receive further submissions with respect to the authorities referred to in that respect.

I shall make a provision for submissions as proposed by the second defendant with respect to s 151Z which will incorporate any submissions as to cross-claims. However, with that approach in mind, and without finally ruling on the question, it appears to me that, having regard to my findings as to liability, there would be, prima facie, a proper basis to find 70% liability against the first defendant and 30% liability against the second defendant.

There is one further matter by way of introduction. The second defendant did not address any separate heads of damage but rather made the following general submissions on the ‘quantum’ of damages:

I then turn to the heads of damage. The plaintiff and the first defendant (for most categories) submitted that the quantification of damages should be approached in accordance with the conventional heads of damage to be awarded in a case of this nature. The plaintiff and the first defendant (for most categories) made particular submissions on the following heads of damages:

However, the plaintiff submitted that the Court should “make findings in relation to the various heads of damages that have been identified and direct the parties to agree mathematically upon the quantification that would result from those findings”. Further, the Court “should invite submissions on costs following the agreed quantification of damages”.

In relation to non-economic loss, the plaintiff made the following submissions:

The first defendant disagreed with the 35% and submitted that non-economic loss should be assessed at 20% of a most extreme case.

The first defendant only accounted for the injury to the lateral tibial plateau under the heading ‘non-economic loss’ and submitted, in this respect, the following:

In reply to these submissions, the plaintiff submitted “[t]he first defendant's submission [that] quantification of non-economic loss should be on the basis of 20% of a most extreme case is surprising given its submission that the knee replacement and its consequences were not caused by the tortfeasor's negligence.”

The plaintiff is 61 years of age at the time of judgment. She had a pre-existing osteoarthritis in her left knee which would, based on my earlier findings, at some point of time required a total knee replacement.

There appears to have been limited restrictions on her social life prior to the incident with some occasional restrictions on her working life.

I have found that the incident exacerbated her pre-existing pathology with respect to the medial femoral condyle. There was a causal connection with the need for a total knee replacement to that extent. The delay in that knee replacement caused some post operative difficulties in terms of a flexed knee. Those difficulties continued through to the need for manipulation in 2017 and physiotherapy with limited improvement. I have found that there was not a causal connection between the injury and her ultimate treatment for an infection (and consequently the further knee replacement surgery).

It follows that the plaintiff’s significant disablement resulting from the incident continued until the significant deterioration of her condition as a result of the infection.

I accept the submission of the plaintiff that the plaintiff experienced distressing pain and disability.

In all the circumstances, there is a proper basis for the award of damages for non-economic loss. The first defendant quantified non-economic loss as 20% of the most extreme case although that submission was predicated only upon the consideration of a twisting injury in the fall causing the lateral tibial plateau fracture (which I have also found).

The plaintiff proposed a non-economic loss of 35% of a most extreme case but predicated her submission upon the basis of, inter alia, the infection suffered by the plaintiff, the insertion of a cement anti-biotic block and a subsequent knee replacement.

Whilst the parties’ submissions were predicated on some considerations about which I have made contrary findings in this judgment, there is a proper basis to find, in my view, that the percentage allowance for non-economic loss as being 25% of the most extreme case. However, I will hear the parties further in that respect if they wish to advance further submissions.

The parties should provide their position on the quantification for non-economic loss on that basis, namely, based upon the aforementioned preliminary view or in accordance with any further written submissions.

In relation to past economic loss, the plaintiff submitted the following:

The first defendant made the following submissions on economic loss that relate to both past and future economic loss:

In reply, the plaintiff attached a schedule demonstrating the quantification of the plaintiff’s past economic loss and made the following submissions on economic loss:

The first defendant’s submissions were again predicated upon a contention that there was not a causal relationship between the tortious conduct of the defendants and the need for a total knee replacement surgery. That submission has been rejected and accordingly the four-month period used to calculate past economic loss by the defendants must be rejected.

Rather, the period should be based upon the considerations of the Court with respect to non-economic loss and the earlier discussion of damages in this judgment.

It is true that the average hours worked by the plaintiff at the Centre was 20.5 hours with an earning average of $498.22 net.

However, the plaintiff had been promised full time employment which accounts for the 30 hours a week calculator used by the plaintiff. Similarly, average hours earning would not seem applicable on that different basis for engagement and accordingly, the relevant award provisions identified by the plaintiff should operate upon the calculations.

There is, however, some further considerations which diminish the amount payable for past economic loss as follows:

I find that there is a basis for an allowance for past-economic loss. That loss will be calculated on the basis on the above considerations. The parties should either bring in Short Minutes of Order representing an agreed quantification in that respect or alternatively short submissions as to the same based upon the above reasons.

In relation to the past loss of superannuation the plaintiff submitted that the past superannuation in respect of the award for past economic loss is $34,719.36. The first defendant did not make any submissions, in this respect, which the plaintiff highlighted in reply submissions.

There should be an allowance for damages for past loss of superannuation which will be calculated on the basis of the methodology employed by the plaintiff, adjusted having regard to the award for past economic loss.

The quantification of this amount shall await determination of the award for past economic loss.

In relation to past treatment expenses, the plaintiff submitted that the Health Insurance Commission has paid $9,446.55 for the plaintiff's treatment and the workers compensation insurer has paid $73,841.91 by way of past treatment expenses. These should be added to the verdict against the first defendant in addition because the workers compensation insurer would not pay for the surgery and it had to be done at a public hospital. Those costs and the related treatment thereafter totalled $9,446.55. Accordingly, the award for past treatment expenses should be $83,288.46.

The first defendant submitted that “it would be medical expenses for a period of four months and the like”.

I agree with the submissions advanced by the plaintiff and will make an award for past treatment expenses as proposed by the plaintiff.

In relation to past domestic assistance, the plaintiff submitted that during the time when the workers compensation insurer was paying for domestic assistance for the plaintiff for the period between 29 July 2020 and 19 December 2023 the average was $63.57 per week. This amount is a little less than the amount assessed by the second defendants but if that figure is taken over the whole period the amount of the award is $26,445.12.

The first defendant made the following submissions which apply to both past and future domestic assistance:

In reply, in relation to past domestic assistance, the plaintiff submitted “the plaintiff's quantification of past domestic assistance is based upon an analysis of domestic assistance actually provided. The figure is a modest one considering that this was over a period of eight years.”

I agree with the submission of the first defendant in this respect and make no award for past domestic assistance. The payments by the workers compensation insurer of some amount for domestic assistance does not overcome the hurdles in making an award for past domestic assistance as presented by the first defendant’s submissions.

In relation to past-out-of-pocket expenses, the plaintiff submitted that these have been paid by the workers compensation insurer: $73,841.91. The first defendant confirmed this and submitted “The workers compensation insurer has paid past out-of-pocket expenses. The plaintiff should be allowed out of pocket expenses that relate to the lateral tibial plateau fracture only and treatment in the first 4-month period. The joint conclave report of the orthopaedic surgeons confirms that the plaintiff requires no further investigations or ongoing treatment.”

However, in reply, the plaintiff submitted the following:

I agree that an award for past-out-of-pocket expenses should be made and calculated on the basis of the first defendant’s tortious conduct. I also agree with the plaintiff that the final figure, in this respect, should await the delivery of the judgment.

In relation to future economic loss, the plaintiff submitted the following:

The first defendant’s submission on future economic loss were extracted earlier in this judgment.

The considerations the Court has brought to bear with respect to past economic loss significantly overlap with the consideration of this head of damages. Accordingly, the provision I have made for supplementary submissions with respect to past-economic loss shall apply in equal measure with respect to this head of damages.

In relation to future loss of superannuation, the plaintiff submitted it is calculated at 12.87% of the claim for future economic loss: $23,300.15. The first defendant, as earlier mentioned, did not make any submissions on the future loss of superannuation.

There shall be an award for future loss of superannuation calculated upon the methodology employed by the plaintiff but subject to the conclusion as to future economic loss.

In relation to future treatment expenses, the plaintiff submitted that although Prof Shatwell provided an opinion on causation which was based upon erroneous factual findings, the plaintiff accepts his opinion in relation to future treatment costs as set out in his report dated 20 September 2022 where he stated:

The plaintiff submitted that the midrange of those figures should be accepted. The award for future treatment expenses accordingly is $150,000. The first defendant did not make submissions on future treatment expenses of the plaintiff.

The submissions by the plaintiff in this respect accord with the evidence and the approach adopted in the calculation of the sum for future treatment expenses is reasonable. An award will be made in the terms proposed by the plaintiff.

In relation to future domestic assistance, the plaintiff submitted that the plaintiff accepts the quantification of future domestic assistance set out in the first defendant's report. The amount there quantified for domestic assistance, lawn mowing and aids works out at $115.78 per week for the balance of the plaintiff's life expectancy. The total calculation therefore is: $89,000.08.

The first defendant submissions on future domestic assistance were extracted earlier in this judgement. In reply, the plaintiff submitted “[t]he quantification of future domestic assistance is quantified on the basis of the first defendant's expert evidence. It is somewhat surprising that it seeks to contradict its own expert evidence in that regard”.

Whilst some quantification has been undertaken in the first defendants report, the same issues as arose with the past domestic assistance arise here. I make no award in this respect.

Lastly, the plaintiff submitted the sums owed by the first and second defendant as follows:

The consideration of the ultimate sums awarded to the plaintiff will await the receipt of further submissions and quantifications provided via a Short Minute of Order.

The Court has made the following findings:

The Court has determined to make an award of damages in favour of the plaintiff with respect to the following heads of damage: non-economic loss; past economic loss; past loss of superannuation; past treatment expenses; past-out of-pocket expenses; future economic loss; future loss of superannuation; and future treatment expenses.

The Court has made provision for additional submissions with respect to the following heads of damage: non-economic loss; past economic loss; and future economic loss. The Court will also receive the parties’ quantification of those damages based upon their submissions or acceptance of preliminary views expressed by the Court.

In the case of past loss of superannuation, past-out-of- pocket expenses, and future loss of superannuation, the Court will receive the parties’ assistance with respect to quantifications based upon the foregoing reasons.

In the case of the following heads of damage the Court has awarded the amount sought by the plaintiff: past treatment expenses; and future treatment expenses.

The Court made provision for further submissions in relation to Fox v Wood, s 151Z and apportionment (although a preliminary view has been expressed in that last respect).

Subject to any submissions to the contrary, the Court would propose to resolve the balance of issues as to quantification of damages on the papers.

The Court will also make provision in the directions below for evidence and submissions on the question of interest and costs although the Court will make provision for the modification of the directions for submissions and evidence as to those matters so as to permit the parties to file and serve their submissions as to those matters within the program fixed to deal with the quantification of damages. If that approach were adopted, then the Court would also be prepared to deal with the question of costs and interest on the papers.

The Court makes the following orders and directions: