Milne v SDN Children's Services and BRC Recruitment Pty Ltd - [2024] NSWSC 1495 - NSWSC 2024 case summary — Zoe

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

[2024] NSWSC 1495

Supreme Court of NSW|2024-03-25|Before: Walton J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2024-03-25

Before

Walton J

Catchwords

[2009] HCA 48 Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 538
[1940] HCA 45 Australian Oil Refinery Pty Ltd v Bourne (1980) 54 ALJR 92 Blatch v Archer (1774) 1 Cowp 63
[2015] NSWCA 90 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Purkess v Crittenden (1965) 114 CLR 164
[1965] HCA 34 Rallis v Pang [2003] NSWCA 202 Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330

Source

Original judgment source is linked above.

Catchwords

[2009] HCA 48 Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 538[1940] HCA 45 Australian Oil Refinery Pty Ltd v Bourne (1980) 54 ALJR 92 Blatch v Archer (1774) 1 Cowp 63[2015] NSWCA 90 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Purkess v Crittenden (1965) 114 CLR 164[1965] HCA 34 Rallis v Pang [2003] NSWCA 202 Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330[2007] HCA 42 Scott v Davis (2000) 204 CLR 333[2022] HCA 11 Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234[2005] HCA 19 Tubemakers of Australia Ltd v. Fernandez (1976) 50 ALJR 720 Vairy v Wyong Shire Council (2005) 223 CLR 422

Judgment (62 paragraphs)

[1]

Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34 Rallis v Pang [2003] NSWCA 202 Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 Scott v Davis (2000) 204 CLR 333; [2000] HCA 52 Shoalhaven City Council v Pender [2013] NSWCA 210 Stocker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213 Synergy Scaffolding Services Pty Ltd V Alelaimat (No 2) [2024] NSWCA 11 Tapp v Australian Bushmen's Campdraft and Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11 Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 Tubemakers of Australia Ltd v. Fernandez (1976) 50 ALJR 720 Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 Wade v Allsop (1976) 50 ALJR 643 Wang v Fan [2024] NSWSC 1339 Category: Principal judgment Parties: Cheryl Anne Milne (Plaintiff) SDN Children's Services (First Defendant) BRC Recruitment Pty Ltd (Second Defendant) Representation: Counsel: C.T. Barry KC with T Meakes (Plaintiff) N Polin SC (First Defendant) S Flett (Second Defendant) Solicitors: Gorman Jones Lawyers (Plaintiff) McCabes Lawyers (First Defendant) Hall and Wilcox Lawyers (Second Defendant) File Number(s): 2018/382709 Publication restriction: Nil

[2]

INTRODUCTION

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.

[4]

Credit

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: 1. Between 2003 and 2004, the plaintiff was the Treasurer of a not-for-profit organisation. The plaintiff carried out the duties as Treasurer of the Association. The plaintiff made a number of unauthorised withdrawals. There was a police investigation in relation to missing funds from the organisation which resulted in the plaintiff receiving a 12-month Bond for the offence of director/officer/member cheat or defraud. 2. Between April and August 2015, the plaintiff was employed as a full-time cook at a childcare centre. The plaintiff was provided with 4 business credit cards to make purchases for the business in relation to food and other kitchen required items. The plaintiff had been given authorisation to make business purchases only. The plaintiff used the credit cards for her own benefit. A police document titled "Events Involving for Habony, Cheryl" provided in evidence indicated that approximately $10,000 was taken without authorisation. The plaintiff was convicted of numerous counts of dishonestly obtain financial advantage by deception in 2015 [1] and received a 15-month Bond. 3. In 2016, the plaintiff and another person were administrators of a Facebook group that sourced and sold products purporting to be silk from India. Various complaints were made to the Police in respect of the product not being silk or as described or customers not receiving their product at all. Customers were asked to pay via PayPal. However, because the payments were made via selecting the payment option of "friends and family" there was no recourse available to victims. In cross-examination the plaintiff denied she had access to the PayPal account. The plaintiff gave evidence as follows: "Q. But people who didn't get a product certainly it would appear from that document, some of them were complaining and saying, "I want my money back"? A. No one had asked me for their money back because it wasn't paid to me. Family and friends, the PayPal was never paid to me. Q. So, how did this end up then in a police investigation? A. Well, I'm not quite sure that when they came knocking at the door, I showed them the bank transfers from Western Union that the money was paid, and these things never turned up. Q. So, when you say, "They came knocking on the door" - A. The two police officers came from the, like, online thing. I don't know what it's called. When you're online‑‑ Q. So, you were encouraging or getting people to buy a particular product? A. Not just me, but yes."
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: 1. Her evidence as to the mechanisms of the fall; 2. Her evidence as to what was revealed by video surveillance (There was video surveillance of the plaintiff's activities at local markets on 16 January, 20 March and 17 April 2022 ("the surveillance footage"). 3. The accounts given to medical practitioners.
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: "I think I used the word hobble. Yeah, you know, because it was quite pronounced."
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: "Q: If someone has a balance problem, do you think they're more likely to fall over? A: Yes. Q: If they have a balance problem, do you think they're more likely to slip? … A: Yes. Sorry. … Q. You knew that Mrs Milne had a problem with her balance; is that right? A. Yes. Q. You knew that Mrs Milne had a problem with her knee that was causing her trouble? A. Yes. Q. Did you think that the problem with balance was caused by the problem with her knee? A. I'm a bit confused, sorry, about the question, because I didn't ‑ I know she had a knee issue, like, you know, she said to me that she had arthritis in her knee, and you know, I don't know whether that would cause her to be more prone to falling and slipping and something like that. I ‑ I don't know. But that could've been a factor that she slipped on the noodle, but I ‑ I don't know really.
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.

[5]

The Plaintiff

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: "5. After leaving school I worked as a Console Operator. 6. After that I worked for the Defence Department in an administrative capacity. I worked for them for 9 years. After that, I worked for the Department of Education and Training. 7. In 2009 I undertook a Certificate Course to qualify me to work as a Cook in Pre-Schools. 8. My first employment as a Cook in a Child Care Centre was at Wilbur Bear Child Care Centre at Flinders, near Wollongong from 2009 to 2010. 9. From 2011 to 2013 I worked as a Cook at the Ridge Child Care Centre at Menai. 10. From 2013 to 2014 I worked as a Casual Cook at "Your Kids Our Kids", a Child Care Centre located at Moorebank. 11. I resigned from that employment because I did not like the way in which they treated the children. 12. I had short period of employment with some other Child Care Centres before I contacted BRC Recruitment Pty Ltd which is an employer that employs casual workers in Child Care Centres."

[10]

The System of Work and Centre Operation

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: "Q. When she started work, were you the one who had to show her around? A. Yes. Q. She only ever worked in the kitchen? A. That's correct. Q. So, you had to show her what she was required to do? A. That's correct. Q. Did BRC have any involvement whatsoever in the way in which the work was designed? A. No. Q. Did you ever have any discussions with anyone from BRC about what systems were to be put in place in relation to the way in which the work was to be done by Ms Milne? A. No. Q. So, would it be right that the entire control of the way in which the kitchen operated and was required to work was in the hands of your company? A. Yes. According to the shift ‑ the position description, yes."
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: "Q. What was your opinion of Ms Milne? A. I liked her. Q. Why? A. She was friendly. She enjoyed - well, she was good at what she did. She was efficient. She inputted into the menu and, you know, took an interest in the centre itself and the food that the children ate. She was a good team member, and the staff liked her as well. Q. If she hadn't been injured, what were your plans for her? A. To offer her a full time job. Q. When she started work, were you the one who had to show her around? A. Yes. Q. She only ever worked in the kitchen? A. That's correct."
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: "25. The plaintiff ultimately accepted that the only way a mat would be useful to avoid such a potential slip was if the food or contaminant actually fell "on the mat". She agreed that the problem with mats is that you have to have the foresight to know where a spill is going to occur. 26. The whole problem with this reasoning is that it is retrospective because you need to know where the spill is going to occur before you place the mat."
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: "Q. Young kids end up eating the food in playrooms. There's a potential for food to be spilt on the floor at any time within the playrooms; is that right, isn't it? A. Yes. Q. The empty bowls or near empty bowls, or maybe not even empty bowls if it's not eaten, get bought back into the kitchen by the other staff. Again, there's a potential for food to be spilled on the floor anywhere from the playrooms back to the kitchen? A. Yes. Q. Indeed, there's a potential for food to be spilled moving the bowls from the kitchen to the sink to be washed into a dishwasher and the like. Do you agree with that? A. Yes. Q. The problem with mats is, you've got to know where the spill occurs. So, you've got to have that foresight, don't you? A. Yes. Q. So, you don't know how this noodle was spilled, do you? A. No. Q. Indeed, it could have been any sort of piece of food at any time, couldn't it? A. Yes. Q. It could have been spilled anywhere in the kitchen? A. Yes. Q. So, that if you're going to use mats as a way of eliminating a risk from slipping on food that gets dropped, you'd have to have mats over the entire floor, wouldn't you? A. I'm not sure. Q. Well, you've just accepted‑‑ A. Yeah, I did, but I never ‑ if there's food on the floor, I always pick it up. I'm trying to say is, if there was food there, I would have picked it up. Q. What you do then is you have in place a system of cleaning, essentially, which was what was there, wasn't it? A. Of what, sorry? Q. You were responsible as part of your duties for keeping the kitchen clean, weren't you? A. Yes. Q. So, that if something dropped on the floor, it potentially became a slipping hazard for you or anyone else that came into the kitchen? A. Yes."
Secondly, there was further cross-examination relevant to the issues raised by the first defendant as follows: "HIS HONOUR Q. You can complete your answer. A. Yes. If you're standing there that's where you serve the food at that kitchen bench. So, if it fell it would have fallen straight into the mat which is right in front of the kitchen bench. POLIN Q. Yeah and that might have stopped that fall? A. Yes. Correct. Q. But you've agreed with me that in operating this kitchen you need to move around and get food from all items, all areas of the kitchen, and there's a potential for food to spill at any part of the kitchen at any time, isn't there? A. Yes there is. Q. So, if we look at the lighter‑coloured areas in that photograph on page 205, if for example food had spilt on the lighter areas where there's no mat, a mat wouldn't have been any good would it? A. No but if I spilt food, I pick it up. Obviously I didn't see it, the tiny noodle on the floor. Q. But that's how these accidents happen, you spill something, and you don't realise you've spilt it? A. Yes. Q. So, at any other time you might have spilt something on this floor without realising you'd spilt it? A. I don't know, I don't think I don't agree. Q. Why not? A. Because I'm so tidy and neat in that kitchen that anything I spilt I picked up. Q. Well, you didn't pick up this one? A. Well, I didn't see it, that's what I'm trying to say. It's see‑through, it's clear, I'm not going to see it on the floor. Q. Yeah I understand that, so you could have potentially, well not just you, someone else, bringing the trolleys back as they did with the remnants of the lunch could have spilt a cellophane noodle on the kitchen floor in an area where there is not a mat on page 205 and a mat's not going to help is it? A. No not in that case."
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: "Q. Were you concerned that she had a problem with balance? A. I was worried ‑ no, just more that she was okay to walk. Like I said, the kitchen's a very physical job, and if you have a sore knee, because I have a sore knee, then that could be quite tough on you working those long hours and that intense work"

[11]

The Incident

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: "Q. And so in terms of this particular day, do you remember what time you had started? A. What time I started in the morning? Q. Yeah? A. Not really, but probably around eight. Q. So, what was your job then to do from eight moving forward? A. To cook the meals, the three meals. Q. Right, so there were three meals that you're providing? A. Yes. Q. What were the three meals? A. Actually, more ‑ no, there's only three that I did. There was morning tea, lunch, afternoon tea. Q. This incident occurred around about the lunch time? A. Yes. Q. So, the kids had already had one meal already? A. Yes. Q. That was morning tea. A. Yes. Q. What would be served for morning tea? A. All different things. Q. What sorts of things would be served? A. Sometimes fruit, sometimes like a muffin, like, I can't specifically say, but those sort of snack foods. Q. So, it was your job firstly to cut up the fruit, take it, peel it, cut it up into small pieces for the kids? A. Yes. Q. Put it out on plates? A. Yes. Q. Did you have to cook the muffins or would they brought them? A. No, I'd cook them. Q. Right, so you had to actually work to make the muffins, cook them, and then what, put them out on - A. The trolleys. Q. So, you would then deliver the food for the morning tea by means of trolleys down to the playrooms? A. Yes. Q. So, was it your practice to use three trolleys all the time? A. There was three trolleys because there were three rooms that the food went to. Q. Would you have the three trolleys inside the kitchen? A. The three trolleys were always inside the kitchen. When I started there, that's where they were. Q. When you use them, would you, for example, on this day for morning tea, fruit, muffins, and the like, would you cut it up and prepare it, put them onto the three trolleys? A. Yes. Q. Then wheel the trolleys? A. Yes."
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: "A. I don't know. Maybe it's a miss word, but that's the noodle, it's a Pad Thai noodle. Maybe they're clear like cellophane. I don't know."
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: Q. That's a bowl of noodles with meat and vegetables? A. Two bowls, yes. Q. So if we look at the photograph, you're at the bench, you've just put the noodles and vegetables into each of the bowls‑‑ A. Yes. Q. ‑‑and you pick up one in each hand, and you then turn to move towards the trolleys? A. Yes. Q. See that? A. Yes. Q. So you've told us that the trolleys are lined up behind you‑‑ A. Yes.
The plaintiff stated in her Statutory Declaration at [11]: "On 1 February 2016, I was serving lunch at the childcare centre. I was holding a bowl in both my hands, when I slipped on a noodle and fell forward. As I fell, I hit my left knee against a cupboard. Then I fell backwards onto the floor and hit my head on the ground."
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]): "49. It was in the course of transferring two bowls of noodles to the trolley that I slipped and fell. 50. I did not know that I had spilled anything from the bowls until after the accident when I looked at my shoe and at the floor. 51. The way in which I fell was unusual. I was standing at the bench and I had a bowl of food in each hand. I then turned to move towards where the trolleys were located and I took a small step with my right leg then turned and made a larger step with my left leg. 52. At that time, I was located with my hip approximately 30cms from the bench. 53. My left leg then went forward and I went forward. 54. As I was falling forward, I hit the bench and then I tried to regain my balance while holding the two bowls of food, which I did not want to spill. 55. As a result of my attempting to regain my balance, I fell backwards, my legs went in two different directions and I twisted my right leg, which came into contact with the bench and my left leg came into contact with the bench and I landed on my back. My head hit the floor and also partly struck the trolley. 56. I lay on the floor for a few minutes and I put the food bowls on the floor then I started to crawl towards the door because I thought nobody was aware that I had fallen. 57. Ruth Wilson turned up at the door a few minutes after I fell. Ruth said I heard a ruckus and I wondered what you were doing'. 58. Ruth got a stool and I dragged myself off the floor and on to the stool. Ruth went down the corridor and called an ambulance. She then came back to the kitchen and said to me: 'What happened?' I said: I slipped and fell forward and hit the cupboard, then I fell backwards and hit my head on the trolley that was behind me and then on to the floor. 59. Ruth said: 'What did you slip on? Ruth then looked at the floor. I could not see anything on the floor but Ruth looked at the floor and she said to me: 'Oh, there's a skid mark there'. 60. When Ruth pointed out the skid mark, I looked at it myself and I could see there was a skid mark about 10cms long located approximately 15cms from the cupboard. 61. Ruth and I then looked at the bottom of my shoes and there was a small piece of noodle in the tread of my shoe. I remember looking at the floor and there were no noodles on the floor. The only noodle or part of noodle that I saw was the bit that was sticking inside the tread of my shoe. There were no other noodles on the floor."
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: "Q. I just want to ask you one question about the accident. After you fell, did you look at your shoe? A. Yes. Q. What did you observe? A. That there was a tiny little bit of noodle in the shoe. Q. Where was it? A. On the front of the tread. Q. Where was it in relation to the treads? A. What do you mean? Q. Was it inside the tread or outside the tread? A. It was inside it."
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 shoes I was wearing were Croc Kitchen shoes. I bought them at premises at Alexandria that specialises in selling workwear for kitchen use. The shoes are like "Crocs" except whereas "Crocs" that are normally worn do not have any special tread on them, these particular type of "Croc" shoes have a tread on the bottom of them for use in kitchens."
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: "Q. You say that as you turn you took a small step with your right leg-- A. Yes. Q. --and then you made a larger step with your left leg? A. Yes. Q. So you're facing the window? A. Yes. Q. And your first step is with your right leg? A. Yes. Q. And your next step is with your left leg, and what you're intending to do is turn 180 degrees to the trolleys behind you-- A. Yes. Q. --and put the noodles on them? A. Yes."
When questioned further about her Supplementary Evidentiary Statement, the plaintiff gave the following evidence: "Q. Your intention is to turn 180 degrees to put those two bowls on a trolley behind you; that's right? A. Yes. Q. You said you moved your right leg, small step first, your left leg, you then take a large step, no doubt continuing to turn towards your ultimate destination? A. Yes. Q. So, you're turning and as the movement's being made, you are moving from facing the bench towards a position facing the trolley with your back to the bench? A. My back was not to the bench when I slipped. Q. No, it may not have been totally to the bench, but it was in the process of moving away from the bench? A. I was in the process of moving away from the bench. Turning, yes. Q. Then your left leg slipped forward? A. Yes."
Later in cross-examination, the plaintiff was unclear in her recollection of the way in which she stepped to turn around: "Q. If your movement was initially a twisting movement around to the right to put something on a trolley behind you, and your left leg was that you'd taken a large step, as you said-- A. I took a large step with my right leg, not my left. Q. Madam-- A. I'm not sure. Q. Well, at the top of page 192, I've tried to do it quite carefully. You took a small step with your right leg -- A. Yes. Q. --and you turned and you made a larger step-- A. Yes. Q. --with your left leg? A. Yes."
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: "Q. "My left leg then went forward, and I went forward". A. Yes. Q. That means you slipped, your left leg slipped forward? A. Yep, yes, and I went forward. Q. So you're there with a plate in each hand, your left leg slips forward, and your body moves forward-- A. Yes. Q. that's what you're saying. We're up to there. "As I was falling forward, I hit the bench"-- A. Yes. Q. --"and tried to regain my balance while holding the two bowls of food which I didn't want to spill". A. Mm hmm. Q. So you've slipped forward. When you say, the bench, are you talking about the bench under the window? A. Yes. Q. So as I understand your statement, you've said you've taken a large step forward with your left leg towards the trolleys? A. No, it's not towards the trolley. It was I was turning like that, so it's towards the - the bench. BARRY: Witness indicates turning from left to right. HIS HONOUR: Yes, that should be recorded. That is the motion the witness made. POLIN: From, sorry, turning left to right? HIS HONOUR: To right. So the witness swivelled-- WITNESS: Yeah."
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: "Q. And your right leg came in contact with the bench? A. No, my right leg didn't hit the bench. My left leg hit the bench. Q. So if you look at paragraph 55; this is what I'm trying to understand. A. So confused. Q. The second line, "I twisted my right leg which came into contact with the bench"; do you see that? Do you see the second line of paragraph 55 about five words in, "I twisted my right leg"; can you see that? A. Yes. Q. "Which came into contact with the bench"; do you see that? A. Yes. Q. So just before that you said your legs have gone in two different directions? A. Yes. Q. You've said your left leg was slipping forward? A. I - yes, it was slipping forward, I was slipping - and I fell forward. Q. Right, you fell forward. That means that your right leg went backwards, did it? A. I'm not quite sure. Q. But your right leg came, somehow into contact with the bench? A. Yes. Q. You then said your left leg came into contact with the bench? A. They both did. When I fell - fell - when I slipped, my left leg hit the bench first, and then I hit - I hit the bench, and then I fell backwards."
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: "Q. Yeah I'm suggesting you didn't hit the bench? A. I did hit the bench because I felt backwards off the bench. Q. Where does it say you felt backwards off the bench; is that just something you're saying now? A. No, it's not something I'm saying now."
When asked about the position of her legs while on the floor, the plaintiff gave the following evidence: "Q. You'd done what I called, but you had described as doing the splits, where your left leg goes in one direction and your right leg goes in another? A. Yeah, it's hard to explain it. When I turned, that leg slipped, I went forward, this leg went that way, and then I fell backwards. Q. But generally, doing the splits means one leg goes out in one direction and another goes in another direction, do you agree with that, and you end on the ground with the legs apart? A. Yeah, you do, when you do the splits, but what I'm trying to say is that that leg went that way, that leg went that way. That's what I'm trying to say, but I don't know about the splits."
There was an exchange in relation to where her head struck after her fall. That is extracted below: "Q. Because it then goes and says, "My head hit the floor". A. My head hit the back of the trolley where the trolleys were, and then hit the floor. I hit - I hit the trolley wheel, then the floor. Q. Right. So it says, "My head hit"-- A. Head hit the floor. Q. --"the floor, and also partly struck the trolley"? A. Yeah, that's right."
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: "Q. How could that happen? A. Because I was trying not to spill these meals, because I was thinking to myself, what are these kids going to eat if I spill these meals all over the floor. I don't know why they didn't spill, but they didn't. Q. So however you fell; one leg's going one way, one leg's going the other way, it sounds like you did the splits, you're then on the floor, you go backwards, your head hits the floor, so I take it your back is on the floor at-- A. Yes. Q. --that point, and you've got two bowls of noodles in your hand? A. Yes. Q. How could that have happened without spilling anything; not the slightest noodle out of a bowl? A. I don't know. I don't know. Q. Did it happen that way? A. Yes, it did. Q. Because you then say you lay on the floor for a few minutes-- A. Yes. Q. --and you put the food bowls on the floor; is that right? A. Yes. Q. That were nothing spilled at all? A. Nothing."
The plaintiff stated in her Supplementary Evidentiary Statement at [56]: "I lay on the floor for a few minutes and I put the bowls on the floor then I started to crawl towards the door because I thought nobody was aware that I had fallen."
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: "35. On 1 February 2016 at around 11am, 1 heard a weird 'whoomph' type noise coming from the kitchen area. I went to the kitchen and saw Ms Milne lying on the floor in a 'splits position' with legs extended outwards each way. 36. I do not remember specifically where Ms Milne fell but it was close to the bench. I don't remember what I said at that time, but I remember asking if she was okay. She said she hurt her leg and so I called an ambulance. 37. At the time I saw a single noodle on the floor with a mark coming from it. The kitchen was otherwise clean. I don't recall observing any noodle on Ms Milne's shoe. 38. The ambulance arrived and checked Ms Milne. She was able to walk to the ambulance. 39. At the time of the incident, Ms Milne was serving lunch. She would have been preparing food to put onto the trolley to send to the nursery for the infants. It could have been tofu pad Thai, but I am not sure."
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: "Cheryl was serving out the lunch when she slipped on a cellophane noodle. She said she did the split type motion."
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: "Q. Did you notice anything about the area where she was on the floor? A. The only thing that really stood out to me was how clean the area was. She was a very, you know, efficient cook, and it was a very clean space. I think the one thing I can remember was that, you know, I think I said to her that you slipped on the only thing that was on the floor because it was just so clean."
In cross-examination Ms Wilson, however, gave the following evidence as to the presence of a noodle at the point of the fall: "Q. In any event, you saw where she slipped. I think you have a recollection now having seen moisture on the floor where she slipped? A. Yes. Q. But you don't have a recollection of having seen the noodle? A. No. Q. But she was preparing noodles at the time? A. Apparently, yes. Q. Well, not apparently; you saw them, didn't you? A. Yeah. I ‑ I don't remember, it was a long time ago, I'm sorry, but yes, that ‑ that's what was in the document that was written then, yes."
Ms Wilson was taken to a particular aspect of the incident by senior counsel for the plaintiff. That exchange is as follows: "Q. I want to go back to one aspect of the accident. Do you remember that after Mrs Milne had fallen she said something about the noodles? A. I can't remember specifically, no, sorry. Q. Rather impolitely, did she say something like, "Those damn noodles"? A. She might've, I'm not sure. (This question concerned an earlier Evidentiary Statement made by Ms Wilson in 2018 to which I will now turn).
When cross-examined on the location of the skid mark that she saw, Ms Wilson gave the following evidence: "Q. And the mark that you observed on the ground, which you thought looked like water or some kind of fluid? A. Yes. Q. That was also near the bench? A. Yes."
Counsel for the first defendant questioned Ms Wilson on her observations on the plaintiff's position when she arrived, which is extracted as follows: "Q. When you came in, whereabouts was she? A. So there was the bench where you ‑ like big area where most times cooks are doing their preparation, it faces out towards the window. She was lying back from that, I guess, in the, like she'd fallen. Q. So she was facing away from the window? BARRY: I object to that. Don't lead. POLIN Q. You're giving a lot of sort of‑‑ A. Sorry. Q. --description in the witness box. Which way was she facing? A. So she was lying on her back with her face up, so that she'd fallen backwards and looking towards the window. Q. Where were her legs? A. I - she was laying with one leg straight, I think, and then the other leg kind of at an angle."
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: "Q. You said that she was lying on her back, and she had one leg straight and one leg bent. Remember that? A. Yes. Q. Which leg was bent? A. If I'm looking out the window, it would've been the, what is it, the right side. Q. The right leg or the left leg? A. The - this one, so the right. This is left, right. Q. The one that was closest to the bench? POLIN: No, she said the right. WITNESS: The right, because she was - my recollection is, this is the window, she's looking out that way of the Riverwood's kitchen, this leg is straight, this leg is bent. So this would be the - her right. So I'm her lying down. Is that what I've written? BARRY Q. You said that she was near the bench? A. Yes."
The plaintiff stated in her Supplementary Evidentiary Statement (at [65]): "While I was waiting with Ruth for the ambulance to arrive, Ruth said to me: "How could we have prevented this?" I said: "Rubber food mats" and Ruth said: "I have to write a report about this"."
The plaintiff was questioned on that exchange in cross-examination. The plaintiff responded as follows: "Q. So that you're there in pain waiting for an ambulance, and A. I was-- Q. --you're saying there's a discussion that takes place about how might all this be prevented? A. She told me she'd have to write an incident report. That's what she said. Q. Yes, she told you she'd write an incident-- A. Yeah. Q. --report, didn't she? A. Yes, she did. Q. Yes, but she didn't say anything-- A. Yes, she did. Q. --about mats preventing it? A. She did."
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: "Q. Do you recall talking to her during that period of time? A. I would have spoken to her just to help her feel relaxed and not stressed, especially if she was feeling pain. Q. Do you recall either her or you saying at some point in that time, saying, "How do you think we would have been able to avoid this fall"? A. I don't recall saying that at all. Q. Do you recall one saying, "Well, we could have used mats"? A. No, I don't recall that. Q. To which you said, "I'll put that in my report"? A. I don't recall that, no. Q. Do you recall any conversation like that taking place? A. Not specifically, and I think, for me, I'm assuming that I would have been more worried about her there and then, not trying to problem solve how to fix a solution, like that wouldn't seem appropriate to me at the time. I'd be more worried about her and how she was feeling and how much pain she was in just to make sure she was okay."
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: "Q. You don't feed the children cellophane? A. No. It's a ‑ it's a Asian type noodle that you eat in Pad Thai. I don't know if you've had Pad Thai. So they're long, flat rice noodles that you just have to heat in water, you don't have to cook them. Q. Why are they called cellophane? A. I don't know. Maybe it's a miss word, but that's the noodle, it's a Pad Thai noodle. Maybe they're clear like cellophane. I don't know. Q. And they're also referred to as glass noodles? A. I'm not sure about that one, sorry. Q. But in any event, they're translucent, you can't see them, can you? A. When they're ‑ when they're not ‑ I think, I haven't used Pad Thai noodles for a long time, but when you cook them or they're heated, I'm not sure if they go opaque. Is that the word? But I can't - "

[12]

Statement of Ms Wilson of 21 February 2018

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: "42. The Claimant's injury happened at 11am on 1 February 2016 as per the incident report I completed on that day. The incident happened at the Riverwood facility. 43. I heard a 'whoomph' type of noise coming from the kitchen area. The only other parts are the toilets, programming room, and another room. I then froze and waited for something. I then went down to the kitchen and saw the claimant laying on the ground on her left side with her right leg bent underneath and the left leg outstretched, and her left arm up above her head and the right arm facing downwards towards her legs. 44. I then asked the claimant if she was okay and what happened. She said that she had slipped on a cellophane noodle as she said 'those damn noodles'. I had gone over to her and to check if she had any injuries. I looked around and the kitchen was spotless but I saw a wet mark near her foot. I don't recall seeing the noodle anywhere around her."
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: "51. Following the Claimant's injury we removed cellophane noodles from the menu."
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: 1. "Tab 14: Agree to remove" (Item 2) 2. "Tab 89 except pages 1093 - 1495… Remove pages 1067 - 1259 and 1278 - 1324 and keep pages 1260 - 1277 (pre-injury payslips)" (item 9)
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: 1. The parties had agreed to remove Tab 14, being the Tab 14 pages or the Statement. 2. The plaintiffs had proposed the preservation of pages that incorporated the Statement (1093 - 1105) but the defendants had proposed, the exclusion of the Statement by referring in bold to pages 1067 - 1259.
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: "I resume the proceedings ahead of the conclave this afternoon, that's at 2pm, to deal with some disputes about the Court Book, or more particularly certain pages within the Court Book, and I've received a note, or at least a partial note about those issues. I've looked at the pages that have been referred to in the note, they're in groups, there's no particular rhyme or reason as far as I can see as to what is contained within a particular grouping, for example, Tab 23 to 38 contain a variety of material. How is it proposed I should work through these?"
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: "It's probably for me to respond to your Honour. The bulk of a substantial part of 89 has already been agreed to be removed. The part that is omitted according to the plaintiff between 1260 and 1277, which are essentially, the wage records of the plaintiff while she was employed by the second defendant, identifying her hours, her hourly rate and so forth and there's no objection to that."
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: "I see, alright, thank you. Before we come to the formulation of the Court Books then in their final form, is there anything further arising by way of issues concerning the Court Books?"
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: "HIS HONOUR: Now anything further on the materials? BARRY: Only this, your Honour, you'll see on the trolley over there are two copies of the actual tender bundles, which in the form before your Honour's dealt with them this morning. They will have to be attended to, and maybe that could be done before two o'clock, so those will be left for the Court then. HIS HONOUR: Yes. So the approach adopted, as I understand it, will be this, but tell me if I've misunderstood it. That the Court Books will retain their existing form, save for pages that have been removed because of rulings or consent positions, in which case a blank substitute page will be inserted with the same page number as the page removed. Is that the approach we're adopted? POLIN: Yes your Honour. HIS HONOUR: That would certainly be suitable to me. Well if that can be done, and those can be produced by the commencement of proceedings at 2pm then i'll provide the whole of the bundle in its adjusted form a marking, so it will be a single marking for the whole of the Court Books in their adjusted form, unless there's any objection to that course. POLIN: No."
The final discussion in relation to the Court Book appears on transcript 230: "HIS HONOUR: I don't propose to spend the time on it now, but there was to be produced the adjusted folders, that is, the Court Book for the purposes of tendering, so we can deal with that remotely. FLETT: They're up to date, yes, they've all been done. HIS HONOUR: They've been done, have they? FLETT: Yes. HIS HONOUR: Have you seen them? FLETT: They were done at lunch time. HIS HONOUR: Have you seen them, Mr Barry? BARRY: I haven't, your Honour. HIS HONOUR: If I was to mark them all rights reserved given that they are to contain. BARRY: I'm content with that your Honour."
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 the 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: "The result of this analysis of the evidence is: 1. The defendants incorrectly stated that there was agreement to the removal of MFI 2 behind Tab 24. 2. The solicitors for the plaintiff assumed that was correct and it was removed. 3. The statement remained in the Court Book at pages 1093 to 1105 and because the first draft of the plaintiffs submissions was prepared before the completed Court books were delivered the references to Ms Wilson's evidence were to page references from where the statement first appeared. Application was made on the last day of the hearing to reinsert the pages back into the Court Book instead of the Court having to find the statement where it was later included at p. 1093."
I shall deal with each of those propositions in the order appearing in the above quote: 1. The documentary record before the Court illustrated that there was an agreement between the parties to remove the Tab 14 pages (the submissions for the plaintiff mistakenly referred to Tab 24) from the Court Book. No alternative position was recorded in the record of proceedings before the court before the ultimate tender of the Court Book. Hence, there was no indication before the tender of the Court Book that there was any issue as to the removal of the Tab 14 pages. That issue only arose in the submissions made by counsel as to the tendering of the Statement. It follows that the submission by the defendants that there was an agreement to remove the Tab 14 pages was not erroneous, even if, on the plaintiff's side of the record, it had been desired that such a concession should not have been made. 2. The solicitor for the plaintiff did not make an "assumption" that the removal of Tab 14 was correct. The plaintiff's solicitor openly and conscientiously participated in a chain of communications to that end. Further, and more significantly, the earlier 20 March email merely communicated the defendants' agreement to that which had, in fact, been proposed by the plaintiff. 3. There are two matters requiring attention in this respect. The first is that it is incorrect to submit that the Statement remained in the Court Book under Tab 89. The final form of Exhibit 6 accurately reflected the agreement to remove the Tab 89 pages. The second matter is that the legal representatives of the plaintiff understood that the Statement had been removed from Tabs 14 and 89 from 20 March 2024. Even though the Court Book were tendered on 25 March 2024, and I have accepted were delivered later to the legal representatives for the plaintiff, junior counsel had received the final version of the Court Book (reflecting the parties agreement and the Court's rulings) by 9 April 2024. The date of receipt of the final version of the Court Book by senior counsel is not entirely clear but they were received prior to the filing of the plaintiff's closing written submissions on 16 April 2024.
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: 1. The evidence had closed. 2. The Statement was not enclosed in the Court Book. 3. Ms Wilson (who was called by the first defendant) had given evidence and was cross-examined and the contents of the Statement were not put to her. 4. That there are no compelling reasons why the Court should exercise its discretion in the plaintiff's favour to allow the document to be included as evidence at such a late stage.
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: "Q: And the mark that you observed on the ground, which you thought looked like water or some kind of fluid? A: Yes. A: Was that also near the bench? A: Yes"
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: "Q. You said that she was lying on her back, and she had one leg straight and one leg bent. Remember that? A. Yes. Q. Which leg was bent? A. If I'm looking out the window, it would've been the, what is it, the right side. Q. The right leg or the left leg? A. The ‑ this one, so the right. This is left, right. Q. The one that was closest to the bench? POLIN: No, she said the right. WITNESS: The right, because she was ‑ my recollection is, this is the window, she's looking out that way of the Riverwood's kitchen, this leg is straight, this leg is bent. So this would be the ‑ her right. So I'm her lying down. Is that what I've written? BARRY Q. You said that she was near the bench? A. Yes."
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: "29. There are some material differences between that statement and the statement made five years later being the witness statement prepared, presumably with the help of the solicitors for the first defendant. One of the differences was the reference to the words "those dam noodles". 30. At T171/10 Ms Wilson was asked this question: "Question: Rather impolitely, did she say something like 'those damn noodles'? Answer: She might have, I'm not sure." 31. In the statement made two years after the accident, MFI2, at [44] Ms Wilson said: "I don't recall seeing the noodle anywhere around her." 32. That statement was consistent with her evidence but inconsistent with paragraph 37 of the witness statement tendered by the first defendant. 33.This is consistent with the evidence of the plaintiff that the noodle was inside her shoe."
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.

[13]

After the Fall

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: "Fall C/O pain to L knee. C/T 52yo f. from workplace, O/A pt [patient] sitting on seat, alert and oriented Pt states slipped on floor, states landed in splits position & fell backwards Pt states bumped head, Pt states pain in L lateral knee on weight bearing PT denies any head pain or neck pain now, Pt denies any pain in knee on sitting still… Pt states pain 8/10 on standing/walking. Pt refused pain relief other than ibuprofen. Pt states took panadol osteo approx.10.30 this AM"
When the plaintiff was asked in cross-examination about what she told the ambulance officers, the following exchange took place: "Q. So, they asked you what had happened. At that point in time, it doesn't appear that you had told the ambulance officers that you had hit your left knee. Do you agree with that? A. Yeah, I do, but I honestly don't remember what I said to them."
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: "Q. The next place you went to after the ambulance officer saw you, they took you to the hospital. Is that right? A. Yes. Q. This is book 3, page 997. So, you're at the hospital, you're obviously there to get treatment, and they want to know as best you can tell them the precise mechanics of your fall to determine what sort of knee injury you had. Do you understand that? A. Yes. Q. So, you can see towards the bottom of the page there's a heading, "Admission Summary", then there's another heading, "History of Presenting Illness". Do you see that? A. Yes. Q. I'll read it out. It's quite small, but best I can: "Ms Milne presented post slip and fall after which she experienced left lateral knee pain. She denies direct injury to the knee but feels like she may have pulled it during her fall. She reported hitting the back of her head but denies headache, nausea, vomiting, dizziness or visual changes. She reported not being able to weight bear after the fall." Do you see that, so the hospital are trying to identify the sort of knee injury you suffered to treat it appropriately, and it appears you specifically denied any direct injury to your knee. It's quite clear there, isn't it? A. (No verbal reply) HIS HONOUR: I think you'll need to provide a verbal answer. WITNESS: If that's what it says. POLIN Q. So if the combination of those two contemporaneous medical records of the ambulance and the hospital, and they obviously weren't there, but you're confirming, (1) you sort of did the splits, so one leg going one way, the other leg going the other way, and that you didn't have a direct injury to your left knee, but felt that you may have pulled it when you fell? A. I don't know. Q. Well, you're not saying-- A. I - I can't - I can't remember what I told them. Q. But it looks fairly clear from what is recorded in the hospital notes where they use the word, "That you denied", that that's what you denied; that's right, isn't it? A. I guess. Q. You're not suggesting your memory as you sit in the witness box today is any better than that, are you? A. Pardon? I'm what, sorry? Q. You're not suggesting that you've got a better memory as you're sitting in the witness box today-- A. No, I'm not. Q. --of what occurred than you had-- A. No. Q. --when you were asked by the-- A. No, I'm not saying that. Q. So would you accept then that the likelihood is that you didn't hit your left knee when you fell, but that you felt a pulling in your knee during the course of the fall, and that's what was causing the pain? A. No, I'm pretty sure I hit my - my knee. I don't remember what I told them at the hospital."
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.

[14]

MECHANISM OF THE FALL

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 order to assert a duty of care to avoid the risk of injury that she sustained, the claimant was required to establish with a degree of precision not only the location but also the manner and cause of her fall."
In Shoalhaven City Council v Pender [2013] NSWCA 210 ("Shoalhaven City Council v Pender") at [47], McColl JA stated: "In order for the respondent to succeed against the appellant, he had to adduce evidence supporting a positive inference implying negligence on its part, an inference which arose as an affirmative conclusion from the evidence and one which was established to the reasonable satisfaction of a judicial mind. The evidence had to rise above the level of conjecture, could not be based on possibilities but had to be established as a matter of probability, and had to do more than give rise to conflicting inferences of equal degrees of probability."
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: 1. She was standing at the preparation bench at the southern wall moving bowls from that location to trolleys behind her. It may be inferred that as those movements required "reaching" to hold the bowls and then "twisting" to place the bowls on the trolleys. The plaintiff was standing near the bench (within reaching distance) and the trolleys were equally in close proximity. 2. The actual distance given by the plaintiff from where she was standing to the bench was 30 centimetres (between her hip and the bench). That does not appear to be an unreasonable estimate given the task at hand but, in any event, that evidence was, in my view, confirmed by Ms Wilson's observations made soon after the fall. She gave evidence of finding the plaintiff being laying "close to the bench" and finding fluid next to the plaintiff's foot "near" the bench.
As to the other circumstances of the fall, the evidence revealed: 1. The slip occurred at around 11am. 2. The plaintiff slipped and fell to the floor of the kitchen. The location of that fall is near or close to the bench on the southern wall of the kitchen as discussed above. 3. The slip was upon a noodle located near the bench, in all probability falling to the floor during the course of the meal preparation. The plaintiff says she did not observe a noodle on the floor but did see one in the tread of her shoe. I have accepted that evidence. Ms Wilson did not see the noodle but accepted the contemporaneous account given to her by the plaintiff. Furthermore, Ms Wilson observed some fluid and a mark on the floor near the foot of the plaintiff which it may be inferred she understood to be associated with slipping on the noodle. 4. The noodle was translucent and not readily detectable when it fell to the floor. That position is readily acceptable given the colouring of the kitchen floor. 5. The plaintiff's evidence as to the manner of the fall was confused, and, as I have found, unreliable. There did not seem to be any dispute, however, that upon falling the plaintiff did something like the splits. Ms Wilson's account was that she was found lying either on her back (in cross-examination) or on her left side (in the Statement) with her right leg bent underneath and her left leg outstretched. I accept that evidence. 6. The plaintiff injured her left knee during the fall and was taken to hospital for treatment. As earlier mentioned, I do not consider the evidence sustains a conclusion that the plaintiff struck her knee against the bench or on the floor resulting in a blunt force injury to the knee. I have found her evidence as to the fall to be unreliable except where corroborated by Ms Wilson. Ms Wilson found the plaintiff in a position which did not sustain a proposition that the applicant had hit her knee on the bench. In particular, the plaintiff's evidence about hitting her knee in cross examination was both poor and unconvincing. Her account was inconsistent with the contemporaneous medical records even though she later denied the accuracy of the medical report taken in emergency. That denial was at a much later time, was self-serving and is otherwise impacted by my adverse findings.
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.

[15]

The Adams Report

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: "The floor of the kitchen comprises a vinyl product (or similar) that has been manufactured to present a lightly textured surface to pedestrians, to afford better slip resistance in wet or otherwise contaminated conditions than would be available on a smooth but otherwise similar surface. It is reasonable to infer that some wear of the surface would have occurred during the period of close to 6 years that elapsed between the incident and my inspection."
After setting out a table of his measurements of skid resistance values, Mr Adams made the following statement: "According to the long-standing, reasonably comprehensive, and readily available Australian guide to the provision of appropriately slip resistant pedestrian surfaces in various situations (being HB197.1999 An Introductory Guide to the Slip Resistance of Pedestrian Surface Materials) interior pedestrians areas where the occasional presence of water is entirely predictable should have flooring provided from the 'X' category of surfaces, which encompasses materials on which will be obtained an average SRV of at least 35 (when tested in accordance with the current Standard pertaining to new pedestrian surfaces). The results of the measurements I performed on the floor of the kitchen, using the same equipment and the same procedures as those required for new surface testing, indicate that the floor was more than sufficiently slip resistant to be categorised as appropriate for that type of situation, having regard to that general recommendations in HB 197. However, that guide also states "In Table 1, the reference to what might provide a safe coefficient of friction has been deliberately expressed as 'Possibly 0.35 to 0.46 when tested wet according to AS/NZS 3661.1, reflecting the old acceptance criterion of 0.4. However, where slippery contaminants are more likely, for example a commercial kitchen, a safe coefficient of friction might be 0.60 or above.". The results of the measurements I performed indicate that the floor did not satisfy that more specific recommendation in November 2021, and the measurements I performed near the edge, where less wear would probably have occurred, suggest it is unlikely to have done so in February 2016."
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: 1. Flooring that was sufficiently slip resistant to meet the minimum requirement for safety set out in HB 197 for commercial kitchens could have been provided in the kitchen; 2. Matting that was specifically designed to minimise slipping risks in such locations could have been supplied and used in the kitchen (as has since been done, and has been done in many other commercial kitchens and other food preparation facilities to control the risks of slipping that could otherwise be expected to continually arise).
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: "In my opinion, habituation, and the associated progressive diminution of Ms Milne's capacity to remain constantly vigilant against and prepared for an ongoing risk that she had probably successfully avoided on many previous occasions, is one factor likely to have contributed to the incident she ultimately experienced."
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.

[16]

The Strautins Report

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): "8.13 In my opinion, the slip resistance of a floor surface or footwear in managing the risk for a solid contaminant is relatively ineffective unless there is adequate volumetric displacement. Volumetric displacement is a measure of how profiled a surface is. That is, if a noodle is squashed by the foot, there is sufficient volume for the contaminant, in this case a noodle, to flow into the profile of the floor or within the tread of the shoe and allow contact between the foot and the floor. 8.14 This is because, when a person steps on a solid substance, the floor and the tread of the shoe may afford suitable traction. However, as the solid substance is squashed, the available traction within the system relates to the minimum force to shear the material and then becomes the effective surface in which traction is provided. The inner 'flesh' of the material, which is now the effective sliding surface, creates a system of low friction. 8.15 The likelihood of this low friction system occurring can be reduced by creating sufficient volumetric displacement within either the floor surface or the tread of the shoe to capture and provide interaction between the floor-shoe interface. 8.16 From my inspection, the surface does not have any effective volumetric displacement and provides little resistance to slipping. If a person was to step on a solid substance and consequently the risk of slipping would be relatively high int eh (sic) circumstance of stepping on a noodle. 8.17 For the reasons above, I do not agree with Mr Adams that it was a simple matter of providing a floor with a high coefficient of friction of 0.60 when tested to the relevant Australian Standard, namely AS 4586 or AS 4663. Further to this Standards Australia HB 197 does not recommend volumetric displacement for this location, it simply recommends R11. 8.18 Consequently, in the case of a slip initiated from a solid substance such as a noodle in this instance, the preventive measure of increased friction suggested by Mr Adams would not have made any meaningful difference to prevent the incident occurring. The surface already had quite a high level of slip resistance. In my opinion, other control measures are more critical to effectively manage the risk, which I outline further below in the next section of this report."
In relation to controlling the hazard of the noodle, Mr Strautins opined: "8.19 In managing the hazard, in my opinion matting may not be an appropriate measure in managing the risk in the subject area. This is because matting presents as a trip hazard because of a change in height which could also cause a fall. Regardless of the type of flooring, the slip resistance if mats were provided should be at least R11 slip resistance. A profiled mat would have prevented a slip in this instance, at the expense of increased risk of tripping. Mr Adams has not considered this in his assessment in balancing risk. Matting is more appropriate as an interim measure where surfaces have been identified as being quite slippery; this is not the case in this circumstance."
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: "9.3 The industry guidance for slip resistance Standards Australia HB 197 An Introductory Guide to the Slip Resistance of Pedestrian Surface Materials does not recommend volumetric displacement for a kitchen in a childcare facility and in my opinion the use of mats increases the risk of a trip. In my opinion, other control measures are more critical to effectively manage the risk, effective, good housekeeping. The risk of slipping on food in a kitchen cannot be eliminated, reasonable actions that could have been undertaken include the following measures: (c) Taking care to reduce spillages on the floor. (d) Monitoring the condition of the floor."

[17]

The First and Second Joint Report

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: "1. The floor was inspected and assessed by both of us as adequately slip resistant for safe pedestrian movement in the presence of water (or similar) acting as a lubricant. 2. It is reasonable to infer that at the time of the incident the floor would have been adequately slip resistant for safe pedestrian movement in the presence of water (or similar) as a lubricant. 3. The floor has minimal volumetric displacement and provides little resistance to slipping in the presence of contaminants (eg. dropped food) that are neither water nor similar to water. 4. The risk of slipping on a contaminant such as a noodle on the floor that was not noticed would be relatively high, compared with a surface contaminated with water or waterlike substance. 5. The inclining platform test to AS 4586-2013 Appendix D considers contaminants other than water in commercial and industrial environments e.g., food ingredients (such as a noodle) and oil in the case of commercial kitchens and for preparation areas, such as the working space in this matter. 6. The relevant recommendations for flooring are set out in HB 197, which specifies R11 flooring for commercial kitchens. 7. The material on the floor of the kitchen has been identified as Tarkett Safetred Universal. 8. The datasheet published by the manufacturer of that flooring lists the slip resistance rating for that material as R10. However, it is unclear whether the surface achieves an R11 classification. The product data sheet states slip resistance as R11 however there is a contraindication in the FLOOR, WALL AND CABINETRY FINISH document on page 2 describing the floor finish as "Safetred Universal R10". The description of the floor finish having the suffix R10 indicates the surface achieves R10, this nomenclature is quite common in the flooring industry. Mr Strautins has requested through his instructing solicitor to obtain documents in the form of slip resistance test reports. However, we request further for these test reports to be made available to verify the slip resistance in considering 'safety in design'. 9. We request the supplier of the flooring to provide tests reports so that we can ascertain whether the surface met the recommended R11 slip resistance for the circumstance of a kitchen preparing meals in a childcare facility. 10. Flooring materials with R11 ratings, may, but not necessarily, have more pronounced profiling, and therefore more volumetric displacement, than flooring materials with R10 ratings. 11. The noodle on which the slip is alleged to have occurred likely arrived on the floor as a result of action(s) by the Plaintiff. 12. One or more clear noodles on the floor may not have made a strong visual contrast against the background of the floor."
The second Joint report then proceeded to deal with two issues as follows: 1. Whether the risk of slipping would have been significantly reduced if the floor had satisfied the specifications set out in HB 197. Further, the experts did not agree that more slip resistant material should have been provided as flooring in the kitchen. 2. Whether the plaintiff should be considered responsible for controlling the slipping risk to which she would have been exposed in the presence of food spillages on the floor.
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: "In my view, a system of risk control that relies on a kitchen worker to unfailingly exercise the constant vigilance that would be necessary to ensure that she always detects and either immediately cleans up or avoids every spill of food as she performed tasks associated with preparing and serving food is one that will inevitably fail to prevent slips, given sufficient time. This is because of the factors outlines in paragraph 3.1.7 in my original report in this matter. "
As to Mr Strautins, he observed: "If the surface achieved an acceptance angle of 16 degrees or greater, when tested to AS 4586 Appendix D then the surface is not a significant factor. This is because there would be no meaningful difference in the probability of slip."
As to the first joint report, the experts were asked the following question: "Given the system of work described by the Plaintiff and involving the making and transporting of containers of inherently slippery food (glass noodles) should the area near the cupboards have been covered with mats?"
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): "2.2.1.1 Although objective measurements confirm that the floor that was provided in the kitchen in which Ms Milne was working when she slipped and fell was sufficiently slip resistant to provide for the safe movement of pedestrians in the presence of water, that type of flooring - indeed most types of flooring that is used in working environments such as kitchens - does not effectively control the risk that workers might sustain injury as a result of slipping on an unseen contaminant of the type that can be expected to be present from time to time on the floor of a commercial kitchen. This is because those types of contaminants can be effectively interposed between the shoe sole and the underlying floor, rendering any slip resistive properties of that floor entirely redundant. 2.2.1.2 In my view, the potential for contaminants in the form of dropped food to arrive on the floor of a workplace kitchen from time to time due to the actions of kitchen staff, and to remain undetected by kitchen staff, is quite predictable, and should have been identified by the defendants as a slipping risk during a prospective hazard identification and risk assessment process. The risk of a worker sustaining injury due to a slip on the kitchen floor in the presence of that type of contaminant should also have been predicted during that type of process. … 2.2.1.4 In my view, eliminating the risk by developing and implementing a system of work that ensures that no potential lubricants ever reach the floor undetected by kitchen staff is not reasonably practicable, because it is a system that will inevitably fail from time to time due to normal aspects of human behaviour. The control selection process must therefore start at subclause (3) in the above extract. Neither (3)(a) substitution nor (3)(b) isolation is reasonably practicable, because kitchen workers must work with food and they must walk on the floor. However, providing mats with perforations or profiles, or alternatively metal grates, to allow dropped items to fall or be pushed through the holes and/or into locations where they will not be interposed between the shoe sole and the effective pedestrian surface (ie. the top of the mat or grate) is a (3)(b) engineering control that has a high likelihood of being effective in controlling the slipping risk. Suitable mats in modular form could have been laid end to end throughout the area of risk, further reducing the residual tripping risk already minimised by bevelled edges of the matting. 2.2.1.5 At the time of my inspection in the kitchen two suitable perforated mats were on the floor (eg. see Image 1, below). There were also three other mats that were likely to be less slippery than the flooring in the presence of dropped food, without being as effective as the perforated mats. All of the mats had bevelled edges to minimise (to the extent reasonably practicable) the potential for them to impose a tripping risk on the Plaintiff as she worked in the kitchen. … 2.1.6 The use of suitable mats or gratings is not a novel approach to the predictable risk of slipping in commercial kitchens…"
Mr Strautins opinion, in this respect, was as follows: "2.2.2.1 There is nothing remarkable about this food preparation area in context of similar facilities and in my opinion, there was no apparent or significant deficiency that caused concern for me; the slip resistance was suitable for the circumstance. 2.2.2.2 The relevant Australian Standards and guidance material in the form of handbooks do not recommend floors to have volumetric displacement or provide for perforated mats in food preparation areas such as in this circumstance. 2.2.2.3 In my opinion the control measure of mats, and in particular perforated mats that Mr Adams says should have been used is matter of hindsight. There is no literature that Mr Adams can point to that would specially alert those responsible in managing the risk of slipping to ensure that perforated mats' were provided. 2.2.2.4 The net overall benefits versus harms in the use of mats requires to be considered. This is because of the inherent potential harm of tripping that exists. The probability of tripping can be assessed further through scientific literature such as Best, R., Begg, R., 2008. "A method for calculating the probubility of tripping while walking*, Journal of Biomechanics 41 (2008) 1147-1151, where the study reports: "the probability of hitting an unseen, 1.0 cm high object (occurring at MTC) is once every 2.1 strides. PT reduces for smaller obstacles, as would be expected. e.g PT for a 0.5 cm high obstacle is 1 in 95 strides " 2.2.2.5 In my opinion, there is no meaningful net benefit in the use of mats for flooring in this instance of managing the residual risk of slipping; the use of matting does not eliminate the risk of a slip and is offset by the risk of a trip."

[18]

THE PLEADINGS

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: "a. Failing to provide the plaintiff with a safe means of access and egress to the offending area; b. Failure to ensure the Plaintiff's safety by ensuring that the offending floor was free of contaminants and/or failure to provide provision of non-slip mats appropriate for kitchen areas such as the kitchen at the First Defendant's premises; c. Failure to warn the plaintiff as to the dangers associated with the preparation of foodstuffs and the like in an area which did not contain protection as outlined above. d. Res ipsa leguita e. Failing to provide any floor mats: f. Failing to train or instruct the Plaintiff in safety procedures: g. Failing to provide suitable and safe equipment: h. Requiring the Plaintiff to prepare meais which exposed her to the unnecessary risk of injury: i. The Plaintiff repeats the particulars of negligence against the Second Defendant as particulars of negligence i to l against the First Defendant."
The particulars of the negligence of the Second Defendant were pleaded as follows: "a. Failed to devise. institute or maintain a safe system of work: b. Failing to provide the Plaintiff with a safe means of access and egress to the offending area: c. Failing to ensure the plaintiffs [sic] safety by ensuring that the offending floor was free of contaminants and/ or failing to provide provision of non - slip mats appropriate for kitchen areas such as the kitchen at the Second Defendant's premises: d. Failing to warn the Plaintiff as to the dangers associated with the preparation of foodstuffs and the like in an area which did not contain protection as outlined above. e. Without limiting the generality of the foregoing. caused or permitted a system of work wherein workers such as the plaintiff were exposed to risks such as slipping on unprotected or inadequate surfaces. f. Failed to provide any or adequate training, instruction, or induction to the Plaintiff. g. Failed to provide any or any adequate supervision of, or assistance to the Plaintiff. h. Failed to warn the Plaintiff that she was in a position of peril, when the Second Defendant knew, or ought to have known that the Plaintiff was in peril. i. Failed to conduct any or adequate inspection of the premises at which the Plaintiff was required to perform duties. in order to identify and eliminate the risk that materialised, namely the hazardous nature of the work being undertaken by the Plaintiff. j. Failed to provide a safe place of work, and proper and appropriate equipment. k. Failed to maintain the standard of workplace safety required of an employer and person controlling a worksite under the provisions of the Work Health and Safety Act 2011 (NSW) and AMB Regulations: l. Failed to comply with Part 2. Div 2 & 3 of the Work Health and Safety Act 2011 (NSW) by: Failing to take any/ or reasonable care to identity foreseeable hazards arising from the conduct of of the Defendants undertaking which had the potential to cause harm to the health and safety of the Plaintiff. Failing to identify hazards arising from work practices and work systems. Failing to ensure that any/ or effective procedures were in place and were implemented to identify hazards while work was being carried out. Failing to assess the risk of harm to the health or safety of persons lawfully engaged upon a worksite which they controlled. Falling to eliminate any reasonably foreseeable risk to the health or safety of persons lawfully engaged upon a worksite which they controlled. Falling to provide reasonable supervision necessary to ensure health and safety of workers on the building site.
The following statements were contained in the first defendant's Defence: "(a) Says the plaintiff was employed as a chef by BRC Recruitment Pty Ltd; (b) Admits the plaintiff was present on the defendant's premises on 1 February 2016; and (c) Otherwise does not admit that it owed the plaintiff a duty of care in the terms pleaded. … the defendant: (a) Does not admit the plaintiff slipped and fell forward due to foreign material on the floor; and (b) Does not admit the plaintiff suffered injury, loss and damage in the manner pleaded in the statement of claim and statement of particulars."
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: "6. Further, the defendant relies upon sections 5B to 5E of the Civil Liability Act 2002 (the Act) and says: (a) The defendant was not negligent as defined by the Act; (b) The defendant was not negligent in failing to take precautions against the risk of harm to the plaintiff, by reason of the provisions in sections 5B and 5C of the Act; (c) Any injuries suffered by the plaintiff were not causally connected to any act or omissions of the defendant pursuant to 5D of the Act. 7. Further, in response to the statement of claim as a whole, the defendant relies on sections 5F, 5G, 5H and 5I of the Act and says that if there was a risk posed to the plaintiff (which is not admitted), then it was an obvious or inherent risk of which the defendant had no duty to warn the plaintiff. 8. Further, and in the alternative, in response to the statement of claim as a whole, the defendant says that it had a contract with AMC Cleaning NSW Pty Ltd (ABN 86 152 923 718), which was in effect at the time of the incident and by which AMC Cleaning NSW Pty Ltd was subcontracted by the defendant to clean the premises. 9. Further, in response to the statement of claim as a whole, the defendant relies upon sections 5R and 5S of the Act and says that if the plaintiff suffered injury as pleaded (which is denied) then the damage and loss allegedly suffered by the plaintiff was due to the plaintiff's own negligence."
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: "5. The Second Defendant denies the allegations and particulars of negligence as alleged against it at paragraph 7 of the ASOC. 6. The Second Defendant denies the particulars of injuries and particulars of loss and damage, as alleged in the ASOC and Statement of Particulars. 7. The Second Defendant denies the Plaintiff is entitled to damages as against it. 8. Further, or in the alternative, the Second Defendant says that any injury or loss or damage sustained by the Plaintiff (which is not admitted) was caused or contributed to by her own negligence, particulars of which are as follows: 8.1 Failed to take any or any [sic] proper care in and about the performance of her work; 8.2 Failed to take proper precautions for own safety in the performance of her work; 8.3 Failed to take any steps to avoid the consequence of any act or omission of the Second Defendant relied upon; 8.4 If the Plaintiff was exposed to dangers in the performance of work (which is denied), failed to advise the Second Defendant of those dangers; 8.5 If the Plaintiff was exposed to dangers in the performance of work (which is denied), failed to remove herself from such danger; 8.6 If the Plaintiff was exposed to dangers in the performance of her work (which is denied), failed to request the Second Defendant to remove any such dangers; 8.7 If the Plaintiff's work with the Second Defendant could not be safely undertaken (which is denied), elected to so do when not required so to do by the Second Defendant; 8.8 Failed to keep a proper lookout for food on the floor. 9. The Plaintiff was negligent in failing to take sufficient care for her own safety and damages should be reduced pursuant to section 151O of the Workers Compensation Act 1987. 10 The Second Defendant submits that compensation payments have been made to, for and on behalf of the Plaintiff pursuant to the Workers Compensation Act 1987 and the Second Defendant raises these payments and any further payments which it may make to, for and on behalf of the Plaintiff pursuant to the Workers Compensation Act 1987 as a defence to the action."

[19]

The Duty of Care owed by the first Defendant to the Plaintiff

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 respondent did not contend at trial, or on appeal, that the appellant owed him any duty of care higher than that of an ordinary occupier of land. That duty required the appellant to take reasonable care to avoid a foreseeable risk of injury to the respondent arising from the physical state of its land on the assumption that he used reasonable care for his safety: Australian Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 488) per Mason, Wilson, Deane and Dawson JJ; Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330 (at [45]) per Gummow J."
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]: "Finally, the scope of an occupier's duty is delimited by the expectation that users will exercise reasonable care for their own safety: see Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [159] and Jackson v McDonald's Australia Ltd at [8]. As Gummow J observed in Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 at [45], the expectation that a potential plaintiff will exercise reasonable care in a case such as the present goes not merely to the assessment of breach, but is a "specific element contained, as a matter of law, in the scope of the ... duty of care".
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]): "But correct identification of the risk is a question logically anterior to the assessment of breach. The risk which requires identification is the risk which materialised. Clearly that can only be identified with knowledge after the event. I am of the view, as I said in Vincent v Woolworths Limited [2015] NSWSC 435; [2015] Aust. Torts Reports 82 - 215, that the anterior question of risk identification can only be undertaken with the benefit of hindsight. If the focus is on identification of "the true source of potential injury" (Dederer at [60]) this cannot be done without knowing what happened to the plaintiff: Vincent at [26] - [27]. I said at [27]: It should be recognised that there is an implicit degree of artificiality in assessing breach, after the event, prospectively. But the air of artificiality becomes overwhelming if one eschews all hindsight when correctly, or accurately, identifying the risk of injury at the outset. In putting it this way I am not attempting to defy authority binding on me rather, I am attempting to apply it in the ordinary, everyday business of the trial court. It seems to me, reading Gummow J's judgment in Dederer, especially from pp 351-355, as a whole, the question of the proper identification of the risk is a precursor to the assessment of breach. That is to say it is a question logically anterior to, and separate from, the assessment of breach. At that preliminary point it is permissible, indeed necessary, to know what happened and what act or omission the plaintiff says constitutes negligence. These matters involve hindsight. When these things are known, one then embarks upon (returns to, as Gummow J put it: Dederer at [65]) "the inquiry into the assessment of breach". From this point on, all hindsight reasoning is impermissible because hindsight diverts attention from what reasonable care required in foresight, to whether in hindsight the defendant could have prevented the accident which befell the plaintiff: (citations omitted.)"
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]): "106. The proper assessment of the alleged breach of duty depends on "the correct identification of the relevant risk of injury", because it is only then that an assessment can take place of what a reasonable response to that risk would be. The enquiry is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm for which the plaintiff seeks damages. The characterisation of the relevant risk should not obscure the true source of the potential injury. 107. The correct approach to characterisation of the risk for the purposes of breach of duty under s 5B of the Civil Liability Act was adopted in Port Macquarie Hastings Council v Mooney. In that case, a pedestrian slipped and fell into a stormwater drain on an unlit, temporary gravel footpath. The characterisation of the risk ignored the manner in which the pedestrian fell, and the particular hazard which precipitated the fall (the stormwater drain). Sackville A-JA said: "The relevant risk of harm created by the construction or completion of the footpath was that in complete darkness a pedestrian might fall and sustain injury by reason of an unexpected hazard on the path itself (such as an unsafe surface or variation in height) or by unwittingly deviating from the path and encountering an unseen hazard (such as loose gravel, a sloping surface or a sudden drop in ground level)." … 125. A more accurate characterisation of the risk was that expressed by McCallum JA, in her Honour's description of the risk as "the risk of injury as a result of falling from a horse that slipped by reason of the deterioration of the surface of the arena". To adapt that description, consistently with the essential facts that established the risk for the purposes of the breach of duty, the risk should be characterised as the substantially elevated risk of physical injury by falling from a horse that slipped by reason of the deterioration of the surface of the arena. Just as the characterisation of the risk in C G Maloney did not include the way in which a person might slip on a polished floor and the characterisation of the risk in Menz did not include the way in which a horse might be "spooked" by stimulus, no more precision than this was necessary in characterising the relevant risk in this case. Contrary to the reasoning of Payne JA, it was unnecessary to identify "the way in which … the surface had deteriorated".
The plaintiff contended that the risk of harm in the present matter should be identified as follows: "The risk to the plaintiff of aggravating the known pre-existing arthritis in her knee by slipping and falling on an inherently slippery piece of food spilled in the course of transferring sixty bowls of noodles in a short period of time from a bench to a trolley behind her."
The first defendant submitted: "the risk of injury is not simply "slipping on the kitchen floor", because the floor was designed to be slip resistant when dry or wet, the risk of injury is therefore the risk of a worker at the site slipping on food or solid contaminant on the floor."
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: 1. The floor had adequate slip resistance for safe pedestrian movement in the presence of water acting as a lubricant. 2. The floor had minimal volumetric displacement and provided little resistance to slipping in the presence of contaminants which are neither water nor similar to water, such as, the noodle on the floor upon which the plaintiff slipped. 3. The risk of slipping on such a contaminant that was not noticed would be relatively high compared with a surface contaminated with water or a water like substance (in comparison with contaminants in commercial and industrial environments such as food ingredients).
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: 1. The process involved the plaintiff effecting the transfer whilst focused on holding two bowls, one in each hand, under time pressure thereby minimising her capacity to detect any fallen food and to monitor for the same. 2. The noodles were translucent in nature. That, by itself, hindered her ability to detect the fallen noodle. That position was exacerbated by the colour of the floor as I have earlier discussed. The plaintiff did not see the noodle on the floor prior to the fall, notwithstanding a meticulous attention to cleaning the kitchen including the floors.
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.

[20]

Standard of care owed by the first defendant to the plaintiff

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: "negligence means failure to exercise reasonable care and skill."
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: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless - (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) - (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.
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: 1. The inquiry about whether a defendant ought to have taken the precautions for which the plaintiff contends turns on (amongst other relevant matters) the foreseeability of the risk, whether that risk was not insignificant and whether in the circumstances, a reasonable person in the person's position would have taken those precautions. The inquiry is not to be undertaken in hindsight: Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62; it must be looked at prospectively, before the incident occurred: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 (Adeels Palace). 2. The inquiry is not confined to what could have been done to eliminate, reduce or warn against the risk. While asking what could have been done will reveal what was practicable, it is necessary to ask also: would it have been reasonable for someone to take those measures? In other words, the knowledge of how the plaintiff actually came to sustain his injury has to be excluded when considering whether someone was obliged to take any precautions in the circumstances: see Neindorf v Junkovic [2005] HCA 75, [93] (Hayne J). 3. A party does not breach its duty of care merely because there are steps that it could have taken to avert the risk that actually materialised.
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: 1. The first defendant's cleaning procedures were reasonable and the first defendant conducted regular risk assessments. It engaged a contract cleaner to attend the kitchen and cleaned the kitchen floor every evening. 2. The plaintiff was an experienced chef who understood that spillages must be cleaned. She had a cleaning schedule for the kitchen detailing daily, monthly and three-monthly cleaning tasks and ensuring all surfaces were cleaned frequently during the day. It was her responsibility to keep the floors of the kitchen clean when working there. 3. Meals were served not only in the kitchen but in the playrooms and the food was transported from the kitchen to the playrooms along aisles on the same linotype floor as was found in the kitchen. There was a potential for food to be spilt on those floors at any time. 4. The plaintiff accepted that the only way a mat would be useful to avoid a slip was if the contaminant actually fell on the mat. She also agreed that in order to place the mat in a position to avoid the risk, it would be necessary to have foresight as to where the spill was likely to occur.
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: 1. The reasoning is retrospective because you need to know where the spill is going to occur before you place the mat. 2. Ms Wilson was a director of the first defendant. She said that on occasions mats had been placed in kitchens in their childcare centres. She said this had been done for cooks who would be required to stand for long periods of time. This was to take pressure off their feet. She said that she had never directed that mats be placed in any kitchens to guard against a slip hazard. 3. There was no evidence of any prior or post slips in this kitchen. This alone would confirm that the floor was not inherently slippery. There was, therefore, no indication that the surface was unsafe, and no intervention was required to modify or replace the surface to increase slip resistance.
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: ""[13] Some of the child care centres where I worked had floors that were made of cement, some had tiles, some had different surfaces and many of them had mats in the area where things might be spilled. [14] In those kitchens where I worked that had mats, if there was a spillage that had got on to the floor the material would go between the holes in the mats and the mat would prevent me from slipping in the kitchen areas. [15] I worked as a cook in child care centres for eight years. During that period of time I worked in kitchens that had mats on the floor at least half the time. [16] I never slipped in a kitchen which had mats on the floor, nor did I ever trip on a mat in the years that I worked as a cook in those places."
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: 1. There was "no legislative or statutory requirement or compliance criteria in any Australian Standard, Building Code or other documents which prescribed a coefficient of friction that the surface was required to achieve at the time of the incident". 2. The floor was suitably anti-slip when clean, dry, and uncontaminated. 3. Slip resistance in managing the risk of a solid contamination (here a noodle) is relatively ineffective unless there is adequate "volumetric displacement". Volumetric displacement is a measure of how profiled the surface is, that is, if a noodle is squashed by the foot, there needs to be sufficient volume for it to flow into the profile of the floor or within the tread of the shoe to allow sufficient contact between the foot and the floor to achieve traction and prevent slipping. 4. The floor did not have any significant volumetric displacement and the risk of slipping on a solid substance was relatively high. The industry guide for slip resistance does not recommend any specific level of volumetric displacement for a kitchen or a floor within a childcare facility. 5. Any increased slip resistance as referred to by Mr Adams would have made no meaningful difference to prevent the incident as the floor already had a high level of slip resistance and other control measures are more critical to effectively manage the risk. 6. All floor surfaces would be rendered slippery through the presence of a contaminant spillage. 7. There was nothing the first defendant could have reasonably done to prevent the incident.
The first defendant made the following particular submissions as to the introduction of mats: 1. Mr Adams went on to say that the solution was: "providing mats with perforations or profiles, or alternatively metal grates, to allow dropped items to fall or be pushed through the holes and or into locations where they will not be interposed between the shoe sole and the effective pedestrian surface." 1. Mr Strautins on the other hand concluded that: "In my opinion, there is no meaningful net benefit in the use of mats for flooring in this instance of managing the residual risk of slipping; the use of matting does not eliminate the risk of a slip and is offset by the risk of a trip." (As earlier extracted, this is an extract from the opinion given by Mr Strautins in the first joint report) 1. In terms of mats becoming a tripping hazard see: Dunn v Star City Pty Limited [2004] NSWCA 223 ("Dunn").
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: 1. For the purposes of s 5B(1)(a) and (b) of the CLA, the risk of a worker slipping on the floor was unforeseeable and insignificant because: 1. The floors were designed to be slip resistant when wet or dry. 2. There was no evidence of any prior slip or fall on the floor when either wet or dry. This also suggested that, if not insignificant, the risk was not high: see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 707 (Priestley JA); [2005] NSWCA 305. 3. There was only one person working in the kitchen. That person was required to monitor the floor for any spillages they made. 1. As to the reasonable precautions under s 5B(2) of the CLA, the floor installed was suitable. 2. There was a suitable cleaning system in place. The plaintiff made no allegations in relation to the cleaning system in place of time. The experts do not find any defect in relation to the cleaning system that was in place at the time. 3. The only case effectively put by the plaintiff is that there should have been mats in place in the kitchen. This has several fundamental problems: 1. It involves impermissible hindsight reasoning. 2. It involves a decision being made as to precisely where the mats would need to be placed. 3. It does not eliminate the risk of slipping in places where the mats are not placed. 4. The Court could ultimately not determine where the mats should have been placed as there is no evidence as to the precise location of where the plaintiff's fell. 5. It ultimately has a fundamental problem with causation. 1. Walking on the kitchen floor is simple and commonplace activity. The risk of slipping on spilt contaminant is obvious. There is no duty to warn of obvious risks (or to give an equivalent instruction): CLA s 5H(1). 2. The plaintiff has not made out any of the pleaded allegations in her Amended Statement of Claim.
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: 1. The plaintiff bears the onus of proving any fact relevant to causation: Adeels Palace and Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151. It was also submitted that it must be proved that any established breach of duty of care caused the accident. The plaintiff relied upon the following matters to point against that finding: 1. The floor was never slippery. 2. There were no prior slips or falls. 3. Any mat would need to be placed at the precise location of the plaintiff's fall. 1. The first defendant submitted that, in terms of factual causation, the plaintiff needed to demonstrate that any breach of duty by the first defendant was a necessary condition of the occurrence of her physical injuries. 2. In that respect, it was submitted that in this case the general evidence was that the presence of water on the floor did not lead to the floor being unreasonably slippery. It was not a material hazard. Any possible breach, therefore, could not be considered to be causally connected to the plaintiff's injury: Jackson v McDonalds' Australia Ltd [2014] NSWCA 162 at [108] to [124] (Barrett JA).
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: "Q. Do you agree that if there'd had been a mat in the position where you saw the fluid on the floor, this accident would not have happened? A. Yes."
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: "It follows that in my view his Honour erred and that he should have found that the leading edge of the mats had a combined thickness of 15mm and that it was on that edge that the appellant tripped. Alternatively, he should have found that she tripped because there were two mats rather than one."
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: "The areas of agreement between the liability experts were: "1. The floor was inspected and assessed by both of us as adequately slip resistant for safe pedestrian movement in the presence of water (or similar) acting as a lubricant. It is reasonable to infer that at the time of the incident the floor would have been adequately slip resistant for safe pedestrian movement in the presence of water (or similar) as a lubricant." The circumstances of the accident were that it involved translucent cellophane noodles, the risk of spillage of food while transferring food from the bench to the trolley, the vulnerability of the plaintiff to injury by reason of her pre-existing balance impairment, the fact that she was "turning or exerting other forces on the surface" and her inadvertence through concentrating on the task at hand which had to be completed over a relatively short period of time. These facts distinguish the case from circumstances where a pedestrian was walking across a wet floor."
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.

[21]

LIABILITY OF THE SECOND DEFENDANT

Counsel for the second defendant made the following submissions on liability: 1. The second defendant's primary position was that there should be verdict for the defendants based upon the submissions advanced by the first defendant. 2. The second defendant acknowledges that it had a non-delegable duty of care to the Plaintiff. The duty is onerous but is fact dependent. For a Plaintiff to succeed, it has to be established that any such breach is causative. 3. There is no strict liability for the non-delegable duty of care owed by the second defendant. It has been suggested in recent authority that there is strict liability, but that is not consistent with the way in which the High Court and the Court of Appeal have dealt with non-delegable duty. In the Court of Appeal decision of Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213 ("Synergy 1"). In Synergy 1, Simpson AJA (at [99]) invoked the view of Gummow J in Scott v Davis (2000) 204 CLR 333; [2000] HCA 52 at [248] that the characterisation of a duty of care as non-delegable involves, "in effect, the imposition of strict liability on the defendant who owes the duty". It was submitted, however, that when making this broad statement, Gummow J was not explicitly considering the specific circumstances of an employer and a third-party host, but rather was advancing a generic principle "with respect to any doctrine of 'nondelegability'" (at [248]). To this end, it is submitted that, in these proceedings, this Court would be better assisted by the principles espoused by the Court of Appeal (Mason P, Beazley JA and McColl JA) in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 ("Pollard"), which, taking into account the extensive jurisprudence relating to non-delegability concluded at [45]: ""It has been accepted that the question whether the employer's non-delegable duty is discharged where an employee is working at a third party's premises depends upon such matters as "the employer's opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness in the employer of the danger, his capacity to shield his employees from the danger and various other factors": Bourke v Victorian WorkCover Authority [1998] VSCA 24; [1999] 1 VR 189 (at [19]) per Winneke P (Brooking and Buchanan JJA agreeing)". (see also Marketform Managing Agency Ltd v Ashcroft Supa IGA Orange Pty Ltd [2020] NSWCA 36 ("Marketform") where Payne JA (with whom Ward CJ in Eq (as her Honour then was) and Leeming JA agreed) cited Pollard with approval) 1. In light of this jurisprudence, the second defendant contends that its obligation to the plaintiff as her employer is, inter alia, to provide her with a safe place of work and a safe system of work, and this is achieved by the knowledge of both her duties and the place where her duties would be discharged, relevantly, in this case, the kitchen of the first defendant. 2. To this end, the following considerations have to be factored in: 1. The plaintiff was an experienced cook and had worked at many childcare kitchens for other employers. She was, therefore, thoroughly conversant with childcare kitchens; 2. The plaintiff gave evidence of having many inductions at places of work and she was knowledgeable about work, health and safety issues as they pertained to kitchens; 3. The plaintiff gave evidence that if any safety issues related to the kitchen were apparent, she would have duly complained; 4. The plaintiff made no complaint of any problems with the suitability of her assigned duties or the kitchen where they were to be undertaken; 5. At all material times, the first defendant had a representative on site Ms Wilson and the second defendant had a representative on site from time to time, Natalie Brightly. The opportunity to make complaint, if there were any, was clearly available. The plaintiff reported no occupational deficiency and made no complaints such as to put the second defendant on notice of any issues which may be detrimental to the plaintiff's employment in the first defendant's kitchen. 1. The second defendant submitted that the system of work and place was safe, and it had no reason, in the absence of complaint, to intervene and protect the plaintiff from a risk that it was not aware of, or otherwise not readily apparent. 2. The plaintiff submitted that there must be a verdict against the second defendant even if there is not one against the first defendant. This concept is disputed as the plaintiff could only succeed against the second defendant if, as a threshold finding, the first defendant's kitchen was an unsafe workplace. 3. While it is acknowledged that the plaintiff, in conversations with representatives of both the first and second defendants, discussed her underlying arthritic condition as it pertained to her lower limb, she did not identify that this arthritic condition could potentially affect her ability to discharge her work duties. 4. The plaintiff has submitted that as both defendants knew that she had an arthritic problem, the standard of care should reflect that pre-existing vulnerability. The plaintiff submitted that the installation of mats would achieve this result. It is difficult to rationalise the assertion that the random installation of mats on a kitchen floor (thereby raising the level of the floor at different places over which the Plaintiff had to repeatedly traverse) would fulfill this requirement. The second defendant contended that any such installation would amount to a trip hazard and is contra indicated. 5. Further, when considering the utility of this measure, it is important to note that Ms Wilson was not aware of any similar incidents during her employment prior to 1 February 2016. 6. The second defendant had no reason to suspect there were any deficiencies in the system of work or at the site where the plaintiff discharged such duties. 7. If the Court was to come to a different conclusion, the mechanism of injury is significant in the determination of what injury, if any, did the plaintiff suffer. 8. The plaintiff alleges that she struck her left knee at the time of the incident of 1 February 2016. This assertion is disputed by the second defendant: 1. The plaintiff made no complaint to Ms Wilson about striking her left knee. 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. To the contrary, the hospital records of 1 February 2016 explicitly deny that her left knee came into contact with any hard surface: "She denies direct injury to the knee but feel like she may have "pulled" it during her fall. She reported hitting the back of her head ... ". Further Dr Frank Machart (on 19 December 2016) recorded a history of twisting the left knee whereas her treating surgeon Dr S. P. Tan did not take a history of the mechanism of injury. The first mention of the plaintiff striking her left knee appears in the history of Dr Tommasino Mastroianni dated 6 July 2017. 2. The plaintiff was extensively cross examined on the mechanism of injury on 5 March 2024. The second defendant 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. 1. The second defendant submitted that the correct factual finding is to be found in the opinions of Dr Machart and Associate Professor Michael Shatwell. Their opinions gain further credibility when the radiological evidence of Professor Alex Pitman at conclave, and in oral evidence, is considered. 2. The second defendant made two submissions. Firstly, it has not breached its duty of care and secondly, whatever injury the Plaintiff suffered was mild and transient (with the evidence of Prof Shatwell indicating 3 months and the evidence of Dr Machart indicating 2-4 months).
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.

[22]

Contributory negligence

The first defendant's submissions with respect to contributory negligence were as follows: "65. In the event it is liable, SDN raise a defence of contributory negligence. The question is whether, in the circumstances giving rise to the accident, the plaintiff failed to exercise reasonable standard of care for his own safety: T and X Company Pty Ltd v Chivas [2014] NSWCA 235, [4]. This involves an objective test based on the facts and circumstances of the case, including what the plaintiff knew or ought to have known at the time: CLA s 5R(2)(b); Joslyn v Berryman (2003) 214 CLR 552, [16]; Origin Energy LPG Pty Ltd v Bestcare Foods Ltd [2012] NSWCA 407, [217]. 66. Applying those principles, it was the plaintiff alone that created the risk by spilling the noodle. She alone failed to observe the spill and clean it up in accordance with the work procedures. 67. The "court may determine a reduction of 100% if the court thinks it just and equitable to do so": s 5S of the CLA."
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: 1. Ms Wilson gave evidence that the work of the plaintiff involved long hours, intensive work and work performed quickly. 2. The second joint expert report of the liability experts concluded that the risk of slipping on a contaminant such as a noodle on the floor that was not noticed would be relatively high. 3. Any issue of inadvertence, in my view, is met by those considerations, even if inadvertence could constitute a basis to find contributory negligence. The spillage was inevitable given the nature of the system of work and the plaintiff's evidence that she did not see what had been spilt. Further, the plaintiff had no alternative but to perform her work in accordance with the system laid down by the first defendant.

[24]

The plaintiff's pre-incident health

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: 1. In May 2015, she had an incident where a children's shopping trolley struck her behind her right knee which caused her to jolt to the side sending a "wave" to her left knee. The plaintiff stated she experienced pain in both knees as a result of the incident. In June 2015, the plaintiff attended the GP following that incident and had an X-ray performed on her left knee. Dr Joarder advised the plaintiff the X-ray showed "moderate supra-patellar bursitis" and "nil fractures". The findings recorded on the X-ray were as follows: "There is moderate suprapatellar bursal effusion. There are no fractures or dislocations. There is chronic quadriceps enthesopathy. No osteochondral lesion. The tibiofemoral and patellofemoral articulations are intact and define normally." 1. On 2 July 2015, the plaintiff presented to St George Hospital with left knee pain after being hit by the children's shopping trolley. She was limping. It was noted she had symptoms consistent with left knee osteoarthritis. She was told to avoid prolonged standing and stairs and follow-up with her GP for referral to physiotherapy. 2. On 22 September 2015, the plaintiff consulted Dr Joarder who recorded "Severe left knee pain last few weeks" and on examination he observed "difficulties on walking", left knee "swelling" and restricted range of motion. Dr Joarder recorded an X-ray performed a few days earlier showed "severe" osteoarthritis in her left knee. However, the plaintiff made comments in relation to this appointment in her Evidentiary Statement that are as follows: "It's been brought to my attention by my lawyers that the GP wrote at the time "I was having severe left knee pain last few weeks, worse today." I disagree with this note. I was sore, but I wouldn't call the pain severe. All I was having at the time was some Panadol." 1. This statement was inconsistent with the contemporaneous record taken by her doctor. I do not accept the plaintiff's evidence. She was cross-examined on this question and gave an unconvincing account of her position. She either did not recall relevant aspects or, was unclear or obfuscated in her answers. 2. On 10 November 2015, the plaintiff consulted Dr Joarder, who recorded osteoarthritis left knee, "going overseas, likes to take some analgesic with her".
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: "Prior to 1 February 2106 the following abnormalities were visible on radiography and therefore present beyond reasonable clinical doubt: Imaging findings (radiography): Mildly narrowed medial compartment. Depressed medial femoral cortex articular surface, see Se1 (sic). It is 1.5cm right to left, and depressed 2mm or so. Smooth regular tibial articular surface. Small marginal osteophytes. Better preservation of lateral compartment, smooth regular articular surfaces, small marginal osteophytes. Minimal narrowing of patellofemoral cartilage space, small marginal osteophytes, articular surfaces smooth and regular. Small joint effusion. Corresponding pathologic conditions: 1. Medial femoral condyle osteochondral depression with 2mm of collapse. With knowledge of subsequent imaging, this depression is osteochondral collapse from osteochondritis dissecans or other forms of osteonecrosis with articular bone and articular cartilage depressed fracture and collapse. Because it is already visible and present on radiography, it is at least months old (not days). 2. Mild three compartment chondropathy (cartilage degeneration) manifesting as marginal osteophytes, small joint effusion, and mild cartilage space narrowing. Medial compartment chondropathy is more severe, lateral compartment chondropathy is less severe. Other pathology may be present, and invisible to radiography. Note well that not all pathology is detectable with radiography."
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: "Ms Milne's left knee x-ray images acquired on 18 June 2015, 7-8 months prior to documented left knee workplace injury on 01 February 2016, demonstrate mild medial femoral condylar weight-bearing surface subchondral depression (measuring up to 2-3 mm in depth) and underlying sclerosis, most in keeping with subacute to chronic subchondral insufficiency-type fracture (previously known as spontaneous osteonecrosis of the knee) rather than old osteochondritis dissecans, variable mild to moderate osteoarthritic tricompartmental (particularly patellofemoral and medial compartment) degenerative changes, small to medium-sized joint effusion collecting mainly in the distended suprapatellar recess and faint ill-defined soft tissue oedema/bruising projected mainly over the anteromedial aspect of the knee (see two saved images below)."
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: "…that there's evidence of previous medial femoral condylar SONK or subchondral fracture, with osteochondral depression/collapse, medial and patellofemoral compartment osteoarthritic degenerative changes. Xray 18th June 2015 shows relatively mild medial femoral condylar osteochondral depression/ collapse, mild to moderate medial and patellofemoral compartment osteoarthritic degenerative changes."
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: "The experts agree that the plaintiff already had a depressed osteochondral fracture of her medial femoral condyle. It was mild on the X-ray dated 18 June 2015. There also was comparatively early medial compartment degenerative change, in terms of osteophytic lipping, and she had mild to moderate patellofemoral degenerative changes at the time of her index fall [the incident]."
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: "Ms Milne was diagnosed as suffering osteoarthritis in both knees. She suffered symptoms for at least the last 12 month. She was examined at St George Hospital early in 2015. She had X-rays. The X-rays are at the hospital. She was diagnosed with osteoarthritis. She was treated non-operatively. She saw Dr Joarder for arthritis. She reported her walking tolerance to be about 500 to 1,000m before the injury. … Osteoarthritis in the left knee, pre-existing condition of considerable severity, looking at the investigations. The osteoarthritis was symptomatic before the injury."
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: "Pre-Injury Ms Milne felt the knee was a bit sore, but felt it was a Baker's cyst. This was only in comparison to someone she knew with similar symptoms. X-rays were done around late 2015 and she was told It was mild arthritis. It was hurting her a bit and because of that she had gone to hospital and X-rays were done at St George Hospital. She was told that it was mild arthritis and no specific treatment was advised. … The injury merely drew attention to a pre-existing severe problem, only 10% would be due to the injury and 90% was pre-existing"
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': "… In June 2015, the left knee was painful after a collision with a shopping trolley pushed by a child at Bunnings. This impacted the left knee and there was pain around the medial aspect of the joint with swelling and tenderness according to Dr Joarder's note of 18 June 2015. Plain x-rays of the knee were obtained on 18 June 2015 and reported by Dr Victor Mansberg, Radiologist, as showing a suprapatellar bursal effusion with no evidence of any fractures or dislocations. There was no report of any major degenerative change in the tibiofemoral and patellofemoral articulations according to Dr Mansberg. … On 22 September 2015, Ms Milne reported "severe pain in the left knee for the last few weeks" to Dr Joarder. She had attended the Emergency Department at St George Hospital with this and was told that x-rays taken on 2 July 2015: "Showed severe osteoarthritis of the left knee"."
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: "She was efficient. She inputted into the menu and, you know, took an interest in the centre itself and the food that the children ate. She was a good team member and the staff liked her as well."
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: "I bring your attention to the X-ray of the left knee performed in September 2015, which I was able to bring up on my computer today, this showing no significant pathology of consequence!"
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.

[25]

The Injury

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: "Fall C/O pain to L knee. C/T 52yo f. from workplace, O/A pt [patient] sitting on seat, alert and oriented Pt states slipped on floor, states landed in splits position & fell backwards Pt states bumped head, Pt states pain in L lateral knee on weight bearing PT denies any head pain or neck pain now, Pt denies any pain in knee on sitting still… Pt states pain 8/10 on standing/walking. Pt refused pain relief other than ibuprofen. Pt states took panadol osteo approx.10.30 this AM"
Documentation from the hospital records the plaintiff was triaged at 12.38PM by a registered nurse. The 'Triage Comment' stated the following: "slipped and fell machical (sic), lateral L knee pain, obvious deformity no pain on palpation, no open wounds, can bend knee leg did like a split and feel [sic] backwards"
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: "Xray Left Knee Performed on 01-FEB-2016, 01:12 PM There is suspicion of osteochondritis dissecans of the articular margin of the medial femoral condyle. Differential considerations are spontaneous osteonecrosis and insufficiency fractures. An elective MR correlation is recommended for further assessment." (emphasis added)
An emergency department discharge referral authored by "Indikadahena, vidyangee imesha (Intern)" was as follows: "Dear Doctor, Thank you for your ongoing care of Ms Milne, a 52 year old lady who presented with left knee pain. History of presenting illness Mrs Milne presented post-slip and fall after which she experienced left lateral knee pain. She denies direct injury to the knee but felt like she may have "pulled" it during her fall. She reported hitting the back of her head but denied headache, nausea. vomiting, dizziness or visual changes. She reported not being able to weight bear after the fall. … Left knee - Nil swelling, nil redness, abrasions, deformity. - Slight tenderness on palpation of left knee, otherwise nil other tenderness. - Collateral and cruciate ligaments intact. - ROM: limited by pain, flexion 120-180. RX X-ray: no fractures ? chondritis of knee Management Discussed with Dr Nayim who also review the x-ray. Analgesia ZIMA splint applied by physio and crutches given to patient. Patient's pain was under control and she was able to mobilise with crutches and deemed safe for discharge. Plan on discharge 1. Analgesia (Panadeine Forte script given). 2. If pain not dissipating in 1-2 weeks, advised to get outpatient MRI"
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.

[26]

Radiologists (primary reports)

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: "(a) What pathology, if any, was present in the plaintiff's left knee in the following periods: … (ii) after the incident on 1 February 2016. … After 1 February 2016 the following abnormalities were visible on MRI and radiography: Imaging findings (MRI): In the medial compartment a horizontal cleavage tear runs through the meniscus posterior horn, with an undersurface exit. Meniscal free edge partly enters the medial femoral condyle defect. No rotated flaps or bucket handle tears. The medial femoral condyle has an elongated, gutter shaped defect running from anteriorly and peripherally to centrally and posteriorly. The AP length is 4cm, right left Width is 1.5cm. The depth varies; it is deepest anteriorly at 6mm. The defect margin has a black rind along most of its length and width, the pattern is of reparative bone formation. The rind rotates into surrounding normal surviving subchondral cortex without a visible fracture cleft at its margins. At the posterior edge of the defect is a 1cm cluster of corticated subchondral geodes which blend into the defect gutter. Overlying the cluster is a dissected, separated, but still not displaced osteochondral flap of approximately 12x12mm (fully detached from the parent bone). Anteriorly to the first (posterior) flap is a second (anterior) osteochondral flap, partly fragmented. It is 18x9mm. The gutter lying more anteriorly is filled with debris and fluid. Minor high T2 signal follows the dark cortical rind, and is part of the osteochondritis dissecans. There is no bone marrow oedema deep to the medial femoral condyle defect gutter. Appearance is of longstanding osteochondritis dissecans, with enough time for the dissected devascularised cartilage and bone to fragment, and for reactive cortical margins of the defect to form. There is no bone marrow oedema in the medial femoral condyle - therefore, no evidence for recent progression or a recent superimposed injury. This is the same defect as shown by Xray of 14 March 2016, and the same defect as shown by Xray of 18 June 2015. Diffuse peripheral tibial cartilage narrowing, large marginal osteophytes, no tibial bone marrow oedema. Medial collateral ligament is intact. I have not identified any signs of superimposed recent injury. In the lateral compartment minor fraying of meniscal free edge, yet no macroscopic meniscal tear. Cartilage is of good thickness and signal, articular bone smooth and regular. No femoral bone marrow oedema. Underlying the lateral tibial plateau is 3x1cm of unbounded bone marrow oedema. A partially visible line of PD signal runs parallel to the articular surface and may represent an undispiaced trabecular fracture line. Appearance is compatible with lateral tibial plateau bone bruising and a likely trabecular undisplaced fracture, possibly traumatic. Iliotibial tract, lateral collateral ligament, biceps tendon intact on MRI. In the central compartment, quadriceps mechanism is intact. Patellofemoral alignment sufficiently anatomic. Lateral patellar edge overlaps the lateral trochlear ridge by 4mm. Partial and still not full thickness patellofemoral chondral loss. Articular surfaces smooth and regular, small marginal osteophytes. No bone marrow edema. Central upper patellar median ridge has a chondral cleft, with a 5mm cluster of corticated underlying geodes. Appearance is of longstanding degenerative change. Patellar retinacula intact. Cruciate ligaments intact. Abnormal joint effusion with synovial fronding and (sub 5mm) floating debris. Imaging findings (radiography): Progressive narrowing of medial compartment. Medial femoral cortex articular surface depression has progressed forming a deeper defect. It is still 1.5cm right to left, but the depth of the depressed cortex is now 9mm of depression, with a hemispheric cavity. Rim of sclerosis surrounds it- likely a combination of compressed trabeculae and reparative sclerosis both. 4-5mm of new medial femoral shift on the tibia, with tibial edge now entering the femoral condyle defect. Larger marginal osteophytes. Lateral compartment height comparable. Articular surfaces still smooth and regular. Patellofemoral compartment comparable. Appearance is of progressive osteochondral collapse of weight bearing medial femoral condyle, involving a large part of its articular surface. Corresponding pathology: 1. Medial femoral condyle osteochondral depression with 6mm of collapse on MRI and 9mm of collapse on radiography (projectional magnification and MRI to radiography measurement differences). The depression is filled with detached but still undisplaced osteochondral flaps and debris, confirming osteochondritis dissecans (or osteonecrosis of any other origin). The depression has progressed, and this is expected. Note absence of medial femoral condyle bone bruising; this is evidence against superimposed injury at the time of index incident. 2. Three compartment chondropathy (cartilage degeneration). It has progressed in the medial compartment and is now severe. It is moderate in the patellofemoral compartment and mild in the lateral compartment. 3. Medial meniscal degenerative undisplaced tear. Its pattern is of a pre-existing, long standing degenerative tear not of a traumatic acute tear. The patter suggests the tear was present before the index incident. Please note that meniscal tears are invisible to radiography. Minor lateral meniscal free edge fraying (degenerative, old). 4. Lateral tibial plateau bone marrow oedema and trabecular fracture. Determining its age is difficult, but the patten suggests an age of days to weeks (rather than years). It may have occurred either at the index incident (1 February 2016) or at the prior incident (2 July 2015). On imaging grounds, 1 February 2016 is the more likely of the two. (b) Whether the pathology is degenerative and/or progressive in origin and, # so, explain your observations and your analysis? 1. Medial femoral condyle osteochondral depression with 6mm of collapse on MRI and 9mm of collapse on radiography (projectional magnification and MRI-to-radiography measurement differences). The depression is filled with detached but still undisplaced osteochondral flaps and debris, confirming osteochondritis dissecans (or osteonecrosis of any other origin). The depression has progressed, and this is expected. Note absence of medial femoral condyle oedema; this is evidence against superimposed injury at the time of index incident. This abnormality 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). 2. Three compartment chondropathy (cartilage degeneration). It has progressed in the medial compartment and is now severe. It is moderate in the patellofemoral compartment and mild in the lateral compartment. This abnormality 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. 3. Medial meniscal degenerative undisplaced tear. Its patter is of a pre-existing, long standing degenerative tear not of a traumatic acute tear. The pattern suggests the tear was present before the index incident. Please note that meniscal tears are invisible to radiography. Minor lateral meniscal free edge fraying (degenerative, old). Meniscal tears with this morphology are degenerative and long standing, and they do progress. Imaging pattern suggests this tear was present well before the index incident. There are no findings in the pattern of an acute (meaning recent) meniscal tear, and there is no imaging grounds to attribute the meniscal tear to the index incident. 4. Lateral tibial plateau bone marrow oedema and trabecular fracture. Determining its age is difficult, but the pattern suggests an age of days to weeks (rather than years). It may have occurred either at the index incident (1 February 2016) or at the prior incident (2 July 2015). On imaging grounds, 1 February 2016 is the more likely of the two. This abnormality is more likely to be acute (meaning recent) and transient. Time course of such bone marrow edema in many cases is weeks to months, with eventual resolution. Bone marrow oedema can occur in degenerative arthritis, and rarely has this particular pattern of distribution (transient osteoporosis or similar diagnoses). Bone marrow oedema is routine in osteoarthritis, yet bone marrow edema purely attributable to osteoarthritis has a different MRI appearance (different distribution). The probable trabecular fracture is likely to be acute (meaning recent) and to heal by bone repair. Such fractures are not usually attributable to progressive degenerative causes such as osteoarthritis. Possible causative factors for the lateral tibial plateau bone marrow oedema (in order of probability): - traumatic bone marrow bruising (index incident 1 February 2016 more likely, incident 2 July 2015 less likely, both may have contributed); - osteoporotic insufficiency bone marrow bruising; - spontaneous transient bone marrow oedema as a part of existing osteoarthritis; - many other very rare possibilities (infection, bone marrow infarction, iatrogenic, none relevant here). Possible causative factors for the lateral tibial plateau likely trabecular undisplaced fracture: - traumatic (index incident 1 February 2016 more likely, incident 2 July 2015 less likely, both may have contributed); - osteoporotic insufficiency fracture. Please note that the existence of the fracture itself, on the basis of the MRI, is probable (or likely) but not proven. All the other abnormalities I have described above (my headings 1- 3) are fully accounted for by progression of pre-existing osteonecrosis; degenerative chondropathy-osteoarthritis progression, and by degenerative meniscal tearing."
In Dr Bowden's Report, he gave the following answers to questions: "2) Please describe the pathology after the accident on 1 February 2016. I currently do not have access to Ms Milne's left knee x-ray images reportedly acquired shortly following documented left knee workplace injury on 01 February 2016, but her left knee MR images acquired almost 2 weeks later on 12 February 2016 demonstrate relatively severe irregular partly-displaced fragmented medial femoral condylar weight-bearing surface osteochondral depression/collapse (measuring up to 6-7 mm in depth) incorporating partial to full-thickness articular chondral loss and underlying patchy/ill-defined marrow oedema, most in keeping with acute to subacute on chronic subchondral insufficiency-type fracture (previously known as spontaneous osteonecrosis of the knee) rather than somewhat odd progressive case of osteochondritis dissecans, relatively extensive ill-defined lateral tibial condylar marrow oedema surrounding subtle irregular undisplaced subchondral insufficiency-type fracture, moderate to severe medial compartment degenerative changes, moderate patellofemoral compartment degenerative changes (incorporating grade 3-4 chondromalacia patellae), comparatively mild/early lateral compartment degenerative changes, complex irregular/ill-defined medial meniscal body to posterior horn longitudinal tear, medium-sized joint effusion collecting mainly in the distended suprapatellar recess, presumably reactive synovial thickening and variable mild to moderate ill-defined overlying soft tissue (including tibialis anterior muscular) oedema/bruising (see four saved images below). In addition, Ms Milne's subsequent left knee X-ray images acquired on 14 March 2016 demonstrate impression of further irregular medial femoral condylar weight-bearing surface subchondral depression/collapse (measuring up to 8-9 mm in depth) and advanced medial compartment degenerative changes, subtle ill-defined sclerosis at the site of presumably healing undisplaced lateral tibial condylar subchondral insufficiency-type fracture and various other predominantly stable-looking findings compared to preceding MRI, with the medial femoral condylar abnormality and medial compartment degenerative changes having significantly progressed compared to the findings shown on pre-workplace injury left knee x-ray images acquired on 18 June 2015 (see two saved comparative AP images below). 3) Do you agree with the opinion expressed by Professor Pitman that the medial femoral condyle abnormality was already present and in its mature form at the time of the index incident and that the abnormality likely attributable to the index incident (the lateral tibial plateau bone marrow bruising with its likely contained trabecular fracture) required conservative management only? Please explain your point of view. 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 01 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. That is, I disagree with Professor Pitman's opinion that the "index incident (being the fall dated 1 February 2016) did not affect the medial femoral condyle osteochondral depression", based primarily on my understanding of knee pathology, review of supplied clinical documentation and above serial radiologic findings. However, I do generally agree that "Traumatic bone marrow bruising and traumatic trabecular fractures", specifically with regards to lateral tibial condyle injury in Ms Milne's case, tend to heal with "conservative management", rather than necessitating total knee replacement (TKR). In any case, Ms Milne's left knee pathology was likely significantly exacerbated by the documented workplace injury on 01 February 2016, ultimately necessitating knee arthroplasty to restore function/mobility and minimise ongoing pain/suffering."

[27]

Orthopaedic Surgeons (primary reports)

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: "Cheryl Milne is a 52 year-old lady who works as a chef in a childcare centre. She had a fall go 1/2/16 whilst at work and sustained an undisplaced fracture of the let tibial plateau. She needs to wear a hinged-knee brace, weight-bearing as tolerated, for the next four to six weeks, and can remove the brace at night. I will see her in six weeks' time with a repeat x-ray."
On 17 March 2016 Dr Tan wrote: "…I have written a letter requesting approval for a left total knee arthroplasty under Workers Compensation. Her recovery from a total knee arthroplasty is like any other total knee arthroplasty which is returning to light duties after about 6-8 weeks and full duties after about 3 months post arthroplasty. She will be going to outpatient rehabilitation physiotherapy for 3 months post total knee arthroplasty. She will be unfit for work for about 6 weeks after the surgical operation and then light duties after that, such as reduced hours or sedentary duties. She will hopefully be back to full hours on suitable duties a few weeks to one month after that. She should be able to return to pre-injury duties after about 3 months or so. Post operative treatment will include physiotherapy about twice a week for 3 months. Should you have any further queries, please let us know."
On 2 June 2016 Dr Tan wrote: "Cheryl Milne returned to see me today. Her first consultation with me was on 19/2/16. She stated that on 1/2/16 she slipped and fell at work in the childcare centre where she had been working for six months. She sustained a painful left knee. She presented to Bankstown Hospital immediately following the fall and was discharged on the same day. She was told that the x-rays taken appeared normal. Unfortunately she continued to have pain and an MRI scan performed on 12/2/16 reported a lateral tibial plateau fracture. The fracture was undisplaced and there was bone bruisings on the medial femoral condyle. It was deemed that she could be treated non-operatively in a splint. She was compliant with this management and wore the splint for six weeks. She returned to see me on 17/3/16, following an x-ray performed on 14/3/16, complaining of increasing pain, not only at the lateral tibial plateau but also the medial femoral condyle. The repeat x-ray revealed a definite fracture of the medial femoral condyle with a clear acute fracture line involving hall the medial femoral condyle and displaced 1.5 cm proximally. It 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. Upon questioning, Mrs Milne has been working as a childcare worker and chef for a period of six years, and has been working continuously with children. She had no problems with her knee before surgery. She did visit St George Hospital in October 2015 because of some minor issues with her knee, but the x-rays performed in October 2015 that she provided today, did not show a fracture anywhere, unlike the x-rays performed in March 2016. 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. I strongly feel that she needs a left total knee replacement. She has currently had to move from the Sutherland Shire to Shellharbour to be closer to her family so they can help look after her. She is using a splint and walking stick for mobilisation. She has been almost housebound due to her injury, and is thinking of purchasing a wheelchair to allow her to allow her to at least mobilise out of her home. She is taking Targin twice a day. Any further delay in surgery to her left knee will compound her problems and will decrease her chance of being rehabilitated back to the work force. I understand she was approved for her left total knee replacement last week, but the approval was then retracted a few days following this. I believe this may be the wrong decision."
On 16 June 2016 Dr Tan wrote: "Mrs Cheryl Milne returned to see me today with her husband Norman. She attended wearing a knee brace and using a walking stick. I reviewed her x-rays again today. The x-ray of her right knee performed on 2/6/16 for comparison with her left knee x-ray, was reported as normal and appeared normal in the AP and lateral views. There is no undue features as compared to the left knee. Her right knee is clinically asymptomatic and is essentially normal. 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. Her MRI scan performed on 12/2/16 commented on her lateral tibial plateau as well as some changes in the medial femoral condyle. It was described as patchy bony oedema in the femoral condyle. 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. The fracture was initially treated non-operatively; however, it has progressed to a state that is notably more severe in the x-rays performed in 14/3/16 compared to those performed on 1/2/16. Mrs Milne has failed to improve and requires a brace at all times. She takes Targin twice a day and Panadol Forte during the inbetween periods. She is quite disabled with her injury and cannot be rehabilitated back to the workplace without a left total knee replacement. She has even moved from the Sutherland Shire to Shellharbour to be closer to her family for help with her day to day activities. In summary, Mrs Milne has a definite progression of her left knee injury that has resulted in severe pain and deformity of her medial femoral condyle. She requires a left total knee replacement as soon as possible, before deterioration results. The longer her surgery is delayed the longer it will take for her to recover with rehabilitation, due to muscle weakness and general deconditioning of her left knee."
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: "Cheryl Milne returned to see me today, six weeks since her left total knee replacement. She is still only flexing to 75°, which is not enough. I have asked her to attend physiotherapy to push her range of flexion. I have given her some Celebrex to take once a day with food. She has a swollen calf which is non-tender, but I would like her to have a venous Doppler ultrasound to exclude a deep venous thrombosis."
On 13 December 2016 Dr Tan saw the plaintiff for another follow-up appoint and wrote the following 'medical report' to QBE: "Cheryl Milne saw me today[.] It is 4 ½ months since she had a left total knee replacement as a public patient at Sutherland Hospital[.] Her extension is fine but she is only flexing to about 75° and I have suggested that she have a manipulation under anaesthesia tomorrow[.] She is not too keen to have it done tomorrow and will probably consider it in January[.] In the meantime it is absolutely important that she concentrates on knee bending exercises[.] Her GP will suggest some physiotherapy before Christmas and again after Christmas[.] She will return to see me with an X-ray in the middle of January and I will keep you informed of her progress[.]"
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: "HISTORY … Ms Milne was injured on 01/02/16. She slipped on something at work. She twisted the left knee. She experienced severe pain in the left knee. She fell backwards. She hit her head. She was taken by an ambulance to Bankstown Hospital. She was kept there for 3 hours. X-rays were taken. She was given crutches and a Zimmer type brace. She was told that if the pain does not get better then she should seek medical attention. The pain was not improving. She saw her GP Dr Joarder. She had an MRI. She was referred to Dr SP Tan. She is due to see him this afternoon. She has been off work since the time of the injury experiencing difficulties walking. She reported slow and gradual improvement. … OPINION DIAGNOSIS … The 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. … Did the worker suffer a new injury at work on "aggravation or recurrence date"? Yes. This was a subacute injury to the knee, in addition to aggravation of pre-existing osteoarthritis, as to what degree aggravation cannot be decided within the first 2 weeks after injury. Do you consider the worker's description of the injury consistent with the worker's current clinical presentation, radiological investigations and history provided? There is consistency. … If you believe this injury is an aggravation of a pre-existing condition; has the aggravation ceased? This may be the case. It is not possible to be dogmatic about this. She suffered an acute injury. Without osteoarthritis she would still be suffering from an acute injury. Whether there is aggravation depends on the rate of recovery. Quite likely there is aggravation. Whether it is temporary or permanent cannot be decided this soon after injury. … Comment on the worker's short, medium and long term prognosis? Difficult to tell so soon after injury. There are a number of factors which determine the prognosis, the presence of osteoarthritis, the medial meniscal tear, the acute injury, and the fact that she is improving. By and large she should recover within the next 6 weeks. If not, then other issues may need to be addressed, e.g. meniscal tear or osteoarthritis. … Are any other medical services required? She may require arthoscopy once she sees Dr Tan."
Dr Machart's received Dr Tan's letter of 17 March 2016 as well as the following documents: 1. Comment on MRI left knee 12/2/2016, provided by Dr Rashid; 2. ED Discharge Summary Bankstown Hospital, 1/2/2016; 3. Medical Records Dr Joarder, general practitioner, 7/2/2016; 4. Review Dr Tan 17/3/2016; 5. Report X-ray, 14/3/2016; 6. Report MRI, 12/2/2016.
With those documents provided, Dr Machart's second report contained the following overall "comment": "The pathology was complex and confusing. There is evidence of the following: Pre-existing osteoarthritis, symptomatic before the injury; Chronic osteoarthritic changes evident radiologically on X-rays and MRI; Possibility of undisplaced lateral tibial plateau fracture; Meniscal tear and degenerative changes within the meniscus on the medial side; Osteochondral changes on the medial femoral condyle, which were described of different atiology by the treating surgeon Dr Tan as avascular necrosis causing collapse, and on the radiologist's report as more chronic changes. I cannot provide an accurate opinion based on these reports, which are inherently contradictory. At the time of my assessment I only had access to the MRI, the interpretation of which was different to Dr Tan's interpretation of the plain X-rays. In answer to your questions I suggest the following: - All X-rays need to be reviewed by a radiologist. She may require additional imaging with a CT scans. - The question that needs to be posed is what the pathology is, and whether there is evidence of injury on 1/2/2016, or whether these were chronic. I would be happy to look at all the X-rays, however a specialist radiologists opinion may be required. … (a) Whether a total knee replacement is reasonable and necessary as a result of the fall on 1 Feb 2016; Not possible to answer with the limited information before me."
Dr Machart's third report responded to issues raised by a case manager at QBE. The following question, inter alia, was answered as follows: (a) Whether a total knee replacement is reasonable and necessary as a result of the fall on 1 February 2016. 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 as a result of the fall.
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": "Ms. Milne suffered significant internal derangement to her left knee in the fall of 1 February 2016. Subsequent investigations highlighted fracture not only of the lateral tibial plateau but also the medial femoral condyle, the latter being by far the most significant, likely the main cause of her ongoing pain and the eventual need for the TKR operation. She did not fare well with the original operation, and Manipulation under Anaesthetic had not improved the range of movement at the knee despite intensive physical rehabilitation. In May 2018 she came down with infection in the knee leading to septicaemia, prolonged hospitalisation, some "collateral damage" by way of AF. There was further drama when the second stage of the revision TKR was attempted, but was eventually completed. This lady has practically no appreciable movement at the left knee, remains with severe pain at the joint, not just when upright and weight bearing but often at night, and the long term prognosis remains very poor indeed. She is not currently in any employment, in fact she's had no remunerable work since the day of her fall. Unfortunately, I have to suggest that it is most unlikely that this lady will ever again be considered for any kind of remunerable work. She has some experience with administrative chores, but simply getting to work and getting back home from work will be an almost impossible task for her, let alone sitting for longer periods of time. I believe that she is now permanently out of the workforce as a direct consequence of the injury to her left knee. She should have at least a couple of hours help and assistance a day seven days a week regarding her domestic chores. It is far too early at this stage to consider Maximum Medical Improvement. The clinical picture at this stage suggests an approximately 30% WPI."
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: Ms Milne has remained with severe ongoing symptoms at her left knee prosthesis, with neither improvement nor deterioration of the condition of the knee since March this year. She has had ongoing telephone contact with her family physician, and an appointment with her Orthopaedic Surgeon was put on hold in May this year because of the Coronavirus situation. On account of the severe infection in the left knee following the initial TKR procedure, she will now have some blood tests, as well as review by the Infectious Diseases Doctor at Wollongong Hospital before she sees Dr Tan for orthopaedic review. I found no overt, clinical sign of ongoing infection in this lady's left lower limb. Fully appreciating the soft tissue swelling of the left thigh as a likely consequence of the multiple surgical procedures, I believe that it would be appropriate to have at least an Ultrasound, possibly an MRI scan of the left thigh to make sure that there is no latent collection of fluid to account for the discrepancy in the size of the two thighs. I had previously formed the opinion that your client is to be considered as "permanently out of the workforce as the direct consequence of the injury to her left knee" and I see no reason to change my opinion in this regard. You have shown me a brief report to you by Dr Tan (26 June 2020) in which the doctor acknowledged your client's total incapacity for employment during the period from 27 June 2016 until 30 July 2018. I understand from Ms Milne that this note was provided on account of her difficulty getting financial support from the insurance company during the period specified. Apart from the appropriate painkillers already taken, it is difficult to conceive of a treatment regime that is likely to be of significant help and assistance to her. Injection of the left greater trochanteric bursa may help with the hip pain ($400.00). That said, perhaps hydrotherapy in a warm pool should be tried over a one to two sessions a week basis. Ms Milne has next to no capacity to perform domestic chores of consequence, she is unable to walk or stand without support, and would be now and in the long term in need of at least a couple of hours help and assistance a day seven days a week, as I noted previously. Assessed on the basis of the Guides to the Evaluation of Permanent Impairment by the American Medical Association (5th Edition), Ms Milne remains with the following impairments. Left Knee TKR (poor result): 30% WPI. Left Trochanteric Bursitis: 3% WPI. Extensive surgical scar left leg: 1% WPI (TEMSKI). On the basis of the Combined Values Chart she has 33% WPI."
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": "Regarding her Activities of Daily Living, said that she lives with her daughter and partner in her home. "I don't pick up anything off the floor, I can't drag a vacuum cleaner around. I have paid help to wash the dogs, a cleaner comes once a fortnight, we have somebody come and do the lawns". Regarding her activities at the Markets, she said the following. "The stall at the Markets belongs to the family, my mother, sister, niece, my daughter all take part. The items / would carry are very light, like bibs, play mats, towels". She acknowledged that she would on occasions walk unaided while at the Markets. "We are talking about a couple of steps at the site, the longest walk is from the car to the stall, 30-40 metres if that, I use the walking stick, I can't get the walker out of the car by myself. In particular, she made mention of the fact that much is made of her bending and twisting at the torso, using her arms. "I have no back problems or issues with my arms, my problem is my left leg". … OPINION Some 2½ years after my last consultation with Ms. Milne, I found her today with very much the same clinical signs and ongoing symptoms that I recorded previously. This lady has a very poor result from the left TKR procedures, and this is clearly a chronic and ongoing condition about which there is little that one is able to do in a therapeutic sense. She has very little capacity to be active around her home, and as a matter of trying to do something "useful", and to break the boredom of her very limited home life, from time to time she had given a hand in the Markets. Fully acknowledging the reports, there appears to have been very little physical activity by this lady that would belie her very significant and ongoing debility. She is grossly restricted with her ambulation, and any walking which she was observed to do without using a walking stick or a walker was over a very short distance, and would be fraught with the danger of falling, which she has done on four separate occasions over the last five months even while being supported either by the walker or the walking stick. Quite rightly, she has a paid cleaner come to her home, has paid care of her dogs and the lawns, and I very much support her quest for such assistance in the long term. Unfortunately, her prognosis is very poor, there is no reasonable expectation of any significant improvement in her symptoms at the left knee and in the functioning of the right knee. The very fact that she has such limited flexion at the knee would undoubtedly contribute to her tripping over objects when the tip of her left shoe fails to clear them. Ms. Milne remains permanently and totally unfit for any kind of remunerable work activity, but one would encourage her, if for nothing else for her mental health, to do as much as she possibly can by way of some type of activity, very limited as it is, outside her home. I certify that I have read the Procedural Direction PIC4 - Expert Witness Evidence and agree to be bound by the Direction."
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: His [Dr Rashid] report occupies two pages of A4 paper and is comprehensive. He identified a number of changes which can best be summarised as showing chronic changes in the knee with extensive degenerative changes, particularly in the medial and patellofemoral compartments of the joint. Dr Rashid considered there was a non-displaced subchondral fracture of the posterior part of the lateral tibial plateau (LTP) without disruption of the articular surface of this. The lateral meniscus was intact with minor degenerative changes in the posterior part. Dr Rashid described extensive changes in the medial and patellofemoral compartments. In the medial compartment, he described a Grade 4 OCD (Osteo Chondral Defect) with a lesion measuring 1.2cm x 0.3cm x 1.3cm which is described as an unstable in situ fragment predominantly comprised of articular cartilage. This large articular cartilage fragment with underlying marrow oedema is the result of osteonecrosis of the subchondral bone. Comment: 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. Dr Rashid goes on to describe ten separate cysts with sclerotic rims clustered along the interface of this fragment measuring between 0.12cm and 0.5cm in diameter associated with subchondral bone marrow oedema. Anterior to this region on the medial femoral condyle he describes an extensive area with concave contour or depression of the subchondral bone plate associated with significant wear of the overlying articular cartilage. He goes on in several paragraphs to describe in detail further fragmentation of the medial femoral condyle in the weight-bearing region where there has been collapse of the underlying subchondral bone supporting the articular surface. At one point the collapse causes depression of the subchondral plate by 0.6cm. The collapse of the articular surface leads to disabling arthritis. The condition is commoner in obese individuals and patients suffering from gout or on treatment with steroid medication. Surgical treatment by knee joint replacement is often the only effective way of treating the condition. It can be seen from Dr Rashid's extensive description of the widespread changes in Ms Milne's medial femoral condyle that the disease is unlikely to heal with simple relief of load bearing and that a total knee joint replacement is the only form of treatment available. In the patellofemoral joint Dr Rashid describes complete loss of articular cartilage in the lateral half of the medial patellar facet. He also notes some subchondral cysts and full thickness vertical fissuring along the lateral facet of the patella. In addition, there is disruption of the medial half of the medial patellar facet as well as some softening of the articular cartilage at the patellar ape (chondromalacia patellae).
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': "In a letter to the insurer dated 16 June 2016, Dr Tan further stated that x-rays of the left knee performed in July 2015 at St George Hospital also show "slight irregularity in the contour of the medial femoral condyle". He felt the plain x-rays obtained at Bankstown-Lidcombe Hospital on 1 February 2016 following the fall showed "a definite change from July 2015". He felt the "slight irregularity of the medial femoral condyle" had developed "a step deformity". Dr Tan states that the MRI scan performed on 12 February 2016; "Commented on her lateral tibial plateau as well as some changes in the medial femoral condyle. It was described as patchy bone oedema in the femoral condyle". Comment: This is an oversimplification of Dr Faisal Rashid's two-page description of the large areas of collapse of the subchondral bone with cystic change seen in the medial femoral condyle on this MRI scan."
Prof Shatwell's first report also responded to some questions which were, inter alia, as follows: "…(i) The extent to which that condition (including any aggravation of any preexisting condition) developed as a result of the incident; and The diagnosis is a poor result from knee joint replacement surgery for gross degenerative joint disease which developed in 2015 and worsened in early 2016. Ms Milne's left knee pathology was avascular necrosis of the medial femoral condyle which was described by Dr Rashid in his report of the MRI scan of 12 February 2016. Unfortunately the use of ambiguous abbreviations has marred the usefulness of this report. It would have been, in my opinion, useful to state that the OCDs referred to in the report meant osteochondral defects and not osteochondritis dissecans which is a totally different entity seen in juvenile knees. In my opinion, the clinical finding of slight tenderness on palpation of the left lateral knee is not consistent with an acute fracture of the lateral tibial plateau. It is more likely Ms Milne had a soft tissue injury affecting her knee with underlying longstanding degenerative change due to avascular necrosis which had been symptomatic since June 2015. I note that in the file I have reviewed there is reference to anteroposterior and lateral x-rays of the left knee performed on 2 July 2015 without a report of this investigation in the notes. This investigation, performed at St George Hospital, is reproduced with rather poor quality as an image in the file I have reviewed and there is evidence on the anteroposterior view of degenerative joint disease especially in the medial compartment. There is also increased subchondral sclerosis of the lateral tibial plateau consistent with chronic overload of the joint. The 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. (ii) The extent to which any condition identified above is attributable in any way to any other incident, event, condition, or illness occurring prior to or post the incident. There is a history of a fall in a shopping mall on 11 December 2017 when Ms Milne was taken by ambulance to Shoalhaven Hospital Emergency Department with pain in her left knee, lower back and left wrist. She seems to have made a good recovery from this slip and fall. I do not consider that the effects of this incident have contributed to her left knee stiffness and loss of range of movement. … (iii) Whether the injuries and disabilities complained of by the plaintiff are related to the subject incident. The 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. … Your opinion as to the plaintiff's capacity to work and particulars of any restrictions or limitations. Ms Milne has skills and experience in sedentary tasks in administration and clerical work. There is no reason why she could not return to this form of work if she wished to do so. Ms Milne could manage sedentary work in a situation where she could get up to stretch at will and where she did not have to walk distances or climb steps and stairs."
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: "Left knee Joint line swelling. Active range of motion flexion 80° with pain, extension -10°. [This means there was a 10° fixed flexion deformity in the knee with movements from 10° to 80° only.] Passive range of movement able to extend knee to full extension. [This indicates a weakness in the quadriceps and a lag of approximately 10°.] Tender on pressure over medial joint line and also over distal hamstrings. Not tender to pressure in the popliteal fossa. X-rays show degenerative changes particularly in the medial compartment. IMPRESSION Symptoms consistent with left knee osteoarthritis."
Prof Shatwell also provided responses to questions which included, inter alia, the following: (a) Whether the plaintiff's activities identified in the surveillance are consistent with the plaintiff's presentation during your assessment on 19 September 2022; Ms Milne used a wheelie walker to walk into the examination room but she could walk very slowly using a single stick. Ms Milne's left knee moved from 20° fixed flexion to 50° only. She reported pain on all movements of the left knee and limped because of pain. She was hesitant about single leg standing but could manage it for a few seconds on either side. She had great difficulty climbing onto the examination couch and needed assistance from her partner. The movements seen on the surveillance suggest she is more mobile than she appeared when I saw her on 19 September 2022. (b) Whether the plaintiff's activities identified in the surveillance are consistent with the history, limitations and restrictions reported to you by the plaintiff during your assessment on 19 September 2022; Ms Milne stated she was experiencing pain in the left knee between 6 and 7 out of 10 most of the time and this was worse with activity. She complained of a constant deep aching in the knee joint and also in the thigh radiating to the groin. She was unable to walk 100 metres and could only manage steps when she had to. She could not squat, kneel or get out of low chairs. Ms Milne stated she could drive for about 10-15 minutes. She stated she could manage with one stick prior to her knee revision surgery but was now obliged to using a wheelie walker around the house. The actions seen on the surveillance show Ms Milne is much more mobile than she was when I reviewed her in the examination room. Ms Milne examined with minor illness behaviour when seen on 19 September 2022. (c) Whether the plaintiff's condition would have likely deteriorated to its current condition requiring a knee replacement irrespective of the subject incident? If so, please specify the timeframe for this deterioration: (i) Specifically, please specify the timeframe of the plaintiff requiring a knee replacement irrespective of the incident. On Page 18, in answer to Question (g) (iv) in my report of 20 September 2022, I stated "The treatment would have been required regardless of the incident described", referring to total knee joint replacement surgery. In my opinion, Ms Milne's knee was showing signs of osteoarthritis when she was examined on 2 July 2015 and that she was likely to benefit from the procedure of total knee joint replacement by February 2016 when she presented to Dr Tan. He asked for approval for surgery on 17 March 2016. In my opinion there was significant deterioration between July 2015 and 1 February 2016 of the avascular necrosis affecting the knee joint. Pain had been present in the knee since November 2014 and plain x-rays and an MRI scan were advised by the GP on 19 November 2014. Ms Milne's attendance as a chef at child care centres doing part-time work prior to the accident may give a better picture of her deterioration if her absences from work are noted or the GP's notes are scrutinised during this period. (d) Whether the surveillance and further reports cause you to alter any of your opinions expressed in your first report, including the plaintiff's capacity for work and pre-injury social and domestic activities; and The surveillance and additional reports do not change the opinions expressed in my previous report. …"
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": "a. Diagnosis and causation Mrs Milne appears to have suffered minor injuries to the left knee prior to the work accident that occurred on 1/2/2016. In antecedent x-rays no fractures were detected but osteochondritis desiccants of the medial femoral condyle was suspected. The 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. Conservative management did not allow for the knee pain to regress, and surgery in the form of total knee arthropiasty was recommended. A delayed infection of the left knee and septicemia required a drainage, removal of prosthesis, and massive antibiotic PICC line therapy. An antibiotic impregnated spacer was temporarily inserted and in time, a two-stage operation was performed. In the second stage there were periprosthetic fracture, and requirement for insertion of a hinged prosthesis. Although the sepsis has been eradicated, she requires ongoing review at the infectious disease centre at Wollongong. She continues to seek advice with Dr Tan. Secondary issues relate to the development of atrial fibrillation on two occasions, loss of massive volume of blood requiring multiple transfusions. This is being addressed by the cardiologist who has placed a whole person impairment rating for the cardiovascular system by 7%. The other issues relate to the morbid obesity stemming from the inactivity, development of diabetes related cataract requiring surgery. This will have to be addressed and I have recommended for her to seek a consultation at the Obesity clinic. Based 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."
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: "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. She had left total knee replacement. She has flexion contracture, restricted flexion of the knee and is in constant pain. She has had a poor result from the surgery."

[28]

Radiologists (joint report)

In the Joint Radiology Report, Dr Bowden and Prof Pitman gave the following relevant questions and answers: "(b) Did the plaintiff's fall on 1 February 2016 cause or materially contribute to the need for the plaintiff's total knee reconstruction on 10 August 2016? We will refer to the fall of 1 February 2016 as the 'index fall'. The experts disagree. They discussed it comprehensively and explored a number of considerations but came to a disagreement based on multiple factors. Prof Pitman feels the index fall did not materially contribute to the need for the plaintiff's total knee replacement. Dr Bowden feels that the index fall likely materially contributed to both her medial femoral and lateral tibial condylar pathology. The experts agree that the lateral tibial condylar subchondral insufficiency fracture and its surrounding bone marrow oedema was not an indication for a total knee replacement at that time. (c) Do you consider that there were other causes or substantially contributing factors for the plaintiff's total knee reconstruction? If yes, please provide details. The experts agree that they do not consider that there were any factors other than the medial femoral condyle osteochondral collapse that necessitated joint replacement at that time. Further, the experts agree that the urgency of the knee joint replacement for managing the medial femoral condyle osteochondral collapse was elective, rather than emergency. (d). Please provide your commentaries as to the significance, if any, of the plaintiff's left knee Xray dated 1 February 2016. The experts have not been currently provided with an Xray dated 1 February 2016 and therefore cannot comment on it. … Question 6. To the extent that you disagree on any of the above, please provide a detailed explanation of the nature of and the basis for your disagreements. Prof Pitman's opinion is that the index fall did not materially contribute to the need for the plaintiff's total knee replacement. Where Prof Pitman cites factual radiologic findings below, these refer to the plaintiff's right knee MRI dated 12 February 2016 (' index MRI'). Prof Pitman brings to the Court's attention the extent and intensity of the lateral tibial plateau bone marrow edema, surrounding the lateral tibial plateau subchondral undisplaced fracture on the index MRI. The plaintiff's medial femoral condyle osteochondral depression on the index MRI is surrounded by very mild and minimally extensive bone marrow edema (expected for a preexisting osteochondral depression of this severity). The absence of medial femoral condyle bone marrow edema of extent and severity matching the lateral tibial plateau bone marrow edema extent and severity is evidence against the index fall causing or materially exacerbating the medial femoral condyle osteochondral depression. Assertion to the contrary requires the extent and severity of bone marrow edema to match the lateral tibial plateau bone marrow edema, for which there is no factual evidence. Prof Pitman brings to the Court's attention the presence of undisplaced hinged osteochondral flaps contained within the medial femoral condyle osteochondral depression on the index MRI. These are undisturbed. Absence of their displacement out of the osteochondral depression is evidence against the index fall causing or materially exacerbating the medial femoral condyle osteochondral depression. Assertion to the contrary requires the osteochondral fragments to be displaced out of the depression, for which there is no factual evidence. Prof Pitman brings to the Court's attention the shape and position of the medial femoral condyle osteochondral depression on the index MRI, and the shape and position of the edge of the medial tibial plateau opposite the medial femoral condyle. These two shapes and their positions do not match; it is thus not possible for the depression to be caused by the medial tibial plateau edge, comprising evidence against the index fall causing or materially exacerbating the medial femoral condyle osteochondral depression. Assertion to the contrary requires the osteochondral depression and the medial tibial plateau to match both shape and position, for which there is no factual evidence. Prof Pitman brings to the Court's attention the location and orientation of the lateral tibial plateau subchondral fracture. It is evidence for a valgus injury affecting the knee at the time of the index fall, and not an axial compression injury. (Valgus injury is abnormal sideways bending of the knee joint with compression of the knee lateral compartment, and widening of the knee medial compartment. Axial compression injury is abnormal compression of both the compartments). A Valgus mechanism of injury is incompatible with the index fall causing or materially exacerbating the medial femoral condyle osteochondral depression. It indicates there was no material impaction of the medial tibial plateau on the medial femoral condyle. Assertion to the contrary requires evidence of medial compartment compression injury, including medial tibial plateau bone marrow edema with or without a medial tibial plateau subchondral fracture. There is no medial tibial plateau bone marrow edema or medial tibial plateau subchondral fracture, and therefore no factual evidence for medial compartment compression injury. Dr Bowden argued 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, likely representing impaction-related injury with mild underlying patchy/ill-defined marrow oedema, superimposed on her comparatively mild preexisting medial femoral condylar pathology. On balance of probabilities, he feels that the injury likely materially contributed to the medial femoral condylar pathology in a significant manner."
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.

[29]

Radiologist (concurrent evidence)

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: "WITNESS PITTMAN: Certainly. I will follow the rough order of subsection (b) of the conclave, and question 6 of the conclave, so the order is the same. So the first thing I'd like to bring to the Court's attention is the extent and severity of the lateral tibial plateau bone marrow edema surrounding the undisplaced fracture. There's so much here. That is the lateral tibial plateau. HIS HONOUR: Which I think is MFI D the witness has returned to. BARRY: It is. WITNESS PITTMAN: It is. It is approximately 4 centimetres this way and approximately 3 centimetres this way. It is a guide to the severity of injury. I now will move to MFI C ‑ actually I'm sorry, that was MFI C. I'll now move to MFI D, which is the medial femoral condyle, still a sagittal section here. The bruising, the bone marrow edema, is effectively confined to the defect itself. I know that because I know the size of the defect on the rest of the marrow examination. There is very little around it. Therefore, it contradicts the thesis that a significant injury happened to the medial femoral condyle, because if the injury was severe enough to produce a hole that deep, it would produce at least as much bone bruising as the same force produced in the lateral tibial plateau. That is anatomy and that is physiology. The next thing I would like to bring to the Court's attention ‑ this is MFI D ‑ is the presence of this structure here, which is the undisplaced chunk of cartilage within the hole. If there was a significant injury at the time of the ... (not transcribable) ... incidents to produce this hole, this cartilage, which is undisturbed in it, would not stay undisturbed. It would be displaced, lost, and go elsewhere in the joint. The same cartilage is this structure here. I'm outlining it precisely. It is still hinged at the back. It is disconnected at the front with a cleft of fluid separating it from the rest of the hole, it doesn't take much to knock that cartilage out of place and it has stayed in place. Now, I'm going to bring one more slide from the MRI, which has not yet been centred. It is still from 12 February, and it is from exactly the same examination. This section is an axial section, like that. When you look at this section, the kneecap is here. This is the medial side. This is the lateral side. The way the section runs is it shows you the contours of the hole. It is quite a sizable hole. There it is. This contour, so the contours of the hole, that, this is the contour of the outside of the medial femoral condyle, which corresponds to the outside of the medial tibial lateral. The two condyles do not match up. Therefore, the notion that one produced the other does not work, because the shape and position does not match. Now, if we are to accept that somehow one still produced the other, that would require such force as to stretch the tibia on the femur far enough sideways for the offset plus axial loading to produce the hole. When that happens, the digital collateral ligaments is completely torn. The anterior cruciate ligament, more often than not, is completely torn. The medial meniscus is usually torn. None of those are present here, and this knee stayed stable during the injury. Because there are no signs of ligamentous injury that match the injury. Now, that is the sum total of my evidence."
Dr Bowden, in relation to the same question, made the following observations: "WITNESS BOWDEN: Well, I will say the extent of the medial femoral condyle osteochondral fragmentation impaction is very extensive. Certainly, it would be highly symptomatic in terms of being painful and restricting Cheryl's mobility. In June 2016 (sic), it was relatively mild as shown on X‑ray. Then following the injury on February 2016, it was severe. A very similar pattern of osteochondral impaction, and there's hatchet‑like deformity that I talk about anteriorly in the medial femoral condyle was shown on the subsequent X‑rays obtained in March, about a month later. It looks very similar to the MRI appearance. So, 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."
However, later in cross-examination Dr Bowden did communicate some hesitation in relation to the specific pathology caused by the incident: "POLIN: What you're saying is ‑ and correct me if I'm wrong ‑ you don't really know what pathology was caused by the fall or brought about as a result of the fall? WITNESS BOWDEN: No, I don't. No, I don't know, and I think the mechanism of her fall or the precise nature of the fall is somewhat uncertain. It's hard to know whether she impacted it into the ground or into the cupboard or whether or not it was a twisting injury, but one thing is very clear here: there's a major finding and that's the medial femoral condyle pathology that back in June 2015 only, what, seven months previously, was only very mild at best, and it's hard to ‑ it's hard to not believe, on balance of probabilities, that that medial femoral condyle impaction ‑ osteochondral impaction ‑ was not at least, you know, moderately exacerbated by her index fall."
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: "WITNESS PITTMAN: Now, I do not expect anybody in this courtroom to find the defect, yet unquestionably was there because that occurred at the same time as this. So where is the defect hiding? Let's make sure that I have got the dates correct. Cheryl Milne, 14 March 2016, 3.03pm. Cheryl Milne, 14 March 2016, 3.03pm. Well, it is not magic. It is projection. The defect is hiding in there, and it is simply not shown at that projection. That is what happens with X‑rays. Because if your beam is not at the perfect angle, you don't see the hole because you rely on viewing the margins. Now, let me go back to MFI B, 18 June 2015. There may well be a much bigger hole there than what is visible to me. I simply cannot tell how deep it was in June 2015. Therefore, the question of how was it caused and was it caused in the time interval between 2015 and 2016 is difficult. POLIN: It might well be because of the quality of the scanning you're saying that the 2015 X‑ray didn't show up quite the significant level of the defect? WITNESS PITTMAN: Two exposures in 2015, four exposures in 2016. POLIN: I think that answers the question."
Dr Bowden also had a chance to respond to the concern Prof Pitman raised about the 2015 X-ray: "WITNESS BOWDEN: …I think it's quite, it's almost quite ludicrous to believe that this X‑ray attained in June 2015 was taken in a suboptimal projection or whatever we're hypothesising. In fact, if I look at the two AP views, there's a lot of difference there. I can't imagine at all that there's a very large anteroinferior medial femoral condyle weight‑bearing surface hatchet deformity that's obscured from the field of view based purely on projectional reasons. The other thing I'll say, there's quite a fair bit of difference there in that the medial joint space has collapsed almost completely compared to the June 2015 X‑ray. There's a lot of other changes like very early patchy sclerosis that wasn't there. So, I don't think this so‑called evidence that's been just provided in any way excludes her work‑related injury having contributed to this medial femoral condyle pathology. I think it would be a naive prospect to wash your hands and say, obviously Cheryl didn't contribute to this medial femoral condyle osteochondral impaction at the time of injury based purely on a relative absence of marrow oedema and possible projectional X‑ray deficiencies obscuring the depression in June 2015."
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: "BARRY: Can you describe what you can see? WITNESS PITTMAN: It will be shown much better on other MR sequences obtained at ‑ obtained at the same time, however, I can see subtle dot‑dash pattern here that does not belong. May I please pull up C and D? BARRY: Yes, if it's clearer for you. WITNESS PITTMAN: This is the traumatic injury. This is the lateral tibial condyle. Sorry, it's the lateral tibial plateau with its bone bruising. There is also ‑ and I will need to show other images from the same amount ‑ there is also a zigzagging fracture line at the centre of that bone bruising. BARRY: Those images and what you've just described are consistent with the fall that you've been told occurred on 1 February 2016? WITNESS PITTMAN: To the best of my understanding, yes. BARRY: You understand that an orthopaedic surgeon examined these films and took the view that it was necessary for Mrs Milne to have a total knee replacement? WITNESS PITTMAN: I understand that. However, I do not yet see the clinical causation from one to the other. BARRY: Would you accept that the treating orthopaedic surgeon would have advantages that you do not have in relation to making a determination as to whether or not a total knee replacement is the appropriate mode of treatment for this patient between the time when she had the fall which was on 1 February 2016 and when she had the operation in August 2016? WITNESS PITTMAN: I will ‑ let me re‑fine that. It is the orthopaedic surgeon's prerogative to decide whether to insert a total knee or not. It is not mine. BARRY: Would you defer to the opinion of an orthopaedic surgeon in relation to whether or not that was the appropriate treatment for the traumatic injury which occurred on 1 February 2016? WITNESS PITTMAN: Please define "traumatic injury". BARRY: The fall. WITNESS PITTMAN: Okay, fall does not necessitate a total knee replacement, the damage induced by the fall may. BARRY: But that all depends upon the severity of the damage, does it not? WITNESS PITTMAN: And nature, indeed. BARRY: That of course is a clinical sign and it depends upon an examination by the orthopaedic surgeon, does it not? WITNESS PITTMAN: And also relies upon‑‑ BARRY: Sorry, just answer the first question. Does that not depend on the skill of the orthopaedic surgeon conducting a clinical examination, yes or no? WITNESS PITTMAN: Yes."
Counsel for the first defendant also asked Dr Bowden about the incident, the mechanism of the injury and the reliability of the medical records: "POLIN: Because when doctors are looking at knee injuries they're very interested in the mechanism of the injury, aren't they? WITNESS BOWDEN: Yes. I mean, you know, an ACL injury's a classic where you have this cubit shift movement, such as in sports, and it sounds as though Cheryl sustained something of a similar nature. POLIN: Because when lay people hear of a lateral tibial plateau fracture, they often think it must have hit something, but that's generally an injury that's brought about as a result of twisting, isn't it? WITNESS BOWDEN: Yeah, and as I said before, I mean I've had it myself just from being overweight and going on a fitness campaign, and that's analogous to a stress fracture. It's really a combination of stress and insufficiency because you're overweight and I think, you know, Cheryl looks as though she was quite overweight at the time of the injury, and the bone isn't strong enough, or the bone marrow density isn't good enough to support significant impaction‑type events. And so you develop this insufficiency/stress fracture, and we see it in all portions of the body. So even though we're saying on balance of probability it occurred, this lateral tibial condyle undisplaced fracture occurred, at the time of her injury it is entirely possible that, in fact, she'd already ‑ was ‑ harboured that and developed further impaction of her medial femoral condyle at the time of the slip and knee twisting event. POLIN: If I could come back to where I was, in terms of the contemporaneous medical records that might assist, you may not have this, but a doctor who obviously examined her and took a history from her recorded this: "Mrs Milne presented post slip and fall after which she experienced left lateral knee pain. She denies direct injury to the knee, but felt like she had pulled it during her fall. She reports hitting the back of her head, but denied headache" et cetera, et cetera. HIS HONOUR: Can you give a page reference, please? POLIN: That's page 997. The history that appears that was taken by a medical practitioner very soon afterwards, indeed, on the same day, was not of an impact injury to the knee, but rather the slipping and twisting where she feels that she may have pulled it. WITNESS BOWDEN: Mmm. POLIN: If that is the case, that certainly takes away from your impaction‑related injury thesis in the last paragraph of the conclave report, doesn't it? WITNESS BOWDEN: Yeah, well, it would take some of that away, yes, but either way I don't think ‑ regardless of whether you want to entertain it's an impaction injury or a twisting injury, there would have been some degree of impaction of her already diseased medial femoral condyle into her medial tibial condyle at this twisting‑related injury. So, I don't think that that medical history excludes her further damaging of the medial femoral condyle at the time of her slip, or twist, or fall, or whatever had occurred. POLIN: But it certainly starts to take away from the impaction‑related injury; doesn't it? WITNESS BOWDEN: Not really, because when you twist your knee, you know, a common pattern of injury that you see is a meniscal injury or a ligamentous injury like an ACL or a cruciate ligament, collateral ligament, injury. But even then, they end up often with an impaction related injury, a subchondral impaction‑related injury. So, it's quite, I think you're being over simplistic by saying that you either have an impaction injury or a twisting‑related injury. I think the two can occur together and I don't think that piece of history excludes her damaging a medial femoral condyle at the time of injury."
Dr Bowden was critical of the hospital's medical records and stated the following: "POLIN: Well, you keep coming back to the impaction, I'm going to take you back to that scan, but this particular incident doesn't seem to be described as an impaction‑type injury, does it? If you if you take what's‑‑ WITNESS BOWDEN: Well, again, I disagree because first of all, I don't think Cheryl probably really remembers what happens and I know for a fact that, you know, I also read emergency physicians' notes and other doctors' notes when I'm going through, medico‑legal cases and just day‑to‑day work cases, and they're often completely wrong. I mean, they often get lateral mixed up with medial. They get sides wrong. They don't know what they're talking about I'd say the 30, 40% of the time. So, I don't know how much we can play how much emphasis we should be placing on that one little clinical note. We don't know the exact mechanism of Cheryl's injury, and even if she did have a twisting injury to a knee, that doesn't mean she didn't get an impaction injury, ie as she twisted a knee, the medial femoral condyle and its ‑ bear in mind that she already had a meniscal deficiency, her medial meniscus was already probably torn and deficient. Probably, to be honest, slammed into the anteromedial margin of a medial tibial condyle, resulting directly in that hatchet type of formula that I keep talking about, regardless of the fact that there's not a lot of marrow oedema."
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: 1. There was extensive bone oedema around the lateral tibial fracture whereas the oedema around the medial femoral condyle depression was not to the same extent or severity ("the first Pitman reason"). 2. The shape and position of the "medial femoral condyle osteochondral depression" ("the depression") shown in an MRI dated 12 February 2016 and the position and shape of the edge of the medial tibial plateau opposite the medial femoral condyle do not match such that it was not possible for the depression to be caused by the media tibial plateau edge ("the third Pitman reason").
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: 1. There remained an undisplaced hinge or piece of cartilage within the depression which would have been expected to be displaced if the fall had caused or materially exacerbated the depression ("the second Pitman reason"); and 2. The location and orientation or the lateral tibial plateau subchondral fracture was evidence of a valgus injury affecting the knee at the time of the fall and not an axial compression injury. A valgus mechanism of injury was incompatible with the fall causing or materially exacerbating the depression which indicated no material impaction of the medial tibial plateau on the medial femoral condyle. In oral evidence, Prof Pitman stated that the force required to stretch the tibia on the femur far enough sideways for the offset plus axial loading to produce "the hole" would result in collateral ligaments to be completely torn which was not evidence in the plaintiff ("the fourth Pitman reason").
In relation to the first Pitman reason raised by Prof Pitman, Dr Bowden said the following: "POLIN: For example, the first one he comes up with is the difference in the oedema. He refers to the oedema around the lateral tibial plateau fracture and says that if there was similar injury to the medial femoral condyle osteochondral area, if I can call it that, you'd expect a similar level of oedema? WITNESS BOWDEN: Well, I don't agree, and I'll tell you why that is. Again, this is an over simplistic hypothesis in that, for example, I can go for a run at time and time again being overweight and I'll get insufficiency fractures in my tibial plateaus, while actually perhaps ‑ and I will have florid marrow oedema. Now, there was no fall, there was no true fracture, it's more what we call an infraction which is a very minor, undisplaced fracture at first, but there is florid oedema around it. Now, I can also go and have a high impact sporting injury and a Volz bone off my distal femur, say from an anterior cruciate ligament tear or a medial plateau ligament tear and there'll be very little oedema. So, I think that that concept is a little bit over simplistic. You could view it as some sort of vague evidence that the injury didn't cause any medial femoral condyle injury at the time, but I don't agree and for those reasons. POLIN: Again‑‑ WITNESS BOWDEN: The other thing I'd say, how do you possibly explain that in June 2015 we've got a very mild depression at best, and then shortly after the injury in February 2016 and in March 2016 we've got a grossly different looking knee with a very marked, what I would say, impaction looking hatchet deformity of the anterior weight bearing surface of the medial femoral condyle. I mean, how can we explain that?"
In relation to the second Pitman reason raised, Dr Bowden said the following: "POLIN: So, Dr Bowden, you're talking about the wedge‑shaped depression of the medial femoral condyle, and that it's a very unnatural pattern, and if we can, if you could do that, show ‑ Dr Pittman's marking what you're talking about ‑ and it matches the contour of the anteromedial corner of the medial tibial condyle. See that? WITNESS BOWDEN: It doesn't match it. It 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, and I think, I mean, to my mind the ‑ what ‑ 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."
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: "POLIN: …What you're saying there, Doctor, is that there has been impact between the anterior medial corner of the medial tibial condyle that's created, effectively, the further wedge‑shaped depression of the medial femoral condyle. That's what you're saying, isn't it? So that the bottom bit, if you could point to that, has impacted and caused the damage at the top bit. See that? WITNESS BOWDEN: Well, I guess I ‑ I just guess I'm‑‑ POLIN: Can you just ‑ that's what you're saying, isn't it? WITNESS BOWDEN: What I'm trying to do in that ‑ that paragraph, look, this conclave was produced quite late at night on a ‑ on a ‑ I think it was a Thursday night, quite, quite late, and then we had to edit it the next morning before going to work. There was a fair bit of fatigue involved here, and I must say, if I had to write that again I'd probably say, "roughly approximating" rather than "matches", because at the end of the day, I honestly don't know how that impaction got there. I'd say on balance of probability, it was significantly contributed to by her twisting or whatever injury it was."

[30]

Orthopaedic Surgeons (joint report)

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: "(a) Please detail your findings as to what injuries if any the plaintiff suffered in her fall on 1 February 2016. Dr Endrey-Walder The injuries suffered include a lateral tibial plateau fracture of the left knee and according to Dr Tan Ms Milne's orthopaedic surgeon,- she also suffered bone bruising of the medial femoral condyle. - Six weeks after injury was diagnosed with a "definite fracture medial femoral condyle with 1.5 cm anterior displacement." Professor Shatwell The Plaintiff claims she suffered an injury to her left knee in an unwitnessed fall that occurred on 1 February 2016. Dr Machart The narrative obtained was that the Plaintiff suffered a twisting injury to the left knee. … (d) Did 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 Endrey-Walder The Plaintiff was in employment 6 hours, 5 days a week - was functional and able to perform. The Plaintiff fell and suffered a lateral tibial plateau fracture. I am unaware that the Plaintiff was looking at a knee replacement prior to the incident. Professor Shatwell 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. Dr Machart Difficult 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. (e) 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 Endrey-Walder On 17 March 2016, six weeks after accident, Dr Tan suggested the mechanism to be a varus-valgus type injury recommending a total knee replacement. Professor Shatwell The 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. Dr Machart Yes. Not sure when it would have been required. It is possible that it was brought forward by the injury. … (h) Please detail your findings as to the plaintiff's current disabilities. Dr Endrey-Walder Severe ongoing pain in the knee, she keeps falling (5 falls in the 18 months prior). Professor Shatwell I saw the Plaintiff on 19 September 2022. She had a significantly reduced range of movement but was able to weight bear on the knee joint satisfactorily. On reviewing videos (16/1/22 and 20/03/22) it was noted - the plaintiff was reasonably mobile and functioning better than when she was seen on 19 September 2022. Dr Machart At the time of my assessment, the Plaintiff stated she had difficulties walking 40 metres. I agree that there was difficulty walking but not to such extent, not confirmed on objective evidence on the videos. (n) What is the plaintiff's current and future capacity for work and is any of that incapacity as a direct result of her fall on 1 February 2016 and/or her subsequent total knee replacement surgery on 10 August 2016, and/or her pre-existing disabilities and the total knee replacement surgery on 10 August 2016? Dr Endrey-Walder I consider the Plaintiff incapable of undertaking remunerative work. Even if she could sit in an office, she would have great difficulty getting to and from work on a regular daily basis. Professor Shatwell I consider the Plaintiff has a capacity for sedentary work such as clerical work, and she had previous experience of this. In spite of her poorly functioning left knee replacement, this capacity for work is still present. The alleged fall has nothing to do with her current capacity for sedentary or clerical work. The Plaintiff has some limitations regarding work due to her general medical problems including hypertension, hypercholesterolemia, cardiovascular problems and morbid obesity. Dr Machart There remains a partial incapacity. The Plaintiff has a painful stiff knee which makes her fit for semi-sedentary work, for example, office work or sales. The incapacity reflects osteoarthritis and the poorly functioning knee replacement. The validity of partial incapacity was demonstrated on the surveillance video, which was not consistent with total incapacity. The reason for the incapacity is expressed in paragraph (m). Dr Shatwell and Dr Machart both: Disagree with Dr Endrey-Walder that the Plaintiff is incapable of remunerative work due to the evidence presented in the videos.

[31]

Orthopaedic surgeons (concurrent evidence)

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: "POLIN: This is also with the known history of no complaint of any medial pain at around the time of the fall. WITNESS ENDRY-WALDER: You see I don't know what this lady was experiencing at the time of the accident, all I know is that she was in such severe pain that an ambulance was called. Now may I respectfully suggest that when you're in severe pain you do not localise it medially, laterally, back or front, you are in severe pain, you're a middle aged lady having, have your fall, and you're in severe pain. I don't know where she localised her pain. POLIN: Of course you don't when you're talking to a layperson, but when you're talking to a medical specialist who wants to identify precisely the damage done to the knee by means of questioning they're able to localise where the pain is, aren't they? WITNESS ENDRY-WALDER: Yes. I think this I what Dr Tan did. POLIN: Dr Tan's on the scene quite some time after the ambulance officer and the general practitioner, isn't he? WITNESS ENDRY-WALDER: Correct. POLIN: And you accept that the ambulance officer, and the, sorry, the doctor at the hospital both refer to lateral pain, not medial pain? WITNESS ENDRY-WALDER: It is I don't know. This may or not be so. POLIN: But if you accept that's the case, do you accept then the position of Dr Shatwell and Dr Machart that for the tibia to have done that damage to the medial femoral condyle, as seen on the February 2016 scan, there would have been significant ligament damage, and certainly pain in the medial side of the knee? WITNESS ENDRY-WALDER: Pain, yes, ligament damage, no."
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: "POLIN: Professor Pittman also referred to the oedema, or the bruising of the bone, and said that there was bruising of the bone on the lateral, near the lateral fracture, but there was no similar bruising around the medial pathology, and he said for that reason it gives an indication that the two pieces of damage were not done at the same time, would you agree with that? WITNESS ENDRY-WALDER: I agree with what you're saying, but I don't agree with the statement as such because I would put more emphasis on the opinion of the orthopaedic surgeon who was attending this client at the time of the acute injury. … WITNESS ENDREY-WALDER: This is the conclave of the radiologists and the report on the MRI scan of 12 February 2016 is fairly complex. It states a number of features on the radiology, including patchy underlying marrow ‑ bone marrow edema, and then he talks about extensive bone marrow edema at the medial ‑ medial femoral condyle. So I'm not quite sure if I understand this particular report. It does refer to quite a significant extent of marrow edema, which may or may not be related to injury. POLIN: Just so we're not misunderstanding it, Dr Endrey‑Walder, I read out ‑ this is, your Honour, from the conclave report, it's on p 3 at the bottom, it's under the heading Question 6, it's in the second paragraph, and it's five lines down, "The plaintiff's medial femoral condyle osteochondral depression on the index MRI is surrounded by very mild and minimally extensive bone marrow edema". Then it goes on, "The absence of medial femoral condyle bone marrow edema of the extent and severity matching the lateral tibial plateau bone marrow edema and severity is evident against the index fall causing or materially contributing to the medial femoral condyle osteochondral depression"; do you see that? WITNESS ENDREY-WALDER: Yes, correct. POLIN: It couldn't be clearer, could it? The radiologist is saying that the edema doesn't match. It's severe around the lateral fracture, but it's not around the femoral condyle; that's what he's saying, isn't it? BARRY: I object to that. POLIN: I press it, your Honour; that's what he's saying. HIS HONOUR: Well you can put what you would wish to be taken out of the report, and the experts can agree or disagree. POLIN: Dr Endrey ‑Walter, that's what he's saying, isn't he? BARRY: I object to that. WITNESS ENDREY-WALDER: That is what it's saying, but‑‑ BARRY: I object to it, your Honour, because my learned friend needs to ‑ he's quoting from what Professor Pitman has said, and if he wants to ask the witness does he agree with what Professor Pitman said, that's a relevant question, not assuming the truth of what's said. HIS HONOUR: All right. POLIN: I've just read out what Professor Pitman said; do you agree with that? WITNESS ENDREY-WALDER: I cannot concord or argue with Professor Pitman. I ‑ I'm no radiologist. My judgment is slightly coloured by the fact that I pay a lot of emphasis to Dr Tan's report; he was at the coal face looking after this lady. On 19 February, he made the diagnosis of undisplaced fracture of the lateral tibial plateau and bone bruising of the medial femoral condyle. A month, not a month, four weeks, less than four weeks later, he made a diagnosis of an osteochondral fracture with a 1.5 centimetre displacement, a fragment. I cannot help but draw a direct conclusion from the accident, the injury, the bone bruising and the subsequent detachment of the bone six weeks after the accident. POLIN: Did you read through question 6 in the conclave report where Professor Pitman clearly sets out the reasoning as to why he says what he saw in the MRI scan in February 2016 was unrelated to the fall? WITNESS ENDREY-WALDER: I'd accept his ‑ he's a professor of radiology. POLIN: You understand. And so in simple terms, he was saying various things. He was saying if the damage was done to the medial side in the fall, you would expect the edema or the bruising to be similar to the edema or a bruising on the lateral side, which he accepted was caused by the fall. That's in essence what he was saying; do you understand that? WITNESS ENDREY-WALDER: Yes, I understand. POLIN: It's a good logical argument, is it not? I'm not asking you to agree or disagree with it. WITNESS ENDREY-WALDER: Yes, but it doesn't take into consideration the mechanism of the accident, and the orthopaedic surgeon's opinion was that it was what's called a virus vulgus injury, which means a shearing ‑ a shearing injury to the knee joint itself, which, in my opinion, or it seems to me resulted in the detachment of a piece of bone from the medial femoral condyle, which was not present prior to the accident."
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): "POLIN: And he said that if indeed that damage had been caused in the incident, that cartilage would've been forced out by the impact. Do you understand that? WITNESS MACHART [Endrey-Walder]: I understand what he's saying. I cannot see if the cartilage, but he can, he's the radiologist. POLIN: Would you accept the logic of his argument if he indeed is correct and says he can see the cartilage, that if the damage was done in the fall, the impact would've forced the cartilage out? WITNESS MACHART [Endrey-Walder]: I don't know, sir. I really can't say."
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): "POLIN: His next argument was that for the area of the tibia to impact with the medial femoral condyle and do the damage, the tibia would have to be manoeuvred so far that it would cause extensive ligament damage at the time that it would do the damage to the medial femoral condyle. WITNESS MACHART [Dr Endrey-Walder]: That doesn't make sense to me at all. POLIN: Dr Shatwell, did that make sense to you? WITNESS SHATWELL: Yes. POLIN: Can you explain it? WITNESS SHATWELL: You 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. POLIN: 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? WITNESS SHATWELL: 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. POLIN: Dr Machart, do you agree with that? WITNESS MACHART: 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? POLIN: Just so we're all clear, I don't know whether your Honour's got the scan, we're on the same page. I'm wondering how the best way, is it possible maybe to mark with an X and a Y. So, we have the top of the tibia. WITNESS MACHART: You'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. POLIN: Does your Honour understand that from the scan, or should I get the doctor to mark it? HIS HONOUR: No, I can follow it. I'll put it this way, I can understand the point being taken. Whether it's correct or not is another matter. POLIN: Would that be the reason why it's suggested that if it did occur, there would be significant ligament damage to the knee at the time? WITNESS MACHART: Yes, but I'd also say that's impossible for that to happen. I would go beyond that. POLIN: Dr Endrey-Walder, you've heard Dr Shatwell explain it, and then Dr Machart's gone a bit further, do you accept what they say? WITNESS ENDREY-WALDER: So, unfortunately for all of us, we don't have the original x-ray of the knee at the hospital. I don't know if the original x-ray had shown up a very significant medial femoral condyle defect, and if it had, I suppose it would have been reported because they picked up a very much less obvious fracture which was the lateral tibial plateau. So, I don't know when this defect, this very obvious defect in the medial femoral condyle, had occurred. It was not apparently noted and it's fairly large on the original x-ray in hospital. POLIN: But what I think Associate Professor Shatwell and Dr Machart are saying is that looking at the February 2016 scan, it is Dr Machart's suggesting it's near to impossible for it to have occurred, but you'd need the tibia to have moved by 45 degrees for the tibia to have created the damage that's seen in the scan. That's what he's saying, isn't he? Do you want me to check with him if that's what he was saying? WITNESS ENDRY-WALDER: I understand what you're saying. My understanding is that there was evidence of some depression of the medial femoral condyle on the X‑ray of 1915, which was - 2015 which was very mild indeed, and described as very mild. The next thing I know is that on the 12th of February, 12 days after the accident, there is a sizeable chunk of bone out of the medial femoral condyle which could not possibly have been there prior to the accident because of this lady's ability to work 30 hours a week. Actually the accident occurred while at work; she was carrying two plates of soup in her hand when she fell. … POLIN: All the other two doctors are saying is looking at the MRI in February 2016, soon after the fall, they're saying that damage could not have been done in the fall because it would have meant the tibia would have had to have moved out by at least 45 degrees to create the damage, and if it had done that there would be significant ligament damage to the knee, which there was not. That's what they're saying, aren't they? WITNESS ENDRY-WALDER: A 45 degree torsion, and it's dislocation of the knee. This lady did not have a dislocation of the knee. POLIN: So I take it you're then agreeing with Dr Machart; it couldn't have occurred in this fall? WITNESS ENDRY-WALDER: If, if I am to believe that you can't have the medial femoral condyle defect without a dislocation, yes, you can. POLIN: No, all they're saying is, we're just looking‑‑ WITNESS ENDRY-WALDER: I understand what they're saying, I just don't happen to agree with them, the mechanics of it."
Following this evidence, counsel for the defendant cross-examined Dr Endrey-Walder further on the mechanism of the incident and the resultant injury: "POLIN: I understand that, but it's the mechanics of how the tibia gets there to cause the damage that we're looking at. WITNESS ENDRY-WALDER: Over two or 3 millimetres it can be of momentary impact. POLIN: Yes. Would it be important then to consider whether there was in fact any impact with the knee in this fall, or whether it was just a simple twisting sort of fall? WITNESS ENDRY-WALDER: Yes, I think that's reasonable. POLIN: So what, you'd look at the contemporaneous material, for example, whether a doctor asked her on the day of the fall whether there was any impact with the knee? WITNESS ENDRY-WALDER: I read this out to this lady when I first saw her; the reports from the hospital, and what she said to me that is not true. The reports from the hospital says "she denied direct injury to the knee, but feels like she may have pulled it during her fall. Ms Milne suggested that this was incorrect, she did hit her knee against the cupboard in the kitchen", this is her testimony to me. POLIN: Right. But you'd accept, wouldn't you, that a doctor at the hospital is attempting to, with some degree of precision, determine what sort of injury was caused to the knee‑‑ WITNESS ENDRY-WALDER: I hope so. POLIN: ‑‑and you've actually read out word for word the history that the doctor recorded? WITNESS ENDRY-WALDER: Yes. POLIN: So you're going on the basis that the plaintiff came afterwards and said, "No, no, I never said that. I actually hit my knee"? WITNESS ENDRY-WALDER: Correct, that's what she said, yes. POLIN: But if you assume that the records of the doctor are in fact correct, and that her evidence is not reliable, that also supports the proposition that there was no damage done to the medial femoral condyle compartment in this fall, doesn't it? WITNESS ENDRY-WALDER: I don't know, I can't say yay or hey (sic)."
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: "POLIN: The MRI in February 2016, that may well have just simply presented itself with pain in the knee and limping; is that correct? We'll go with you, Dr Machart? WITNESS MACHART: Can you repeat the question? POLIN: So we've got the MRI in February 2016, which shows the pathology in the medial side of the knee? WITNESS MACHART: Yes. POLIN: In terms of that pathology, it may have presented itself to the patient as pain and potentially limping in that knee, would it not? WITNESS MACHART: That pathology was expected to cause pain and limping, yes. POLIN: Would you agree with that, Dr Shatwell? WITNESS SHATWELL: Yes. POLIN: Would you agree with that, Dr Endrey‑Walder? WITNESS ENDREY-WALDER: Yes, I would. POLIN: And so that's consistent with certainly the limping, and people generally limp because of pain, but that's consistent with the plaintiff's description of her condition before this incident; do you agree with that? WITNESS ENDREY-WALDER: Yes. WITNESS SHATWELL: Yes. WITNESS MACHART: Yes."
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: "POLIN: No medial knee pain? WITNESS SHATWELL: There was no medial knee pain. POLIN: That's pain on the outside of the knee, not the inside of the knee? WITNESS SHATWELL: The pain she described to the ambulance officers is in my second report. In the first report, I didn't have the notes. In the first report, I wrote down verbatim the emergency department office's description of the injury. And that included, "No pain, no medial tenderness", okay. POLIN: There's no medial pain or tenderness, it's just lateral pain and tenderness-- WITNESS SHATWELL: Yeah. POLIN: --at both presentation to the ambulance officer and to the hospital? WITNESS SHATWELL: He said, "Slight tenderness on palpation of the left lateral knee, otherwise nil other tenderness". POLIN: That's consistent, no doubt, with the lateral tibial plateau fracture? WITNESS SHATWELL: Yes. POLIN: Do you agree with that, Dr Machart? WITNESS MACHART: I agree. POLIN: Do you agree with that, Dr Endrey-Walder? WITNESS ENDREY-WALDER: Yes. POLIN: If that was the only injury suffered, that would be, I take it, the end of the matter, there would've been no need for a knee replacement. Do you agree with that, all of you? WITNESS SHATWELL: Yes. WITNESS MACHART: Yes."
Whilst occasioned by some lack of clarity, it would appear that Dr Endrey-Walder had the same view: "POLIN: ‑‑so she is complaining of pain to both the ambulance officer, and the hospital of pain on the lateral side of the left knee, is she not? WITNESS ENDRY-WALDER: I don't know. POLIN: But if that is the case that would suggest a problem with the lateral side of the left knee? WITNESS ENDRY-WALDER: Yes. POLIN: She's not complaining of pain on the medial side of the left knee. If you accept that's the case it would suggest potentially there's not a problem‑‑ WITNESS ENDRY-WALDER: If this is the case, yes, I agree with what you're saying. I don't know."
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: "BARRY: I just want to ask the three of you in turn whether the condition of the plaintiff, as you have recently seen her, is the result of four surgeries and a significant infection to the knee. Do each of you agree that her disability now is caused by that sequence of events? WITNESS SHATWELL: Yes. WITNESS MACHART: Yes, sir. WITNESS ENDREY-WALDER: Yes. BARRY: Do each of you agree that the operation that was performed in August of 2016 did not have the desired effect of curing whatever was present in her knee at that time? WITNESS ENDRY-WALDER: Yes, sir. BARRY: Dr Shatwell? WITNESS SHATWELL: It was almost two years, less two months, before she needed revision. Sorry, before she developed infection. I know that the recovery of movement was not good, otherwise in fact manipulation under anaesthetic, which is not an operation, I know that the surgeon and the patient were disappointed with the range of motion obtained from the original knee replacement surgery. To say it was a failure is untrue, and I think you said that before. The question is are the bad results of surgery due to bad surgery, no, they're due to the fact that this got infected at about two years. And the revision surgery is never going to be as good as a primary knee replacement, and that's where we're at. BARRY: Dr Machart, what's your view? WITNESS MACHART: If I remember your question correctly, it was whether the initial operation cured the pathology in, in the middle of 2016, that's what you were asking? BARRY: Yes. WITNESS MACHART: It cured the osteoarthritis. BARRY: I thought you said in the conclave report you agreed that she had had a poor outcome? WITNESS MACHART: She had a poor outcome, but there's no longer arthritis. There's a poor outcome knee replacement, it's different pathology. BARRY: To what do you attribute the poor outcome? WITNESS MACHART: To the infection."

[32]

Plaintiff

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: 1. The second defendant has paid weekly compensation payments to the plaintiff and has pleaded the workers compensation payments by statutory defence. 2. It cannot have it both ways. It either paid the compensation including treatment expenses because the injury arose out of or in the course of employment or it cannot rely on its statutory defence. 3. The second defendant's medical case on causation may be summarised by extracts from the medical reports upon which it relied: the final opinion of Dr Frank Machart in his report dated 4 September 2023 was: "Substantial osteoarthritis at the time of injury. Aggravation of osteoarthritis through injury. Diagnosis was a minor tibial fracture and meniscal injury that accelerated the need for knee replacement to some degree but not a great deal." 1. Dr Panjratan in his report dated 18 February 2018 stated: "In my opinion, there may be some aggravation of pre-existing degenerative changes in the knee due to the work injury." 1. In his second report dated 30 May 2019 Dr Panjratan stated: "In my opinion, the injury sustained by Cheryl Milne can be attributed to aggravation of her pre-existing, severe osteoarthritis in the knee due to an accident at work." 1. The second defendant's cross-examination of the plaintiff was directed to the plaintiff's past and future loss of earning capacity and not issues in relation to causation. 2. There was no questioning by the second defendant of any of the medical witnesses although Dr Machart agreed that the plaintiff had had a poor outcome from the treatment that she received following the initial injury and his opinion was that this was due to the infection. 3. Causation is not in issue in relation to the case against the second defendant and the submissions in relation to quantification of damages will deal with the second defendant's only case on damages namely the amount that the Court should award for past and future loss of earning capacity.
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: 1. There was no issue on the medical evidence that the plaintiff had had a poor outcome from the surgery and that the subsequent treatment that she received was an unsuccessful attempt to improve the pain and function of her left knee, nor was there any dispute that one of the complications of that treatment was the development of septicaemia. 2. It was not disputed that the plaintiff had pre-existing osteoarthritis in her left knee. That was part of her case on liability and a significant part of the first defendant's case on causation. 3. The issue between the plaintiff and the first defendant was whether the fall on 1 February 2016 caused the chain of events which led to the total knee replacement on 10 August 2016, the extensive treatment thereafter and the ultimate level of disability with which the plaintiff has been left. 4. In answering that question four matters of principle are relevant. 1. The first is that Courts make findings of causation not doctors: EMI (Aust) Ltd v Bes [1970] 2 NSWR 238 at 242. 2. The second is that a sequence of events can be called in aid to support an inference, which according to expert evidence is open: Tubemakers of Australia Ltd v. Fernandez (1976) 50 ALJR 720 at 725. 3. The third is: "A tribunal of fact is entitled to find causation as a matter of common sense from the sequence of events, although medical science does not suggest an affirmative answer, providing it does not exclude such a finding": Commonwealth v McLean (1996) 41 NSWLR 389, 410. 4. The fourth is where a plaintiff has made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that her incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event have resulted from a pre-existing condition, rests upon the defendant: Purkess v Crittenden (1965) 114 CLR 164 at 165; [1965] HCA 34. 1. The application of those principles involves an examination of the whole of the evidence and not, as the first defendant's case sought to do, treat an MRI film, which is a piece of evidence frozen in time as the means by which causation is determined. 2. The starting point of the analysis is that it was common ground between the parties that the plaintiff had pre-existing arthritis in her left knee. 3. That condition did not prevent her from carrying out her duties to a high standard as Ms Wilson attested to in oral evidence as well as the plaintiff's daughter Ms Mitchell. 4. The next relevant event is the accident on 1 February 2016. The first matter that needs to be noted about the examination of the plaintiff at Sutherland Hospital after she was taken there by ambulance was that it was performed, not by a medical practitioner but by a registered nurse. The second thing to note about the note was that it was not done for any purpose other than "triage". The examination took five minutes for it to be conducted and observations recorded. The spelling and omission of the word "no" suggests that it was done in some haste. The note is of little evidentiary weight. 5. The X-ray notes of 1 February 2016 at the hospital recorded (as earlier referred to in this judgment) that "[t]here is a suspicion of osteochrondritis dissecans of the articular margin of the medial femoral condyle". 6. Hospital admission was not regarded as necessary but it is important to note that the knee was immobilised in a splint and crutches provided. 7. In accordance with the evidence given by the intern and because the pain did not "dissipate" within the timeframe recommended as it had done on two previous occasions the plaintiff returned to see her general practitioner on 7 February 2016 still wearing the splint. 8. The plaintiff told her general practitioner that she had an X-ray but no fracture was seen. The general practitioner conducted an examination and noted that there had been no improvement with rest and he ordered an MRI scan of the left knee. 9. The plaintiff saw her general practitioner two days later and gave a history of difficulty on walking and weight bearing and thought that she may need to be reviewed by a knee specialist. 10. The workers compensation insurer approved the MRI scan on 11 February 2016 and the scan was conducted one day later. 11. The plaintiff's general practitioner referred her to Dr Tan, a knee specialist. The plaintiff was also examined by Dr Machart. 12. Dr Machart's opinion was that a total knee replacement was not necessary as a result of the fall on account of other pre-existing conditions requiring that treatment. 13. It did not follow, as the more detailed analysis by Dr Tan demonstrated, that the fact that there was pre-existing osteoarthritis did not mean that the fall had not made a material contribution to the worsening of the pre-existing osteoarthritis creating the need for a total knee replacement at that time. 14. Dr Tan's opinion was that the incident caused the injury and the necessary treatment was a total left knee replacement. 15. It is apparent that the workers compensation insurer preferred the opinion of Dr Machart who was not the treating orthopaedic specialist and who did not have the radiological evidence that Dr Tan possessed in preference to the opinion of the treating orthopaedic specialist. This resulted in a further letter from Dr Tan to the workers compensation insurer dated 16 June 2016. In that letter he stated: "I reviewed her x-rays again today." He then in greater detail revealed his process of reasoning in relation to the causal relationship between the fall at work on 1 February 2016 and the 1.5cm displacement of the medial femoral condyle shown in the X-ray of 14 March 2016. 16. There is no dispute between the parties that Dr Tan thought that the need for the surgery was the result of the fracture and as has previously been noted there is no dispute that the surgery six months after that fracture was detected was unsuccessful leading to the sequence of events involving further surgeries and a severe infection which has caused the past and continuing disability. 17. The dispute between the parties was whether or not that "propagation and extension" was causally related to the fall at work on 1 February 2016. 18. The opinion of Dr Tan was that it was so caused. The opinion of Prof Shatwell as set out in his report dated 20 September 2022 was that "The 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". 19. The issue for determination thus becomes whether, but for the fall at work on 1 February 2016 the plaintiff, by 12 February 2016 would have needed total knee reconstruction surgery. She had not needed a total knee replacement prior to 1 February 2016 because the pre-existing medial femoral condyle osteochondral pathology had not progressed to the stage where there was "a clear acute fracture line involving half the medial femoral condyle and displaced 1. 5cm proximally''. 20. The words "propagated' and "extended' indicate that in Dr Tan's opinion a process had commenced at the time of the fall, as suspected by the hospital radiologist and during the next six weeks the fracture line and displacement became obvious on the X-ray. 21. Dr Tan as noted above asked the plaintiff whether in the six weeks between when he saw her in February and when he had the X-ray with the 1.5cm displacement on 17 March 2016 whether she had had a fall in those six weeks. When she told him she had not had another fall this explains why he used the words "propagated" and "extended". 22. As previously noted, her knee had been in splints at all times between 1 February 2016 and 14 March 2016. 23. There is no explanation in the first defendant's case as to why that 1.5cm displacement occurred over those six weeks but in the plaintiff's case there is clear evidence as to what was occurring namely the traumatic injury to her vulnerable knee on 1 February 2016. 24. There is no dispute that the plaintiff needed the total knee replacement because the medial femoral condyle had fractured and become displaced nor is there any dispute that there had been bone bruising on the medial femoral condyle in the fall. Nor was there any dispute that her left leg was put in a splint, that she was in severe pain and disability in her left knee from 1 February 2016 up to and including the date of the X-ray on 14 March 2016 which showed the 1.5cm displacement and that that severe pain and disability in the left knee continued up until the time of the surgery on 10 August 2016. 25. The X-ray reports which Dr Tan had available to him and the sequence of events led Dr Tan to the firm conclusion that the need for the operation by 14 March 2016 was causally related to the fall on 1 February 2016. 26. Dr Shatwell's opinion is contrary to the facts and based upon erroneous assumptions. It should be rejected. 27. Dr Tan's opinion was based on the advantages that he had of being the treating specialist, reviewing the plaintiff over several visits and unlike all the other medical witnesses in this case he had all the X-rays. 28. Putting to one side the conflicting medical opinions on causation the evidence of the plaintiff corroborated by her daughter and to some extent by Ms Wilson was that: "prior to that fall at work in February 2016 I was able to work, socialise and enjoy my life. I did not have to use the full leg brace or use the walking stick". 29. Following the fall, the plaintiff was severely disabled and remained so. That fact alone is some evidence of causation: Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 538 at 563; [1940] HCA 45.
Senior Counsel for the plaintiff then made submissions specifically on the radiological evidence: 1. The first defendant tried to answer the plaintiff's causation case by reference to radiological evidence. 2. The radiological experts, Prof Pitman and Dr Bowden, unlike Dr Tan did not have the hospital X-ray taken on 1 February 2016 and accordingly were not able to make the comparison that Dr Tan made which was critical to his opinion. 3. As noted previously, neither of the radiologists had examined the plaintiff, nor had they taken a history from her nor were they aware of the fact that the plaintiff's knee was immobilised in a Zimmer splint at Bankstown Hospital or that the splint was changed to put on a different splint at the direction of Dr Tan after he first saw the plaintiff on 19 February 2016. 4. Something was happening to the plaintiff's knee between 1 February 2016 and when the 1.5cm bone displacement was identified. 5. If this significant change in the condition of her knee was pre-existing and had nothing to do with the fall on 1 February 2016, there would need to be some logical explanation as to why the displacement did not otherwise occur prior to 1 February 2016. 6. More than that there is a difficulty in trying to determine causation on the basis of an MRI when the evidence as a whole demonstrates that there was the start of a process at the time of the accident and an evolution over time in the deteriorating condition of the plaintiff's knee leading to the 1.5cm displacement. 7. Radiological evidence based solely upon an examination of an MRI is of limited assistance to the Court in answering that question. 8. As noted above, there was no other intervening injury but there may be some significance in the progression of the fracture of the femoral condyle due to the immobilisation or the original splint which Dr Tan thought needed to be changed when he saw the plaintiff on 18 February 2016. 9. Something was happening to the plaintiff's knee over those several days. It is improbable that the deterioration was just coincidental. As Dr Bowden put it, "[d]oes anyone have any other explanation about how that defect got there? Is there any other theories? I don't know of any." 10. Taken at its highest, all Prof Pitman's evidence demonstrates is that there was significant pre-existing osteoporosis in the plaintiff's left knee. It does not demonstrate that there was no causal relationship between the fall on 1 February 2016 and the severe displacement found on 14 March 2016. 11. The fall on 1 February 2016 was significant enough to cause an undisplaced fracture of the left tibial plateau and a significant amount of bruising and it is not difficult to imagine that in the presence of a pre-existing weakness in the femoral condyle that a trauma of that nature was capable of producing further damage over the ensuing few weeks so that "she has propagated or extended the subchondral injury to a fracture".
In reply submissions, the plaintiff made the following supplementary submissions: "[71]-[101] The First Respondent's submissions do not cavil with the statements of principle in PS [117], [118], [119], [120] nor do they suggest that the plaintiff had a pre-existing disability which prevented her from working or carrying out such social activities that she wished to engage in. As noted at PS [122] it was common ground that the plaintiff had pre-existing arthritis in her left knee. The first defendant's submission has not identified the relevant question. In [87] it submits "The question then, was whether the pathology in the medial femoral condyle was caused by the faff'. To that proposed question one needs to ask a further question: "What particular pathology is being referred to?" If it is the vulnerability to aggravating a pre-existing condition, that is common ground. The PS at [127] identifies the nature of the pathology that was in existence in 2015. The medical evidence in relation to that then identified pathology is analysed from PS [128] to PS [133]. The first defendant's submissions do not engage with the changing nature of the pathology from the date of the accident up until the x-ray on 31.03.2016. That deterioration was the reason for the total knee replacement surgery which unfortunately was delayed for several months with a predicted unsuccessful outcome. What was occurring during those three months was a deterioration in the condition of the left knee over time precipitated by the trauma on 01.02.2016. The PS make the point that an x-ray taken on 01.02.2016 is a piece of evidence frozen in time whereas the evidence upon which the plaintiff relies is that of her treating orthopaedic specialist. It is based upon the advantage, that he had as the treating orthopaedic specialist and the advantage that he had, unlike the other medico-legal witnesses, of having all of the available x-rays and the capacity to compare them. The first defendant's submissions do not engage with the significance of those distinctions nor do they explain the reason for the significant deterioration between the 1 February 2016 and 31 March 2016. The only other possible explanation is that the medial femoral condyle fracture with the 1.5cm displacement was somehow coincidental, a proposition difficult to explain given the known history of a severe knee injury involving a fracture and severe bruising and the fact that the plaintiff's knee was immobilised during the whole of that time. The evidence is analysed in some detail in one hundred paragraphs in the PS from [111)-[211]. The First Respondent's submissions do not engage with the detail of that analysis or seek to demonstrate why it is incorrect. In those circumstances the plaintiff submits that finding 6 in PS [212) is the correct finding that should be made in this case."

[33]

First Defendant

The first defendant's submissions concerning the medical evidence were as follows: "92. The radiologists in conclave agreed that the plaintiff already had a depressed osteochondral fracture of her medial femoral condyle. 93. Prof Pitman in the conclave report sets out the four reasons why he says that the plaintiff's pre-existing pathology was not aggravated by the fall. 94. Dr Bowden in the conclave report sets out in response the sole reason why he says that the plaintiff's pre-existing pathology was aggravated by the fall. The reason he says is that the shape of the femoral condyle depression matches the shape of the medial tibial plateau edge.30 Ultimately in cross examination he accepted that it in fact did not match it. 95. Prof Pitman's reasons were put to the orthopaedic specialists. 96. Prof Pitman's reason was, firstly, that there was extensive bone oedema around the lateral tibial fracture with non-matching minimal bone oedema around the medial femoral condyle depression. This showed damage being cause at different times. (a) Drs Shatwell and Machart agreed with this. (b) Dr Endry-Walder said he could argue with it as he was not a radiologist. 97. He said he would not like to argue with Prof Pitman on something that is radiological. Secondly, Prof Pitman said that there was an undisplaced hinge or piece of cartilage seen within the femoral condyle depression. If the fall had caused the damage to the femoral condyle this piece of cartilage would have been displaced. (a) Drs Shatwell and Machart agreed with this. (b) Dr Endry-Walder said he could understand what Prof Pitman was saying but he could not see the cartilage as he was not a radiologist, and he really couldn't say. 98. Thirdly, Prof Pitman said that the shape of the femoral condyle depression did not match the shape of the medial tibial plateau edge. It would appear that this was accepted by all doctors and most importantly by Dr Bowden. This was in fact the reason it appears that Dr Bowden disagreed with Prof Pitman in the conclave. 99. Fourthly, Prof Pitman said that the plaintiff had suffered no significant ligament damage and that there would have been significant damage if the femoral condyle depression was cause by impact with the medial tibial plateau edge. (a) Dr Shatwell said that you would virtually have to dislocate the knee for the femoral condyle depression to be caused by impact with the medial tibial plateau edge. (b) Dr Machart agreed with Dr Shatwell and went further to say that "there is no way that could have happened". He then went further to say that it would have been impossible for that to happen". (c) Ultimately it appears that Dr Endry-Walder also accepted this. 100. Finally, all of the doctors agreed that the pain and limping experienced by the plaintiff prior to the fall could be explained by and was consistent with the pathology seen in the MRI in February 2016."

[34]

Second Defendant

The parts of the second defendant's written submissions traversing the same terrain were as follows: "18. The Second Defendant submits that at its highest the incident resulted in a limited aggravation of the Plaintiff's underlying arthritis. Dr Shatwell says in his report of 20.9.2022 page 18 "a few weeks to a month at the very most" whereas Dr Machart on 7 July 2016 says "the pre-existing condition is severe and otherwise the potential impact for injury is "negligible to none". At the conclave he conceded that the total knee replacement surgery was possibly brought forward. 19. The credibility of the Plaintiff has been exposed not only as to the circumstances of the injury, but her current activities as observed in surveillance. The Second Defendant says that, contrary to the Plaintiff's case that the consequences of her left knee injury render her totally unemployable, the Plaintiff in fact has the capacity to be employed in alternative employment from at least three months after her last surgery (Dr Macha rt (Tab 69 report 7.7.2016 p 2@ 652 of the Court Book). While there are a number of inconsistences in the Plaintiff's evidence, her allegations of weight gain following the incident appear to be erroneous and an analysis of that material which records her weight from 2006 appears to indicate that it has been consistently around the 125kg to 130kg range (T160.20 to T169.48). 20. Even if it is found that the total knee replacement surgery, which would have occurred in any event, was brought forward and that any incapacity arising from the date of the incident to the surgery together with an additional period of three months for recovery and any period of incapacity should be limited to this (Watts v Rake ( 1960) 108 CLR 158 and Purkuss v Crittenden (1965) 114 CLR 164) at 168.75 - "It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v. Rake (3) was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive preexisting condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence." The Second Defendant says that the Plaintiff has failed to do this and the Defendants by cross examination have identified the period to which any incapacity should be limited (see paragraph 17 above, maximum four months). 21.The Plaintiff's progressive arthritis was the reason for her total knee replacement operation. (T 210.41 to .50). There are no long-term consequences following this incident, bone bruising limited to six weeks to three months (T 210.23 to 37) and any knee infection which occurred some two years after the operation cannot be treated as a consequence of the operation (Drs Machart and Shatwell T 229.23)."

[35]

PRINCIPLES

The legal test for causation is set out in s 5D of the CLA: 5D General principles (1) A determination that negligence caused particular harm comprises the following elements - (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent - (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
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.

[36]

Consideration: Damages

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: 1. In the fall the plaintiff suffered a twisting injury that led to a lateral tibial plateau fracture. 2. The plaintiff did not suffer any injury to the area of the medial femoral condyle. 3. The lateral tibial plateau fracture had nothing to do with the plaintiff's subsequent knee replacement. 4. The lateral tibial plateau fracture would have been pain free within 6 - 8 weeks and serviceable and good enough to walk briskly on, in 4 months.
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: "74. Her medical records show that in mid 2015 she had an incident when a shopping trolley struck her left knee. Left knee x-rays showed moderate suprapatellar bursal effusion. 75. On 19 June 2015, the plaintiff consulted a GP, Dr Mainul Joarder who recorded that her left knee x-ray showed moderate supra-patellar bursitis. 76. On 2 July 2015, the plaintiff presented to St George Hospital with left knee pain after being hit by the shopping trolley. She was limping. It was noted she had symptoms consistent with left knee osteoarthritis. She was told to avoid prolonged standing and stairs and follow-up with her GP for referral to physiotherapy. 77. On 2 July 2015, the plaintiff's left knee CT scan showed joint effusion. There was a depression of the medical femoral condyle noted that was said to be "probably old". 78. On 22 September 2015, the plaintiff consulted Dr Mainul Joarder, and reported severe left knee pain over for the last few weeks. Dr Joarder recorded that the plaintiff's left knee x-ray showed severe osteoarthritis in her left knee. On examination, she had difficulty walking and her left knee was swollen, tender and she had restricted range of motion. 79. On 10 November 2015, the plaintiff consulted Dr Mainul Joarder, who recorded "osteoarthritis left knee, going overseas, likes to take some analgesic with her". 80. The plaintiff's work records also record that prior to the incident her left knee had been bothering her and she was unable to stand on it for long periods of time. 81. Most importantly, the plaintiff also accepted that prior to her fall she used to walk with a similar limp to the limp she was seen walking with, in the surveillance videos."
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: 1. The plaintiff attended her GP in June 2015 to discuss an X-ray of her left knee, however, neither the plaintiff nor her GP saw the need for a review after 7 days or an MRI to further investigate the knee pain. I infer that it settled with rest and analgesia within about 7 days. 2. The next attendance on the general practitioner was nearly two months later for an upper respiratory tract infection. I infer that the left knee condition which caused the general practitioner to send the plaintiff for an X-ray in June 2015 had resolved and there was no need for a further review or an MRI. 3. The plaintiff further visited her GP in September 2015. She had severe osteoarthritis in her left knee, severe pain and some difficulty walking. However, the fact that the plaintiff was given one day off work for a medical certificate and did not return to the GP after the three-day treatment period would indicate that this flare up of her osteoarthritis resolved as it had done on the previous occasion in June. 4. The next attendance on the general practitioner was on 10 November 2015 which was not for the purposes of treatment but to obtain some medication in case she needed it for a planned overseas holiday. I infer that because the pain had resolved in a few days with medication the plaintiff wanted to take some medication with her on holidays to treat it the same way, if pain recurred.
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: 1. In the absence of any identified immediate need for a total knee replacement due to the pre-existing medial femoral condyle osteochondral pathology prior to the fall or the condition progressing to a stage where there was an identified clear acute fracture line and displacement prior to 1 February 2016, neither of which is available, on the balance of probabilities, there is a real question remaining on the evidence as to why the displacement occurred in the left knee of the plaintiff over the period 1 February - 14 March 2016 in the absence of a further fall and where splints had been consistently worn. 2. In those circumstances, there is a more compelling basis for accepting, amongst the competing medical evidence that the incident had a material impact upon the status of the plaintiff's medial femoral condyle. That is certainly a more attractive conclusion than mere coincidence. 3. That progression of thought is consistent with the analysis that I have undertaken as to medical reports as to the applicant's condition prior to the incident together with her capacity for work and need for treatment (or lack thereof). (Those factors are independently relevant in reaching an overall conclusion as to medical causation). 4. Those considerations are effectively the basis for Dr Bowden's concerns as I have noted above which were expressed during the concurrent evidence of the radiologists. To that should be added Dr Bowden's view that a twisting type injury could well have impacted into the anteromedial aspect of the medial femoral condyle which, in turn, significantly impacted upon the depression. 5. Lastly, I have real concerns about Prof Pitman's apparent attempt to deal with this problem for his theory during the course of the concurrent evidence. His explanation that a much bigger hole may have existed in the medial femoral condyle in mid-2015 which was hiding in the X-rays is unconvincing.
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.

[37]

QUANTIFICATION OF DAMAGES

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: 1. WCA s 151Z(1) has no application, unless and until the plaintiff "does not accept satisfaction of the judgement" against the second defendant (sub-s (2)(e)), in which case sub-s (1) would then apply Synergy 2 at [24]-[27]. As noted in Synergy 2, the phrase "does not accept satisfaction of the judgement" ought to be "taken to mean that the worker does not enforce judgment against the employer" (Synergy 2 at [25]). For these circumstances to emerge, it must be "established" or "shown" that the plaintiff does not enforce the judgement against the second defendant (Synergy 2 at [27]); and 2. If the exception in s 151Z(2)(e) (that the plaintiff "does not accept satisfaction of the judgement" against the second defendant) is not "established" or "shown", then sub-ss (2)(c)-(d) would apply. In such circumstances, the Court could also proceed to determine apportionment, irrespective of the operation of s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) by using the mechanism of s 151Z(2).
The second defendant addressed those prospects in a further aspect of its submissions as follows: "33. The above construction also raises issues regarding recovery (the crossclaims). In Synergy 1, the fourth proposition above was enlivened. Further, at the time of handing down judgement, neither of the conditions in s.151Z(2)(e) had been met for whilst the worker had taken proceedings against his employer, the occasion for him to choose whether to accept satisfaction of judgement against the employer had not yet arisen. Accordingly, s.151Z( 1) did not apply. As a result, it was held that the worker was not obliged under s.151Z(1)(b) to repay his employer for the medical expenses paid on his behalf, however, it was also held that to award damages to the worker referable to those medical expenses would constitute a windfall in his favour. Therefore, the Court held that "arguably" the amount of medical expenses paid by the employer on the workers behalf should be deducted from the award of damages against the third-party tortfeasor (see [190] to [193]). This final exercise of deduction of the medical expenses, seemingly, does not neatly sit with the previous decision of the Court of Appeal in South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312 (Helicopters), whereby no such deduction was entertained in circumstances whereby s.151Z(1) was not enlivened. 34. At first glance, it would seem, that there are two inconsistent judgments from the same Court dealing with the same issue (i.e., what can an employer recover (or what should be deducted from a damages award) in circumstances whereby the employer is also a tortfeasor). Whilst Synergy 1 is the more recent decision, it does not appear that the Court intended to depart from Helicopters (to the contrary, Helicopters is cited and endorsed at [91] and [175] to 179]). If the Court finds otherwise, then as set out in paragraphs 27 and 28 above and depending on apportionment, the Second Defendant can further address the Court on the issue of recovery/indemnity at that time. 35. Finally, as for the disposal of the respective cross-claims in these proceedings, this, too, will ultimately turn on the underlying liability findings reached by the Court."
As to the question of apportionment, the first defendant made the following submissions as to relevant principles: "68. In undertaking an apportionment of liability under s151Z the court evaluates the relative blameworthiness and relevant causal potency of the negligence of SDN as against the plaintiff's employer: Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492, 494; Sullivan v Macquarie Pathology Services Pty Limited (1995) ATPR 46-143; Wynbergen v Hoyts Corporation Limited (1997) 72 ALJR 65; James Hardie & Co Pty Limited v Roberts (1999) 47 NSWLR 425. Findings of this kind are preconditions to the apportionment exercise: Amaca Pty Limited v State of NSW (2003) 77 ALJR 1509, 1513 [20]. 69. BRC's duties as an employer mean that its blameworthiness and causal potency must be great. In Czatyrko v Edith Cowan University (2005) 79 ALJR 839, 842-843, the High Court confirmed (citations omitted): An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risk of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in the case of repetitive work. 70. Further, "[t]he employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system": McLean v Tedman (1984) 155 CLR 306, 313."
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: 1. If the Court was to find, contrary to the second defendant's submission that the plaintiff has a continuing incapacity, as a consequence of the injury, it is conceded that she is unfit to work as a cook on a fulltime basis. However, she may be able to do some part time cooking. She undoubtedly has the capacity to do suitable duties. 2. Further, the plaintiff has considerable clerical and sales experience over many years before she started working as a cook in childcare centres that is education, training and experience. 3. Contrary to her self-assessment and the medical case she presented which relied upon her as a truthful witness, the earning capacity assessment conducted on 7 December 2021 and the report dated 4 January 2022 duly deals with this issue. The authors of that report, after considering the plaintiff's medical condition and, even without having access to any surveillance material, considered the plaintiff fit for the work of a customer service representative, an administrative assistant and a data entry operator. All of these duties are consistent with her education, training and experience. The authors consider that she was fit to undertake 20 hours a week and identify an hourly rate for each job. Further, medical opinion which was obtained after the surveillance notes that she is fit to do fulltime work within those disciplines. If she was so employed she would suffer no loss when compared to the earnings of a cook in a childcare centre. 4. If necessary, the Court is required to make two calculations, firstly under the CLA against the first defendant and secondly against the second defendant under the WCA. Any calculation of damages pursuant to the WCA can only be in respect of past and future economic loss, past and future superannuation and any taxation issue identified by Fox v Wood. A review of the Plaintiff's pre-injury early earnings discloses that she never worked 30 hours a week (average 20.5) and earned an average of $489.22 net. If the plaintiff was engaged as a fulltime employee, it appears from earnings that an allowance of no more than 27.5 hours is appropriate.
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: 1. Non-economic loss; 2. Past economic loss; 3. Past loss of superannuation; 4. Past treatment expenses; 5. Past domestic assistance; 6. Past out of pocket expenses; 7. Future Economic loss; 8. Future loss of superannuation; 9. Future treatment expenses; 10. Future Domestic assistance;
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".

[38]

Non-economic loss

In relation to non-economic loss, the plaintiff made the following submissions: 1. The plaintiff was born on 22 October 1963 and was 52 years of age at the time of the accident and 61 years of age at the time of hearing. She had pre-existing osteoarthritis in her left knee but this did not restrict her working life or her social life. As Dr Tan predicted the delay between the time when the plaintiff should have had a total knee replacement in March of 2016 and when she actually had it on 10 August 2016 meant that the surgery was unsuccessful leaving her with a permanently flexed knee. 2. That outcome was predicted by her treating specialist, Dr Tan. On 17 March 2016 he wrote to the workers compensation insurer and stated, "I have written a letter requesting approval for a left total knee arthroplasty under workers compensation." 3. As noted previously approval was not forthcoming and in his second letter dated 16 June 2016 he stated "She requires a left total knee replacement as soon as possible, before deterioration results. The longer her surgery is delayed the longer it will take for her to recover with rehabilitation, due to muscle weakness and general deconditioning of her left knee." 4. In an attempt to fix the flexed knee the plaintiff had a manipulation at Sutherland Hospital on 29 March 2017 and thereafter attended physiotherapy with no improvement. 5. Her condition deteriorated significantly on or about 4 May 2018 and she was admitted to Shellharbour Hospital and from there transferred straight to Wollongong Hospital where she was an inpatient for three weeks in the Intensive Care Unit while attempts were made to treat the infection that had developed in her left knee. 6. The infection was not controlled and after a period of almost one year she was readmitted to Sutherland Hospital for a cement antibiotic block to be inserted in her knee on 17 July 2019. 7. This was later removed and a further knee replacement was carried out on 13 September 2019. 8. In her Evidentiary Statement dated 7 August 2023 the plaintiff has set out the ongoing disabilities with which she has been suffering. 9. It would be open to the Court to find that the plaintiff would at some stage have needed a total knee replacement even if she had not had the fall on 1 February 2016 but the first defendant has not proven, nor has it even attempted to prove that the sequence of events thereafter which have left the plaintiff with distressing pain and disability would have occurred in any event. On that issue it has the onus. 10. If the plaintiff had had the surgery when she should have had it in March of 2016 the outcome would have been as set out by Dr Tan in his report: "Her recovery from a total knee arthroplasty is like any other total knee arthroplasty which is returning to light duties after six to eight weeks and full duties after about three months post-operatively. She will be going to outpatient rehabilitation physiotherapy for three months post-total knee arthroplasty. She will be unfit for work for about six weeks after the surgical operation and then light duties after that, such as reduced hours or sedentary duties. She will hopefully be back to full hours on suitable duties a few weeks to one month after that. She should be able to return to pre-injury duties after about three months or so." 1. The first defendant has the onus of proving what the effect of the pre-injury arthritis would have been if the accident had not intervened. The same principle applies under the CLA. 2. The evidence from Dr Tan and Dr Shatwell was that the plaintiff could return to work within a few months following a successful knee replacement operation. 3. The plaintiff suffered greatly and remains severely disabled. She submitted that the proper measure for non-economic loss in this case is 35% of a most extreme case: $252,700.
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: 1. The plaintiff was born on 10 May 1961 and was 57 at the time of the accident and is now 62. 2. A lateral tibial plateau fracture was generally accepted to have been caused by a twisting injury in the fall. Dr Shatwell said that such an injury should be pain free within 6 - 8 weeks and serviceable and good enough to walk briskly on in 3 months. Dr Machart said that symptoms may persist for two months or a little longer, maybe 2 - 4 months.
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."

[39]

Consideration

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.

[40]

Past economic loss

In relation to past economic loss, the plaintiff submitted the following: 1. The evidence in relation to the plaintiff's performance in the employment prior to her injury was given by the director of the first defendant, Ms Wilson. She said that the plaintiff: "was friendly. She enjoyed - well, she was good at what she did. She was efficient. She inputed into the menu and, you know, took an interest in the centre itself and the food that the children ate. She was a good team member, and the staff liked her as well." "Question: If she hadn't been injured what were your plans for her? Answer: To offer her a full time job." 1. A calculation has been made as to what she would have earned by way of past economic loss in that eventuality. The figure is $260,655.86. 2. It is calculated by reference to the Children's Services Award 200 and determinations made from time to time by the Fair Work Commission. 3. These are publicly available documents and the Court should require the first defendant to admit the mathematical accuracy of the calculation. 4. On 3 April 2024 the solicitors for the plaintiff wrote to the solicitors for the first defendant inviting them to agree, mathematically, without prejudice to their right to contest any entitlement various mathematical calculations including the calculation for past economic loss. The calculation was made on the basis of 30 hours per week and quantified in accordance with the relevant parts of clauses 3, 4 and Schedule B of the Children's Services Award 2010 and annual wage reviews pursuant to s 285 of the Fair Work Act 2009. 5. The calculation was made upon the basis of a 30-hour week. However, the plaintiff would have had to take a substantial amount of time off work and beyond the time covered by any sick leave entitlements if the Court finds that she would have needed the total knee replacement in any event at some time between the date of the accident and the date of hearing. 6. On the other hand, the plaintiff may have worked for more than 30 hours per week bearing in mind that a standard working week is much longer. 7. The first defendant tendered fragmented surveillance film of the plaintiff performing a few minutes of menial work and evidence that she could answer telephone calls. This is not evidence that anyone would give her a job, that she would be able to travel to work or perform to the satisfaction of any employer. She spent several years being treated, unsuccessfully for her injury and has remained unemployable.
The first defendant made the following submissions on economic loss that relate to both past and future economic loss: 1. the plaintiff's available financial records reveal the following: 1. In 2012, the plaintiff's taxable income was $13,271. 2. In 2013 her taxable income was $12,232. 3. In 2014 her taxable income was $13,479. 4. In 2015 her taxable income was $27,738 and. 5. In 2016 her taxable income was $36,337. 1. Based on the above, there is no evidence of any significant economic loss, as the plaintiff was earning little income prior to the incident. The plaintiff's claim for economic loss fails to engage with her pre-existing knee pathology. 2. On the basis of a lateral tibial plateau fracture the plaintiff should be allowed economic loss for a period of 4 months only. Any incapacity thereafter relates to the pre-existing pathology in the medial femoral condyle compartment and the need for a knee replacement. 3. Dr Shatwell was of the opinion that the plaintiff has skills and experience in sedentary administration tasks and there is no reason she cannot return to this work if she wished to do so. Her limitations are related to arthritis change and not the incident. 4. A review of the Plaintiff's pre-injury early earnings discloses that she never worked 30 hours a week but rather average 20.5 hours and earning an average of $489.22 net. 5. She would be allowed past economic loss for a period of 4 moths totalling $8,479.81. 6. She would not be allowed any 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: 1. The defendants should be directed to agree mathematically to what is put on a without prejudice basis on the assumption that the Court finds the causal relationship between the tortious conduct of the defendants and the need for the total knee replacement surgery. 2. The first defendant submitted, without argument, "She would not be allowed any future economic loss". The submission is a curious one given the submission that the Court should find non-economic loss quantified at 20% of a most extreme case. If the accident caused a 20% impairment it would also impair future earning capacity.

[41]

Consideration

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: 1. The plaintiff would have required a substantial amount of time off work beyond her sick leave entitlements in the aftermath of the injury and, as I have found, may have needed a total knee replacement in any event between the date of the incident and the date of the hearing of this matter. 2. I accept the concession by the second defendant that the plaintiff is no longer fit to work as a cook on a full-time basis. I do not accept the alternative position advanced by the second defendant that she may have been able to do some part-time cooking similar to that which she undertook in the Centre. However, the video surveillance material does indicate that the plaintiff would have been available to undertake some medial work and as Dr Shatwell opined there would seem to be a basis upon which the plaintiff may return to sedentary administrative tasks (but, in my view, not sales tasks). This expectation for work does need to be modified by virtue of the difficulties of the plaintiff obtaining duties at her age and with some disability but there is at least a prospect for work in that respect.
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.

[50]

Future economic loss

In relation to future economic loss, the plaintiff submitted the following: 1. This is governed by s 13 of the CLA and the plaintiff is required to satisfy the Court "that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury". 2. The plaintiffs most likely future circumstances but for the injury are that she would have been a full-time employee of the first defendant until normal retiring age. 3. The evidence of the first defendant's Director in that regard was as follows: "Question: If she hadn't been injured, what were your plans for her? Answer: To offer her a full time job." 1. At the award rate she would have been earning $688.40 net per week discounted by 15% for contingencies gives $181,042.31. 2. As noted above, the first defendant showed several fragmented images of surveillance of the plaintiff from time to time assisting her daughter in the running of a market stall selling babies' accessories but this surveillance is of very limited evidentiary value. It also tendered some Facebook images demonstrating that from time to time during the last eight years the plaintiff has assisted her daughter's hobby. 3. It would have been of much greater assistance to the Court for the first defendant to have taken the usual course of issuing a subpoena for the production of financial records to determine whether or not the plaintiff actually earned any income from this hobby. 4. There is a very significant difference between the ability to do voluntary work of that nature and being able to satisfy an employer that a putative employee is able to attend work without taking unreasonable time off for pain or treatment and notwithstanding the disability should be preferred over other candidates for the same employment. 5. As Stephen J stated in Wade v Allsop (1976) 50 ALJR 643 at 647: "The process of selecting one from a number of applicants for employment is, on each occasion, an all or nothing affair in which the applicant with diminished capacity may each time be wholly unsuccessful." 6. The plaintiff has not worked since 2016. She is 61 years of age and has ongoing pain in her left knee. 7. A theoretical capacity to do some menial tasks occasionally for a few hours at a time should not lead to a finding that she has a capacity to work. 8. As the Court of Appeal said in Nominal Defendant v Livaja [2011] NSWCA 121 at [65]: "....Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market." 9. The future economic loss calculation is calculated on 30 hours per week. Even if the defendant is right and the plaintiff has some very limited capacity for working even up to a normal working week of 10 hours that would not affect the calculation submitted on behalf of the plaintiff. 10. For these reasons the award for future economic loss should be based upon $688.40 net per week being 30 hours per week of part-time employment at the award rate giving a total loss of future earning capacity of $212,990.96.
The first defendant's submission on future economic loss were extracted earlier in this judgment.

[59]

CONCLUSION

The Court has made the following findings: 1. 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 of the Centre at approximately 11.00am on 1 February 2016 while employed as a cook by the second defendant at the premises of the first defendant. 2. 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. 3. 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. 4. 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. 5. 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. 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, thereby resulting in the risk of a serious injury (which, in fact eventuated). Any inadvertence was to be expected when performing a task of that nature in a short period. 6. In the circumstances, it was negligent for kitchen mats to not to have been installed by the first defendant where the slippage occurred. 7. 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. 8. The content of the duty owed by the second defendant was to ensure that reasonable care was taken of its employee. 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. 9. The plaintiff was not guilty of contributory negligence. 10. The plaintiff's pre-existing osteoarthritis would most likely have resulted in the plaintiff having a total knee replacement at some time, irrespective of the fall. Nonetheless, the total knee replacement the plaintiff underwent relatively soon after the fall was causally connected to an exacerbation of the pre-existing osteoarthritis. 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. 11. 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.
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.

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

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