Rushton v Woolworths Ltd[2016] QDC 110

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff, who was born on 12 March 1947, claims damages for personal injuries as a consequence of an incident which occurred when she was shopping in the defendant’s supermarket at Tewantin, on 20 May 2011 and when she was impacted on her left side by a trolley that was being pushed or manoeuvred by an employee of the defendant.

2. [2]
   In her evidence, the plaintiff described being hit (with tremendous force that knocked [her] down the aisle) with the consequence of pain on her whole left side.^[1]She described that trolley as being “enormous” and that at 5 feet 9 inches she was not able to “see over or around it”^[2]and that the force involved was “absolutely horrendous”^[3]and that she was knocked “about 6 feet, at least, down the shop” but without actually falling.^[4]It was her left hip that took the brunt of the impact.^[5]

3. [3]
   Liability for this incident was admitted by the defendant and accordingly the not uncomplicated issues that were litigated, over three days of evidence, related to the assessment of damages.

4. [4]
   For the plaintiff, attention is focused upon three sites of consequent injury, being her left hip, knee and ankle:

1. (a)
   in the immediate aftermath of the incident and after driving herself home, the plaintiff was taken to her general practitioner (GP), DrRamaswamy, who noted swelling and indicia of pain over the plaintiff’s left thigh and in her left knee and ankle, as well as lower back pain;

2. (b)
   upon re-attendance on Dr Ramaswamy on 27 May 2011, he noted that the plaintiff’s left knee was tender and giving way. He ordered x-rays and referred the plaintiff to an orthopaedic surgeon, Dr Winstanley;

3. (c)
   the later observations by Dr Ramaswamy, were that:

1. (i)
   on 8 June 2011, the plaintiff appeared to be in a lot of pain and “weepy”;

2. (ii)
   on 16 June 2011, she was continuing to limp;

3. (iii)
   on 12 October 2011, the plaintiff’s hip pain was noted to be ongoing and on 15 October 2011, it was noted “not driving yet … cannot lie on left hip”; and

4. (iv)
   on 29 February 2012, bursitis in the plaintiff’s left hip was noted as being an ongoing difficulty, which required an ultrasound and on 28 March 2012, it was noted that although a trochanteric bursa injection had helped, the plaintiff still had tenderness on deep palpitation.^[6]

5. [5]
   Before turning to the medical evidence in any greater detail, it can be noted that the plaintiff claimed that she had suffered substantially as a result of these injuries and the effects on her were summarised as follows:

  “(a)Experiencing extreme pain in her left knee and hip for which she has required extensive treatment;

2. (b)
   Losing her identity as homemaker and being reliant upon her husband;

3. (c)
   Inability to attend multiple other engagements including her volunteering for Probus, VIEW, her gardening club and other organisations;

4. (d)
   She has been unable to return to playing lawn bowls. She could not play golf for 16 months (apart from a brief game on holidays);

5. (e)
   Her sex life has been affected.”^[7]

6. [6]
   The plaintiff claims that the accident caused soft tissue injuries to her left ankle, knee and hip and has left her with ongoing consequences. As to the history of the aftermath of the accident and by reference to respective entries in the plaintiff’s diaries,^[8]she particularly identified that she:

1. (a)
   required a wheelchair for a period between 7 July and 8 August 2011;

2. (b)
   was unable to dress herself, unassisted, until 12 August 2011;

3. (c)
   was unable to assist in preparing meals until 2 September 2011;

4. (d)
   was unable to drive until 29 November 2011 and then stopped driving for a period, returning on 16 March 2013;

5. (e)
   was unable to shower herself, unassisted, until 2 December 2011;

6. (f)
   only returned to volunteering at a school on 8 February 2012;

7. (g)
   on 8 May 2012, wore heels for the first time since the accident; and

8. (h)
   was unable to return to golf (apart from one game on holidays on 5June 2012) until 6 September 2012.

7. [7]
   However and as was properly conceded for her,^[9]the evidence identifies an important consideration as to the aggravation of an underlying arthritic condition in her knee. In this regard, the defendant contended that the evidence supported a finding that the accident-related symptoms had resolved by late 2011 and that any ongoing symptoms are caused by the plaintiff’s osteoarthritis or alternatively, that the accident had caused an acceleration of the plaintiff’s pre-existing arthritic condition by one to two years.

8. [8]
   Accordingly, it is first necessary to review the critical medical evidence, as this will enable findings to be made as to the causative effects of the accident and thereby, enable the more particular findings as to the plaintiff’s damages, including the most substantial component in respect of gratuitous care and assistance, as to which there are substantial and separate issues.

The evidence

9. [9]
   It is the defendant’s primary contention that the evidence supports a conclusion that there was a significant resolution of the symptoms in the plaintiff’s knee, within a matter of months after the accident. In particular, it is pointed out that the report of the physiotherapist, Mr Hanegraaf, to Dr Ramaswamy, dated 18 August 2011,^[10]recorded minimal pain with activities of daily living and that the plaintiff had successfully returned to walking one hour per day (whilst wearing a supportive bandage on her knee) and that the swelling of her left knee “had nearly fully resolved, with no further instances of instability”. However, some swelling was noted as remaining in the plaintiff’s left ankle.

10. [10]
    In her evidence, the plaintiff said that at the end of the first course of treatment, she was advised by Mr Hanegraaf that “it was fine, go away and be normal”.^[11]From the further reports of Mr Hanegraaf, to Dr Ramaswamy, it may be noted that:

1. (a)
   on 1 November 2011,^[12]he noted “any progress since my last update” and that although some occasional “twinges” in the knee were noted, he further observed “clinically stability was good, with good quadriceps strength”; and

2. (b)
   on 20 December 2011,^[13]he noted “good progress” and that “on final review today Mrs Rushton reported minimal ongoing issues with ADL’s” and “had just returned to driving” and that although “some pain was noted with this”, he expected this to settle over the course of 4 to 6 weeks. He concluded:

“Clinically quadriceps control, knee stability and gate had normalised. Thus, I have discharged Mrs Rushton from my care with an ongoing self-management regime.”

11. [11]
    Whist the plaintiff agreed with this course of progression, she observed that this occurred with medication^[14]and her perspective of her situation is essentially captured in the following passage:

“Okay. And what advice did Mr Hanegraaf give to you about your recovery?‑‑‑Yes. He said – when he thought we were at the end of the first lot and it was fine, he said, now, just go away and be normal, which I took to be go away and immediately do what I used to do before, which was not the right thing, and I had caused a terrible setback myself ‑‑‑

Okay. So ‑‑‑?‑‑‑ ‑‑‑trying to do things I’d done – take for normal. I’m a very active person, and you don’t think about what you should do and what you shouldn’t do in the natural course of living, and I did something very silly. Do you want me to say what it was?

Yes, please ‑‑‑?‑‑‑I – Ernie and I moved a piece of – a small cabinet to – so that it could be properly moved, and it was a long time since the house had been properly cleaned. And the knee slipped, and that was it. It – you know, too much pressure on the leg and sideways, and that was it. Not good.

Okay?‑‑‑So I’ve learned to try and not do that movement, so – but that’s set me back, and I had to go back and see him. And things like that happened on and off all the way through and are still happening, so – but I try not to go back and see him unless I really, really have to.”^[15]

12. [12]
    Understandably and in the context of this evidence, the defendant referred to other instances of separate episodes involving her left knee and in particular:

1. (a)
   an incident where the plaintiff had stumbled when she stepped into a suitcase and her left leg was caught behind her and she then attended the Noosa Hospital; and

2. (b)
   an incident where she slipped, when her left knee gave way in the garden and she hurt her good knee. And the defendant also referred to her evidence that although her left knee was not then significantly symptomatic:

“It’s always a bit niggly. You live with it. You-you don’t think about it anymore.”^[16]

13. [13]
    However the plaintiff did proceed to explain that she was protective of her knee and is careful how she moves and that it was never pain-free and that a clicking sensation comes and goes.^[17]By way of further explanation of her position, she said:

“I think you said, are happening more often now?‑‑‑Well, they did last – yeah. Because I am coming to the conclusion I’m not going to be able to do half the things I do now. And I was trying to see how far I could do things. And I’m coming to the conclusion that I’m not going to be able to do things like I used to do, like play golf or garden, to the same extent. Or – I’ve tried doing little bits all along, and I’m only allowed to do half an hour of one thing on a day, providing I don't do anything else except for golf. If I play golf on one day I must not walk or garden. If I garden on Monday I must not golf or walk. And I’ve never had to think like that. And that’s a consequence of the ban.”^[18]

14. [14]
    It is common ground that the plaintiff was able to resume playing golf in September 2012 and notwithstanding that it may be accepted, as she contended, that there are occasions when she does not play due to having upset her knee,^[19]the defendant also points to the evidence before the Court that establishes:

1. (a)
   that in a video recording of the plaintiff playing golf on 20 September 2013,  and albeit that a motorised golf cart was used, the plaintiff is otherwise depicted as mobilising and playing golf in an apparently free and unrestricted way;

2. (b)
   she was involved in competitive golf or Pennants, on 16 and 30 March 2014, 13 April 2014 and 11 May 2014;^[20]and

3. (c)
   her ability to travel to the United Kingdom from 20 May 2012 until 19 July 2012 and to Vanuatu in September 2013, was not compromised by her condition.^[21]

15. [15]
    The defendant further points to the fact that Dr Ramaswamy did not refer the plaintiff for any MRI, despite advice to her that he would do so, if she was not fully recovered within 12 weeks of Dr Winstanley’s June 2011 report.^[22]Although the defendant also contended that there is an absence of relevant attendances by the plaintiff on her GP, between 12 October 2011 and 24 May 2013, this overlooks that:

1. (a)
   on 15 November 2011, there is a record of the plaintiff attending on Dr Ramaswamy, in respect of her left hip (a possible bursitis in that area having been noted on 12 October 2011), with the notation “cannot lie on left hip”;^[23]

2. (b)
   on 29 February 2012, there is a notation that the bursitis is still a problem and as further noted on 28 March 2012, the plaintiff had been referred for and had a trochanteric bursa injection, which had assisted but that, on examination, tenderness remained on deep palpitation; and

3. (c)
   on 13 March 2013, it was noted that the plaintiff had seen Mr Hanagraff in respect of her knee and on 24 May 2013, there are notations as to complaints that she has a painful left knee after walking and that it had been that way since February, when it was traumatised in the examination conducted by the defendant’s orthopod.

16. [16]
    As far as the evidence of the plaintiff, and also that of her husband, is concerned, it can be observed that neither of them presented as dishonest witnesses. However, the reliability of the evidence of each of them is a different concern. I will return to the evidence of Mr Rushton when specifically dealing with the claim in respect of gratuitous care. However and in respect of the plaintiff and having regard to many of the matters identified by the defendant,^[24]I accept that there is a need to have primary consideration to the evidence of contemporaneous notations and the more objective evidence as to the progress of her condition. It is also necessary to understand that the plaintiff’s evidence must be viewed in the context of the effect of the medical evidence and therefore, in understanding that her perception of a largely asymptomatic left knee, in particular, being rendered symptomatic without any complete resolution of symptomatology, by the accident, may be partially explained by there being an aggravation of an underlining arthritic or degenerative condition.

17. [17]
    Further and as the defendant has also contended, there was a tendency to overlook and understate that the plaintiff had previously had incidents involving her left knee, each being sufficiently serious to warrant attendance on her GP:

1. (a)
   there was a fall on 21 April 2008, which had produced swelling and soreness when walking, such as to require ageism,^[25]notwithstanding that this was described by the plaintiff as “hardly anything”;^[26]

2. (b)
   although a second incident was described by the plaintiff has having only a “superficial” effect,^[27]it was noted by Dr Ramaswamy on 9 March 2010, as involving a fall onto concrete with the consequence of swelling in the plaintiff’s left ankle, knee and wrist, a week later. 

The medical evidence

18. [18]
    Consequent to the referral to Dr Winstanley, he wrote to Dr Ramaswamy by letter dated 3 June 2011 and in which he set out the following observations and conclusions:

“She has had swelling associated with the lateral aspect of her ankle since the incident. She feels that her knee is the most symptomatic area. She has had improvement with conservative measures. She does [sic] experience any mechanical symptomology of locking or giving way associated with her knee or ankle area. She has no past history of previous problems associated with her knee joint but has had a history of many years ago sustaining injury to her left ankle.

Clinically, she stands without specific deformity of her ankle or hip area. She has a mild valgus deformity of her left knee joint. She has tenderness to palpitation on lateral aspect of her knee joint and overlying the lateral malleolar area. She has a free range of motion within her left knee which is stable and also she has no evidence of instability associated with her left ankle. Her x-rays of her knee confirms the presence of lateral compartment osteoarthritic change and her left ankle are unremarkable.

I feel that she has sustained a soft tissue injury. There is no indication she requires further investigation at this stage. She would benefit from physiotherapy muscle strengthening program. The long term prognosis for her injury should be satisfactory. It will take a period of four to six weeks for her symptoms to resolve.”^[28]

19. [19]
    At trial, Dr Winstanley was called by the defendant. In his evidence, he confirmed a second consultation with the plaintiff, as reflected in his letter to Dr Ramaswamy, dated 11 January 2012 and in which he further recorded:

“I reviewed Mrs Rushton at her request. She has made a satisfactory recovery from her injury to her left knee joint. She has been able to increase her physical capacity associated with conservative treatment. She is now able to drive and shop. She has still not returned to golf activity.

She has undergone a physiotherapy programme which she has found beneficial.

The injury she has sustained has aggravated underlying degenerative process within her knee joint and, at this stage, there is no indication that she requires further intervention to her knee joint. I have discussed with her that she can increase her activity as able. I have not made further arrangements to review her, but would be happy to do so if she has any increasing problem.”

20. [20]
    In evidence-in-chief and when asked about his view as to the aggravation of an underlying degenerative process in the plaintiff’s knee joint, Dr Winstanley elaborated in terms of identifying the production of symptoms in her knee “over a period of time”, as a “result of the injury which she sustained” and he proceeded to opine that such symptoms should resolve and the plaintiff “should be left with ongoing incapacity associated with the underlying change … which is the arthritis”.^[29]In cross-examination, Dr Winstanley conceded that when he saw her in January 2012, the complainant was exhibiting some residual symptoms and impairment and as he had noted, she had not returned to playing golf. He accepted that “a small percentage” of those symptoms “related to a combination of the aggravation of that degeneration and/or soft tissue injury sustained in the accident.”^[30]

21. [21]
    The plaintiff called Dr Pentis, who, as is pointed out by the defendant, is a general orthopaedic surgeon who has been retired from active practice for over a decade. For the defendant, Dr Ganko, who is a practising knee surgeon specialist of some considerable experience, was called. However and in the final analysis and except in respect of perhaps the assessment of impairment that each made,^[31]there was little difference of substance in the evidence of these medical experts.

22. [22]
    As to the plaintiff’s knee:

1. (a)
   Dr Ganko responded, in respect of a summary of the progression of the plaintiff’s symptomatology post-accident, as follows:

“…her description is very much typical of an arthritic joint behaving in that way, and that’s what I’d expect somebody to describe with an osteoarthritic knee as she has developed, and based on the evidence available, there was no evidence that she sustained a significant knee injury at Woolworths, beyond aggravating her knee arthritis, which I’d expect would have been short-time, like all the others where it flared up and settled down, and flared up and settled down.

She also believed that she thought that situation was getting worse with time?   Yes, you’d expect that.

Expect that for what reason?   Oh, just a progression of arthritis.”^[32]

2. (b)
   Dr Pentis described this injury as follows:

“…Yeah, well, she does have pre-existing degeneration in the knee. She has osteo-arthritis of the knee. Associated with the arthritis which is affecting the cartilage and bone, you also get soft tissue scarring and tightness due to the inherent condition. And if you’re sustaining a further injury, you usually find that that sort of tissue is more susceptible to having problems. In other words, it doesn’t give like a normal tissue and so it will be aggravated, torn or sprained or whatever you like and it does take longer for it to settle and sometimes it doesn’t completely settle, it just continues to niggle on. If you’re being treated with analgesics and anti-inflammatories, it will mask the symptoms to an extent.”^[33]

23. [23]
    Dr Pentis had examined the plaintiff in February 2012 and therefore, at a time closer to the accident and earlier in her progressive recovery. He opined that her impairment was due to a combination of aggravation of the arthritis and soft tissue injuries,^[34]but that it was impossible to separate out symptoms, as both conditions may result in similar effects.^[35]On his examination of the plaintiff, Dr Pentis had discerned some clinical signs of soft tissue injury and, in particular, some lateral ligament laxity^[36]and medial ligament pain.^[37]However, he went on to explain:

“In the presence of the arthritic changes, though, at the time you examined her, you really couldn’t say whether she had that sort of damage to her ligament, could you, due to trauma?--   Well, as I said, it’s a continuum. You have an arthritic condition which causes problems with all the associated structures. And then you have another insult. And that will cause further damage. And you can’t tell even if you look at it as to what caused what. You just assume that it has made it worse.

So you’re really forming conclusions on the basis of descriptions of symptoms, I’d suggest?--   No. She does present with clinical signs as well which can be due to both.”^[38]

24. [24]
    Otherwise:

1. (a)
   Dr Pentis substantially agreed with the following proposition, in cross-examination:

“So the ongoing symptoms and the need to protect the knee from further aggravation would be due to the arthritis, correct?   Yeah. Well, the majority of the problem is the arthritis.”;^[39]and

2. (b)
   In his evidence, he further explained an observation in his report as to an opinion that the need for any knee surgery had been brought forward by one to two years, as essentially a conclusion that the accident had brought forward the natural progression of the arthritis by up to two years. Although, he also stated that “it’s all a guess because you can’t say with any certainty because there are too many variables.”^[40]Dr Pentis had earlier explained that the arthritic condition is a continuum and affected by every insult.^[41]

25. [25]
    Dr Ganko saw the plaintiff in February 2013 and therefore, at a later stage of her recovery. He, unlike Drs Winstanley and Pentis, had, from the outset, a history which included the two episodes of prior swelling in the left knee and associated with the falls that occurred on 21 April 2008 and 9 March 2010. In his evidence, Dr Ganko explained that in his view, the plaintiff had aggravated the underlining arthritis in her knee and when asked to explain in what sense he meant that condition was aggravated, he further explained:

“…underlying arthritis?   It’s very hard to quantify that. And we often, you know, see people who have minor trauma and have increased symptoms in an arthritic knee, and then I see lots of patients who have no trauma. You know, people who get out of the bed in the morning and something goes in their – in their arthritic knee, and it becomes swollen and painful. And so it’s often an intangible factor. Presumably, a bit more cartilage flakes off, or a bit of meniscus fails or something changes. But people commonly go from having an arthritic joint, which is relatively well functioning, albeit not completely asymptomatic, to one that becomes symptomatic with – with, you know, often what is a minimal event. So there doesn’t need to be any major structural change or any major fracture or anything like that. And so, you  know, in this case I wouldn’t – I wouldn’t argue that this event at Woolworths may well have aggravated her knee and brought about some level of symptoms at an earlier date than she may have had otherwise. And it’s very hard to know, you know, when that might have occurred. I mean, Dr Pentis has given the opinion that, you know, she would go on to develop an arthritic knee probably, and that the events at Woolworths may have brought forward the – you know, the progression of that arthritis by one to two years. And I wouldn’t – I wouldn’t argue against that. I would have thought that may well be the case. And when I saw her she was still functioning reasonably well for an arthritic knee. She was still playing golf. She was walking quite well on the golf course. She – my examination that I’ve reported – she presented very well in my office. So I thought she was doing pretty well. And most of what she’s got is typical with someone with an arthritic knee like hers. And the causation of the arthritis wasn’t the Woolworths event. But, sure, it might have made her knee sorer at that point in time, and it may not have recovered as fully as may have otherwise been the case.”^[42]

Further, it was Dr Ganko’s opinion that any soft tissue injury had resolved by 19 February 2013, when he examined the plaintiff.

26. [26]
    As to the plaintiff’s left ankle, it was noted that this was the site of an old injury. The plaintiff described that it was initially painful and swollen after the accident^[43]but the pain settled and afterwards, there continued to be swelling.^[44]In summary, Dr Ganko was of the view that there was only a rolled ankle^[45]and Dr Pentis described the condition as “a strain of the ligaments where she has had previous problems and it would be a 1% whole person impairment. Super imposed upon a previous whole person impairment due to the ligamentous problems that she has had.” ^[46]

27. [27]
    In late 2011, it was diagnosed that the plaintiff had developed a condition of trochanteric bursitis in her left hip, for which she underwent a cortisone injection in early 2012^[47]and again and more recently, in November 2014.^[48]The plaintiff described that after the accident, the pain in her hip had settled, although she was left with an ache, “like a tooth ache”, for some months, until in October 2011, she had a sudden onset of much more significant pain that worried her sufficiently that she went to see a doctor. Initially, she was prescribed anti-inflammatory medication but she subsequently sought relief by undergoing the invasive and unpleasant experience of the ultrasound guided injection into her hip.^[49]

Discussion

28. [28]
    The first issue to be determined, in respect of this condition in the plaintiff’s left hip and the consequences of it, is as to whether it is established that the injury was caused by the defendant’s admitted negligence. There is no basis for concluding and neither was it contended, that this injury was directly caused by, or was any direct result of, the incident when the plaintiff was struck on her left side by the trolley. Rather, the plaintiff’s contention is that the hip condition is a consequential development from the injuries that were then occasioned to her, at least to some extent.

29. [29]
    As to the issue of causation, it was recently observed in Downes v AffinityHealth Pty Ltd,^[50]after the basic principle as to a plaintiff bearing the burden of proof on the issue of causation was noted, that:   

“…. The task is a hypothetical examination of whether, had the Hospital taken reasonable care, Ms Downes’ injury would have been avoided or materially reduced. There are two aspects that need to be established: (i) that the negligence was a necessary condition of the occurrence of the harm; and (ii) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused. Those two aspects are what is comprehended by the “value judgment” based on “common sense” in March v Stramare (E & MH) Pty Ltd.

The first aspect is sometimes called factual causation, concerned with whether the negligent conduct played a part in bringing about the harm. The second aspect concerns a normative question: whether the defendant should be held liable to pay damages for that harm.

The first aspect, factual causation, requires the application of the “but for” test: that is, but for the negligent omission to supply a bed with full length cot rails, would the harm have occurred? In doing so it must be borne in mind that the “but for” test is not a comprehensive or exclusive causation test.”^[51]

30. [30]
    In the present case, the parties mainly addressed contentions to the first aspect, of “factual causation”, as that concept is also referred to in the statement of general principles set out in s 11 of the Civil Liability Act 2003 (CLA).

31. [31]
    For the plaintiff, reliance was placed upon the evidence of Dr Pentis, in that quite apart from the effects of the direct blunt trauma of the accident, the condition of bursitis in the plaintiff’s left hip, was likely to have been caused (in the sense of playing a part or making a material contribution) by the plaintiff walking oddly or abnormally as a response to her ankle and knee injuries and thereby, putting “excess strain on the hip joint mechanism”.^[52]It is also pointed out that Dr Pentis assessed an approximate 2-3% whole person impairment in respect of the left hip; “possibly from the initial injury and compounded by the fact that she is walking oddly and favouring the knee”.^[53]

32. [32]
    However and for the defendant, it is pointed out that Dr Pentis agreed that he had noted, when he saw the plaintiff in February 2011, that she had “genu valgus” in both knees (or had “knock-knee”), which was either a congenital condition or due to the developing arthritis with time. It is also pointed out that when he saw the plaintiff, he observed no sign of her “walking oddly”, other than it might be related to the arthritic condition of her left knee and the “valgus deformity”.^[54]  He further explained:

“And the only walking oddly that she would have been doing when you saw her was related to her valgus deformity?   Yes. It’s a generalised terminology where walking oddly means just you’re walking in an inefficient way mechanically, therefore it places strain on your hips and your ankles and on your knee. And sometimes on your back.”^[55]

33. [33]
    For the defendant, emphasis was placed on Dr Ganko’s evidence “after his attention was drawn to the plaintiff’s evidence that in October 2011, she consulted her GP in relation to “a change in the nature off [her hip] pain that it became sharp and severe”:

“In fact, trochanteric bursitis is common in people with osteoarthritic knees, especially valgus arthritic knees. And I see that commonly in my practice. And it’s one of the complaints people with an arthritic knee have, usually because they walk with a waddling or stiff knee type of gait. So it’s a fairly common feature. And sometimes it can be enough of a problem to precipitate them having surgery on their knee, because they can have trochanteric bursitis that just persists because of the way they walk. So had she had an onset at the time of trauma with no resolution I would have concluded, as I did in my report, that it may have been related to the trauma. And that seemed reasonable. But if it seemed to resolve and then just get worse again over time it was probably more related to her gait and her underlying knee problem.”^[56]    

However and as is pointed out for the plaintiff, Dr Ganko also gave the following evidence, after being asked to explain what he was referring to as the “abnormal gait” of the plaintiff:

“…Well, that – it’s mainly the way she walks. I mean, I observed her in my office, which is a fairly limited situation. But I also observed a DVD of her walking around the golf course. And – and because she has an arthritic knee and has a knocked knee deformity she walks with a slightly stiff kneed gait.

Yes?---   So she does have a limp. So when people limp – especially a valgus knee – when you become knock-kneed your foot moves outwards, effectively, and your knee turns inwards. So if people walk, and they have to throw their bodyweight across – over that leg to get their bodyweight over their foot. And that tends to put a lot of sort of pivoting motion on the hip, which is why people with valgus arthritis are more prone to getting trochanteric bursitis, because they have this extra lurching sort of gait pattern. So ---

So what – what, if any contribution to that issue might there be from her situation with her knee after the incident, which is the subject of these proceedings. In other words, if she – if she’s experiencing pain and discomfort in relation to that is that going to affect her gait?‑‑‑With respect to the trochanter or with respect to the knee?

Well, with respect to the trochanter bursitis problem?‑‑‑I mean, I guess the bursitis could affect her gait as well, to a degree. I tend to look at it from the point of view of the knee being the primary pathology?

Yes?‑‑‑So the limp and the waddling gait associated with the arthritic knee usually causes the bursitis, rather than the other way around. But, as I’ve stated, people with ‑‑‑

I suppose what I’m asking you is whether it’s your view that the onset of the painful condition in her left knee itself has any impact in relation to the – the gait issue, and, therefore, the ‑‑‑?‑‑‑Yes. I mean, the gait – her gait issue would relate to things. One would be mechanical factors, which is the fact that she was – had some valgus or knock knee deformity. But, admittedly, that was relatively mild. But also if her knee is painful then that also increases the limp as well. So it’s a combination of both. And – yes. So – so a painful knee would exacerbate the gait disturbance, which, therefore, may secondarily increase the trochanteric symptoms.”^[57]

34. [34]
    Although the plaintiff’s evidence was complicated by her perception that she was not allowed to mobilise, to any significant extent, for weeks after the accident and then had a wheelchair for a month and “still wasn’t allowed to walk around the house”,^[58]she did describe the following:

“Okay. So what about the symptoms in your left knee?  Can you describe to his Honour the symptoms you had in the left knee?   Yes. The – it actually pushed – the force was tremendous against – sideways, and it pushed it slightly out – I remember – I was very knock-kneed. I’m slightly knock-kneed, but I was terribly knock-kneed and couldn’t walk afterwards properly. I was hobbling. Very painful. And that’s on the day. So I just tried to go round the aisle to shop, but went out. Only got what was in my basket already.”^[59]; and

“Okay. And so it sounds like you’re still having trouble with the left knee?   Yes. Yes.

Okay. And are you still having trouble with your left hip?   Yes, because sometimes I have – I try not to limp, but I have a slight limp, because that upsets the hip. I have bursitis in the hip from the bump, and it recurs now and again.

Okay. And so those three areas – the ankle, the knee and the hip – you’ve described are ongoing today?   Yes. The ankle’s – well, only – the ankle is not painful. The ankle just swells sometimes.

All right. So you get swelling in the ankle and the pain in the knee and the hip?   Yes. Correct.”^[60]

35. [35]
    For the plaintiff, Dr Ganko’s views were the subject of criticism because, it was said, despite the evidence as to the hip condition and injections, he initially stated that he was unable to establish permanent impairment, under the AMA guidelines but, in his evidence, “accepted that this was not commensurate with the level of pain experienced by the plaintiff”.^[61]However, Dr Ganko’s evidence, in this regard, is encapsulated in the following passage, which comes after he had initially expressed his disagreement with Dr Pentis’ assessment:^[62]

“So ‑‑‑?‑‑‑A two or three per cent whole person would – would suggest to me a structural problem with her hip, whereas I think the bursitis and the pain around the bursa is form her gait, which is primarily from her knee now – I mean ongoing – I mean, without [indistinct] that causation of her knee problem.

So am I right in saying that she’s complaining of significant disability and pain in the hip?‑‑‑Yes.

But the AMA guidelines really don’t give assessing doctors a mechanism to – to put forward a percentage of impairment which is commensurate with the level of pain that’s being experienced?‑‑‑Yeah. I would agree with that. I mean, there is a whole chapter that rates pain. And – I mean, I guess an impairment could be attributed due to pain, but the guides do specify that that shouldn’t be used if there is known pathology. And it should be based on the pathology, not on – on a pain impairment. So pain can be used for people with back pain [indistinct] you know, demonstrate back pain. They would have no structural abnormalities – no other way of rating it. So I didn’t use pain. Again – I mean, my self-limiting comment was really suggesting that once – if her knee was not troubling her the bursitis would probably resolve. I think she will struggle with the bursitis while she’s hobbling and has the – the sore knee. So I think the two conditions are linked.”^[63]

36. [36]
    This evidence tends to also undermine the defendant’s primary submission to accept “the evidence of Dr Ganko, the condition developed in October 2011 was unrelated to the subject incident”.^[64]

37. [37]
    The impairment assessments of both doctors, as referred to in their reports,^[65]were and particularly in respect of the indications as to apportionment to any existing condition, overtaken by concessions and clarification of each of Drs Ganko and Pentis in evidence and particularly in respect of the issue of the aggravation of the degenerative condition of the knee and the acceleration of that condition.

38. [38]
    As has been noted, the immediate issue is as to any established causal link in respect of the plaintiff’s hip condition. In the circumstances and on balance, it should be concluded that such a link is established, in the sense of the more immediate or direct consequences of the accident providing a material contribution to the bursitis and as more than a mere possibility. Although Drs Pentis and Ganko were not expressly directed to this, it is implicit in their common position, in recognition of the acceleration of the arthritic condition of the plaintiff’s knee, that there was such a contribution, in also accelerating the onset of the bursitis.

39. [39]
    Accordingly, it is those consequences in respect of the plaintiff’s knee (and her ankle) that, on the evidence, provide the causal link to the harm occasioned to the plaintiff’s hip and in that sense, the plaintiff has satisfied the burden of proof, to which the submissions made for her referred.^[66]As has been noted, Dr Winstanley conceded the possibility of acceleration of the underlying condition and ultimately the evidence of both Drs Pentis and Ganko, in effect, settled upon this as a probable explanation of the plaintiff’s ongoing situation.

40. [40]
    However, such a conclusion does not necessarily lead to the conclusion that the plaintiff is entitled to recover for all aspects of that harm. This is particularly so where, as here, the plaintiff’s underlying condition in her knees and for which the defendant is not liable, is also identified as providing a sufficient explanation for the development of that harm. Accordingly and particularly in such circumstances, there is also a question as to what extent, and particularly into the future, recovery might be allowed for the consequences which on the evidence are related to both the compensable and non-compensable aspects of the plaintiff’s condition. The problem lies in the evaluation of the material contribution made to this condition.

41. [41]
    Moreover and approached from the perspective of the burden placed on the plaintiff to prove causation and particularly in application of the test to be derived from March v Stramere^[67]including, the necessary “common sense approach” and any value judgments and policy considerations that may be involved, it should be concluded that the plaintiff has proven, on the balance of probabilities, that the accident for which the defendant has admitted liability, has caused her immediate soft tissue injuries in her left knee, hip and ankle and, at least materially, contributed to her ongoing injuries in the nature of arthritis of her knee, bursitis of her hip and the swelling of her ankle. In respect of the ankle, this may be noted as the obviously least consequential or concerning ongoing consequence for the plaintiff, and largely overwhelmed by the pre-existent degenerative state of that joint.

42. [42]
    As is correctly pointed out for the plaintiff, up until age 64, she had been active and mobile, notwithstanding the degenerative state of both her left knee and ankle and had performed almost all household duties for herself and her husband. However, it should not be accepted that the preponderance of the evidence is in favour of a finding “of the accident being responsible for a portion of the symptoms beyond the date upon which the symptoms of arthritis might otherwise have come on”.^[68]

43. [43]
    Approached from an alternative perspective, there is also accommodation of the principles discussed in decisions such as Middleton v Melbourne Tramway & Omnibus Co Ltd^[69]and Watts v Rake.^[70]That is because it should be found that although the defendant has not proven its primary contention that the effects of “the accident had resolved by late 2011” or that “symptoms thereafter are caused by osteoarthritis”,^[71]it has established the alternative position; that the accident has caused, at most and in addition to the more immediate impacts in terms of soft tissue or repairable injury, an acceleration in the degenerative condition of the plaintiff’s left knee, by up to two years.

44. [44]
    Accordingly, this is not a case where the evidence permits or it is appropriate to attempt the type of evaluation which is discussed in Malec v JC Hutton.^[72] The plaintiff’s damages will be assessed up to 20 May 2013 and not beyond then. Whilst it may be noted that by early September 2012, she had returned to playing golf, albeit, as she explained, with the benefit of medication and her management of her ongoing condition and limitations, that is not inconsistent with the concept of an acceleration of her condition from a later point in time. Approached in that way, the onset of the bursitis in the hip and the first injection in March 2012 is also accommodated. However, the evidence does not support any allowance for the hip condition beyond 20 May 2013 and certainly not in respect of the further injection in late 2014.

45. [45]
    These findings provide the general context for dealing with the relevant individual components of the plaintiff’s claim.

General damages

46. [46]
    The plaintiff’s claim for general damages is to be decided pursuant to the CLA.^[73]Section 62 requires regard to be had to the “provisions applying to the period within which the injury arose”. Section 61 requires identification of an Injury Scale Value (ISV) under the rules provided in the Civil Liability Regulation 2003 (CLR). In the application of the applicable rules and particularly the provisions of Schedule 4 of the CLR,^[74] it is appropriate to assess the plaintiff’s knee injury as the dominant injury. However and apart from consideration of the immediate or direct impact of the accident, there is the necessity to bring into account the extent to which the pre-existing condition has been aggravated (i.e. has been made worse by the injury)^[75]and also to bring into account the level of impact on the plaintiff, having regard to the multiplicity of her injuries (that is, including also the impact of the injuries to her ankle and hip)  and make allowance for her reactions to those injuries.^[76]

47. [47]
    It is therefore appropriate to have regard to Item 139 “Moderate knee injury”, in Schedule 4, which provides for a range of ISV from 6 to 10. Having regard to the examples provided in Item 140 “Minor knee injury” and the considerations referred to in the preceding paragraph, it should be concluded that this item does not adequately reflect the overall and relevant impact on the plaintiff. In all the circumstances, an ISV of 7 is appropriate. Pursuant to Schedule 6A, s 2(b), that produces an assessment of $8,720.

Gratuitous assistance

48. [48]
    The most substantial and most contentious aspect of the plaintiff’s claims is in respect of the gratuitous assistance provided to her by her husband. Any award for damages, for this claim, is governed by s 59 of the CLA, which provides:

“(1)Damages for gratuitous services provided to an injured person are not to be awarded unless—

1. (a)
   the services are necessary; and

2. (b)
   the need for the services arises solely out of the injury in relation to which damages are awarded; and

3. (c)
   the services are provided, or are to be provided—

1. (i)
   for at least 6 hours per week; and

2. (ii)
   for at least 6 months.

(2) Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened.

(3)In assessing damages for gratuitous services, a court must take into account—

1. (a)
   any offsetting benefit the service provider obtains through providing the services; and

2. (b)
   periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution.”

49. [49]
    It may be noted that in Kriz v King^[77]it was observed that:

“Section 59 does not provide a statutory entitlement to damages for gratuitous services separate to the common law but rather modifies and restricts the common law entitlement to them.”^[78]

Also and with particular reference to the restriction set out in s 59(1)(c) of the CLA, it was further observed:

“It seems clear enough that the legislature intended in enacting Ch 3 of the Act which contains s 59 to place statutory limits on the common law entitlement to damages, including in s 59 damages for gratuitous services, so that these are not awarded in the less significant cases.”;^[79]and

“Because s 59 restricts a claimant's previously unfettered common law right to seek damages for gratuitous services, the section should only be regarded as limiting that common law right if it does so clearly and unambiguously.”^[80]

50. [50]
    In this case, a central point of dispute was as to the requirements that “the services are necessary”, in s 59(1)(a) and the reference to the “need for the services”, in s 59(1)(b). That is because it is clear that it is those services which are so necessary or needed that are to be considered for the purposes of applying s 59(1)(c) of the CLA.

51. [51]
    The approach of the defendant was premised on a requirement of necessity or need in an objective, if not absolute, sense. Whereas the plaintiff contended for a less restrictive approach and one that allowed for more subjective factors to be considered, such as the particularity of the demands or standards maintained by the plaintiff as to her housekeeping and gardening, prior to the accident and also in respect of her reactions to her injuries and perceptions of her limitations.

52. [52]
    In CSR Ltd v Eddy,^[81]which was decided after the enactment of s 59 of the CLAand similar provisions in other jurisdictions,^[82]the state of the law was summarised as follows:

“In considering the arguments of the parties, it is convenient to summarise the legal background against which they must be evaluated.

First, in Griffiths v Kerkemeyer this Court (Gibbs, Stephen and MasonJJ) held that in a claim for personal injury the plaintiff was entitled to recover an amount equivalent to the commercial cost of nursing and domestic services which had been provided in the past and would be provided in the future by the family or friends of the plaintiff.

Secondly, in Van Gervan v Fenton Mason CJ, Brennan, Toohey, Gaudron and McHugh JJ affirmed the view of Stephen and Mason JJ in Griffithsv Kerkemeyer that the true basis of the claim was the need of the plaintiff for the services; that the plaintiff did not have to show that the need was or might be productive of financial loss; and that the plaintiff's damages were not to be determined by reference to the actual cost to the plaintiff of having the services provided or by reference to the income forgone by the provider, but by reference to the cost of providing those services generally in the market.

Thirdly, in one jurisdiction there is legislation reversing the rules stated in the Griffiths v Kerkemeyer line of cases, and in other jurisdictions there is legislation restricting the availability or the quantum of this head.”^[83] (citations omitted)

53. [53]
    It is then instructive to go to the decision in Van Gervan v Fenton.^[84] First and in the joint judgment of Mason CJ, Toohey and McHugh JJ, it was stated:

“In Griffiths, this Court held that a plaintiff was entitled to recover damages for the value of services rendered to him gratuitously by his fiancee and members of his family. The effect of the decision was summarized in Nguyen v Nguyen as follows:

In reaching its conclusion, the Court followed the decision of the Court of Appeal in Donnelly v Joyce, and viewed the damages in question as damages for one component of the plaintiff's loss occasioned by his physical disability. The disability gave rise to the need for nursing and other care. The need was met by the services gratuitously provided. The value or cost of those services was, in the circumstances, an appropriate means of quantifying that aspect of the plaintiff's loss which was represented by the need. As the need represented the loss, the value of the services required to fulfil that need served as a means of assessing the loss. The fact that there were persons, prompted by motives of concern for the plaintiff, who were prepared to provide the services gratuitously was, it was held, not something which should diminish the damages to the advantage of the defendant. It was only right in the circumstances that the plaintiff should benefit rather than the wrongdoer whose negligence was the cause of the plaintiff's loss.”^[85] (citations omitted)

Those observations identify the separate requirements of proof of need for assistance, as the loss and the valuation of that loss. And this was further reflected in the statement of the following conclusion, after an analysis of the differing judgments in Griffiths v Kirkemeyer:^[86]

“Thus, the important difference between the judgment of Gibbs J. and the judgments of Stephen and Mason JJ. in Griffiths is that, while Stephen and Mason JJ. were of the opinion that the plaintiff's damages are to be calculated by the need for the services, Gibbs J. thought that that was a necessary but not a sufficient condition of liability. In the opinion of Gibbs J., the satisfaction of the need is not sufficient unless the need "is or may be productive of financial loss". But to add this requirement is to go as close as is possible to treating the claim as a claim for special damages. Yet the Griffiths v. Kerkemeyer doctrine was only made possible by rejecting the established common law rule that, in an action for damages for tort, the reasonable cost of services required as the result of the tort is a claim for special damages and can only be recovered if the plaintiff has a legal (or perhaps a moral or social) obligation to pay for them. As Stephen J. pointed out in Griffiths, the principle laid down in Donnelly

"deprives of all substantive significance the distinction between special and general damages: if a plaintiff's accident-caused need is the loss to be compensated, the reasonable cost of satisfying that need being only a means of quantifying the damages to be awarded, the distinction between these two kinds of damages becomes unreal".

Although the judgment of Gibbs J. in Griffiths has frequently been cited as though it contained the ratio decidendi of Griffiths, it was a dissenting judgment on the point of principle. Significantly, in Nguyen, Dawson, Toohey and McHugh JJ. interpreted Griffiths as holding that "the plaintiff's loss ... was represented by [his] need".

Consequently, it should now be accepted that the true basis of a Griffiths v. Kerkemeyer claim is the need of the plaintiff for those services provided for him or her and that the plaintiff does not have to show, as Gibbs J. held, that the need "is or may be productive of financial loss".^[87] (citations omitted)

It was also observed:

“But once it is accepted that the plaintiff is compensated for his or her loss and that the reasonable value of that loss is in general the market cost of providing the services, matters which might on a different theory be dealt with on the issue of mitigation are subsumed under the issue of the reasonable value of the services needed.”^[88]

And the opening statement, in considering the application of the principle in that judgment, was:

“In a case such as the present, therefore, it is necessary to determine two questions: (a) What are the services required to satisfy the plaintiff's need resulting from the defendant's wrong? (b) What is the value of those services?”^[89]

54. [54]
    Otherwise in Van Gervan v Fenton, Brennan J expressed  general agreement with the joint judgment of Mason CJ, Toohey and McHugh JJ,^[90]Deane and Dawson JJ expressed a similar conclusion as to the underlying principle,^[91]and Gaudron J also adopted the statement of principle expressed in that judgment.^[92]Each of the separate judgments differed only as to the particular aspects of the valuation of the need, having regard to the particular circumstances of that case.

55. [55]
    Accordingly and as contended by the defendant, there may be difficulty in the plaintiff’s reliance upon a number of New South Wales decisions in support of the submission that:

“16.The New South Wales cases support an interpretation of Section 59 of the CLA that:-

1. (a)
   Subjectively assesses the need of Mrs Rushton with regard to her particular proclivities – she has always been a meticulous homemaker and keen gardener. She is of anxious disposition which has perhaps lead to her being affected more dramatically by her injuries than other people with similar orthopaedic injuries;

2. (b)
   The assessment of time taken to perform tasks is to be assessed on the actual evidence (in this case the evidence of Mr and Mrs Rushton) and not with reference to the time a professional might take to perform tasks;

3. (c)
   There is no obligation on a plaintiff to prove how services should be disentangled as between the Plaintiff and other members of the household. If another member of the household benefits from the cleaning of a bathroom, that is to be ignored. It is conceded though that to the extent that more people in a household may make the task a longer one or more frequent is still a relevant consideration even though the decision of White does not go into that detail.”^[93]

This is because those decisions apply the requirements of s 15(2) of the Civil Liability Act 2002 (NSW), which, in contrast to s 59 of the CLA, provides, separately to a requirement that is indistinguishable from the requirement in s 59(1)(c),^[94]that:

56. [56]
    Further, it may be observed in respect of the authority upon which particular reliance is placed by the plaintiff: Coles Supermarkets Australia Pty Ltd v Haleluka,^[96]that the main concern was as to the valuation of the reasonable need, rather than the establishment of the reasonable need. That is demonstrated by the following extract:

“No part of s 15 refers to the services being assessed as though they were performed by professional providers or by reference to any posited objective standard. There must be a reasonable need for the services: s 15(2)(a). The phrase "gratuitous attendant care services" is defined as meaning the services that have been or are to be provided by another. Section 15(3) sets a time for those services by that other person. The number of hours is a factual question, on what has occurred or will occur. Here, the evidence of the plaintiff was accepted: that because of the accident she could not do the housework. There was, therefore, a reasonable need for the services of domestic duties to be provided by her husband. He provided them. It took him seven hours. This was longer, on the findings, than the five hours per week that would be taken by paid professional cleaners.

The maximum rate for gratuitous assistance is set by ss 15(4) and 15(5). It will likely be, as here, significantly less than the sum for professional rates. Here the agreed figure for gratuitous care was $23 per hour and for paid care $39.80 per hour. Sections 15(4) and 15(5) provide a limit; they do not prescribe an amount. Parties often agree the sum (as they did here). If a gratuitous provider of services was sufficiently slow or inefficient to warrant treatment in the evidence, the appropriate way to reflect this is in the sum awarded per hour.

Here there was a demonstrated need for housework by the acceptance of the respondent's evidence as to her inability to do it. There was evidence accepted by the primary judge of seven hours per week for over six months. That Dr Matalani expressed an opinion that, properly understood, founded a conclusion that five hours of paid professional assistance was needed, did not make unacceptable the evidence of the respondent that her husband took seven hours. This is especially so in circumstances where Dr Matalani's qualifications for such an opinion (as opposed to medical evidence as to need) are far from clear.

It was submitted that one only gets payment for satisfying the reasonable need created by the injury. Thus, it was submitted that some objective assessment of reasonable time is implicit in the satisfaction of the reasonable need. But the section does not identify some standard of efficiency in delivery of the services. The services by the person who is providing them gratuitously must be in response to a reasonable need. Those services must be provided for a specified time. The section does not require only those services of a length of time reasonably or professionally provided by some posited objectively skilled person. The section is dealing with the commonplace circumstance that a family member will take up tasks that he or she may not normally do. There is no warrant to imply into s 15(3) a requirement that the time taken to perform the services must be referable to some objective standard of efficiency.”^[97]

57. [57]
    Although, under the Queensland legislation the valuation of a plaintiff’s loss may allow a different latitude and observations made in that passage may have applicability, the primary issue here was as to proof of the need for gratuitous services and clearly that involves an assessment of necessity in an objective sense. However, that may not prevent regard being had to some subjective factors. This is because the ascertainment of need is in respect of the assessment of the loss of the plaintiff due to the injuries occasioned by the defendant’s negligence. Accordingly, it may be possible to take into account:

1. (a)
   the sensibilities and reactions to a particular plaintiff, particularly in respect of such a personal issue as reaction to pain or some restriction in the plaintiff’s body parts; and

2. (b)
   the particular proclivities of a plaintiff, pre-accident, such as in respect of being “a meticulous homemaker and keen gardener”.

However and by application of the general principles as to proof of causation, value judgments may be necessary and the overriding requirement of need must necessarily be answered in an objective sense, having regard to any such subjective considerations.

58. [58]
    Issues as to both need and the valuation of the loss occasioned by the need for nursing and domestic services, involve proof of matters of fact and therefore much will depend upon the evidence, in any given case. As the defendant noted, a method of proof of need may be through evidence by an occupational therapist or other suitably qualified persons.^[98]However, that is not necessarily the only way and the evidence of the plaintiff and the medical practitioners will be relevant to assessing the impact of her injuries, including her limitations in respect of the performance of the domestic tasks previously performed by her and her requirements in respect of care and assistance, in her recuperation from those injuries.

59. [59]
    In this case, the primary difficulty lies in the reliance on the evidence of the plaintiff and to a much more limited extent that of her husband, in the proof of the requisite need, in the face of an absence of support in the medical evidence for the claimed need and particularly when regard is had to the nature of the plaintiff’s accident related injuries.

60. [60]
    Exhibit 11 is relied upon as a summary (largely drawn from notations kept in diaries) of the time devoted by the plaintiff’s husband in providing assistance to her, in the period from 21/5/11 to 4/3/15. In many respects, it relates to estimates and apportionments, decided by the plaintiff according to her review of the recordings and notations and her recollections, as to particular developments in her recuperation. As such, it is not necessarily directed at the requirement of need and neither is it specifically directed at satisfying the requirements in s 59(1)(c) of the CLA. The evident difficulty with this approach is that it is reliant upon the subjectivity driven assessments of the plaintiff and the accuracy or reliability of her notations and more importantly, the accuracy or reliability of her synthesis of these considerations into the summary contained in Exhibit 11. And there is an absence of more objective oversight or analysis specifically directed at proving the requirements as to need, pursuant to s 59 of the CLA. Except, that it can be noted that attention is given to s 59(3)(a), in the identification of the percentage of the individual components claimed.^[99]Except in one respect, no particular contention is directed, by the defendant, at the appropriateness of these reductions.^[100]

61. [61]
    However, the defendant raises a number of valid issues, as to whether the requirements of s 59 have been satisfied. Before turning to any analysis of the competing contentions and the findings that are warranted by the evidence, it is convenient to note that and in reference to Schedule C,^[101]the claim for damages for gratuitous care was: $35,000 (as a conservative rounding, “allowing for any possible doubling up or inadvertent overstatement”, of the calculation on 1,286.85 hours at the rate of $30/hour^[102]and representing full recovery to 20/11/12 and 25% thereafter) for past care^[103]and $17,952 for future care.^[104]The submissions for the plaintiff in support of this, were:

“82. In the current case, the need to be assessed, is the need of this particular Plaintiff. She is a 67 year old house proud woman, who maintained immaculate gardens pre-accident and was heavily involved in her local gardening club. She was a woman who was independent and drove herself to all of her activities. The Plaintiff was a lady who felt it necessary to iron her sheets and tablecloths. She had a very rigorous cleaning regime in her household. Respectfully it is submitted that the Defendant must take the Plaintiff as they find them. The need for this particular Plaintiff is greater than what it would be for different Plaintiffs in different positions.

83. The Plaintiff’s references to not being ‘allowed’ to do certain things is clearly her interpretation of what medical advice she has received from her treating doctors and physiotherapists. Using the ‘but for’ test, the resulting restrictions on her day to day activities are all relative to the accident, whether or not she misunderstood.

84. The Court should, in my respectful submission, find that there has been and continues to be the level of care provided to Mrs Rushton as set out in Exhibit 11 apart from the fact that the Plaintiff conceded that her estimates of time in respect to meal preparation may be less than that contained in Exhibit 11. Those estimates should be reduced by half.

85. The Court, however, cannot merely award damages for the time that has been spent. A judicial determination needs to be applied as to what is ‘reasonable’. However the assessment of what is reasonable is a subjective one and cannot be divorced from the Plaintiff’s particular circumstances. For example, many people may think that it is not necessary to iron sheets and tablecloths. However, that is what the Plaintiff and her husband had always done. They appeared genuinely taken aback in cross-examination when it was suggested to them that it wasn’t necessary to do such things. Similarly, the frequency with which the Plaintiff’s home was cleaned is no doubt in excess of what a number of householders might find necessary. Again, however, in the context of the Plaintiff and her husband being in their later years and having always had that standard of cleanliness, it is not unreasonable to expect that the home might be kept roughly to the standard that it had been pre-accident. It is submitted that the Defendant must take the Plaintiff as it finds her.

86. It is not suggested that the claim for tea and coffee could be accepted by the Court as being reasonable.

87. The time for gardening claimed should be reduced on the basis that only half thereof is reasonably related to the accident.”^[105]

62. [62]
    As to the broader perspective:

1. (a)
   it may be accepted that it is not just a matter as to whether services were provided as an advantage to the plaintiff or from the perspective of the concern of a family member^[106]and services provided at a level beyond that necessitated by an accident-related incapacity, will not be recoverable;^[107]

2. (b)
   the evidence of the plaintiff’s husband did not advance the position as the defendant submitted,^[108]he was obviously reluctant to depart from the schedule his wife had prepared (Ex 11) and, particularly in respect of the claim for time spent in meal preparation, had difficulty in entirely supporting the claim made in Exhibit 11 by his wife;^[109]and

3. (c)
   consistently with the findings that have been made in respect of the plaintiff’s injuries and recover of damages, more generally, there may only be recovery under this head, at the outset, up to 20 May 2013 and the fact of the plaintiff’s successful return to playing golf in early September 2012 and then competitive golf, would stand as a particular obstacle to any finding of need from that point.

63. [63]
    The medical evidence does not provide any meaningful support for the extent and duration of the plaintiff’s claim.

64. [64]
    The plaintiff relies on DrRamaswamy’s notation as her anxious pre-disposition leading to the accident impacting on her “significantly”^[110]and his general support of her rehabilitation. However and as has been noted above there was limitation as to the extent and purpose of his consultation with the plaintiff, after October 2011.^[111]However, what he recorded provided only limited support for this aspect of the plaintiff’s claim. In the memorandum prepared prior to trial he said:^[112]

“I have found her prior to the accident to be a generally anxious person so the traumatic effect of being bowled over by a food trolley would have impacted her significantly.

I understand that she claims that much of the heavy work around the house including washing windows, ironing etc is now done by Ernie as is most of the heavy gardening work. I understand she also uses a golf cart instead of walking the golf course which she could have done previously. Further, she is limited in doing her shopping. I would say that all of these things are consistent with the longer term affects of her injury and would require care by others, mostly Ernie.”

65. [65]
    Reliance is also placed on Dr Pentis’ belief that:

“…Mrs Rushton would have required care and assistance following the Accident. Over time it would have lessened but nonetheless it is likely that, due to the effects of the Accident, she required ongoing care and assistance. In particular she would require assistance with anything involving squatting or kneeling such as scrubbing floors, toilets and shower alcoves. She would have a great deal of difficulty doing spring cleans. A lot of her household duties would need to be done in short stints.”^[113]

However, it is also pointed out that when he examined her in February 2012, the plaintiff indicated that she was able and doing a range of activities and he “considered generally she was functioning at a level where she should avoid heavier sorts of activities but do lighter sorts of activities.” But should, with an arthritic knee, “avoid heavier chores anyway”.^[114]He then considered that she was fit to make her own meals, do her own ironing and “most of the chores” and if she could put up with associated pain and enjoyed it, do some gardening (but that this was problematic), with any necessary breaks in these activities.^[115]

66. [66]
    Dr Ganko’s evidence is encapsulated as follows:

“‑‑‑She’s got an arthritic knee that’s painful. She’s got a bursitis of her hip. I’d expect that she’s struggle to get down to ground level, to, you know, do heavier tasks that required squatting and everything else. Regardless of whether she complained or anything, people who have developing arthritis in their knees have trouble getting down to the ground, have trouble squatting, have trouble getting up and down. Again, no causation are suggested.

So ‑‑‑?‑‑‑But in her situation, I’d expect she’d have some problems.

And standing in one position for lengthy periods of time?‑‑‑That may be uncomfortable for her as well.

And things like pushing or pulling vacuums and reaching up to hang laundry on the line and that sort of thing?‑‑‑I wouldn’t have seen that reaching up to hang laundry on the line would be a problem. I would’ve thought she’d be able to vacuum, but doing it vigorously or in a big area might be difficult. She might need some paracetamol or anti-inflammatories as she had for her golf game for doing those sorts of tasks, but I would’ve thought she’d manage that, based on my assessment of her and the DVD and her functional levels then, but maybe with some discomfort.”^[116]

67. [67]
    However, the generality of this evidence, from both specialists, makes it difficult to apply it to any particular aspect or period of the plaintiff’s claim, even upon the basis of the accepted aggravation and acceleration of the plaintiff’s condition.

68. [68]
    Although, the plaintiff seeks to make the point that on her evidence and her second presentation to him, Dr Winstanley’s robust prognosis for her recovery was not borne out, it was his evidence that:

1. (a)
   as at his examination of the plaintiff in June 2011, he would not have expected the plaintiff to have required:

1. (i)
   a wheelchair;

2. (ii)
   prolonged periods of immobilisation;

3. (iii)
   sitting for prolonged periods in a chair with elevation;

4. (iv)
   assistance with meal preparation;

5. (v)
   assistance with her normal domestic activity other than heavier-type activity;

6. (vi)
   assistance with ironing; or

7. (vii)
   assistance with removing items of washing from a washing machine.^[117]

Further and at his second consultation in January 2012, Dr Winstanley would not have thought that the plaintiff would have needed assistance with, meal preparation, doing normal shopping or household activities.^[118]

69. [69]
    It may also be noted that Dr Winstantley’s assessment is generally consistent with the observation in the report of Mr Hanegraaf, the physiotherapist, dated 14 July 2011,^[119]as to the progress then observed in the plaintiff’s recovery. His report dated 18 August 2011,^[120]observed that:

“On follow up today Mrs Rushton reported minimal pain with ADL’s successfully returning to walking 1hr per day (whilst wearing a supportive bandage on her knee). Swelling has nearly fully resolved, with no further instanced of instability.

Clinically, R knee stability has been restored, with no residual laxity of the MCL. Some muscle wasting remained, this was improving each week however.

Some swelling remained in the L ankle, I suspect largely due to the increased inactivity since injury. As Mrs Rushton increases her daily activity levels, I suspect swelling will settle.”;

The observation in the report dated 1 November 2011 noted the following:^[121]

“Mrs Rushton has made steady progress since my last update. On review today Mrs Rushton noted return to walking 1hr+, gardening and ADL’s without concern. Some occasional “twinges’ in the knee were noted. Clinically, stability was good, with good quadriceps strength.

I have re-assured Mrs Rushton that she is okay to return to driving.”; and

The further observation in the report dated 20 November 2011:

“Mrs Rushton has made good progress since my last review one month ago. On final review today Mrs Rushton reported minimal ongoing issues with ADL’s. Mrs Rushton had just returned to driving, and as such some pain was noted with this. I expect that this will settle over 4-6 weeks.

Clinically, quadriceps control, knee stability and gait had normalised. Thus, I have discharged Mrs Rushton from my care with an ongoing self-management regime.”^[122]

70. [70]
    Then and as is contended by the defendant,^[123]any assessment as to the reliability and accuracy of the plaintiff’s evidence is complicated by significant issues shadowing that question and as to what actually occurred, let alone as to what her needs were. For present purposes, it is only necessary to note the following:

1. (a)
   Her considerable claim as to assistance in the early stages, post-accident, is based on the plaintiff’s evidence of only being “allowed to go from the bedroom to the bathroom to the chair for weeks” and that after that she had a wheelchair for a month and “still wasn’t allowed to walk around the house”,^[124]but there was no evidence from anyone involved in the plaintiff’s rehabilitation to support this.

2. (b)
   In her evidence, the plaintiff was not able to satisfactorily explain her claims in respect of:

1. (i)
   preparation of meals;^[125]

2. (ii)
   laundry and her capacities in that regard;^[126]

3. (iii)
   shopping and particularly the claimed difficulty in lifting bags of groceries;^[127]and

4. (iv)
   was completely unable to support the inclusion of a claim for assistance in making tea or coffee.^[128]

3. (c)
   The plaintiff conceded that Exhibit 11 is incorrect, insofar as it purports to record care needed every day.^[129]

4. (d)
   There are entries in the plaintiff’s diaries which are contradictory to the progression and estimates incorporated into Exhibit 11.^[130]

71. [71]
    In addition, it may be concluded that the plaintiff faces, at least, a considerable burden in satisfying the Court that there was the requisite need in respect of:

1. (a)
   ironing sheets;^[131]

2. (b)
   moving furniture in order to clean flooring as regularly as a half a day, each week;^[132]and

3. (c)
   as to the extent of her claimed inability to drive and concomitant necessity for her husband to drive her around, including to her walks on Gympie Terrace and particularly any need in respect of her husband’s time in then accompanying her on those walks.^[133]

72. [72]
    In this overall context, the problem confronting the plaintiff is the means of proof of her need, as required by s 59 of the CLA. Whilst it may be accepted that it was likely that she required some level of assistance, in respect of care and the performance of various domestic tasks previously performed by her, particularly in the earlier period of recuperation from her accident-related injuries, it has to be noted that there is an absence of clarity in the evidence as to what was required and as to the extent and duration of any such requirement.

73. [73]
    After the initial written submissions were prepared for the parties and the Court heard further oral submissions, it was apparent that further submissions were required not just as to the applicable legal principles but also for the plaintiff to demonstrate how, on the evidence, the requirements of s 59(1) of the CLA are satisfied.

74. [74]
    Accordingly and in the further written submissions for the plaintiff on this topic, her claim was sought to be rationalised as being more particularly directed at the requirements of s 59 of the CLA, upon the following basis, as set out in Schedule D,^[134]:

1. (a)
   for the period of 15 weeks, from 21 May 2011 to 2 September 2011, a total of 30.45 hours per week, comprising the following hours for the individually noted categories of assistance:^[135]

1. (i)
   Meals – 5.25;

2. (ii)
   Shopping – 1.5;

3. (iii)
   Laundry – 1;

4. (iv)
   Ironing – 0.8;

5. (v)
   Gardening – 1.5;

6. (vi)
   Other housework – 8.4;

7. (vii)
   Cleaning inside windows/mirrors – 0.2;

8. (viii)
   Showering and Dressing – 3.5;

9. (ix)
   Other personal care/travel – 8.3; and

2. (b)
   for the period of 11 weeks, from 3 September 20`11 to 2 December 2011, a total of 31.33 hours per week, comprising the following hours for the individually noted categories of assistance:^[136]

1. (i)
   Meals – 2.63;

2. (ii)
   Shopping – 1.5;

3. (iii)
   Laundry – 1;

4. (iv)
   Ironing – 0.8;

5. (v)
   Gardening – 1.5;

6. (vi)
   Other housework – 4.2;

7. (vii)
   Cleaning inside windows/mirrors – 0.2;

8. (viii)
   Showering and Dressing – 3.5;

9. (ix)
   Other personal care/travel – 16.

75. [75]
    It may then be noted that in the further written submissions to which Schedule D is attached, the submissions proceeded on the basis of the acceptance of the actual time taken by Mr Rushton, as recorded in Schedule C (as an adaption of Exhibit 11 “with reductions for concessions made by the plaintiff in her oral evidence), as “reasonably necessary”.^[137]Then after repeating the effect of the plaintiff’s evidence as to the progression of her recuperation^[138]and after receiving a number of aspects of the plaintiff’s evidence, particularly as reflected in her diary entries, it is contended:

“31.Importantly, she concedes that within the six month period, with reference to her diary entries that:-

1. (a)
   She was able to dress herself from 12 August 2011 which is reflected in a reduction in the personal care set out in sheet 2 of Exhibit 11;

2. (b)
   In terms of meal preparation, that decreases from 2 September 2011 when she was able to help her husband;

3. (c)
   The amount of driving decreased for a period at the end of 2011 for a short period of time and then from March 2013 generally the Plaintiff was able to drive herself.

32. In circumstances where there is evidence of Mrs Rushton, supported by her husband, that she was unable to even dress herself until 2 December 2011, if it is accepted by the Court, surely will be determinative of the question of whether or not the reasonable care needs of the Plaintiff meets the threshold. It demonstrates a significant level of disability. Combined with her being unable to drive or being able to assist with preparing meals until September 2011, the Court should respectfully find that the care threshold has been met.”^[139]

76. [76]
    The reference in paragraph [32] to the plaintiff being “unable to dress herself until 2 December 2011” is an apparent error in light of the contents of paragraph [31(a)] and should be taken to be a reference to the plaintiff’s contention that she was unable to shower unassisted until 2 December 2011.

77. [77]
    In the context of the requirements of s 59(1)(c) of the CLA, that the necessary services be provided for “at least 6 hours per week” and “for at least 6 months”, it may be noted that the evidence does not lend itself to the suggestion that the claimed assistance was always provided uniformly and consistently over the claimed periods. More problematically, however, and leaving aside the aspect of assistance in driving the plaintiff and also being with her when she went walking and which tended to increase in the second period, it is obvious that the plaintiff’s case is based upon a gradual improvement in her capacities over the periods involved and therefore, a gradual decrease in any requirements for assistance. However, this consideration is not reflected in Schedule D, where the same allocation of hours is applied on a weekly basis, over each entire period.

78. [78]
    The problem in the later respect is further represented in understanding that, logically, an appropriate point at which to particularly examine the plaintiff’s claim is at the point 6 months post-accident, or about 21 November 2011. In other words, unless the plaintiff can prove a continuing need for a least 6 hours per week at this point, her claim does not satisfy s 59(1)(c) of the CLA.

79. [79]
    The essential problem is that the evidence and the schedules, including Schedule D and which are submitted to reflect the evidence, do not easily or clearly permit such an analysis. By way of further exemplification of the problem, it may be noted that the later period referred to in Schedule D, ends on 2 December 2011. That is approaching two weeks after the end period of the six months post-accident. However and by reference to Exhibit 11 and Schedule C, it may be noted that in respect of changes in the estimate as at 3 December 2011:

1. (a)
   meals are only claimed at 78.75 minutes/week;

2. (b)
   laundry is only claimed at 15 minutes/week; and

3. (c)
   other housework only claimed at 72 minutes/week.

80. [80]
    In all of these circumstances, including;

1. (a)
   the absence of any meaningful independent support for the plaintiff’s evidence as to the extent and duration of  her particular incapacities and more particularly, her needs;

2. (b)
   the various respects in which the plaintiff’s evidence was unsatisfactory or presented contradictions; and

3. (c)
   the limitations inherent in the particular presentation of that evidence and attempts to summarise the effect of it;

the plaintiff’s evidence may not be regarded as sufficiently reliable and accurate in identification of her need for assistance (even if such were to be assessed as reasonable needs), rather than, for instance, the time spent by her husband in satisfying choices made or advantages gained in her recuperation. I am not persuaded by the plaintiff’s estimates (including by having regard to the evidence of her husband) and it should be concluded that she has not satisfied the burden of proving, on the balance of probabilities, the requirements of s 59(1) of the CLA.

81. [81]
    Accordingly, there can be no award of damages for gratuitous assistance.

Past special damages

82. [82]
    Exhibits 3 to 6 contain tabulations of the plaintiff’s claims for special damages. As has been determined, no expense incurred after 20 May 2013, will be allowed. However, there remain issues as to causation to be determined in respect of some aspects or components. Accordingly and in terms of the requirements of s 11(1) of the CLA, that may involve questions as to “factual causation” and “scope of liability”.

83. [83]
    As to Exhibit 3, which sets out the claim for “pharmaceutical expenses”, the contentious issues relate to the cost of hiring a wheel chair (a total of $135) and the extent to which medication was required and used by the plaintiff in respect of the injury for which the defendant is liable.^[140]

84. [84]
    Although and as has been noted in relation to the claim for ­­gratuitous care, there is general absence of support in the medical evidence for such limitation upon the mobility of the plaintiff as to require the use of a wheel chair or to establish such as need, as has been noted, the question here is somewhat different.

85. [85]
    As the plaintiff points out, Dr Pentis referred to his experience of patients utilising such a device in the earlier stages of recovery.^[141]Further Dr Ramaswamy noted the plaintiff’s anxious disposition^[142]and it is clear that particularly the initial impact on the plaintiff of the accident, was somewhat a shock to her in the context of her previous level of health and activity and that in a subjective sense, her response was cautious and in that sense somewhat over protective. But that is all within her particular makeup and in such circumstances and having regard to the modest amount claimed, it should be allowed.

86. [86]
    As to the cost of medication, again the sums involved are modest and notwithstanding some evidential difficulties (as pointed out by the defendant).^[143]There can be little doubt that the plaintiff required and sought the assistance of pain relief and anti-inflammatory medication (the latter once her bursitis developed in her hip). It is appropriate to allow $5.25 per month, for 24 months, being $126 for pain relief and to round that to $100, to allow for the concession of some unrelated use, including use by the plaintiff’s husband.^[144]In addition $52.70 will be allowed for the anti-inflammatory (Mobic) and $18.95 for Arnica and $25.00 for support bandages.

87. [87]
    Therefore the total allowance for the “pharmaceutical expenses” claimed in Exhibit 3, is $331.65.

88. [88]
    As to Exhibit 6 and the claim for “physiotherapy/medical appointment expenses”, the only issue is as to the period for which such expenses are to be allowed. Consistently with the determination as to allowance for the period that encapsulates any acceleration in the plaintiff’s knee and hip condition, those expenses, as incurred up to 20 May 2013, should be allowed. To the extent that this may include attendance upon the physiotherapist, consequently to any later incidents in respect of the plaintiff’s knee (such as when she attempted to move some furniture), it is more appropriate to recognise the increased susceptibility of her knee to such an outcome, rather than to view any such occurrence as having severed any causal link.

89. [89]
    Accordingly, $4,044.15 will be allowed in respect of the claims in Exhibit 6, “physiotherapy/medical appointment expenses”.^[145]

90. [90]
    A similar approach is warranted in respect of Exhibit 4, “travelling expenses”, and the amount allowed will be $788.00.

91. [91]
    In respect of Exhibit 5, “miscellaneous expenses”, the telephone calls will be allowed, up to 20 May 2013, on the basis of a relationship to arranging and obtaining assistance for or dealing with her injuries. That amount is $13.29. Otherwise, the submission for the plaintiff, by reference to the principles and examples discussed in Luntz^[146]should be accepted in respect of the financial loss in relation to golf fees. The defendant did not contend otherwise, apart from the amount established as the plaintiff’s financial loss due to her inability to play golf between May 2011 and early September 2012. Having regard to some confusion in the evidence as to this,^[147]the best estimate of the plaintiff’s financial loss in this regard is to allow the $201.00 leave of absence fee levied in September 2011 and part of the additional leave of absence fee levied March 2012, for the period 1 April 2012 to 30 March 2013, being 5/12 x $208.75 or $86.98^[148]and because the credit of $529.30 referred to in the letter dated 14 September 2011, is consistent with a rebate from about that time, the plaintiff should also be allowed for the loss of fees paid for about four months (between May and September 2011) or $289.10 (being 1/3 of $867.30). The total loss in respect of golf fees is therefore $577.08.

92. [92]
    Accordingly, the total to be allowed in respect of Exhibit 5, “miscellaneous expenses”, is $590.37.

93. [93]
    In summary, the total allowance for past special damages is:

Re Exhibit 3: “pharmaceutical expenses”$331.65

Re Exhibit 4: “travelling expenses”$788.00

Re Exhibit 5: “miscellaneous expenses”$590.37

Re Exhibit 6: “physiotherapy/medical appointment expenses$4,044.15

TOTAL$5,754.17

Interest on monetary loss

94. [94]
    Pursuant to s 60(2) to the CLA, interest is allowable on past monetary loss, which is relevantly $3,983.37,^[149]at not more than the appropriate rate,^[150]“related in an appropriate way to the period over which the loss was incurred”. Because the allowance from 20 May 2011 to 20 May 2013 is in respect of the total amount for individual losses, largely incurred uniformly or incrementally over that period, the appropriate rate will be 1.765% (2.53% x 0.5) and from 20 May 2013 to 20 May 2016, the full rate of 2.53% will be applied to the loss as fully incurred at the commencement of that period.

Accordingly, the calculation is:

Conclusion

95. [95]
    In summary therefore, the plaintiff will be awarded damages and interest for the admitted liability of the defendant for the accident on 20 May 2011, as follows:

96. [96]
    Accordingly, there will be an order that there be judgment for the plaintiff in the sum of $14,917.12