Wehbe v Manly Fast Ferry Pty Ltd

District Court of NSW|2020-04-24

Table of Contents Nature of case and factual background [1] - [3] Procedural matters [4] - [5] Evidence overview [6] Issues [7] Credibility and reliability of testimony [8] - [13] Evidence of the plaintiff [9] - [11] Expert evidence [12] - [13] Findings on factual matters [14] - [96] Plaintiff's background circumstances [15] - [19] Plaintiff's pre-accident health [20] - [21] Accident circumstances and initial awareness of injury [22] - [25] Post-injury treatment and assessments [26] - [30] Expert conclave report and their oral evidence [31] - [38] Resolution of conflicting medical opinions [39] - [81] Disabilities [82] - [87] Work effects [88] - [92] Domestic effects [93] - [94] Plaintiff's most likely circumstances but for his injury [95] Mitigation [96] Assessment of damages [97] - [131] Past loss of earnings and superannuation [98] - [106] Future loss of earnings and superannuation [107] - [118] Future domestic assistance [119] - [126] Future treatment expenses [127] - [129] Past out-of-pocket expenses [130] Summary of damages assessment [131] Disposition [132] Costs [133] Orders [134]

Nature of case and factual background

By statement of claim filed on 12 July 2019, the plaintiff, Mr George Wehbe, claims damages for personal injuries he sustained in a waterways accident due to the negligence of the defendant, Manly Fast Ferry Pty Ltd.
At about 12.30pm on Wednesday 13 September 2017, the plaintiff sustained an injury to his left knee when he experienced a direct impact in a "dashboard" type accident that occurred whilst he was seated on the defendant's ferry. This occurred when the ferry on which he was travelling as a passenger heavily collided at speed with a wharf at Manly.
The defendant has admitted it was in breach of the duty of care it owed to the plaintiff. The proceedings are governed by the Transport Administration Act 1998 (NSW) ("TA Act"), the Motor Accidents Compensation Act 1999 (NSW) "MAC Act"), and the Civil Liability Act 2002 (NSW) ("CL Act").

Procedural matters

The hearing commenced and proceeded with the parties appearing through audiovisual ("AVL") means. There was an initial delay in commencing the hearing due to AVL connectivity difficulties. Ultimately, after some technical delays and adjustments, the AVL connection provided what I consider to have been an adequate opportunity for all parties, practitioners and witnesses to see and hear the evidence, and to make any necessary observations and arguments.
At the commencement of the hearing, the defendant took objection to the plaintiff seeking to rely upon a proposed amended statement of particulars served on 21 April 2020. Previous case management orders required that document to have been filed and served by 9 March 2020 and this did not occur. After argument, absent the defendant being able to show a significant or material prejudice, for reasons that were delivered ex-tempore at the time, the plaintiff was permitted to rely upon the proposed amended document: Leotta v Public Transport Commission of NSW (1976) 9 ALR 437; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361.

Evidence overview

The plaintiff was the only witness to give oral evidence on factual matters. The parties relied upon their respective tender bundles and on some other documents which supplemented those bundles. The plaintiff's exhibits were tendered in the series Exhibit "A" to Exhibit "D". The defendant's evidence bundle was marked Exhibit "1". The parties relied upon opposing medical evidence. The occupational physician retained on behalf of the plaintiff, Dr Andrew Porteous, and the orthopaedic surgeon retained on behalf of the defendant, Dr David Maxwell, gave their evidence concurrently, from separate remote locations.

Issues

The issues calling for decision in this case concern the need for findings on matters concerning the credibility and the reliability of the testimony of the plaintiff, the factual circumstances of the collision, the resolution of matters of differences in opinion arising from conflicting medical evidence, the injurious effects of the collision upon the plaintiff, and the assessment of the plaintiff's entitlement to damages.

Credibility and reliability of testimony

It is appropriate that at this point I identify my conclusions concerning the credibility and the reliability of testimony.

Evidence of the plaintiff

I formed the impression that the plaintiff gave reliable and credible evidence in moderate terms without exaggeration. His evidence was capable of acceptance on its face. It was not inherently improbable. He gave matter-of-fact descriptions of the matters that he was called upon to explain and he made fair concessions when cross-examined. For reasons that will be made plain, on my analysis, there was nothing in the medical evidence relied upon by the defendant that persuaded me the plaintiff's evidence should not be accepted. That is so notwithstanding some critical comments made by the defendant's retained orthopaedic expert whose evidence I have not accepted on critical matters in dispute.
At this point it is appropriate to identify an aspect of that expert's opinion to the effect that it was probable the plaintiff was malingering: Exhibit "1", p 10. Significantly, the proposition of malingering was not put to the plaintiff in cross-examination by senior counsel for the defendant for his comment: Browne v Dunn (1893) 6 R 67. There is a heavy onus on the accuser to make good an assertion of that kind. Something more than an expert's flourishing throw-away line was required to make good an allegation of that gravity. The defendant has not sustained that accusation.
I have accepted the plaintiff's evidence in its entirety, except concerning his understanding of the effect of his tax returns. That matter was more reliably dealt with according to the content of the documents comprising notices of assessment issues by the ATO.

Expert evidence

Dr Andrew Porteous, the medical expert retained by the plaintiff, and Dr David Maxwell, the medical expert retained by the defendant, prepared expert reports that followed their respective examinations of the plaintiff. Dr Porteous had examined the plaintiff twice. Dr Maxwell had examined the plaintiff once. Their reports, and their subsequent joint conclave report, were taken to comprise their respective evidence in chief: UCPR r 31.21; r 31.26.
The experts were cross-examined on their respective opinions and to varying degrees, their opinions were explored and explained in their oral evidence. The utility of the opinions of those experts stands to be assessed according to the reasoning they have provided and according to the extent to which their opinions were reasoned in compliance with UCPR r 31.27(1)(c) and UCPR Sch 7, cl 3(e). My analysis of those matters will be set out in these reasons in the appropriate context, in due course.

Findings on factual matters

Unless otherwise qualified, my findings of fact are as follows.

Plaintiff's background circumstances

The plaintiff was born in 1985 and is presently aged almost 35 years. He left school in Year 10 at the age of 15 to commence an apprenticeship with his father as a tiler. He has obtained a TAFE Certificate III as a tiler. He has a training certificate in tiling and in the past he has taught tiling on a part-time basis: Exhibit "A", p 20.
The plaintiff has also worked as a forklift driver and in the warehousing and transport industry. His forklift licence has lapsed. Given the effects of the subject knee injury upon him, it is unlikely he will be renewing that licence. He has worked in a managerial capacity in a warehouse. Those duties involved day-to-day logistics, planning, co-ordinating, ensuring operational compliance and related communications. He has also worked as a gardener, rubbish removalist and street sweeper with the Sydney City Council Waste Removal Department. His resume discloses that he is presently studying for a degree in Business Logistics with the RMIT.
In 2012, whilst the plaintiff was employed as a cleaner with Sydney City Council he incurred a needlestick injury whilst clearing debris. Whilst tests taken over time have shown that he was clear of any related infection, he has nevertheless developed a fear of infection from needles. He also experienced related issues with anxiety and depression. This was understandable as it took some time for a series of pathology test results to provide the plaintiff with reassurance that he was free of infection from that injury. He received psychological treatment for those problems. Apart from those issues arising from the needlestick injury, he was fit, strong, and in good general health. The plaintiff's pre-accident physical pastime involved weightlifting. He weighed 135kgs.
In 2017, he commenced operating as a sole trader in the tiling industry. His notice of amended assessment for the year ending June 30th 2017 revealed that he had a taxable income of $131,207 from his work as a tiler which, after deductions and allowance for tax, equated to $54,324, or $1044 per week net: Exhibit "D".
The plaintiff is divorced. He has a four year old son who lives with his ex-wife. The evidence shows that the needlestick injury he sustained in 2012 had an adverse impact on his marriage. He presently lives in a granny flat at his parents' home. His two brothers also live in the parental home. At the time of the hearing he was not seeking work for family reasons. He was providing his elderly widowed mother with care and assistance due to illness on her part: T43.39.

Plaintiff's pre-accident health

The plaintiff's pre-accident health issues were identified and documented in a copy of the medical records produced by his treating general practitioner: Exhibit "A", pp 70 - 124. A chronological summary of the plaintiff's pre-accident medical consultations is as follows: 1. On 30 June 2012, the plaintiff's general practitioner recorded the history that the plaintiff had sustained a needlestick injury whilst clearing and collecting garbage. An infectious diseases consultation was arranged: Exhibit "A", p 65; 2. On 2 July 2012, the plaintiff's general practitioner recorded a history of the plaintiff being unable to sleep due to worry about the effects of the needlestick injury: Exhibit "A", p 65; 3. On 4 July 2012, the plaintiff discussed his blood test results and his immunisation status with his general practitioner: Exhibit "A", p 66; 4. On 9 July 2012, the plaintiff's general practitioner reported that the plaintiff was feeling anxious about the potential for him to have been infected as a result of the needlestick injury. Psychotherapy was discussed: Exhibit "A", p 66; 5. On 19 July 2012, the plaintiff's general practitioner recorded that the plaintiff felt unready to return to work due to the effects of the needlestick injury: Exhibit "A", p 66; 6. On 23 July 2012, the plaintiff's general practitioner recorded that the plaintiff was feeling anxious and he noted that he was unfit for light duties: Exhibit "A", pp 66 - 67; 7. On 1 August 2012, the plaintiff's general practitioner noted the need for a discussion with the plaintiff about a psychiatric referral because of the plaintiff's adjustment disorder with mixed anxiety and depressed mood: Exhibit "A", p 67; 8. On 6 August 2012, the plaintiff's general practitioner noted the plaintiff felt ready to return to work, the proposed psychiatric referral was cancelled, but it was noted that the plaintiff's psychological treatment would continue: Exhibit "A", p 67; 9. On 17 August 2012, the plaintiff's general practitioner issued him with a workers' compensation certificate: Exhibit "A", pp 67 - 68; 10. On 20 August 2012, the plaintiff's treating psychologist, Ms Candice Graham, wrote to the plaintiff's treating general practitioner to advise that the plaintiff's course of psychological treatment for the effects of his needlestick injury had concluded as at 29 August 2012. The letter noted that the injury had negatively affected his work and his marriage, and that it had caused him to ruminate, making it difficult for him to relax until he could ascertain his test results: Exhibit "1", p 66; 11. On 20 August 2012, the plaintiff's general practitioner noted that the plaintiff felt overwhelmed by the thought of going back to work. He reported being anxious and prone to losing his temper: Exhibit "A", p 68; 12. On 23 August 2012, the plaintiff's general practitioner noted the plaintiff felt unable to work at all, that he was anxious, not sleeping, had recurrent intrusive thoughts about the possibility of having been infected, and he was counselled about those issues. The earlier diagnosis of adjustment disorder was reiterated: Exhibit "A", p 68; 13. On 11 September 2012, the plaintiff's general practitioner noted the plaintiff complained of being unable to concentrate or feel "normal" until he has a "positive" outcome from his recent tests: Exhibit "A", p 68; 14. On 2 October 2012, the plaintiff's general practitioner noted the plaintiff feels confident about a return to work in view of the recent negative test results. An adjustment disorder with mixed anxiety and depressed mood was again noted to still be present: Exhibit "A", p 68; 15. On 8 October 2012, the plaintiff's general practitioner advised the plaintiff of his negative test results. At that time the plaintiff felt he was able to return to work: Exhibit "A", p 69; 16. On 10 October 2012, the plaintiff's general practitioner noted the plaintiff now felt unable to return to work until the following Monday. The results of the blood tests were explained to him again: Exhibit "A", p 69.
Other than the matters outlined above, before the subject accident, the plaintiff was fit and in good pre-accident health.

Accident circumstances and initial awareness of injury

On the day in question, the plaintiff was travelling to Manly on the defendant's fast ferry in order to meet a friend. He was seated at the top level at the rear of the vessel. As the ferry approached Manly Wharf it did not slow down, and without prior warning, it "just flew into the wharf": T18.15. I infer from the plaintiff's various descriptions given both in his oral evidence, and in the summaries recorded by the medical practitioners who examined him, that the collision was a forceful one.
The plaintiff described the ensuing collision as being akin to an earthquake. In those events, the plaintiff described being propelled forward so that he hit the seat in front with his left knee: T18.20 - T18.24.
The plaintiff felt instant shock and he experienced pain in his left knee. When he stood up he felt the need to hold his knee, and he then squatted with support to try to relieve the pressure he felt there. He felt pain around his leg as he disembarked from the ferry. Although he had not planned to do so, he found that he had to spend the night at Manly because of the stiffness and the soreness that he felt in the injured area. On the following day, he felt nervous and scared at having to take a ferry trip back to the City: T18 - T19.
Thereafter, the plaintiff has continued to experience problems with his left knee. This has caused him considerable frustration. He also claims that as a result of having developed a reactive altered gait due to the need to favour his painful and affected left knee, he has developed right knee problems due to overuse of his right leg in carrying his considerable heavy weight.

Post-injury treatment and assessments

The plaintiff has been under the care of his general practitioner for management of his injuries. He has been referred to a specialist orthopaedic surgeon who has provided conservative management. He has had physiotherapy. He has undergone x-rays of his left knee.
The plaintiff has also had a series of MRI scans, initially of his left knee, and more recently, also in relation to his right knee because of the problems that he developed with that knee. The evidence as to the medical evaluation of the MRI scans has been left in a state of some confusion. The Exhibits contain the reports of three MRI scans: 1. MRI scan dated 19 September 2017: Exhibit "1", p 68; 2. MRI scan dated 20 February 2018: Exhibit "A", pp 76 - 77; 3. MRI scan dated 7 December 2019: Exhibit "C".
Although these MRI scans were all taken at the same radiological practice, they were interpreted by two different radiologists. Surprisingly, neither the second nor the third scans made any comparative reference to the first scan and there were differences in terminology used in the various reports of those scans.
Dr Maxwell appears to have been provided with a copy of the MRI scan report dated 2019 although it is unfortunately not clear on the evidence as to how or when this occurred.
Before identifying my findings concerning the matters of conflicting opinions in the medical evidence and then making findings regarding the plaintiff's accident-related disabilities, I set out and review the chronology of post-injury medical assessments, including medico-legal assessments of the plaintiff: 1. On 15 September 2017, at the request of his general practitioner, the plaintiff underwent an x-ray of his left knee on account of a history of trauma. The findings were reported as showing the presence of early degenerative changes involving the medial tibio-femoral and patellar-femoral joints showing reduced space and early subarticular sclerosis. A mild knee joint effusion was also seen to be present: Exhibit "1", p 67; 2. On 19 September 2017, the plaintiff underwent his first MRI scan of his left knee. The scan was reported as showing the presence of pre-patellar bursal fluid and thickening, representing either bursitis or soft tissue contusion if there had been direct trauma to the region. A clinical co-relation was recommended. Other findings were made of a dysmorphically shallow trochlea predisposing to maltracking or instability, a small septated Baker's cyst measuring 3.3cm, and a trace of joint effusion: Exhibit "1", p 68; 3. On 21 September 2017, the plaintiff consulted his general practitioner who referred him to an orthopaedic surgeon to assess and manage his knee injury: Exhibit "A", p 69; p 118; 4. On 24 October 2017, the plaintiff was examined by Dr Samuel MacDessi, an orthopaedic surgeon specialising in knees, at the request of his general practitioner. Dr MacDessi reviewed the recent MRI scan and noted there was significant soft tissue bruising within the patellar bursa, but no fractures. Dr MacDessi described the injury as a prepatellar bursal haemorrhage causing pain within the knee from a direct impact injury but not involving any deep injury with the joint. He noted that weightlifting was aggravating the knee: Exhibit "1", p 12; p 69; 5. On 16 February 2018, the plaintiff was again reviewed by Dr MacDessi who noted that there had been no improvement in the condition of the plaintiff's left knee. He recorded a history of anterior knee pain and a feeling of weakness when going up and down stairs. He also noted the onset of clicking for about a month when walking, twisting or getting out of a chair. He attributed this to a benign synovial click. On examination he found some tenderness over the antero-medial fat pad in the patellar ligament. He requested a repeat MRI in view of quite significant symptoms. He considered the plaintiff had "quite a severe case of patellar tendinopathy related to a direct impaction injury with associated prepatellar bursal swelling". He recommended consultation with a sports medicine physician and rehabilitative physiotherapy: Exhibit "1", p 13; p 70. The plaintiff has pursued physiotherapy treatment; 6. On 20 February 2018, the plaintiff's general practitioner recorded that the plaintiff was seen for the purpose of a referral for a further MRI scan of his left knee: Exhibit "A", p 69; 7. On 20 February 2018, at the referral of his general practitioner, the plaintiff underwent his second MRI scan of his left knee. The findings were of minimal fissuring and early blistering of patellar cartilage with an associated condition described as Grade I patellar chondropathy. That finding was not reported on the MRI scan taken on 19 September 2017. The MRI report dated 20 February 2018 also identified a dysmorphically shallow trochlea. A small (2cm) Baker's cyst was also noted: Exhibit "A", pp 76 - 77; 8. On 28 February 2018, the plaintiff was again seen by his general practitioner for a discussion about the management of his left knee issues: Exhibit "A", p 69; 9. On 23 August 2018, the plaintiff was again re-examined by Dr MacDessi. He recounted the plaintiff's history of a "dashboard type injury" to the left knee associated with quite severe patellar tendinopathy that has been recalcitrant. Dr MacDessi advised the plaintiff to reduce his weight and undertake a regular exercise programme and rehabilitation, and to consider having platelet rich plasma injections: Exhibit "1", p 14; p 71. The evidence discloses that the plaintiff has an aversion to injections because of his previous needlestick injury; 10. On 4 October 2018, at the request of his solicitor, the plaintiff was examined by Dr Andrew Porteous, a consultant occupational physician: Exhibit "A", pp 18 - 28. Dr Porteous' report contained the following elements: 1. At p 20 he listed the documents that he reviewed; 2. At pp 20 - 21 he set out a summary of the history of the plaintiff's presenting complaint; 3. At p 21 he summarised his assessment of the plaintiff's current condition; 4. At p 22 he summarised the plaintiff's medical, occupational and psychosocial history; 5. At p 22 he recorded his findings on his examination of the plaintiff; 6. Between pp 23 - 28 he set out a discussion in which he addressed a series of 13 questions that the plaintiff's solicitor had asked him to consider; My consideration of Dr Porteous' opinions will be set out in that part of my reasons that analyses the conflict in the expert medical evidence; 1. On 4 October 2018, Dr Porteous also issued an impairment assessment of 4 per cent, which indicated the plaintiff did not meet the schematic requirements for a whole person impairment threshold that would allow an assessment of non-economic loss: Exhibit "A", pp 29 - 30; 2. On 13 February 2019, the plaintiff was again seen by his general practitioner. At that time a copy of his notes were provided to the plaintiff, presumably for the purpose of this litigation: Exhibit "A", p 69; 3. On 12 September 2019, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr David Maxwell, a consultant orthopaedic surgeon: Exhibit "1", pp 3 - 11. Dr Maxwell's report contained the following elements: 1. At p 3 he recorded a history of absence of any serious illnesses or operations, or the taking of any current medications; 2. At pp 3 - 4 he summarised the plaintiff's personal history; 3. At pp 4 - 5 he summarised the plaintiff's educational and occupational history; 4. At pp 4 - 5 he summarised relevant aspects of the plaintiff's past health history; 5. At p 5 he summarised the history of the subject accident as provided by the plaintiff; 6. At pp 5 - 6 he recorded the plaintiff's present symptoms; 7. At p 6 he set out all of the investigations that the plaintiff had undergone; 8. At p 6 he recorded his findings on his examination of the plaintiff; 9. At pp 6 - 8 he identified his review of the notes that the solicitor for the defendant had provided to him; 10. At pp 8 - 11 he set out his answers to a series of 18 questions on which his opinion had been sought by the solicitor for the defendant; My consideration of Dr Maxwell's opinions will be set out in that part of my reasons that analyses the conflict in the expert medical evidence; 1. On 7 December 2019, at the request of his treating general practitioner, the plaintiff underwent a third MRI scan, but this time the scans were of both knees. The scan of the left knee was reported to be unremarkable but it was noted that there was mild chondral surface irregularity in the median eminence and mid-pole patella. This terminology was slightly different to that used in the two earlier MRI scan reports. The MRI scan of the right knee was also reported to be unremarkable but it was noted that there was a subtle focal area of Grade 2 chondromalacia of the medial femoral condyle adjacent to the intercondyle notch with an area measurement of less than 5.5mm: Exhibit "C". Dr Porteous was provided with a copy of that report but it appears from the chronological sequence of consultations that Dr Maxwell had not been provided with a copy of that MRI scan: Exhibit "C". However, he did refer to it in his oral evidence (at T76.26), but it is not clear on the evidence as to when and how he was given a copy of that report; 2. On 14 January 2020, the plaintiff was re-examined by Dr Porteous: Exhibit "A", pp 31 - 41. Dr Porteous' updated evaluation of the plaintiff comprised the following elements: 1. At p 32 he reiterated his earlier reference to the previous material he had reviewed when preparing his first report; 2. At p 32 he set out 5 additional items of historical material that the plaintiff's solicitor provided to him for his review; 3. At pp 33 - 34 he re-stated the plaintiff's presenting complaint; 4. At p 34 he summarised the plaintiff's current condition; 5. At pp 34 - 35 he set out his review of the plaintiff's medical, social and psychological history; 6. At p 35 he recorded his findings on his re-examination of the plaintiff; 7. At pp 35 - 41 he set out a discussion regarding the questions that had been asked of him by the plaintiff's solicitor; My consideration of his opinions will be set out in that part of my reasons that analyses the conflict in the expert medical evidence; 1. On 15 January 2020, Dr Porteous issued a further whole person impairment assessment that was unchanged from his previous assessment: Exhibit "A", pp 42 - 43; 2. On 15 April 2020, Dr Porteous and Dr Maxwell convened a joint meeting and issued a joint report setting out the matters upon which they agreed and respectively disagreed: Exhibit "A", pp 44 - 64; Exhibit "1", pp 15 - 35.

Expert conclave report and their oral evidence

The conclave report did not result in much useful substantive agreement on the expert evidence issues. The only substantive matter that the experts agreed upon was that the plaintiff had sustained a soft tissue injury or contusion to his left knee in the subject accident.
Dr Maxwell appears to have been given material which made assumptions as to the speed of the collision. That material was not in evidence before me: Conclave report p 2, answer to Q1. He seems to have drawn a conclusion from that material that the collision, and therefore the injury were minor. Plainly, on my acceptance of the plaintiff's evidence, that was not the case.
The experts disagreed on the effects of that injury. Dr Maxwell considered the force of the collision was sufficient to cause a contusion to the plaintiff's left knee but "not enough to cause serious pathology". The evidentiary basis for that statement remains opaque to analysis.
Essentially, taking an overview of the conclave report, it is tolerably clear that in the conclave report and in their oral evidence, each of the experts maintained the initial analysis and reasoning that they had identified in their reports and they reverted to the explanations that they had provided in those initial reports.
Before proceeding to an analysis of those reports it is appropriate to here identify the principal areas of disagreement that persisted between the experts following their conclave. Those matters were as follows: 1. Dr Maxwell disagreed with the clinical conclusion of Dr MacDessi and the analytical conclusion of Dr Porteous that the plaintiff had patellar tendonitis; 2. Dr Porteous disagreed with Dr Maxwell's interpretation of MRI scan imaging and maintained that the radiology indicated deterioration in the pathological signs in the plaintiff's left knee that preceded the accident, which in effect, he considered to have been an underlying asymptomatic condition which was aggravated by the subject accident, whereas Dr Maxwell maintained that the three MRI scan reports identified different degrees of mild cartilage degeneration consistent with the plaintiff's age. Absent from Dr Maxwell's analysis on that point was the effect of trauma, which he insisted in describing as mild; 3. Dr Porteous considered the plaintiff's ongoing left knee pain was due to the accident whereas Dr Maxwell considered the "normal" time for recovery would have been 4 - 6 weeks; 4. Dr Maxwell introduced into the evidence for the first time, the notion that pain can be affected by anxiety and depression. Whilst that proposition accords with common sense, there is no reliable evidence to compel a diagnostic conclusion that such factors were at play and affecting the plaintiff in this case; 5. Dr Maxwell discounted Dr Porteous' treatment recommendations on the basis of his view that there was no objective evidence that the plaintiff was unable to function; 6. Accordingly, the experts maintained diametrically opposed views on the plaintiff's prognosis, Dr Porteous expressing the view the prognosis was guarded, as stated in his report, and Dr Maxwell expressing the view it was excellent; 7. Dr Maxwell placed great emphasis on the location and variation in the observations of muscle wasting in the plaintiff's lower limbs. Given that the observations varied, all that seemed to flow as a consequence was that at differing times, the plaintiff was using his legs in different ways which produced such results. That did not necessarily mean the plaintiff was not favouring his left knee and overusing his right knee; 8. Dr Maxwell's view of the absence of muscle loss was anchored to his report dated 12 September 2019, whereas Dr Porteous' conclusion that there was muscle loss in the plaintiff's left leg, was based on his unchallenged observations to that effect which he made on 15 January 2020. Dr Maxwell was not in a position to contradict that clinical finding; 9. Dr Maxwell found it difficult to understand how the plaintiff developed 3cms of right thigh muscle wasting but, inconsistently, had no apparent difficulty emphatically saying that it was not related to the subject accident. Absent from his analysis was a due consideration of alteration to the plaintiff's gait due to pain, which by then was in both knees; 10. The experts maintained their disagreement on the plaintiff's capacity to return to his pre-injury employment or to work in other employment.
The experts made no substantive concessions in their answers to questions asked in cross-examination.
In essence, the remaining matters of dispute that subsist between the opinions of the respective medico-legal experts concerns the nature, the likely duration and effect of the plaintiff's left knee problem, and whether the plaintiff's experience of left knee problems have caused him to incur problems with his right knee which has occurred due to the plaintiff favouring his left knee in association with weight bearing and altered gait.
As the experts relied upon the analysis which they had set out in their reports, it is an opportune segue that I now turn to consider those reports along with salient aspects of their oral evidence.

Resolution of conflicting medical opinions

I am required to wrestle and grapple with the conflicting expert opinions to identify a reasoned preferred view on disparate matters of disputed medical opinion: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187, at [28]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, at [66]. That step is a necessary pre-condition to be undertaken before proceeding to make findings concerning the plaintiff's ongoing accident-related disabilities and findings on the effect that those disabilities have on his work and domestic activities.
It is convenient to commence the analysis with a consideration of the evidence of Dr Porteous. Whilst the following analysis of Dr Porteous' reports is shorter than the analysis of Dr Maxwell's report, the task is qualitative and dependent upon the content of the material requiring analysis, and it is therefore not a quantitative exercise.

Dr Porteous' reports

The two reports of Dr Porteous were respectively dated 4 October 2018 and 14 January 2020. The joint report of his conclave meeting with Dr Maxwell was dated 15 April 2020.
On each of his two examinations of the plaintiff, Dr Porteous took a thorough history and set out the details of his findings on examination. He made an initial diagnosis of left knee patello-femoral syndrome.
In Dr Porteous' first examination he reported that the first and second MRI scans of the plaintiff's left knee showed evidence of an effusion suggestive of inflammation and injury. He co-related those conditions as being consistent with the plaintiff's complaints of ongoing chronic knee pain. He considered the plaintiff's reported abnormal feeling he experiences in his left kneecap to plausibly suggest an unstable patella.
In Dr Porteous' second report he updated his record of the plaintiff's history and also his findings on examination. He noted that the most recent MRI scan dated 7 December 2019 showed mild chondral surface irregularity in the median eminence of the mid pole of the left patella, and a subtle focal area of chondromalacia on the medial femoral condyle. On examination he noted a muscle bulk difference that had occurred over time in the plaintiff's right thigh and calf, which he considered to be consistent with the plaintiff's history. He noted the plaintiff gave a history of abnormal gait in that he was favouring his left knee resulting in right knee pain in early 2019. On examination, he noted that once the plaintiff got up from the seated position and started moving his gait was normal, but was initially hesitant, with a reported increased in pain. He recorded a history that the plaintiff reported experiencing persistent right knee pain with favouring of his left knee, with associated pain and restrictions in both knees.
Dr Porteous' second report identified the updated diagnosis of a left knee chronic soft tissue injury with clinical evidence of patello-femoral syndrome with imaging scan evidence of effusion suggestive of inflammation and injury, which remained consistent with the reported history. He accepted that the plaintiff had developed a consequential right knee soft tissue injury from favouring his left knee and carrying most of his large weight through the right knee when limping on the left.
It is plain from reviewing Dr Porteous' successive opinions, that he has appropriately examined the historical assessment and treatment reports and he has clinically co-related the plaintiff's historical complaints of pain in his knees with his findings on examination together with an interpretation of the available imaging scans in order to identify his stated diagnosis.
In my assessment, Dr Porteous' two assessment reports and his stated opinions are appropriately reasoned in compliance with UCPR r 31.23(1)(c), Sch 7, cl 3(e). They are open to be accepted for those reasons because there are no apparent flaws in the process of his expert evaluation and reasoning as set out in those reports.

Dr Maxwell's reports

Dr Maxwell prepared a single assessment report following his examination of the plaintiff on 12 September 2019. In that report he set out a detailed history of the plaintiff's background, the circumstances of the injury and the plaintiff's immediate post-injury complaint of pain and swelling in his left knee which was described as being accompanied by a feeling that it was "out of place".
Dr Maxwell stated that at the time of his examination of the plaintiff he did not have the benefit of seeing the medical investigations that had been carried out as the plaintiff had left them at home: Exhibit "1", p 6. He did not request a follow-up in that regard.
Dr Maxwell examined the plaintiff and found no evidence of muscle wasting on 12 September 2019. He therefore concluded the plaintiff was using his left knee "relatively normally". He saw no effusion and noted a full range of movements. He noted that the plaintiff reported a feeling of hypersensitivity all over the left knee on palpation. It follows from Dr Maxwell's comment that if muscle wasting had been observed, he would have concluded the plaintiff was not using his knee "relatively normally", a term that was not further defined. This has some relevance to Dr Porteous' subsequent finding of muscle wasting in the plaintiff's right knee on 14 February 2020.
Dr Maxwell saw imaging reports as follows. First, the initial x-ray imaging dated 15 September 2017, and then two MRI reports that were respectively dated 19 September 2017 and 23 February 2018.
At the time Dr Maxwell prepared his report, he had a copy of Dr Porteous' first report which preceded his own examination of the plaintiff by almost a year. He made the following comparative observations and comments between his own examination of the plaintiff to those reported by Dr Porteous: 1. He noted Dr Porteous had referred to Dr MacDessi's diagnosis of patellar tendinopathy (which Dr MacDessi had actually referred to as "quite a severe case of patellar tendinopathy") but he did not himself make a direct criticism of Dr MacDessi's clinical diagnosis to that effect. That clinical diagnosis therefore remains uncontradicted; 2. He noted that Dr Porteous' left knee flexion measurements of the plaintiff's left knee before the plaintiff reported the onset of pain, namely 110º, had improved to 115º on his own examination almost a year later; 3. He found no knee crepitus on his examination of the plaintiff, whereas Dr Porteous had found the presence of crepitus. The precise movements undertaken for those varied observations were not described so as to enable a reasoned comparison; 4. On the issue of Dr Porteous' diagnosis of patello-femoral syndrome, Dr Maxwell recounted that it was his own experience that individuals who experienced patello-femoral pain "almost always" have wasting of the quadriceps muscle whereas the plaintiff had no wasting of that muscle; (Emphasis added) It must therefore follow as a matter of course from the use of the emphasised word "always" that muscle wasting does not necessarily occur in every case. Dr Maxwell did not proceed to undertake an analysis on the balance of probabilities as to whether or not that would be so in this case. 5. He recounted that whilst Dr Porteous considered it plausible that the plaintiff had an unstable patella, his own testing for that condition was not positive for that diagnosis. It is difficult to draw definitive conclusions from that divergence as the testing in question was carried out on different occasions; 6. He referred to Dr Porteous' comment to the effect that the plaintiff was restricted from kneeling and crouching, and observed that generally, one kneels on the tibial tubercle, and not on the patella. In my view that comment has no substantive critical effect in this case as the plaintiff's complaint was of knee pain when he was attempting to kneel, and not specific patellar pain on kneeling. Dr Maxwell did not make that differentiation in providing what I construe to be his generalised anecdotal comment. Dr Porteous' actual comment was: "… if [he] tries to crouch or kneel or gets up after sitting and he is in very cold weather he gets pain in the anterolateral aspect of the left knee rated up to 8/10 on the pain scale": Exhibit "A", p 21. Dr Maxwell has only superficially engaged with that statement in criticising it. His comment as to kneeling did not specifically refer to the anterolateral aspect of the plaintiff's pain as referred to by Dr Porteous. It appears that the lateral component is to the side of the knee and not "on the patella" itself. Be that as it may, I considered the superficiality of Dr Maxwell's comment, which was critical of Dr Porteous' commentary, lacked persuasive coherence; 7. He raised a query as to why Dr Porteous would suggest the plaintiff should be restricted from heavy lifting, pushing, pulling and carrying without indicating why these "normal activities would be harmful for him" as the plaintiff "is a regular weight lifter". In my assessment, the element of analysis that was lacking in Dr Maxwell's comment was the plaintiff's reported experience of pain, which would naturally limit the advisability of persisting with such activities, depending upon its severity. Furthermore, insofar as the plaintiff has in the past been a weightlifter, there is an apparent difference between the process of static lifting of weights and the more dynamic processes of pushing, pulling and carrying. I considered Dr Maxwell's comment to be superficial and unpersuasive from a logical perspective. In any event, the unchallenged evidence of the plaintiff is that he has followed Dr MacDessi's advice to cease weightlifting because of its aggravating effect. Dr Maxwell's comment which was expressed in the present tense, appears to lack a factual foundation; 8. Dr Maxwell stated: "Dr Porteous suggested Mr Wehbe was incapacitated from being a tiler (but I would disagree with this. I am sure he could go back to work as a tiler. If his main trade is tiling and in Dr Porteous opinion is Mr Wehbe is incapacitated from tiling on face value this would seem remarkable following the nature of the injury).": Exhibit "1", pp 7 - 8. Dr Maxwell's expression of disagreement lacks the requisite degree of reasoning as he did not refer to the detail of the range of tasks that are involved in the work of tiling. This is a matter of some significance as the plaintiff stated in his evidence that it includes floor work, not just standing and tiling walls. I find Dr Maxwell's expressed certainty of opinion as to the plaintiff's work fitness to be an unpersuasive bare ipse dixit of the kind criticised in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [59]. In making his comment to that effect, Dr Maxwell appears to have overlooked the plaintiff's complaints of pain associated with the activities involved with tiling work; 9. Dr Maxwell made the following sweeping generalised and ad hominem remark in connection with Dr Porteous' opinion: "As is common with occupation physicians, Dr Porteous suggested that anything that causes symptoms should be avoided. Normal physical activity is essential for recovery form soft tissue injuries. Resting a soft tissue injury usually makes it worse.": Exhibit "1", p 8. The generalised, unsupported sweeping and superficial nature of that remark fails to engage with the logical notion that symptoms of pain on activity in the face of the effects of injury may vary in specific individual circumstances. The absence of detailed engagement with the plaintiff's specific complaints indicates that particular remark by Dr Maxwell should be given no determinative weight. The untenable implication of Dr Maxwell's remark is that occupational physicians, including Dr Porteous, do not provide correct or appropriate advice when advising to limit pain producing activity. I give the cited remark no evidentiary credence.
Dr Maxwell's evaluation "at face value" was that the subject accident was "relatively minor" and he considered the plaintiff's complaints of continuing discomfort "somewhat obscure particularly given that the objective evidence indicates he is using his left knee relatively normally because there is no muscle wasting": Exhibit "1", p 9. [Emphasis added] The relativity that he had in mind was not explained. That cited statement, and Dr Maxwell's adjectival references to the notions of relativity and "no hard objective evidence", based his conclusion that the plaintiff had a resolved soft tissue contusion to the left knee. That conclusion was plainly based on Dr Maxwell excluding from his consideration the plaintiff's complaints of pain, which suggests that the effects of the injury had resolved. That is a matter of some significance to the analysis where there is no suggestion the plaintiff was consciously exaggerating his complaints.
In that regard, Dr Maxwell's statement (at Exhibit "1", p 9), that "one is forced to reply entirely on his [the plaintiff's] symptoms" in my view reveals that his analysis was artificially limited, and has paid little or no regard to the plaintiff's not otherwise improbable complaints of pain.
In my view, that approach by Dr Maxwell is unjustified in this case where Dr Maxwell went on to conclude that the plaintiff's complaints were "not entirely consistent with the physical examination": Exhibit "1", p 9. [Emphasis added]
In that regard, Dr Maxwell did not adequately explain his comment as to which of the plaintiff's complaints were inconsistent, and how that conclusion arises on analysis. Furthermore, given that Dr Maxwell did not examine all relevant parts of the plaintiff's left lower limb which were described by him as a source of pain, namely, the left hip region, it is difficult to understand how Dr Maxwell could rationally imply a lack of consistency of the plaintiff's symptoms with the products of his examination of the plaintiff where that examination was, by his choice, left in a limited and incomplete state insofar as some of the plaintiff's affected parts were concerned. I therefore consider Dr Maxwell's analysis in this case to be superficial and unreliable, particularly since its principal focus was only on the "objective" evidence when the plaintiff's complaints of pain have not been challenged as being inherently unreasonable or improbable.
The defendant's solicitor asked Dr Maxwell to comment on Dr Porteous' recommendation that the plaintiff should follow restricted work activity. He dismissed that suggestion as "illogical": Exhibit "1", p 10. His conclusion of illogicality was not based, as one would logically expect, on an evaluation of the plaintiff's complaints of pain on carrying out certain activities. Instead, it was based upon the absence of muscle wasting in the right knee (which Dr Porteous later found to exist on his subsequent examination of the plaintiff that followed Dr Maxwell's analysis), the absence of effusion, the absence of synovial hypertrophy, and the absence of evidence of inflammation. Nowhere in that analysis, in which Dr Maxwell said the plaintiff was fit to undertake normal tiling work, did he consider the range and nature of the tasks involved in the plaintiff's previous work, and the inter-related question of whether such activities were likely to be productive of pain for the plaintiff such that the activities may be contraindicated. In that sense, I consider that Dr Maxwell's cited opinion was not based on a balanced analysis of the relevant factors required for a reliable opinion.
In weighing the probative value of Dr Maxwell's opinions, I consider that considerable persuasive significance should be given to the fact that Dr Porteous had the observational advantage of examining the plaintiff twice over a period of 16 months between 4 October 2018 and 14 February 2020, whereas Dr Maxwell's single examination of the plaintiff took place 5 months before Dr Porteous carried out his last examination, and where Dr Porteous had in fact observed muscle wasting in the plaintiff's right leg. That finding on examination was not challenged.
For that reason, in addition to the preceding reasons and those that now follow, I considered that Dr Porteous was in a better and more advantageous position to more reliably assess the plaintiff because he was not reliant upon just a single examination undertaken a year after the injury, as was the case with Dr Maxwell's assessment.
In this case, Dr Maxwell has provided the defendant with what I consider to be an unreasonably dismissive opinion, apparently based on general considerations, to the effect that what he gauged to have been the plaintiff's soft tissue contusions, would have been expected to have resolved after a putative 3 - 4 weeks of convalescence, and on that basis, he therefore considered that the plaintiff did not have any further incapacity or disability beyond that time: Exhibit "1", pp 9 - 10.
In expressing that dismissive view, Dr Maxwell appears to have overlooked or has placed little if any weight on Dr MacDessi's contemporaneous clinical diagnosis of tendinopathy. Dr Maxwell has in effect taken the stance of dismissing the significance of the plaintiff's reported symptoms.
In my view there is a fundamental obstacle which I consider should preclude the acceptance of Dr Maxwell's cited opinions. This is because he appears to have based his opinions on what he considered to have been "objective evidence", which I construe to mean that, whilst he noted the plaintiff's complaints of pain and discomfort, he has not considered them to be a relevant and integral factor in determining his diagnosis.
Whilst Dr Maxwell has recorded the fact that on examination the plaintiff complained of left and right knee pain, Dr Maxwell seems to have rejected such complaints, or alternatively, he has not placed significant analytic weight upon them on account of an asserted absence of "hard objective evidence of any continuing pathology on the physical examination" of the plaintiff. In my view that conclusion by Dr Maxwell is difficult to sustain because of the unexplained adjectival components that he has embedded as qualifiers within that opinion.
Dr Maxwell did not state what would have considered to have constituted "hard objective evidence of any continuing pathology". Furthermore, in his report he did not identify his reasons as to why he thought the plaintiff's symptoms were "not entirely consistent with the physical examination". His use of the phrase "not entirely consistent" must mean that he thought at least some of the plaintiff's complaints of symptoms were consistent with the history he obtained and the physical examination that he had carried out.
Unfortunately, Dr Maxwell did not clearly identify which of the plaintiff's symptoms were respectively thought by him to be consistent on the one hand, and inconsistent on the other. Consequently, I considered that Dr Maxwell's opinion lacked the requisite degree of reasoning that is required by UCPR 31.23(1)(c), Sch 7, cl 3(e).
In my view, Dr Maxwell's approach of apparent insistence on the presence of pathology for the purpose of a diagnosis, and in not coming to grips with Dr MacDessi's unchallenged clinical diagnosis that was based on his examination of the plaintiff and his history, and the imaging results, in order to either distinguish that diagnosis or to demonstrate its argued incorrectness, indicates that Dr Maxwell's approach to the analysis in this case should be seen to lack balance and to lack adequate supporting reasoning.
Although Dr Maxwell was provided with copies of clinical correspondence from Dr MacDessi, (in which on 16 February 2018, which was 5 months after the plaintiff's injury, Dr MacDessi considered that on the imaging results and on clinical grounds, the plaintiff had a quite severe case of left patellar tendinopathy due to a direct impact injury, which on 23 August 2018, and then again 6 months later, Dr MacDessi described the plaintiff's left knee condition as being recalcitrant), Dr Maxwell did not rationally engage with or contradict Dr MacDessi's clinical diagnosis. Plainly, he was not in a position to do so.
Another matter that caused me to doubt the thoroughness and the adequacy of Dr Maxwell's approach to the task of the examination of the plaintiff for the purpose of preparing his report was his acknowledged complete dismissal, without so much as a cursory examination, of the plaintiff's left hip region: T79.12 - T79.42. This was in circumstances where the plaintiff had identified that symptom to Dr Maxwell as an area that was a source of pain shooting up from the left knee. It is difficult to see how Dr Maxwell could have reasonably dismissed such a complaint without first having examined the plaintiff's left hip region in order to give that aspect of the plaintiff's complaint his proper and reasoned consideration before rejecting it. He simply did not examine it.
A further matter of doubt arising from the evidence of Dr Maxwell concerns an element of confusion concerning his consideration of the evidence comprising the reports of the imaging of the plaintiff's knees and the imaging films themselves. That confusion has unfortunately been contributed to by the fact that the defendant's solicitor's letter of instruction did not accompany the tender of Dr Maxwell's report.
At page 6 of Exhibit "1", Dr Maxwell identified the materials he reviewed when preparing his report. There he referred to a report of an x-ray taken of the plaintiff's left knee on 15 September 2017. His comments on that x-ray plainly indicate that he had only seen the x-ray report and not the films themselves, as was confirmed in his oral evidence: T76.21.
At Exhibit "1", p 6, Dr Maxwell commented that the suggestion (made by the reporting radiologist in examining the x-ray of the plaintiff's left knee on 15 September 2017) of the presence of a mild joint effusion. Dr Maxwell stated it was difficult to diagnose joint effusion in a very large man such as the plaintiff. I consider that unexplained comment to be of no probative value as a basis for criticising Dr MacDessi's unchallenged contemporaneous diagnosis, especially where he did not see the films that based the radiologist's diagnosis. The radiologist's opinion was not challenged. I do not regard Dr Maxwell's cited general comments to comprise a valid reason for discounting Dr MacDessi's unchallenged views or the unchallenged diagnostic views of the reporting radiologist, neither of whom expressed any such difficulty and neither of whom was required for cross-examination by the defendant.
As earlier identified, confusion arose in Dr Maxwell's oral evidence as to what imaging evidence had been provided to him, and when this had occurred.
In that regard, in his report dated 12 September 2018, copied at Exhibit "1", pages 6 and 7, Dr Maxwell stated that he had seen MRI scan reports dated 19 July 2017 and 23 February 2018. He did not state that he had examined the actual films but he nevertheless went on to state that "MRI scans are particularly poor at diagnosing minor cartilage defects": Exhibit "1", p 7.
Whilst that cited general statement may well be correct, however, without Dr Maxwell having examined the plaintiff's actual MRI scans himself, it is difficult to see how he could have been in a reasonable position to contradict the aptness of the unchallenged radiological opinion that there was fissuring and blistering of the patellar cartilage of the plaintiff's left knee, seen on specialist examination of the films, whether such findings were minimal, early, or otherwise. In that context, Dr Maxwell's non-specific general comments of an anecdotal nature should not be read as providing a rational basis for displacing Dr MacDessi's clinical diagnosis, or that of the examining radiologist.
I therefore do not read Dr Maxwell's report to represent a valid basis for criticism of the clinical diagnosis of Dr MacDessi, or the diagnostic radiological opinion of the examining radiologist. Furthermore, in his report, Dr Maxwell did not identify his own qualifications for interpreting radiological imaging, although to some degree, such ability might well be within the skill set of an orthopaedic surgeon. His CV, which should have accompanied his report, ought to have thrown light on whether or not he had that relevant expertise.
On my reading of Dr Maxwell's report dated 12 September 2019, his commentary in the report of his meeting with Dr Porteous on 15 April 2020, and in his oral evidence, the analytic standpoint that he adopted was to discount the relevance of the plaintiff's report of symptoms, to focus on what he considered to be a "normal" recovery time of 4 - 6 weeks for a soft tissue injury to recover, and to therefore discount and dismiss the plaintiff's account of difficulty and disability. In my view, that anecdotal approach was unreasonable as it was not a balanced analysis. A balanced analysis should have considered whether the plaintiff's symptoms were a likely consequence of the subject injury. It is difficult to see how Dr Maxwell could reasonably dismiss the plaintiff's continuing complaints, the existence of which he acknowledged in his oral evidence, simply on the basis of a lack of pathology: T76.48.
In the context of considering the plaintiff's prognosis, in the joint report that followed the meeting of experts, Dr Maxwell referred to what he described as "[t]he latest MRI scan" as showing no significant pathology to the left knee or to the patellar ligament. There is no satisfactory evidence upon which to conclude Dr Maxwell's comment was based on an actual viewing of the actual MRI scan images as distinct from just commenting on a report of that scan. Further, there is no satisfactory evidence from which it may be reliably inferred that Dr Maxwell's reference to the latest MRI scan was a reference to the MRI scan dated 7 December 2019 rather than the report of the MRI scan dated 20 February 2018, to which he made reference in his report: Exhibit "1", p 7.
In his oral evidence Dr Maxwell made reference to the three MRI scans and stated that "none of them showed any significant pathology". He said he viewed the MRI's. It is not apparent as to when or how this occurred as there was no index of annexed documents or materials annexed to the joint expert report. Reading Dr Maxwell's comments at their highest, that is accepting that he actually viewed the three separate sets of MRI scans, I consider that his commentary should not be given any determinative weight because of the following matters arising from his evidence: 1. His comments suggesting that the significance of the pathology on MRI scans was dependent on the interpretation of the radiologist (T76.22), was a general comment. He had not prepared any report in which he had either analysed or criticised the specific radiological opinions interpreting any aspect of the MRI scans; 2. His general anecdotal comment that "radiologists can actually over-report x-rays" was not a reasoned opinion relevant to or critical of the radiological findings which are the subject of reports in this case. He could not have reasonably given such an opinion as he had not actually seen the x-ray films himself; 3. His reference to an absence of any sign on MRI scans of a loss of articular cartilage remains obscure, as it was not part of the plaintiff's case that there was such a loss of cartilage to use Dr Maxwell's terminology; 4. Dr Maxwell's view that there was not "any significant pathology" is opaque to analysis as he does not explain what pathology was potentially significant, and what it was that he considers to have been insignificant. Furthermore, he has provided no discussion on the potential for the trauma of the plaintiff's injury to cause "those sort of things", being minimal fissuring and blistering of the patella cartilage, which, he said, was very commonly seen in asymptomatic knees.
Finally, it is necessary to refer to the assertion made by Dr Maxwell in his report dated 12 September 2019 in which he stated that the plaintiff was probably malingering: Exhibit "1", p 10. In my view, that assertion can be disregarded for a number of reasons: 1. It was an unsupported ipse dixit of the kind criticised in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [59]; 2. The apparent basis of that assertion was Dr Maxwell's insistence on objective clinical signs to support or explain symptoms, presumably, although not stated by Dr Maxwell, in relation to the plaintiff's complaint of right knee problems. The ready answer to Dr Maxwell's criticism, absent definitive scientific evidence, is that where the plaintiff's symptoms are not inherently improbable and science cannot provide an explanation, a temporal explanation based on a commonsense analysis is a sufficient explanation: Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1940] HCA 45, at pp 563 - 564; p 569; Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 at [87] - [88]; Commissioner of Police v Rea [2008] NSWCA 199, at [8]; 3. In his cross-examination of the plaintiff, sensibly, and having regard to the state of the available evidence as a whole, senior counsel for the defendant, carefully refrained from putting to the plaintiff the charge made by Dr Maxwell, asserting that he was malingering: T26 - T56. Plainly, on the evidence, the basis for such an assertion was absent, as was Dr Maxwell's required reasoned analysis in favour of probable malingering: UCPR Sch 7, cl 3(e). For Dr Maxwell's conclusion to prevail, it was incumbent upon him to identify the reasons for his conclusion of probable malingering. His retreat to the proposition (at Exhibit "1", p 10) that "The clinical objective signs do not indicate he [the plaintiff] has any persisting pathology to explain his symptoms" is a spurious argument which must be rejected in view of Dr Maxwell's fair concession that individuals have differing clinical presentations, which sometimes involve subconscious factors that do not imply mal-motivation: T77.32 - T78.2; T85.20 - T85.34; 4. When Dr Maxwell was given the opportunity to articulate whether he was possibly speaking about mal-motivation on the plaintiff's part in a question asked by the Court (at T85.31), in contrast to the cited malingering comment he made in his report, he specifically eschewed the opportunity to question the motivation of the plaintiff concerning his complaints and symptoms: T85.34.
I therefore conclude that Dr Maxwell has raised a false issue of probable malingering on the plaintiff's part. I give his opinion to that effect, no credence in this case.

Conclusion on expert medical evidence

For the above reasons, I considered that Dr Maxwell's opinions critical of the plaintiff's case lacked important indicia of reliability such that those opinions should not be accepted. Instead, I have preferred and accepted the appropriately considered reasoning within the opinions of Dr Porteous.

Disabilities

As I have found the plaintiff to be a credible witness and I have accepted his evidence generally, I propose to treat the medical history summarised by Dr Porteous as evidence of the plaintiff's early post-injury difficulties and treatment: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995 (NSW). I have drawn upon the unchallenged content of the tendered medical reports to identify relevant aspects of the plaintiff's history, and his disabilities as there documented.
I accept that prior to the impact on 13 September 2017, the plaintiff was symptom free in both knees. There is no sound basis on the evidence, to infer, absent the trauma of the impact that he would have gone on to develop such symptoms in any event.
The plaintiff continues to experience constant pain and discomfort in his left knee. It affects his gait and mobility. He experiences knee discomfort after walking about 10m. His ability to run is now limited: Exhibit "1", p 4. His gait becomes altered as a result in that he favours his left knee. The pain worsens on activities such as weight bearing, prolonged walking and when climbing and descending stairs. He wears knee braces on his knees for support and assistance in managing his knee problems. He experiences painful sensations, which he calls "micro-traumas" on activities such as getting up out of a chair. He finds he must wear a knee brace during the day.
In early 2019, the plaintiff found that as a result of favouring his left knee and his altered gait, he experienced the onset of right knee pain which has since continued most of the time. He also uses a knee brace on that knee as well.
The plaintiff described his left knee pain as being located mainly at the front of the knee but also radiating all around his knee and spreading up to this left hip. I accept his description that such pain is made worse when getting in and out of a car, and in cold weather. Dr Porteous has aptly characterised the plaintiff's left knee pain as chronic.
The plaintiff's left knee pain has developed into a chronic condition. His knee pain increases on activities such as when kneeling or crouching. His sleep has become disturbed by his knee pain. He feels considerably frustrated by his experience of pain. His recreational activity, power lifting of weights, has had to cease, on medical advice. He has also found that his other recreational activity, boat fishing, has had to cease in January 2018 because it increased his symptoms.

Work effects

The plaintiff is now restricted in pursuing a range of occupations that involve physical mobility, weight bearing and dexterity. He would have difficulty standing or walking for prolonged periods, getting in and out of the tight spaces of cabins of vehicles, including forklift trucks, kneeling, crouching, negotiating stairs, ladders or slopes.
The plaintiff remains incapacitated from carrying out his former work as a tiler, except perhaps for tiling work that just involves standing, which plainly makes further tiling work impracticable for him. In the longterm, he is therefore incapacitated for tiling work.
I accept Dr Porteous' assessment that the plaintiff has a chronically reduced work capacity due to his ongoing pain and restricted movements. These disabilities will obviously affect his productivity in the workplace.
Whilst he may find a benevolent employer or a series of such employers who might make allowance for such difficulties, in a competitive labour market this would seem to be a low probability. If he were able to gain suitable employment, sustaining that employment would be a difficulty for him because of the described physical disabilities that affect him. His prognosis is guarded due to both his left and right knee conditions.
I also accept Dr Porteous' opinion that from his perspective as an occupational physician, not only does the plaintiff have a significantly reduced work capacity due to his stated restrictions, but also, the probability is that he will have to retire some 5 - 10 years earlier than would otherwise have been expected, on medical grounds, due to his knee disability. That opinion will be considered in connection with the assessment of damages.

Domestic effects

Consequent upon Dr Porteous' assessment that the plaintiff is restricted from pursuing activities involving kneeling and crouching, heavy lifting, pushing, pulling and carrying, he is also restricted from pursuing heavier domestic work and maintenance because of the prospect of aggravating the condition of his knees. Whilst the plaintiff acknowledged that he can do basic domestic tasks without assistance this does not apply to heavier housework and home maintenance tasks.
I accept Dr Porteous' assessment that for the longterm, the restrictions that affect the plaintiff justify him obtaining professional assistance to carry out the tasks for which he is restricted and which would otherwise aggravate his knee symptoms. These restrictions provide justification for the plaintiff to be awarded damages for the commercial cost of obtaining such assistance, albeit on an intermittent basis.

Plaintiff's most likely circumstances but for his injury

Before the subject injury he had no physical restrictions on doing heavy manual or awkward work. Furthermore, the plaintiff had no physical restrictions on his earning capacity. He would have been an ablebodied competitor on the open labour market able to pursue and derive earnings in his trade or in similar work at least at the rate of average weekly earnings or $1000 per week net: s 126 of the MAC Act.

Mitigation

The defendant made no submissions to the effect that the plaintiff had unreasonably failed to mitigate his damages: s 136 of the MAC Act; T131.37 - T132.14.

Assessment of damages

In these proceedings, the plaintiff is not entitled to claim damages for non-economic loss. This is because the schematic medical assessments carried out by the Medical Assessment Service have determined his disabilities do not meet the statutory 10 per cent whole person impairment threshold for such damages to be claimable. My assessment of the plaintiff's entitlement to the claimable heads of damage now follows.

Past loss of earnings and superannuation

The plaintiff claimed past economic loss of $1018 per week net for 136 weeks in the sum of $138,448. The plaintiff consequently claims past loss of employer funded superannuation at 9.5 per cent of $138,448, namely $13,152.55.
The plaintiff has not effectively worked since the subject accident. He did attempt to mitigate his incapacity for work by trying to employ colleagues but this was not sustainable: T21.23 - T21.24. The plaintiff's work incapacity has been on account of his ongoing symptoms and the impracticality of obtaining suitable alternative work that would permit him to work within the restrictions already identified at paragraphs [88] to [92] above.
The defendant initially argued that, rather than adopt the economic yardstick of the plaintiff's earnings in the financial year preceding his injury, which on the taxation assessment for that year involved earnings of the order of $1000 per week net in round figures, instead arguing that a lesser yardstick should be utilised based on an average of the earnings that he derived over the previous 5 years.
I consider the approach as was initially submitted by the defendant to be inherently unreasonable and not reflective of the plaintiff's true loss of earnings. In an updated damages schedule, the defendant later amended that position to acknowledge that the figure should be $1000 per week net.
The parties accepted the general proposition that the sum of $1000 per week net broadly reflects net average weekly earnings for adult males in NSW, award rates, and the plaintiff's assessed earnings for the year ended June 30th 2017: T121.21 - T121.30. I therefore propose to adopt that yardstick to measure the plaintiff's loss of earnings to the date of the hearing.
I accept that the plaintiff has been unable to return to his trade or to work in physical occupations since the subject injury. I also accept this position will remain, and the plaintiff will be forced to seek alternative work from that which he has been trained.
I do not accept as reasonable the amended submission made by the defendant that the plaintiff should only be awarded past economic loss of $1000 per week, which is up to the date of Dr MacDessi's third letter dated 23 August 2018. In my view, that submission was based on arbitrary considerations and it was not reasonable. In that regard, Dr MacDessi's cited letter was plainly not intended to be a reasoned work fitness assessment. It was a general letter of communication to the plaintiff's general practitioner reporting on the plaintiff's condition as reviewed by Dr MacDessi at that time.
I prefer Dr Porteous' assessments on this question. I considered that the period calling for assessment is between 13 September 2017 and 22 April 2020, a period of 135 weeks. That said, I consider that this period should be discounted to reflect the fact that in more recent times, the plaintiff has not looked for work as he was having a break from work for family reasons, in order to look after the needs of his mother who has been ill.
In that regard, I consider that a discount of 15 per cent would be fair to both parties, thus identifying a period of 115 weeks as the relevant assessment period. This is the monetary equivalent of $115,000. In my view there should be no allowance for past superannuation incorporated into that assessment as it appears from the plaintiff's pre-accident GST arrangements that he was mainly self-employed. I therefore assess the plaintiff's damages for past loss of earnings in the net sum of $115,000.

Future loss of earnings and superannuation

The plaintiff claimed future economic loss in the net weekly amount of $509 projected at 5 per cent (x 855.7) until his retirement, less 15 per cent for vicissitudes, namely $370,218.60. As a follow-on the plaintiff also claims future loss of employer funded superannuation contributions at 11 per cent of the submitted amount of $370,218.60, namely, $40,724.05.
I have accepted Dr Porteous' opinion that the plaintiff has incurred a longterm injury-caused restriction in his ability to gain and sustain suitable employment. At his relatively young age of almost 35 years, this is a significant economic detriment that is likely to result in loss of earnings, especially given his limited education thus far, and his skills and experience.
The plaintiff is pursuing a tertiary course. He is intelligent. That said, his physical restrictions for which the prognosis is guarded, represents a substantial impairment in his future earning capacity and this will continue for the remainder of his normal working life to age 67 years.
For the reasons that will shortly follow, that component of the assessment should be for what I assess to be the 25 year period between ages 35 and 60, to accommodate another aspect of Dr Porteous' opinion on the plaintiff's future loss of earning capacity.
The opinions of Dr Porteous persuade me that the plaintiff is unlikely to secure continuous longterm employment. Whatever employment he does obtain is likely to require him to limit and restrict his physical activities in the workplace. Dr Porteous identified as significant, the cautions that would be taken into account by a prospective employer if considering whether or not to employ the plaintiff.
I consider it is more probable than not and unlikely that the plaintiff will find continuous employment in the foreseeable future. It is more likely that he will experience periods of significant gaps in his employment. Furthermore, having due regard to the plaintiff's significant physical restrictions, it is unlikely that he will command an income at, or near the upper end of the range of his pre-accident earnings.
I also accept Dr Porteous' opinion that the plaintiff is unlikely to be fit for work in the final 5 to 10 years of his working life.
That latter component of loss is capable of a mathematical assessment for compensation purposes. Taking an approximate mid-range period for projection, namely, 7 years rather than the higher range estimate of 10 years, a loss of $1000 per week for 7 years at 5 per cent (x 309.4) less a slightly higher discount for vicissitudes, namely, 20 per cent, equates to $247,520. That sum should be deferred on the 5 per cent tables for deferred receipt by 25 years, as the plaintiff will not reach the age of 60 for another 25 years (x 0. 295). This yields the amount of $73,018. In my view, that latter component permits the calculation of loss of superannuation at 11 per cent, namely, $8032.
The second component of the plaintiff's future economic loss is the reduction in his earning capacity between the present time and when he reaches the age of 60 years, a period of a further 25 years. In that time, the circumstances which are described in paragraphs [111] to [112] above, are likely to prevail.
The circumstances of that second component is not conducive to a precise projection of loss calculated on the 5 per cent actuarial tables. Instead, in respect of that period, I consider that a substantial buffer is required: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] - [27].
In respect of that period, I consider that a buffer sum of $200,000 would be fair compensation. As the plaintiff was self-employed, I do not see a reasonable basis for calculating loss of superannuation. To the extent that those future losses would be in periods where he would otherwise be in an employed position because of his injuries, I consider that the buffer includes adequate allowance for the possible incidence of superannuation.
My assessment of the plaintiff's damages for future loss of earning capacity is the aggregate of the three amounts comprising $200,000, $73,018 and $8032, namely $281,050.

Future domestic assistance

The plaintiff claimed future domestic assistance at the commercial rate of $40 per hour for 2 hours per week for 20 years (x 664.4), namely $53,312.35. In contrast the defendant submitted, based on Dr Maxwell's opinion, and based on the fact that to date, he has not paid for any such care, and because he has not met the statutory threshold for the assessment of gratuitous care, there should be no award for this head of damage.
I accept Dr Porteous' opinion that the plaintiff would need domestic assistance for the heavier aspects of home maintenance on an intermittent basis. Dr Porteous is in my view adequately qualified to give a medical opinion on the need for such care because, as an occupational physician, he is sufficiently qualified and experienced to validly and reliably express opinions on such matters.
The estimate of 2 hours per week as proffered by Dr Porteous was stated by him to be approximately 20 minutes per day. In considering that estimate I am mindful of the guiding comments provided in cases such as Sampco Pty Ltd v Wurth [2015] NSWCA 117.
However, in this case, there is no occupational therapist's assessment. Although Dr Porteous said he would defer to such an opinion, in this instance, this does not mean he is precluded from proffering his own view on this component of accident-related need. There is no sound reason for rejecting Dr Porteous' estimate from his perspective as an occupational physician, where, on its face, his assessment of the plaintiff's need for domestic assistance is not inherently unreasonable.
That said, there are two qualifying factors in respect of this component of damages. One is the period for projection, and the other is the estimated hours per week to fulfil an injury-based need. Both require the application of a discount.
In my view, the first component already adequately reflects a discount in that the plaintiff seeks such damages for only 20 years, and not for his statistical life span, which is of the order of a further 50 years.
In my view, the second component requires discounting to reflect the fact that the plaintiff is for now, in his present accommodation, self-sufficient in respect of many domestic tasks as he conceded in cross-examination. He will only need assistance for the heavier tasks on an intermittent basis. Those tasks include garden maintenance, moving furniture, carrying heavy items and occasional cleaning of awkward to reach spaces that would require him to weight bear awkwardly. In my view, an allowance the equivalent of 1 hour per week at the acknowledged rate of $40 per hour projected over 20 years (x 666.4) and discounted by 15 per cent for the impact of possible adverse vicissitudes represents fair compensation for this head of damage.
I therefore assess the plaintiff's damages for future domestic assistance in the discounted sum of $22,657.

Future treatment expenses

The plaintiff claimed future medical treatment in the amount of $25 per week for life (x 980.6), namely $24,515. The defendant's submission, based on Dr Maxwell's opinion to the effect that the plaintiff will not require future treatment, submitted that there should be no damages awarded for future treatment expenses.
The plaintiff has already had over 20 physiotherapy sessions to address his knee symptoms: Exhibit "A" p 35. His left knee pain has not abated and he now also has right knee problems. Whilst I accept that no surgical treatment is required for those conditions, I accept as reasonable Dr Porteous' guarded prognosis for the plaintiff's chronic pain problems, and his assessment that the plaintiff will need intermittent treatment for such symptoms: T66.35 - T67.16; T68.5 - T69.27.
That evidence does not permit a precise calculation for estimated future treatment expenses of the kind as submitted on behalf of the plaintiff. Instead, I consider that this head of damage should be compensated by means of a buffer amount. Given the plaintiff's relatively young age, the chronicity of his pain, and the guarded prognosis for his condition, I consider that a significant buffer should be allowed for conservative future treatment comprising periodic general practitioner and occasional specialist reviews, physiotherapy and pain mitigating medication, and whatever else his treating practitioners might advise as being needed from time to time, on an as need basis. I therefore assess that buffer in the sum of $5000.

Past out-of-pocket expenses

Past out-of-pocket expenses have been agreed in the amount of $2,893.15.

Summary of damages assessment

My assessment of the plaintiff's damages is summarised as follows: (a) Past loss of earnings and superannuation $115,000 (b) Future loss of earnings and superannuation $281,050 (c) Future domestic assistance $22,657 (d) Future treatment expenses $5,000 (e) Past out-of-pocket expenses $2,893.15 Total $426,600.15

Disposition

The plaintiff has established his entitlement to a damages award in the sum of $426,600.15.

Costs

As the plaintiff has succeeded in obtaining a judgment in his favour, he should have an order that the defendant should pay his costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

I make the following orders: 1. Verdict and judgment for the plaintiff against the defendant in the sum of $426,600.15; 2. The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered 3. The Registry is to return the exhibits to the parties after the expiry of 28 days; 4. Liberty to apply on 7 days notice if further or other orders are required.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 April 2020

Transport Administration Act 1998(NSW)

("TA Act"), the Motor Accidents Compensation Act 1999(NSW)

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