For the reasons expressed, I affirm my ruling. Indeed, on the matter of the asserted probative worth of the impairment determination, I am fortified in my conclusions by the maters put by Mr Smith concerning the prejudice to the defendant additionally to those matters he advanced at the first hearing.
I am not satisfied that the matters relied on by Mr Stanley, rise to the level that warrants me revisiting my first ruling.
I am not satisfied that Mr Smith breached the concession he made on behalf of the defendant in the first trial.
Because the jury was discharged before they had been charged by me on the aetiology of her conditions, the point had not been arrived at which I would have directed the jury that the defendant had not led any evidence that the knee injury had ceased to have any causative effect and that all that was operating on her was her pre-existing state. The transcript references relied on by Mr Stanley did not offend my first ruling. In any evet, as to the achilles, the pre-history was so long ago, and the plaintiff having been active without incident since then and up to January 2016, any evidence pointing to a resurfacing of the vulnerability from the years past was so remote as to make it difficult to think it would have discharged the defendant's evidentiary burden of proof as required by Malec.
Until Malec, it had been thought that it was insufficient for a defendant merely to point to the possibility of a plaintiff's pre-existing injury or illness worsening. To the contrary, as Dixon CJ said in Watts v Rake[1960] HCA 58; (1960) 108 CLR 158: