DISTRICT COURT OF QUEENSLAND

1. [1]
   On 16 December 1998 the plaintiff while working for Queensland Rail suffered an injury to his right knee when it was struck by a canter plate after a sleeper had been hit with a sledge hammer by another employee.  The plaintiff claims damages against Queensland Rail in respect of that injury.  Liability is not in dispute (p. 80), but quantum is in issue.

2. [2]
   Then on 1 September 2000 the plaintiff, in the course of his employment with Hervey Bay City Council, injured his back when he was required as part of his employment to lift alone a heavy manhole cover.  The plaintiff claims damages in respect of that injury from that employer.  Negligence is not in dispute, but contributory negligence on the part of the plaintiff was alleged.  Damages are also in issue.

3. [3]
   The action in respect of the second accident originally came on before me in Maryborough. At that stage no one was present on behalf of Queensland Rail, but it occurred to me that it was likely that some issue would arise between the two defendants as to whether any ongoing problems suffered by the plaintiff were attributable to the first injury or the second injury, and in those circumstances it was desirable for both actions to be tried together and before the same judge. Before concluding the action against Hervey Bay City Council therefore I arranged for the action in respect of the earlier accident also to come on before me, and that was heard in Brisbane later, with counsel for Hervey Bay City Council present. However counsel for Queensland Rail did not seek to have any of the evidence heard in Maryborough recalled. He had of course an opportunity to cross-examine the plaintiff. I then heard submissions from all three counsel.

Contributory negligence

4. [4]
   At the time of the second accident the plaintiff was working as part of a two man gang ensuring sewer lines were clear: p. 5-6. In order to do this it was necessary to have one person at each of two successive manholes giving access to the line, to enable something to be passed through the line from one to the other. After that had been done successfully, the man at the rear would replace the manhole cover at that manhole, and walk forward to the man at the front, who would then move forward to the next manhole and lift the cover and be in a position to do what had to be done with the line between those two manholes: p. 49-50. The plaintiff was the man who went to the next manhole and uncovered it, and with the work arranged in that way he was left with the task of lifting the manhole cover alone.

5. [5]
   It was suggested in cross-examination that he should have sought assistance in lifting the manhole cover from the other employee, but for the work to have been done in that way would have meant that the other employee would have had to leave the manhole to the rear uncovered, or replace the lid on it first, and if the latter course were followed, that would leave the employee to the rear in the position of having to lift that cover on his own in order to uncover it again: p. 50. It was not regarded as safe to leave an uncovered manhole unattended, for obvious reasons. The position was simply that because of the system of work adopted by the defendant it was inevitable that the plaintiff was going to have to lift these manhole covers on his own. His failure to seek or obtain assistance was not due to any want of reasonable care on his part, and the allegation of contributory negligence is not made out.

The first injury

6. [6]
   The plaintiff was struck on the left side of the right patella: p. 89. He felt a lot of pain, there was an abrasion, and his knee swelled up quickly. He was taken to a hospital for an x-ray which found nothing, and he saw a GP who gave him a couple of days off work, and then he went on light duties.^[1]  He saw the GP a number of times, but the knee remained painful, and on 25 February 1999 he underwent an arthroscopy performed by Dr Winstanley:  p. 90.  He eventually returned to his normal duties, apparently on 6 April 1999.  He said that after some initial settling the knee had essentially remained the same until then.

7. [7]
   The arthroscopy is confirmed in a report from Dr Winstanley of 2 March 1999:  Exhibit 15.  He reported that there was an area of articular cartilage tear one centimetre in diameter^[2] which was not of full thickness and was resected, and a mild crease in the anterior surface of the medial meniscus, which was also of partial thickness and was resected, leaving the meniscus stable.  At that stage Dr Winstanley expected a full recovery.  Following this the plaintiff was off work for six weeks on rehabilitation:  p.90.  He experienced difficulty in walking on the railway ballast in the course of his work, and kneeling caused pain in the right knee, as did bending over or bending down to some extent:  p. 91-2.  He was able to complete a day’s work, but by the end of the day the knee was generally swollen, and he used to take painkillers or rub it with creams.  At times he used knee braces or bandages, but eventually he found the work was just too hard on his knee, and left Queensland Rail in May 1999:^[3]  Exhibit 19.  It appears that he left this job^[4] because he had applied for and obtained a job with the Hervey Bay City Council, specifically with the water supply section which operated under the name Wide Bay Water:  p. 93.  He worked in that position until the second accident.  The knee continued to play up, but he kept at it:  p. 98.

8. [8]
   The plaintiff said that in the second accident he felt a sharp shooting pain in his back: p.6. The pain was in the right lower back. Initially he kept working, but after smoko he was feeling sick in his stomach and unable to continue to work: Exhibit 20.  He initially went to a chiropractor who manipulated his back, and then rested over the weekend.  On the Monday^[5] he went to a GP who sent him for an x-ray, which did not detect any abnormality:  p. 7;  Exhibit 1.  The GP manipulated the spine and prescribed a painkiller.  He noted on examination some tenderness in the right paravertebral muscles and the lumbar sacral facit joints.  The plaintiff returned to the GP on 9 September 2000 complaining of some lower back pain, and on examination there was still some tenderness over the facit joints.  He was advised to rest for a further three days and continue the painkillers:  Exhibit 1.  On 12 September he returned, saying the back felt much better and he was cleared to return to work which he did on the following day, 13 September:  p. 29;  Exhibit 20.

Other injuries

9. [9]
   Prior to these two accidents the plaintiff had been injured on earlier occasions. In 1987 or 1988 while working as a station hand his right knee was injured when a horse came down on top of him.^[6]  He was x-rayed at a hospital as a result, and about a week later some blood was drained from the knee, but after a couple of months he was able to resume working as a station hand, which presumably involved horse riding.  Indeed he remains interested in horses but he has stopped riding himself:  p. 99.  While he was off work he was for a short time using crutches:  p.116.  After this there was always a bit of pain in the knee but nothing which interfered with his work:  p. 95.  The pain he has had since the 1998 accident is very different:  p. 96.

10. [10]
    In 1989 he was kicked in the right knee, on the outside, lower part, by a cow, as a result of which he was off work for a couple of weeks.^[7] 

11. [11]
    In February 1998 the plaintiff saw Dr Khursandi with a ten year history of pain in the right buttock, thigh and knee, with some extension to the leg and foot, some numbness and paraesthesia, and occasional backache: p. 60. A CT scan on 26 February was normal.  The impression at the time was that there was some right sciatica;  that was suggestive of a spine which was likely to produce increasing symptomatology as the plaintiff got older:  p. 61.^[8]  Notwithstanding the impression from the GP’s notes of 5 February 1998 (p. 57) which led to this referral, the focus here appears not to have been on the knee, but rather on the spine.

12. [12]
    In March 1998 he presented at the Maryborough Hospital complaining of right knee pain and was treated with some physiotherapy. The hospital records indicate that the right knee was aggravated by walking 500 metres;  the plaintiff denied that that was the situation at that time:  p. 119.  There was also a GP attendance on 25 March 1998, with back pain with activity, thought to be muscular:  p. 57.

Subsequent injuries

13. [13]
    On 1 April 1999 the plaintiff was working on some track when he slipped and his knees came down and hit the top of the rail:  p. 113, and see Exhibit 21.  This cannot have been very serious, because on 6 April he resumed full duties:  p. 114;  Exhibit 1.

14. [14]
    In November 2000 the plaintiff, while riding a horse helping with some cattle mustering, suffered a further accident as a result of which he fell on his right shoulder:  p. 9.  This caused an injury involving dislocation of a right shoulder joint, which prevented him from working for a time.  He saw Dr Monsour on 4 December 2000, and was referred to Dr Khursandi:  Exhibit 1.  He subsequently underwent some reconstruction of the dislocated joint.  Dr Khursandi did not expect any ongoing problems from the stabilisation of this joint:  p. 67.

15. [15]
    The plaintiff said his lower back has continued to be painful since around the time of the accident in September 2000, and indeed has become progressively worse since then (p. 7), so that it is now a lot worse than it was at that time: p. 15.

Subsequent employment history

16. [16]
    He ultimately resumed work with Hervey Bay City Council, but left a couple of months later: p.10. He then worked for a time as a bore runner on a station, working on maintaining bores and fences. This included a lot of driving, and he described it as not heavy work, but ultimately a dispute developed between him and his employer as to how much work he was expected to do, and he was sacked: p. 11. He had some problems with that job because the driving was stirring up his back, but nothing he could not cope with.

17. [17]
    He then worked for Price Right Concrete doing forming up: p. 11. This stirred up his back also but he was able to work most of the time, and he did not experience any particular problems with his knee at this time: p. 13. Eventually he left that job because he found the work too hard on his back (p. 14) and on his knee: p.103.^[9] 

18. [18]
    His next job was with Q Civil, working only three days per week: p. 15. This involved more bending over, and was worse on his back than his previous job. He wore a back brace every day when he worked, but found it increasingly difficult to cope. He was put off his position with Q Civil about the end of September 2003: p. 85. He was told this was because he was taking too many days off, that is, days when he was unable to work because of his back or his knee: p. 86. That is only evidence of what he was told, but it is a plausible reason in the circumstances and in the absence of other evidence it justifies an inference on the balance of probabilities that that was why he was put off. About a month later he obtained employment as a grader operator: p. 85. He was coping with this work, which is full time, but has the problem that on the particular machine he operates he cannot move his right knee, which becomes increasingly painful until eventually he has to stop the machine and climb down just to ease the pain in the knee: p. 88. As long as he can do that however it appears that he can cope with that job.

Medical evidence

19. [19]
    The plaintiff was seen by Dr Blue, an orthopaedic surgeon, on 13 July 2001 for the purposes of a report in respect of the injury to the back: Exhibit 6.  Dr Blue’s examination did not detect any abnormality except for some localised tenderness in the region of the right sacroiliac joint.  A lumbar CAT scan carried out on 16 July 2001 revealed minor bulging of the L3/4 and L4/5 discs but without nerve root compromise.  Dr Blue expressed the opinion that the plaintiff had suffered an acute lumbar muscle strain from which he had long since made a full and complete recovery.  He did not require any further medical treatment and had no restriction for work.  He did not believe there was any pre-existing condition or element to the injury, and that it was producing no impairment.  In other parts of the report however he refers to the injury having stabilised;  presumably that meant it has gone away, completely and permanently.  The report did not suggest any alternative explanation for any actual continuing pain in the back suffered by the plaintiff.

20. [20]
    In oral evidence Dr Blue said that complaints of intermittent back pain over a period of about ten years would be consistent with some degeneration in the spine, or the fact that the plaintiff has weak back musculature, or that he is on occasions getting some back pain from heavy work: p. 75. Dr Blue’s opinion was that if there was muscle strain it would get better: p. 75. Under cross-examination, Dr Blue conceded that, if the plaintiff in fact had been in pain as he alleged, Dr Blue could not explain it: p.76. In effect Dr Blue’s position was that any real injury which did not clear up quickly was something which would show up on an x-ray (or perhaps a CAT scan) so that there was just no injury: p. 76. In effect, if it did not show up on an x-ray, it did not exist. Dr Blue’s account however of an ordinary back, one which if worked hard produces temporary pain in response, is something very different from somebody who has a permanent pain in the back aggravated by certain things. Whether or not Dr Blue would recognise that as a spinal injury in the absence of some abnormality in the spine which is detectable by radiological examination, it is certainly recognised by the law as an injury for the purposes of assessing damages in tort.

21. [21]
    Perhaps the explanation depends on a fairly strict and perhaps narrow interpretation of the field of expertise as an orthopaedic surgeon: someone who is concerned with those problems in the spine which show up on x-rays. If it does not show up on an x-ray, it is not, so far as Dr Blue is concerned, an injury, but that is really because it is not an injury within the range of his specialty. But even if that is not a fair analysis of his position, the effect of his evidence from my point of view is that, if the plaintiff is not fabricating his symptoms, Dr Blue is unable to provide me with any helpful evidence as to the cause of the continuing and progressively worsening pain in the plaintiff’s lumbar spine.

22. [22]
    Dr Khursandi, orthopaedic surgeon, examined the plaintiff on 8 August 2001, for the purposes of a report to Queensland Rail:  Exhibit 12.^[10]  The plaintiff complained of constant pain in the right knee, aggravated by walking on uneven surfaces, running and squatting.  The knee gave way and locked at times.  On examination there was a full range of movement of the right knee with some patella crepitus and tenderness of the patella.  There was no radiological abnormality on x-ray.  However an MRI done on 6 November 2000 showed erosion of the articular surface of the medial femoral condyle, and a possible tear in the medial meniscus.  Dr Khursandi was of the opinion that the plaintiff was suffering degeneration in the knee caused by the injury of 16 December 1998.  The condition was stable and stationary with permanent partial impairment of five percent on the basis of the WorkCover table of injuries.  In that report Dr Khursandi said nothing about any back problems, understandably enough since Queensland Rail was particularly concerned about the situation with the right knee.

23. [23]
    On 21 April 2003 Dr Khursandi examined the plaintiff again for the purposes of a report to the plaintiff’s solicitor:  Exhibit 2.  This report however was concerned only with the injury to the back suffered in September 2000.  At that stage the plaintiff was complaining of constant low backache aggravated by prolonged sitting, standing and walking.  On occasions the pain radiated to the waist, but not to either leg.  On examination there was no deformity in the spine, and the plaintiff was able to walk normally and to squat with some pain in his lower back.  Extension, lateral flexion and rotation of the lumbar spine were limited to 75 percent of the expected range;  there was tenderness in the soft tissues between L4 and S1.  X-rays of the spine done in September 2000, and in April 2003 were examined.  They were said to reveal anterior body lipping of L3 and L4 vertebrae with early changes of osteoarthritis in the facit joints at L5 and S1 levels.  Dr Khursandi thought that the plaintiff had sustained a musculoligamentous strain of the spine which would account for the ongoing symptoms of backache.  In his opinion those symptoms might persist on a permanent basis, and prevent him from carrying out activities involving bending, lifting and maintaining the spine in certain postures for long periods of time.  He assessed the plaintiff as suffering a permanent impairment of five percent of the whole person resulting from this injury according to the AMA guide.

24. [24]
    The plaintiff was examined again on 16 November 2003 by Dr Khursandi, for the purposes of a further report to the plaintiff’s solicitors, this time related to the injury to the knee:  Exhibit 11.  At that stage the plaintiff was complaining of pain in the right knee, which gave way, locked and swelled at times, and became stiff on prolonged sitting.  There was no treatment except painkilling tablets and home exercises.  On examination, squatting produced pain in the right knee, but he had a full range of movement of the hip joints.  The right knee showed no deformity but there was a slight limitation of full extension compared with the left knee.  X-rays in December 1998, August 2001 showed nothing of significance.  An MRI on 6 November 2000 showed a healed minimally displaced fracture of the posterior part of the medial femoral condyle with slight disruption of the articular margin,^[11] and a horizontal tear in the posterior part of the medial meniscus. 

25. [25]
    An MRI scan on 14 October 2003 again showed the healed slightly displaced fracture, and some thinning of the articular cartilage in the vicinity of the fracture, associated with degeneration of the articular cartilage on the weight bearing surface of the medial femoral condyle with oedema of the underlying bone.  There were also degenerative tears of the medial meniscus.  Dr Khursandi expressed the opinion that there was progressive degeneration in the right knee to which all three incidents (1987, 1989 and 1998) had made a contribution, with a greater part of his present problems attributable to the 1998 injury.  The injury in 1998 was in a sense the straw that broke the camel’s back:  p. 124.  Overall he had been left with a permanent impairment of seven percent of the right leg, of which five percent was attributable to the 1998 injury.

26. [26]
    Dr Khursandi gave oral evidence twice, on 22 July 2003 and 20 November 2003.   Dr Khursandi thought that lifting a heavy concrete lid would place a significant stress on a degenerative spine which would be enough to cause him ongoing problems:  p. 61.  He doubted whether the problems would have been as severe as he is having now had it not been for the incident:  p. 62.  Such an incident can be both an aggravation and an acceleration of the degenerative process:  p. 62.  He conceded that if there was some improvement by 12 September 2000 his injury would have resolved to some extent (p. 64), but even then the incident would still have been related to the subsequent problems in the back:  p. 65.  To some extent of course the improvement can be attributable simply to his having taken time off work:  p. 67. 

27. [27]
    With regard to the knee injury, Dr Khursandi said that the surgery would have alleviated his symptoms to the extent that he was able to return to most of his activities (p. 125), but once there was damage to the surface of the joint the damage can be permanent and can deteriorate to full-blown osteoarthritis: p. 124. Furthermore, the knee can still give way following this procedure: p. 125. Dr Khursandi said that a blow such as that suffered in 1998 would have been sufficient to cause such a fracture, although the blow in either of the other incidents could also have been sufficient for that result: p. 129. The impact was on the inside of the right knee, to the left of the right patella, which was where the fracture was: p. 129.

28. [28]
    The plaintiff was examined on 10 July 2002 by Dr Boys, orthopaedic surgeon, for the purposes of a report to the solicitors for the Hervey Bay City Council:  Exhibit 7.  The current symptoms were recorded as constant low grade discomfort of the lower lumbar spine, pain at the lumbosacral junction, worse after protracted driving;  the plaintiff at the time was working as a bore runner on a station.  At that time he was able to cope with the relatively light work involved.  There was a complaint of pain at the limits of spinal extension and lateral flexion rotatory movements, but generally the examination did not reveal any abnormality.^[12]  Dr Boys was of the opinion that the plaintiff had intermittent musculoligamentous lower back strain which had not led to any quantifiable impairment of bodily function on the basis of the AMA tables.  He did not consider that the problem with the lower back would preclude any employment, although the plaintiff might experience some degree of strain if involved in heavier work activities, particularly involving repetitious bending or lifting.  Dr Boys said that he thought the symptoms were primarily muscular in nature:  p.41.  Dr Boys conceded that the fact that the plaintiff continued to work did not mean he had not injured his back:  p.41. 

29. [29]
    Dr Boys said on the AMA guide fifth edition there was a zero percent impairment. I must say in circumstances where Dr Boys himself assessed the plaintiff as being unable to do heavier work activities, involving repetitious bending or lifting, without aggravating his symptoms, to suggest that there is zero impairment indicates either that the AMA guides are not a useful measure of true impairment in such circumstances, or Dr Boys was not using them properly.^[13]  Plainly somebody who develops pain in the back from doing repetitious lifting or bending has some impairment of function.  Dr Boys would have expected a musculoligamentous injury in September 2000 to have cleared up by now:  p. 45.  Dr Boys thought that the CT scan in July 2001 indicated some evidence of degeneration in the spine, and the plaintiff may be now having symptoms associated with that degeneration:  p. 45.  Dr Boys conceded that one possible explanation for current symptoms was that the plaintiff had injured his back in 2000 and the symptoms were continuing:  p. 46.  However his opinion was that the problems now were not related to that injury.

30. [30]
    The plaintiff was seen by Dr McMeniman, an orthopaedic surgeon, on 19 November 2002 for the purposes of a report to Queensland Rail:  Exhibit 16.  The plaintiff at that stage was complaining of diffuse pain in the right knee, particularly with squatting, and a feeling of insecurity.  At the time he was avoiding running.  On examination there was a full range of movement in the knee, some crepitus and generalised tenderness.  X-rays and a bone scan were done on 19 November 2002 but these were not put in evidence.  However there was a comment on them, that they suggest early degenerative joint disease in both knees.  Dr McMeniman had not seen the MRI scans that had been done on the plaintiff’s knee:  p. 163. 

31. [31]
    Dr McMeniman was prepared to concede the probability of association between what was found on an arthroscopy in January 1999 and the injury in December 1998 but he thought there was a significant element of pre-existing injury and pre-existing degeneration, which he did not think had been aggravated by the injury of December 1998. Dr McMeniman thought that the injury in December 1998 did not appear to have been of great import, and he thought the effect of that injury had now passed, and what the plaintiff was suffering from was the continuing and deteriorating effects of the degenerative joint disease. However he went on to give an assessment of permanent partial disability from the injury of 16 December 1998 in the order of two and a half percent of the leg.  These findings appear to be inconsistent but under cross-examination, parts of which were also difficult to follow, at p. 163 he explained this really as giving the plaintiff the benefit of the doubt as to whether there was an injury of some consequence there.  But he had earlier said “it’s just all guess work …”  That is understandable if he was referring to the difficulty of determining when degeneration of the knee was triggered, but is not very helpful to me.  Dr McMeniman was conscious of the important difference between impairment and disability:  p. 163-4.  Dr McMeniman’s opinion did seem to be particular influenced by his view that the injury in 1998 was not one of any great consequence:  p. 164.

32. [32]
    The plaintiff was seen on 28 July 2003 by Dr Johnn Olsen, consulting physician in occupational medicine, for the purposes of a report for the plaintiff’s solicitors:  Exhibit 13.  Although Dr Olsen mentioned the lower back pain, his examination was essentially directed to an assessment of the right knee problem.  The plaintiff at that time was reporting knee pain which was constant and fairly severe, with the knee swelling intermittently, and tending to give way when he walked.  The plaintiff was able to squat with the assistance of his hands, there was ten degrees loss of flexion and extension in the right knee compared with the left measured by a goniometer, there was tenderness on the medial aspect of the right knee and pain when grinding the patella against the underlying cartilage.  There was no muscle wasting of the quadriceps on the right, but some swelling of the right knee.  Dr Olsen thought that the plaintiff had continued to work essentially because of strong motivation, and would require future treatment and perhaps a total knee replacement, although it was too early to say definitely.  He was of the opinion that the plaintiff could not continue to work in heavy occupations, and that he required careful assessment of his potential for redeployment.  He would remain disadvantaged and would find it increasingly difficult to obtain new jobs, and may well end up in long term unemployment.

33. [33]
    In Exhibit 13 Dr Olsen was of the opinion that the condition which led to the surgery on the knee was a consequence of the accident.  It emerged however that Dr Olsen was not aware of the earlier injuries to the knee, and under cross-examination conceded that he would have difficulty in attributing to what degree each of those incidents may have contributed to the present condition:  pp. 156, 160.  The fracture shown on the MRI would be consistent with an inability to straighten the knee completely:  p. 157.  Dr Olsen would have expected him to have difficulty in walking on uneven or sloping ground:  p. 158. 

34. [34]
    Dr Olsen said that when he saw the plaintiff, he appeared to be guarding his right leg; in the description given in the report of Dr Khursandi in Exhibit 2 there did not appear to be any guarding, and Dr Olsen was not able to explain the difference:  p. 159.  The problem with this however is that Exhibit 2 was directed to the back problems, rather than the knee problems.  Indeed, that is a feature of all of these reports;  they focus on what is relevant for one action, and largely ignore what is relevant for the other one.  In these circumstances, I would be wary about using the content of a report in relation to one of the problems in connection with the assessment of the other, particularly when what is said to be significant is not an observation that was recorded but rather an absence of a recorded observation.  A failure to mention pain in the knee in connection with the squatting in the examination in Exhibit 2 may have been because the plaintiff did not have knee pain when he squatted on that occasion;  but it may also be because the doctor did not ask him whether the knee was painful, or bother to record any complaint of pain in the knee, because that was not the injury on which he was then focusing.  Dr Olsen thought the plaintiff would be able to continue to work as a grader driver, but did not have any detail about the particular problem the plaintiff was experiencing with that work:  p. 160. 

35. [35]
    The plaintiff was seen by Dr Tuffley, orthopaedic surgeon, on 15 October 2003 for the purposes of a report to Queensland Rail:  Exhibit 17.  Dr Tuffley had been provided with an even longer list of medical reports than those that I have seen.  The plaintiff’s complaints to Dr Tuffley were ongoing right knee pain particularly with heavy work.  On examination there was said to be full flexion in the right knee, and minimal “fixed flexion” deformity of perhaps two and a half degrees.  Stressing the knee produced pain.  There was some restriction in the right knee on squatting.  Dr Tuffley noted that an MRI of the right knee on 6 November 2000 showed evidence of a horizontal cleavage tear in the medial meniscus, and he noted the healed fracture of the condyle.  He also saw the MRI study of 14 October 2003, which showed a post-traumatic deformity of the femoral condyle, with a well-defined cortical step at the fracture line.  There was a deep full thickness vertical fissure or ulcer within the anterior cartilage and oedema which extended into the sub-adjacent bone.  There were also indications of a horizontal degenerative tear in the medial meniscus.  Dr Tuffley agreed that one could not tell from the MRI when the fracture occurred:  p. 143.  But if there had been such a fracture in 1998 Dr Tuffley would not have expected the plaintiff to be back at work as quickly as he was:  p. 144.  If he really had had a fracture of the knee, he just would not have been able to go back to work two days later.  The presence of blood suggested either a fracture or a rupture of the cruciate ligament:  p. 154.   

36. [36]
    Dr Tuffley was of the opinion that the injury in December 1998 caused bruising and probably damaged the underlying articular cartilage of the condyle, but not the fracture of it which he attributed to the injury in 1987 when the horse rolled on him. He thought that this injury was responsible for some of the things found during the arthroscopy. Dr Tuffley assessed the plaintiff’s permanent partial impairment of the right leg attributable to the 1987 accident at five percent, with a further two percent added from the injury of December 1998. He did not consider that the plaintiff had any significant disability relating to the December 1998 injury. He thought there was the prospect of the condition worsening, and to require further arthroscopy, but this was attributable to degeneration following the injury in 1987. Dr Tuffley thought that having the fracture back in 1987 was consistent with the work that the plaintiff had done between then and 1998, because the fracture healed in a good position. He would not have expected the plaintiff to have too many problems with it since that time: p. 147.

37. [37]
    Dr Tuffley was of the opinion that had the accident in December 1998 not happened the plaintiff’s knee would probably have been much the same as it is now in terms of function, because the small loss of flexion was probably related to the fracture, but the plaintiff probably would not have had the pain that he has now: p. 150-1.^[14]  He did not think that the fracture in itself caused or would cause arthritic change due to trauma in the knee:  p. 151.  That opinion to some extent was due to his view that arthritic changes were more associated with genetic considerations than trauma, and to some extent by the approach to this sort of issue in the AMA guide:  p. 152.  Dr Tuffley thought that notwithstanding this degree of impairment the plaintiff would be capable of gainful employment of some sort until pretty much close to normal retirement:  p. 153.

Credibility

38. [38]
    I should say something about the credibility of the plaintiff. Although it was apparent that in some respects the plaintiff’s memory was not all that good, particularly in relation to matters such as dates and other details of that nature, my impression overall was that the plaintiff was an honest and genuine witness, and broadly speaking reliable, subject to that concern about matters of dates and details. Significantly, I do accept that he has real problems with pain in the knee, and an ache in his lower back.

Applicable law

39. [39]
    With regard to the inter-relationship between the two injuries, and the resulting approach to the assessment of damages, this is a case where the second injury simply added to the harm caused to the plaintiff by the first injury; it is not a case where the effect of the second injury submerged the effect of the first injury, so that thereafter it was only the second injury which was the effective cause of the plaintiff’s loss. Accordingly damages are assessed in respect of the first injury without regard to the second injury, and in relation to the second injury, in respect of the extent to which the plaintiff’s condition has been made worse because he suffered the second injury as well as the first. See Nilon v Bezzina [1988] 2 Qd R 420 at 428;  Faulkner v Keffalinos (1970) 45 ALJR 80 at 85 per Windeyer J.

Factual issues – first injury

40. [40]
    When dealing with the plaintiff’s injury to the knee, the first issue which arises is whether the plaintiff suffered a fracture of the condyle in the accident in 1998, or in 1987. I accept that it is not possible to tell from the x-ray or the MRI study when this fracture occurred, and that the injury suffered in 1998 was in the same place as the earlier fracture: p. 150. But on the whole I prefer the analysis of Dr Tuffley, that it is unlikely that the plaintiff would have been cleared to work after only two days, even on light duties, if he had actually suffered even a slight fracture of the condyle in 1998. I think that the presence of the blood in 1987 was also significant. I am conscious of the fact that Dr Tuffley may not have properly appreciated the significance of the 1998 injury in terms of the persisting pain and other troubles it has caused the plaintiff, but nevertheless on the whole I accept his reasoning and think it is more likely that the fracture was suffered in 1987.

41. [41]
    I also accept that as a result of this there was a slight restriction in the ability to straighten the right knee, which as Dr Tuffley said is attributable to the earlier injury. But the earlier injury, although not having resolved with no symptoms thereafter, does not seem to have caused the plaintiff all that much trouble prior to the injury in 1998. I accept the plaintiff’s evidence that although he had some trouble with the knee during that period, it was nothing like the trouble he has had since 1998. I also note that Dr Tuffley did not expect that the healed fracture from 1987 would be likely to go on to produce degeneration in the knee, and indeed it did not appear that anything of any great significance was found during the arthroscopy in early 1999. The most important thing found on that occasion, the damage to the articular cartilage, was caused by the 1998 accident, as Dr Tuffley accepted: p. 149-150. Furthermore he did not expect that something like this would cause any particular problems, and in the light of that evidence I think it fair to say that, although there was slight interference with function dating from the 1987 injury, but for the 1998 injury the plaintiff’s knee would probably not have produced much more in the way of symptoms than the relatively minor symptoms which he had suffered up to then.

42. [42]
    The other significant feature is that, since 1998, the right knee does seem to have become substantially worse. Apart from the plaintiff’s complaints of pain, the two MRI’s taken of the right knee, in November 2000 and in October 2003, seem to me to show some significant deterioration during that period; there was a good deal more found to be wrong with the right knee in 2003 than in 2000.

43. [43]
    In these circumstances, in my opinion the 1998 accident changed the knee from one which had some minor functional impairment but not a lot more wrong with it, to one where there have been continuing problems of pain, and some real deterioration. In relation to these matters, I prefer the evidence of Dr Khursandi, who has the advantage of having seen the plaintiff on a number of occasions, and of being the treating doctor at times,^[15] so that he has a good deal more familiarity with the plaintiff than do the others.  In addition, I think there is some support for this approach in the evidence of Dr Olsen.  I prefer Dr Tuffley’s analysis of the cause of the injury to the knee to the evidence of Dr Olsen in relation to that, but I think that Dr Olsen and Dr Khursandi have a clearer appreciation of the significance of the 1998 injury, in terms of its effect in stirring up the pre-existing problems.

44. [44]
    On the basis of that evidence I find that the injury in 1998 caused damage to the articular cartilage of the knee, which was treated, but also aggravated a knee which had previously been injured, and produced accelerated degeneration in that knee. In the scientific sense that degeneration may well be regarded as having been caused by the 1987 injury, but what matters in legal terms is how much worse off the plaintiff is than if the 1998 accident had not happened. Dr Tuffley conceded in effect that the plaintiff has suffered more pain as a result, and I think that is correct, and that the process of deterioration in the knee has changed to one where the knee symptoms are not settling but rather slowly tending to get worse, and where there is worsening physical deterioration within the knee itself.

45. [45]
    As a result, I am accepting parts of the evidence of various doctors. To some extent I am accepting Dr Tuffley’s evidence, but I do not accept all of it; in other respects, I prefer the evidence of Dr Khursandi, and of Dr Olsen, particularly in relation to prognosis and on the impact of the plaintiff’s condition on his earning capacity.

46. [46]
    With regard to the other evidence, Dr McMenimin had the disadvantage that he had not seen the MRI scans, which I think are of some importance. In the circumstances I reject his evidence that there had not been an aggravation of the pre-existing condition of the knee from the 1998 injury, although it may be that this was focusing more on impairment rather than disability. I also think that he has really underestimated the significance of the 1998 injury, and on the whole found his evidence the least helpful in relation to this injury.

Factual issues – the second injury

47. [47]
    I accept the plaintiff’s evidence that, prior to the accident in September 2000, he only ever had temporary muscular pain in the back, but that since that accident he has had some degree of persisting pain in the lower back, although its severity has varied somewhat depending on what he was doing and whether it aggravated the back. Although the injury has not been wholly disabling, it has been an additional problem for him over and above the problems associated with the right knee.

48. [48]
    In relation to the back, I prefer the evidence of Dr Khursandi, largely because he has been the treating doctor and has more familiarity with the plaintiff generally. I think that as a result of the plaintiff’s injury he is suffering persistent symptoms of backache, which interfere with his ability to engage in repetitive bending or lifting, or from holding a particular position for an extended period of time, although the latter is also a problem that he has because of the right knee. I accept that there has been an aggravation and an acceleration of a pre-existing degenerative process; that would be consistent with there having been initially some improvement (as the effect of the aggravation wore off) followed by a slow worsening over a long period of time, as the effect of the acceleration took over.

49. [49]
    I found Dr Blue’s analysis unpersuasive, for the reasons referred to earlier. I was also not particularly impressed by the evidence of Dr Boys, about which I have already had something to say. I think that he may have been disposed to attribute continuing problems associated with degeneration in the spine to the underlying degeneration rather than to any aggravation or acceleration of that process in 2000, because he is applying scientific causation rather than legal causation. The effect of the accident in 2000 was to change a largely pain-free underlying degeneration in the spine to a painful underlying degeneration in the spine, and that is something which in the eye of the law was caused by the injury in 2000, even though in scientific terms it may be caused by the underlying degeneration. In relation to the back therefore I accept the evidence of Dr Khursandi and reject the evidence of Dr Blue and Dr Boys.

Assessment

50. [50]
    The plaintiff was born on 7 August 1971 (p. 5) and is now 33.  He has worked in various physical activities, labouring-type activities, all his life, having left school in 1986 after completing Year 10:  p. 101.  He used to have relatively active hobbies of horse riding and pig shooting, both of which he has now given up,^[16] and he has also given up fishing:  p. 99-100.  He can still drive, but cannot drive a vehicle for an extended period without a break.  He has difficulty sleeping, and has to sleep with a pillow under his right knee:  p. 101.  He often wears a knee brace, that is, an elastic bandage which goes over the knee:  p. 133.  He is not so disabled by the pain as to require any assistance in self-care (p. 17) although I expect he is less useful around the house than he was.  The knee is aggravated by walking:  p. 101.

51. [51]
    He appears to be quite conscious of the pain, and although he did not go on about it a great deal during his oral evidence, he did complain in strong terms to Dr Olsen about it; I think that this is probably not so much a measure of the actual severity of the pain, as an indication that the plaintiff has difficulty in coping with his pain. To some extent he has tried to cope with the pain by pressing on with activities, even fairly strenuous physical activities, in spite of it,^[17] and he may well be having difficulty in adjusting to other methods of coping.  In any case I accept the plaintiff has significant existing pain in the right knee, and some persistent lower backache, and these are going to continue, and in the case of the knee probably get worse.  Although there was some possibility that either or both of these problems might arise in any event, that was unlikely.  There is I think every prospect that the plaintiff will require some further surgery on the right knee in the future.

52. [52]
    In all the circumstances in relation to the first injury I assess damages for pain and suffering and loss of amenities at $30,000. The plaintiff is not entitled to interest on general damages^[18] so there is probably not much point in my apportioning this, but had I been apportioning it I would have attributed $8,000 to the past.  With regard to the injury to the back, I assess damages for pain and suffering and loss of amenities at the sum of $16,000.  That would also be covered by s 318, but if relevant I would apportion $4,000 of this to the past.

Economic loss

53. [53]
    Counsel for the plaintiff did not dispute the proposition that past economic loss in respect of the first injury comes to $2,347.40, a figure calculated on behalf of the defendant, Queensland Rail. It is also apparent that there is no current economic loss, in view of the level of remuneration being achieved by the plaintiff as at the time of the resumed trial.^[19]  In relation to the second accident, counsel for the plaintiff also accepted the calculations for past economic loss of $776 by counsel for the defendant Hervey Bay City Council.

54. [54]
    With regard to the future economic loss, there is an issue in relation to the operation of s 317 of the WorkCover Queensland Act 1996.  That section provided as follows: 

“A court may award damages for future economic loss or damages for diminution of future earning capacity only if the claimant satisfies the court that, because of the percentage of WRI resulting from the injury sustained, there is at least a 51 percent likelihood that the claimant will sustain the future economic loss or diminution of future earning capacity.”

That section was repealed by s 40 of the WorkCover Queensland Amendment Act 2001 which also repealed s 318.  However, both of the plaintiff’s injuries occurred before 1 July 2001, and therefore the Act in force immediately before that date continues to apply to them:  s 588. 

55. [55]
    There was however an amendment to s 317, by s 39 of the WorkCover Queensland Amendment Act 1999, which commenced on 1 July 1999:  s 2(3).  By that Act, the words “because of the percentage of WRI resulting from the injury sustained”, were omitted.  The explanatory note indicates that this was a technical amendment to remove any confusion regarding the evidence to be considered by courts in determining the likelihood of future economic loss.  There does not appear to be any transitional provision applicable to this amendment in the 1999 Act, but given the nature of the amendment in my opinion the Act in its amended form applies to existing matters which have not been finalised, relevantly to the present matters. 

56. [56]
    The terms of this section are anything but clear, and I am not aware of any case where it has been previously discussed. There is one decision, Testa v Collex Pty Ltd [2002] QSC 178, where the section appears to have been applied, but without any real explanation.  It seems to me however that the effect of the section is that no particular amount by way of future economic loss or damages for diminution of future earning capacity can be allowed unless there is at least a 51 percent likelihood that that loss will actually be sustained.  For practical purposes this means that it is more likely than not that that loss will be sustained.  Perhaps it was introduced in order to exclude a situation where it was more likely than not that the plaintiff would not suffer economic loss in the future, but where there was some risk of that occurring, so that some allowance ought to be made for that, applying the principle in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.  If that is the situation, it is not a restraint in the present case, as I am satisfied that it is more likely than not that the plaintiff will suffer economic loss in the future as a result of each of his injuries. 

57. [57]
    For the present at least the plaintiff is working in a full time job in which he is making sufficient money for him not to be suffering economic loss. Given the nature of that job however (driving a bulldozer with an earthmoving contractor engaged in road building among other things: p.86-7) there is every likelihood that it would come to an end anyway at some stage or other simply due to the vicissitudes of that industry. But there is the further risk to the plaintiff’s employment arising out of the difficulties he is having even now with his right knee, and the risk that further deterioration in either the knee or the back may well lead to an inability to cope with that job either. In all the circumstances, I think it more likely than not that the plaintiff will be thrown into the labour market again sooner or later, and probably sooner rather than later.

58. [58]
    To some extent as well this depends on his continued motivation for work. When he is in the labour market, he is likely to be significantly disadvantaged because of his problems, particularly his knee. In view of his level of education and experience, he is likely to be doing only unskilled or semi-skilled jobs, the sort of jobs where the principal requirement for employment is being physically fit. I accept Dr Olsen’s opinion that he will find it increasingly difficult to obtain new jobs and may well end up in long-term unemployment. The matter is complicated by the fact that the plaintiff is still relatively young, so that he has still upwards of 30 years future employment to be adversely affected by this. On the other hand, the knee had problems anyway, and might have become worse in any event either through some natural deterioration, or as a result of some other aggravating feature.

59. [59]
    The plaintiff is currently earning about $25,000 net per annum, but that is relatively high within his range of work in the past. In the 1999-2000 financial year, the plaintiff had a taxable income of $32,813, while working for the defendant Hervey Bay City Council: Exhibit 5.  However, the average figure for the years 1997-2002 is somewhat lower than that, and on the whole an appropriate figure to use as the base figure for future economic loss calculations is $20,000 net per annum.

60. [60]
    In these circumstances, I think the best way of dealing with future economic loss is to make what seems to me to be a reasonable allowance for the additional period of unemployment which the plaintiff might expect to face over the balance of his working life, making allowance for the likelihood that in the future he will have increasingly difficulty in both obtaining and keeping work, because of the problems with his knee and with his back. The major problem for practical purposes does seem to be the knee; I accept that that is a more significant source of pain, and it also appears to be more restricting in terms of its effect on potential employment. There is also the consideration that he may well have to take less well-paying jobs in the future because of his physical condition.

61. [61]
    On the other hand, it is also necessary to bear in mind that he may be able to develop a fairly stable career in driving earthmoving machinery notwithstanding his problems, and there was some prospect of his developing problems doing labouring work in the future anyway because of naturally occurring degeneration in the knee or the back. For these reasons, it is not simply a matter of looking at increasing difficulties in maintaining employment leading perhaps in time to long-term unemployment.

62. [62]
    On the whole I consider that, if one looks just at the consequence of the injury to the knee, a reasonable allowance for future economic loss is the equivalent of four years earnings, or $80,000. That is only about 12 percent of his pre-accident economic potential. It is possible that economic loss will prove to be less than that, but on the other hand it may turn out to be a lot more. If I could put it this way, that is the level of future economic loss that I think has a 51 percent likelihood of occurring, as a consequence of the injury to the knee.

63. [63]
    With regard to the injury to the back, I am only concerned with the extent to which this makes it more difficult for him to obtain employment in the future. In my opinion this is much less significant, since he would have difficulty obtaining or maintaining labouring work anyway because of the injury to the knee. There are not going to be too many jobs which he would have been able to cope with notwithstanding the knee injury, but for the injury to the back. For that reason not much allowance should be made for future economic loss in respect of the back injury, and in my opinion it would be sufficient to allow the equivalent of a further one year’s unemployment because of the additional difficulty associated with the back, either because it reduces even further the range of jobs that he can do, or because of the risk that some particular job proves to be too much for him specifically because of his back. Subject to those considerations, in my opinion the general approach referred to earlier indicates that it is appropriate to allow future economic loss in respect of the back injury of $20,000.

Conclusion

64. [64]
    Most of the other matters in relation to assessment of damages are uncontentious. In respect of the action against Queensland Rail, the figure for special damages is $3,189.17, of which $1,023.38 carries interest.^[20]  The interest rate is required by s 318(5) to be ten percent per annum:  Supreme Court Regulation 1998 s 4.  It is not clear just when the out-of-pocket component was incurred, but the parties agreed that it was appropriate to allow interest at half of this rate over the full period, which assumes that it was incurred progressively over the full period.  So I will allow interest at five percent per annum for 5.75 years, $294.22.  The Fox v Wood component is $607.84, and past superannuation loss $56.95.  These figures were also uncontroversial.

65. [65]
    Accordingly, the damages in the action against Queensland Rail may be summarised as follows:

66. [66]
    With regard to the action against the Hervey Bay City Council, the only other matter that was controversial was special damages paid by the plaintiff personally. These were set out in Exhibit 8, which was controversial including in relation to the question of causation.  As to this, I am satisfied that there were continuing adverse effects of the back injury, so that causation is proved in relation to these expenses.  I am not persuaded that there were ten boxes of Panadeine Forte, and will not allow this claim (pp. 37-8) although there may well have been other painkillers.  The other amounts in Exhibit 8 I am satisfied have been proved.  The out-of-pocket expenses therefore will come to $437.50.

67. [67]
    The damages in the action against Hervey Bay City Council may therefore be summarised as follows:

68. [68]
    There will therefore be judgment that the defendant, Queensland Rail pay the plaintiff $111,375, and that the defendant, Hervey Bay City Council pay the plaintiff $36,722. I will invite submissions as to the appropriate orders for costs.