Ruvuta v Jaderberg[2024] QDC 107

DISTRICT COURT OF QUEENSLAND

Summary

1. [1]
   Eight months after arriving in Australia as a Rwandan refugee, the plaintiff was struck by a four-wheel-drive utility driven by the negligent first defendant on the morning of 10 October 2019. He was riding his bike when the turning four-wheel drive car struck him on his left side at a pedestrian crossing. He instinctively jumped up to avoid further danger after being thrown to the pavement with his bicycle. He now claims damages exceeding a quarter of a million dollars for his injuries, including a right meniscal tear resulting from the collision.
2. [2]
   Liability for the accident is not disputed, but the defendants contest the cause, nature, and extent of the injury, as well as the consequential loss and damage.
3. [3]
   The second defendant, insurer of the first defendant, asserts that the plaintiff only suffered minor injuries in the 10 October 2019 car accident, which have since resolved with no ongoing impairment or physical restriction. They claim that he sustained a right meniscal tear while playing soccer about 14 weeks later, on 17 January 2020. The second defendant relies on the lack of an evidentiary basis supporting an inference of lateral force or twisting movement of the plaintiff’s knee likely to cause a meniscal tear in the car accident; the absence of observable impairment at work; perceived fitness to play soccer; the likelihood of injury being caused by a soccer incident; inconsistent reporting of injury and symptoms; medical imaging and opinion; and adverse inference due to failure to call critical witnesses.
4. [4]
   The determinative issues in the proceeding are:

   1. What is the nature and extent of the plaintiff’s injuries caused by the car accident?
   2. What is the assessment of damages?
5. [5]
   The case largely depends on the credibility of the plaintiff’s account as a recently arrived Rwandan refugee with limited English, compared to the medical evidence, interpreter-assisted medical attention, and medical notes.
6. [6]
   The plaintiff impressed me as an honest and reliable witness doing his best to report to medics while disadvantaged by his limited English proficiency at the time of the accident, later by poor interpreter assistance after the soccer incident, and his improved but still imperfect English when he testified at trial.  His English fluency, social understanding, stoicism, physicality, endurance, pain tolerance, and desire for work and social sport explain the variable manifestation of expected symptoms and signs of a right meniscal tear. 
7. [7]
   It seems to me that the plaintiff suffered an injury to his right side, hip, and knee because of the 10 October 2019 car accident.  He experienced left-to-right lateral force when the car struck him on the left, causing him to fall heavily on his right side onto the road, potentially causing a meniscal tear.  He then moved quickly to avoid further danger, likely causing the twisting movement that resulted in a meniscal tear. He continued to endure significant right knee pain before the 17 January 2020 soccer game but was driven by a desire to return to social soccer.  He aggravated his pre‑existing injury when he ran on the field towards the ball, but without falling or twisting his leg as speculated by the second defendant to warrant any adverse inference.  He continued to experience painful right knee symptoms until recovering after undergoing surgical repair on 13 September 2021.
8. [8]
   In those circumstances, I have concluded that the plaintiff suffered a right meniscal tear in the 10 October 2019 car accident, which was aggravated on the soccer field about 14 weeks later on 17 January 2020.  I have assessed his loss and damage accordingly.
9. [9]
   Therefore, I give judgment for the plaintiff for damages for personal injuries assessed at $124,456.89 plus interest on the amount for past economic loss. I will hear the parties further on the calculation of interest and the issue of costs.  Unless either party seeks a different order, costs should follow the event.

What is the nature and extent of the plaintiff’s injuries caused by the car accident?

10. [10]
    There is no dispute that the plaintiff suffered a meniscal tear but the issue is how he did so.
11. [11]
    The plaintiff relies upon the impact of the collision and/or his sudden movement after impact as the likely twisting movement that resulted in a meniscal tear, which was later aggravated while attempting to play soccer about 14 weeks later on 17 January 2020. 
12. [12]
    However, the second defendant asserts that the plaintiff only suffered minor abrasion injuries, which have since been resolved with no ongoing impairment or physical restriction to the plaintiff, leaving no ongoing functional impairment, and expressly pleads that the plaintiff sustained the right meniscal tear and ongoing impairment because of playing soccer on 17 January 2020.^[1]  In paragraph 2 of the Amended Defence of the second defendant asserts that:

1. “2.
   As to the allegations in paragraph 6(a) of the Statement of Claim, the Second Defendant:-

1. (a)
   denies the Plaintiff sustained a right meniscal tear as a result of the incident (having adopted the Plaintiff’s definition of the incident per his Statement of Claim);
2. (b)
   says that the Plaintiff sustained a right knee lateral meniscal tear equivalent to meniscectomy as a result of playing soccer on or around 17 January 2020, causally independent to any injury suffered in the incident.”

13. [13]
    While now framing the case as one of mistaken apprehension about the cause of the meniscal tear rather than deliberate or fraudulent mistruth, the second defendant nonetheless seeks to disabuse the court of the plaintiff’s honesty and reliability.  It points to several factors in support of its contention: the causal mechanism of such a meniscal tear injury, insufficient evidence of a causative lateral force or twisting movement of his knee likely in the car collision, the plaintiff’s continuing functioning at work, the plaintiff’s decision to play soccer and lack of candour that the injury was caused by the soccer incident on 17 January 2020, the delayed and inconsistent reporting of the injury and symptoms, the magnetic resonance imaging investigations of January 2020 and 10 March 2021, and the adverse inference due to the failure to call witnesses regarding the soccer incident.
14. [14]
    The plaintiff impressed me as an honest and reliable witness doing his best to report to medics while disadvantaged by his limited English proficiency at the time of the accident, later by suboptimal interpreter assistance after the soccer incident, and his improved but still imperfect English when he testified at trial.^[2]  For reasons set out below, the second defendant’s contentions do not diminish the plaintiff's believability.
15. [15]
    The car accident occurred about eight months after the plaintiff, then 21 years old, arrived in Australia as a Rwandan refugee.  His primary language was Kinyarwanda.  Although he was studying English at TAFE, he describes himself as having “virtually no English language skills”.
16. [16]
    The plaintiff describes that on the morning of 10 October 2019, he was riding his bike towards the city and crossing an intersection on Aplin Street when a four-wheel-drive car hit him.  He described that the driver was turning left and struck the plaintiff’s left side just as he was about to finish crossing.  With the benefit of a sketch marked with a straight line, an angle, and some scribbles, the plaintiff identified the markings of where he was hit by the car and where he ended up.  Although the subject of some reports, the plaintiff could not recall being thrown onto the car bonnet.  After the plaintiff was knocked to his right side, he described how he moved rapidly to avoid further harm saying: “So I jumped out.  He hitted (sic) me.  I fell on the ground on my bike and then they jumped out of the – of the road straight and then I remember I moved straight up and then I was sit on the – on the concrete.”  He later described his sudden movement during cross-examination, saying: “I moved straight away because I remember I couldn’t experience top straight – so I – but came to my mind I thought he was got – he can run me over and maybe drive me – drive over me. That – that’s what made me to move straight and sit out of the road.”  The plaintiff identified that he felt pain in his knee, hip, and the entire right side of his body, having fallen on his right side after being hit from the left, followed by the rapid movement to escape perceived further danger.  He added that when he left the hospital, he was “feeling much pain … because I was struggling to get home.  … feeling pain in my body.”   He elaborated on his struggle saying: “I couldn’t walk normally. I was limping and struggling to walk till I got home.”
17. [17]
    The plaintiff maintained a consistent version despite his imperfect English expression and rigour of cross-examination.  He testified as follows:

“So you said you were struck on the left side, and then you fell onto your right?---Yes.

Can you just take me through that in just a little bit more detail. So you’re travelling across the street at Aplin Street – or on Aplin Street, I should say?---Yeah.

The car hits you. Do you remember which part of the car hit you?---What I remember is, like, four-wheel drive. A big – big car.

Big car?---Yeah.

And which part of your body did it hit? Can you point to that and explain?---Yeah. He just hit me of – on my right – left side, and I fell down on my right side.

So when you point to your left side, which part of your body? Around your hip or knee or – what section? Do you have a memory of that?---He just hit the bike and myself altogether, so - - -

Altogether?---Yeah.

Okay. Then what happened with your body straight after he hit you?---Yeah. I fell on the ground and then because I – and I moved straight away because I remember I couldn’t experience top straight – so I – but came to my mind I thought he was got – he can run me over and maybe drive me – drive over me. That – that’s what made me to move straight and sit out of the road.

Okay. From the time he struck you to the time you landed to jump up again, what distance – how far away from where you were initially travelling was that?---It was not that far. It was like just two steps. Two big steps, yeah.

Okay. Two big steps. Well, that’s a bit bigger than that, but - - -?---It was not that big because I - - - –

Okay. When you say “two big steps”, is it from this to the Bailiff’s table or shorter than that?---Yeah, it’s similar to from here to there, I think.

Okay?---Yeah.

So about one and a-half metres? Does that sound right? Do you know - - -?---Yeah, because I - - -

- - - your distances?---Huh?

About one and a-half metres?---Yeah, about one and a-half, because it was not that far.

Okay?---Around there, yeah.

And then you jumped up?---Yeah.

Okay. In between being hit and falling to the ground, do you remember your body going into the air at any time or on to the car?---Sorry? Can you repeat that.

Do you remember your body going into the air or on to the car at any time? When you were hit to the time you were on the ground - - -?---Yeah.

18. [18]
    The plaintiff’s account is consistent with his complaint to the Queensland Ambulance Service when he was “sitting alert, oriented, and well perfused” but “appeared in shock”.  The plaintiff reported that he was riding across the road when a car, travelling approximately 20-30 km/hr hit him on the left side. He was dragged along the road for two to three meters until he jumped off his bike.  He had no head injury but complained of minor pain areas with abrasions and gravel rash to his right limbs. 
19. [19]
    Similarly, the hospital notes recorded that the plaintiff was hit by a car travelling 30km/hr while crossing the road, pushed off and dragged 3m, had grazing to the right side of his body involving his elbow, wrist, knee, ankle and big toe, and also his left side wrist and ankle.  While there is evidence of an X-ray of the pelvis & right hip being done on 10 October 2019, there was no magnetic resonance imaging investigations (MRI) or other diagnostic imaging done of the plaintiff’s right knee at that time.
20. [20]
    It seems to me that the plaintiff’s knee symptoms and signs were understated, likely due to the plaintiff’s state at the accident and the “language barrier” as noted in the hospital.  When the plaintiff’s brother went to the accident scene, he described the plaintiff as in distress, panicky, scared and injured.  In his evidence, the plaintiff recalls that his right knee “hurt most” in comparison to the rest of his body. He rated the post-car accident pain as “around six and five” on a scale of zero to ten.  It seems to me that according to the plaintiff’s evidence, he suffered injuries to his right side, hip, and knee due to a car collision, including significant right knee pain.
21. [21]
    I accept the plaintiff’s evidence to the effect that at about 9:20 am on 10 October 2019, when the plaintiff was riding his bicycle on the marked foot crossing on McLeod Street, at the intersection with Aplin Street in Cairns, he was struck on his left side by the first defendant’s four-wheel-drive car turning tight at about 20 to 30 km/hr from Aplin Street into McLeod Street.  The forceful impact from the car to the plaintiff’s left side pushed him some 2-3 m before it stopped, while the plaintiff’s momentum (still on his bicycle) continued, and he fell to the ground.   The plaintiff then instinctively reacted by quickly jumping up to move out of the car's path to the roadside to avoid further danger.  It seems to me that the plaintiff endured a high-energy left-to-right lateral impact which forced him with his bike to strike the road on the right side of his body, followed by his emergent escape, which likely involved a sudden bend of his right knee combined with twisting whilst loadbearing on his right foot to launch himself out of the way.
22. [22]
    Six days later, on 16 December 2019, the plaintiff went to the Cairns Family Medical Centre.  He recalls that he was still having a lot of pain in his right knee and was walking with a limp.  He cannot remember the consultation with a general practitioner Dr Tiwari.  The doctor’s medical notes record a “Right Knee injury” as one of the reasons for the visit (along with immunisations), and notes in the history “fall of his bike 2 weeks ago” and “small focus of infection – skin abrasion right knee”.  Dr. Tiwari also had no independent recollection of the consultation but testified that he would have noted if the plaintiff reported pain or having an observable limp or altered gait.  This can be contrasted with the doctor’s usual practice of noting the use of an interpreter but saying - “It is most likely that I had an interpreter present, but I failed to notate it.”   The notes also contain a clear error about a fall from his bike 2 weeks ago when the undisputed event was two months earlier.   The plaintiff testified how he suffered from an infection and continued to live and work with knee pain and limping “for a long time.” Still, he could not remember whether he said anything or was limping on that day when he saw the doctor on 16 December 2019.  I do not accept that the scant notes are reliable as a measure of credibility without understanding the doctor's opportunity to recognise that the plaintiff was in pain, limping, or had an altered gait, the necessity of noting such observations during a consultation for immunisation, the misstatement of the nature and timing of the fall, the plaintiff’s understated demeanour and the uncertainty regarding the use of an interpreter service. 
23. [23]
    The plaintiff described symptoms of pain and disability to the outside area of his right knee at knee level, a limp, and increases in pain and disability when doing heavy work with the right leg. He gave evidence to the effect that the amount of pain was always changing depending on what he was doing. His housemate consistently described the plaintiff’s altered gait and impaired involvement in housework after the accident and continuing to the time he left to commence university study in January 2022.
24. [24]
    Burdened by the responsibility as the eldest son to earn money for his family, the plaintiff, despite his painful knee and limp, decided to stop studying English and start working.
25. [25]
    For about 2 weeks, from 19 December 2019 to the end of the mango season on 4 January 2020, the plaintiff started working at Gallina Farms.  He was working 3 days a week on a casual basis.  His duties involved moving heavy pallets full of mangoes using a pallet jack from one area to another in the farm shed and then washing them.  He states that the pallets were heavy to push and that his knee felt weak and sore.  The pain increased when he was shifting pallets of mangoes with a pallet jack within a warehouse.  The plaintiff testified about how he used pallet jacks to lift and push or pull the bins of mangos and then move them in his work at Gallina Farms.  The plaintiff’s evidence highlighted his demonstrated resilience and a strong determination to work despite his pain and limp.  He explained that: “It was hard – it was tougher time.  It was very hard.  I had to do it because my responsible any – anything.  So it was hard.  It was not easy.  … I was in pain every single second when I was doing it.”  He justified his lack of complaint to keep his job, saying:  “I didn’t complain because I wanted to work.  I – that’s why I didn’t complain about – up to him.  If I did that, he would fail me absolutely, because I – I can’t work.  And I wanted to do that.  I wanted to work. … That’s why I had to struggle and feel that pain.  I kept it to myself, yes.”  He assumed that others would have seen his struggle, saying: “I was limping every single second there.  A hundred per cent.  Yeah, I was limping and struggling to do it. … All the time.  All – every second, because it was hard. … ”.  He explained that he self-treated with ice and rest, saying: “Every – after – after work, every time – or every day I was just using ice going home.  Just relax and I put ice on my knees – on my knee.  That’s what I used to do when I was still up there at – at the time.”  The plaintiff accepted that he would have continued working but for the season-ending.
26. [26]
    Mr Gallina, who operated Gallina Farms, testified about the arduous nature of the initial force needed to start pushing and pulling the mango bins weighing between 300 to 400 kg using a manual pallet jack with forks and wheels.  The worker slides the jack under the bin, pumps the handle to clear the floor, and then applies greater force to get initial momentum to then relatively easily push or pull the jacked bin across the concrete floor using the handle to steer.  Despite Mr Gallina instructing the plaintiff on a particular method, he described as “strange” the squat method used by the plaintiff.  He demonstrated that the plaintiff would grab the handle and squat down to an angle between 75 and 50 degrees, then pull backward to generate momentum for the pallet jack by rising as he moved it backward.  Even so, Mr Gallina did not see the plaintiff show signs of limping or difficulty at work, nor any complaint from the plaintiff.
27. [27]
    From about 3 January 2020 to 16 January 2020, the plaintiff did picking working at Widem Farming.  His duties involved standing on the ground to pick the lemons and kneeling or crouching under the trees, loading the lemons into a bucket or a bag that sat like a backpack on his chest, and then unloading the lemons into a large bin on a tractor.  In his quantum statement, he explains that his knee felt “really sore” from bending, squatting, kneeling and being on his feet all day.  He had difficulty lifting the heavy buckets filled with lemons, so he would only fill them part of the way. At the end of each day he used ice on his sore and swollen knee followed by rest.  Nevertheless, he was motivated to continue working in order to support his family but only stayed for a few weeks.
28. [28]
    The manager of Widem Farming, Sergio Volpi, testified that the plaintiff did not fulfil the expected picking duties.  He described that the pickers are tasked with picking the ripe fruit and filling their picking bags worn on the front of their bodies or standard buckets, each holding up to 15 kg.  The process involved going to a tree, bending down into the branches to find fruit, putting it into their bags or buckets, and walking with the collected fruit to the trailer.  Mr Volpi described the plaintiff as a “good worker” until a time when he saw the plaintiff “was pushing hard to pick more fruit because, of course, it’s piece rate, so more money, and then after that accident” he started limping and could not work well after the first week.  He recalled the plaintiff requesting to bring a half bag or less to the bin and have it counted as a full bag because he couldn’t carry more.  He also noticed that the plaintiff was limping while working on the farm, particularly from the tree to the road to the trailer to empty his bag.  The plaintiff quit after working about “10, 15 days” being 5 days a week over “two weeks or three weeks”.
29. [29]
    The plaintiff then tried to participate in a social soccer game on 17 January 2020.  This is despite leaving the farm work, still taking prescription pain medication and experiencing pain in his right knee when he got to the field.  Having been a regular participant in this activity enjoyed by members of the African and Nepalese community, “[he] wanted to see how [he] could go” and “try to see if [he] can play”.  In his quantum statement, he said:

“I remember that I went onto the field and was jogging toward the ball. The pain in my knee got worse after about 15-10 minutes of me being on the field and running. I went off and someone else came on to replace me... I hadn't fallen over or even kicked the ball; it was just the running that was making the pain worse.  It was the same kind of pain that I felt when I was doing the fruit picking at Widem Farms, and it was in the same spot that it had been since the accident?.”

30. [30]
    He also testified about this short but failed attempt to join the game before making any play of the ball as follows:

“… when I tried to play, I couldn’t play because I had injury already from the accident.  So I – I went out straight away and I was with my brother Jackson and Emmanuel.  We had to go home straight away.  So I didn’t play because I felt pain, because it was my first time to move a little bit faster than after – after the accident.  ….

So at the soccer game, I went there to see if I can play – if I can try after the accident.  So I tried to run and I couldn’t.  I felt like more pain, because it was my first time to move.  So I had to go home straight away.  I didn’t play that day.  I just was there, like, around 10 to 15 minutes. ….

I just went to the field and tried to move quickly towards the ball, and I felt like I can’t play, so I had to go out of the field that day and I go – I went home straight after that.  I didn’t play.”

31. [31]
    During cross-examination, the plaintiff affirmed that he wore studded soccer shoes when he “moved towards the ball” but that he didn’t get to it to kick the soccer ball.  He explained the dynamic around the ball this way: “Yeah, other players were around the ball. … So the guy was – he had the ball. … And they moved towards to him to get the ball, and then I felt – because it was my first time to move down – that faster.  … And then I – that’s when I felt pain.”  He denied that he fell to the ground on his right knee and twisted that knee.  He rated his pain after going off the park as “around four/five” on a scale of zero to ten.
32. [32]
    The following day, on 18 January 2020, the plaintiff went to a general practice medical centre where he consulted with Dr Ruchi Kulshrestha using a telephone interpreter service.  The defendant relies upon the inconsistency between the plaintiff’s account and the doctor’s noted mechanism of injury if the first two lines are read together and there is no reference to the car accident.  In my view, the answer lies in the quality of the interpreter service.
33. [33]
    Dr Ruchi Kulshrestha testified that she had no independent recollection of what was said by the interpreter.  In contrast to the plaintiff’s evidence, Dr Ruchi Kulshrestha made the following clinical notes:

“was playing soccer yesterday and injured his [right]knee

fell on the knee and twisted it

difficulty in walking but worse on standing

not able to extend his [right] knee.”

34. [34]
    But she did remember that she was not happy with the service of the interpreter, which was consistent with her notation in the clinical notes that: “phone interpreter present – not happy with the service – background noise present and asked multiple times to repeat the questions … the interpreter seems distracted 2 times”.
35. [35]
    This is consistent with the plaintiff’s evidence of a suboptimal interpreter service.  In his quantum statement, the plaintiff described the interpretation experience:

“The interpreter was on the phone and I think that he was at home, as I could hear his kids making noise and talking in the background.  The interpreter had to stop and speak to the kids a few times during the call.  I remember that the doctor looked angry.  Also, the interpreter spoke Kirundi not Kinyarwanda.  ... I remember the interpreter asking me what had happened, and I told the interpreter that when I was playing soccer my knee gave me more pain.  I did not get a chance to explain to the interpreter that I had been having the pain since the accident.  I couldn't understand English so I didn't know what the interpreter said to the doctor or what the doctor said back to him.”

36. [36]
    In his evidence, the plaintiff elaborated upon the interaction with himself, the interpreter and the doctor as follows:

“I went to see the doctor and they – because I – I was not speaking English.  So I told – we couldn’t communicate.  So she had to call interpreter.  Because they have our files, they can see which language you can speak.  So she called a interpreter, and then interpreter asking me what happened, and then I told him that I was playing soccer, but I didn’t get a chance to explain to him what happened before the soccer or accident because the doctor – he was – she was not happy about the service she was getting about – with interpreter, and she was – he was appeared or looking not happy.  So he told – was not happy about it.  I didn’t – I didn’t explain much about it.  That’s what happened.”

37. [37]
    Whilst the plaintiff testified that he understood what the interpreter was asking him over the telephone, when asked if he told the interpreter that he fell and twisted his knee at the soccer game, he replied: “I don’t think I told him that – I don’t – I don’t know if I told him that I fell down and I twisted my knee”.  He still maintained that he did not fall and twist his right knee during the soccer game, and affirmed that: “I told him I was playing soccer, and I didn’t get a chance to explain to him deeply about what happened.  If I got injured – if I got injured from accident, he – I didn’t tell him about accident and – and soccer. … We didn’t talk about it.  I didn’t get a chance to explain more.” 
38. [38]
    The interpreter, Mr Bill Birindwa, gave telephone evidence during which he was eager to espouse his credentials and experience.  He held the National Accreditation Authority for Translators and Interpreters qualification to interpret for both Kinyarwanda and Kirundi languages, which he acknowledged were "similar but different." He prided himself on being "labelled as the best interpreter in Queensland," with experience and practice in providing ethical, faithful, and exacting interpretation. However, he had no independent recollection of what was said during the medical consultation on 18 January 2020, and could not recall any interference from background noise or children from his end.
39. [39]
    I prefer the evidence of Dr Kulshrestha and the plaintiff over Mr Birindwa, and I find that Mr Birindwa was unduly distracted by background noise and children during the consultation on 18 January 2020, which compromised the accuracy of his interpretation of the plaintiff’s responses during the consultation on 18 January 2019.  It follows that the clinical notes are inaccurate and unreliable, and do not displace the plaintiff’s evidence that he felt greater pain as he ran towards the ball and that he did not attempt to strike the ball, he did not twist his right leg, and he did not fall to the ground. 
40. [40]
    However, the second defendant relied upon Jones v Dunkel^[3] to urge the court to draw an adverse inference that the plaintiff suffered the right meniscal tear while playing soccer on 17 January 2020 due to his unexplained failure to call his brothers or others present, who could have provided evidence to support or refute the allegations.  I reject this submission because firstly, mere presence at the game, and even observing the plaintiff in later pain, does not equate to witnessing the mechanical cause of any injury during the game; secondly, neither party anticipated knowing or calling contradictory witnesses of seeing the cause of injury during the game;^[4] and thirdly, the evidence does not reveal conflicting inferences of equal probability,^[5] instead, the defendant invites conjecture and speculation to support its vacuous pleading on the issue.
41. [41]
    It was not until after these events that the plaintiff was subject to MRI investigations, which evidenced a meniscal tear injury involving tearing and rupturing of the meniscal cartilage.  First, on 28 January 2020, the plaintiff had an MRI of his right knee, which showed an oblique radial tear of the body of the lateral meniscus with surrounding meniscofemoral and tibial oedema.  Lower-grade injuries were noted for the lateral collateral ligament (LCL) and anterior cruciate ligament (ACL), but no evidence of rupture.  A further MRI of 10 March 2021 showed a vertical tear of the anterior horn and body of the lateral meniscus.  At that time, there was no evidence of ongoing injury to the cruciate or collateral ligaments.
42. [42]
    The second defendant relies upon this imaging of the significant tear with inflammation, swelling and excess fluid as further support for its case that the plaintiff in fact sustained a right meniscal tear at the soccer game on 17 January 2020.  In response, the plaintiff maintains that he was primarily injured in the car accident of 10 October 2019, and argues that the imaging is consistent with the worsening symptoms and combined irritation to the plaintiff’s injured knee while working at Widem Farm (and possibly from fruit picking at Gallina Farm) and his aborted attempt to play soccer.
43. [43]
    Causation of injury was the focus of expert forensic medical evidence from Dr Angus Nicoll and Dr Scott Sommerville.
44. [44]
    The plaintiff relied upon the orthopaedic opinion of Dr Nicoll, who examined the plaintiff regarding MRIs of 20 January 2020 and 10 March 2021, made three reports dated 24 March 2021, 22 July 2021, and 21 November 2022, and affirmed a file note dated 6 December 2022.  Dr Nicoll also testified.
45. [45]
    Dr. Nicoll consistently attributed the plaintiff’s meniscal tear to the mechanism of injury suffered in the car accident, with the injury being aggravated during a soccer game. This was challenged in cross-examination by referencing the MRI results of 18 January 2020, which showed an inflamed knee with significant florid edema and effusion, a clinical sign consistent with a recent acute injury. Dr. Nicoll acknowledged, “It’s consistent with that, certainly.  I suppose it’s also potentially consistent with … an aggravation of a previous injury.  But I would accept your point that if it’s florid inflammation, then it would lead to you – to consider whether it was a more acute injury.”  And he accepted that it was “inconsistent having been relayed back to the accident 10 October 2019.” 
46. [46]
    Dr. Nicoll also acknowledged that meniscal tears usually result from pivoting or twisting movements, which could occur during sports, getting out of a car, or sudden movements. However, he opined that a motor vehicle accident can also produce enough force and angular movement to cause such a tear, saying:

“I am of the opinion that the – that a – a motor vehicle accident produces a greater degree of force and energy which can injure the knee and still tear the meniscus from a force that is not typical because most – as you’ve correctly said, most meniscal injuries occur when there’s a pivoting – an axial sort of force through the knee. But when there’s a motor vehicle accident, like, motor vehicles in motion – or a motor vehicle colliding with a cyclist, the wrenching force through the knee is also consistent with producing a meniscal tear, even though it’s not the usual mechanism of injury that – that produces a – a sporting injury, meniscal tear.”

47. [47]
    In response to the proposition that there would still need to be lateral movement of the leg to tear the meniscus due to the exchange of energy between car and person on a bike, Dr. Nicoll clarified that while it was less typical without lateral movement, a violent angular motion from the accident could disrupt the meniscus attachment, leading to a tear. He said:

“I would say that you can … that it is known that you can tear the meniscus … with an angular force if there’s sufficient energy involved that can tear the meniscus … because the knee is moved violently in an angular direction that it doesn’t normally accommodate, and … the attachment of the meniscus can be disrupted with a tear from that mechanism, which is less common, but … that’s the reason why I thought it was conceivable that the meniscal tear may well have occurred in the course of the motor vehicle accident.  But you are correct that … there has to be some force … that’s not well-accommodated by the knee to tear the meniscus. Most commonly, it’s .. a sporting injury, sidestepping or propping and twisting, but it can also occur in other ways, where there’s a higher energy and angular motion of the knee from the force.”

48. [48]
    Regarding the consideration of an intervening soccer incident, Dr. Nicoll said:

“I received that history from the [plaintiff] … and … that information helped inform my opinion that it was more likely that he had a meniscal tear in the initial motor vehicle accident and then, subsequently, experienced – subsequently, sometime later, trialled a return to participation in soccer, and … I accepted the report … and in forming my opinion, I thought that it was likely that he had … a meniscal injury had occurred and that he may have experienced an exacerbation of symptoms while playing or while commencing a trial of playing soccer, he may have experienced some pain, and then ceased the activity. But … from the evidence that I had available, I thought that was more likely than he had never had a meniscal injury, … and then … caused a new injury from playing soccer .. or exacerbated a[n] … asymptomatic condition.  So that’s how I came to the conclusions that I had in my report.”

49. [49]
    When asked about the plaintiff's ability to perform work tasks (e.g., moving heavy pallets) with a meniscal tear, Dr. McNicoll agreed that such activities would likely produce symptoms and reduced function but could be managed if the plaintiff was mindful of the injury. He also noted that the cumulative effect of repetitive tasks could exacerbate the injury. He indicated that while it is harder to predict pain localisation with meniscal tears, the plaintiff's reported pain and its impact were consistent with such an injury. He acknowledged that pain is subjective and that the plaintiff might mask symptoms due to job security concerns, making it difficult to observe the injury’s true impact. He testified about pain and reduced function and the clinical difficulty in assessing how different individuals of younger age, health, and physicality might variably experience and manifest pain and reduced function in different applications. The doctor opined that the young, fit, and healthy plaintiff with a meniscal tear could manage his work duties despite experiencing symptoms and signs of the injury.
50. [50]
    Associate Professor Scott Sommerville examined the plaintiff and produced a report of 29 August 2022, adopted a conference memorandum of his opinions of 9 October 2023 and also testified.  Throughout, he adhered to the opinion that the plaintiff’s lateral meniscal tear, evident in the MRI Scan of 29 January 2020, did not occur in the car collision of 10 October 2019, but being more consistent with the mechanism of injury of a soccer injury of 17 January 2020. 
51. [51]
    I prefer Dr Nicoll’s evidence because it is consistent with the plaintiff’s testimony and the evidence that I accept.  Whereas, Associate Professor Scott Sommerville’s opinion evidence of causation is not supported by the plaintiff’s evidence, which I accept, and is otherwise based on supposition drawn from the content of documents, some of which are not proved in the evidence or are otherwise discredited and not accepted.  For example:

    1. The report of 29 August 2022 recounts the plaintiff’s description of the multiple abrasions from the car accident, saying: “He pointed to areas over the anterior aspect of his right knee, the dorsum of his big toe region, over the lateral malleolus, the right dorsal distal ulnar region and the lateral aspect of his right hip,” and supposes that the plaintiff “landed on the anterior aspect of his knees” in reliance upon vision in police body-cam footage which is not in evidence.  This is also inconsistent with other evidence regarding the forces in the accident and the plaintiff’s evidence, which I accept.  It seems to me that the plaintiff was struck by the car on his left side while he was straddling and riding his bicycle across the road, which caused him to ultimately impact the road with his right side.  Ambulance and hospital records consistently note grazes to the right side of the plaintiff’s body, including to his right hip and right knee.
    2. During his oral testimony, the associate professor also dismissed the plaintiff’s movement to quickly jump up and move out of the car's path to the roadside to avoid further danger as a mechanism of meniscal tear injury.  I prefer Dr Nicoll’s evidence and find that the plaintiff’s impact by the car and/or his sudden escape caused the injury.
    3. The concluding opinion apparently rejects the plaintiff’s reported description of the soccer incident as - “He said the following year his symptoms markedly increased, he said he had attempted to return to playing a game of soccer and tried to run “very fast” and developed lateral knee pain.  He said his knee became very swollen.  He said he could not sleep, and so needed medical advice,” which is consistent with the plaintiff’s evidence, which I accept.  Instead, the Associate Professor supposes that the mechanism of injury is a twisting injury incurred during the soccer game apparently accepting the contents of the flawed medical notes made on 18 January 2020 (and perpetuated in later documents), which I have found to be unreliable due to incompetent interpretation and not otherwise proved by the evidence.
    4. In my view, this critical analysis of the documents is fraught with speculation and guesswork.  The report suggests that the lack of documented investigation, recorded complaints, or pain management related to the plaintiff’s knee indicate an absence of a lateral meniscal tear resulting from the car collision on October 10, 2019. It contrasts this with the documented increase in medical visits, prescribed analgesics, and investigations following a soccer incident on January 17, 2020, to suggest that the meniscal tear occurred during that soccer incident. 
52. [52]
    On my assessment of the evidence, the variable manifestation of expected symptoms and signs of a right meniscal tear are explicable by the plaintiff’s English fluency, social understanding, stoicism, physicality, endurance, pain tolerance, and desire for work and social sport.  The plaintiff's stoicism is evident in his determination to continue functioning, educating and working despite MRI investigations revealing the meniscal tear in his right knee until undergoing a right knee arthroscopy and lateral meniscal repair on 13 September 2021.  In that intervening period, still desirous of a vocation in construction, in February 2020, he started a Certificate I – Construction Traineeship at TAFE, and later he completed a Construction White Card, First Aid Course, Disability Yellow Card, Blue Card, and an EST Skills for Work course.  In August 2020, the plaintiff started a four-week trial as an apprentice carpenter with MB Design and Construction, which involved moving bricks and laying metal bars for concreters.  He recalls that the heavy lifting, bending, and kneeling made his right knee sore, necessitating frequent breaks.  After about five days, he was told he was no longer needed.   In August 2020, he began physiotherapy at Cairns Hospital, attending 5-6 sessions until early 2021.  In November 2020, he completed his Certificate I in Construction Traineeship and did casual labouring with Atherton Tablelands Concreting but had to stop due to knee pain.   In early 2021, he worked as an Assistant Trainer for Centacare until May and completed the SPAYC Cadets program.  He also attempted a trial with First Choice Render & Tile in August 2021 but resigned due to knee pain before his surgery.
53. [53]
    It seems to me that the plaintiff suffered an injury to his right side, hip, and knee as a result of the 10 October 2019 car accident. He was impacted by the left-to-right lateral force of the car, which struck him on the left and caused him to fall heavily on his right side onto the road, capable of causing a meniscal tear. He then moved quickly to avoid further danger, likely causing the twisting movement that resulted in a meniscal tear. He continued to endure significant right knee pain before the 17 January 2020 soccer game but was driven by a desire to return to social soccer.  He aggravated his pre‑existing injury when he ran on the field towards the ball, but without falling or twisting his leg as speculated by the second defendant to warrant any adverse inference. He continued to experience painful right knee symptoms until he recovered from his surgical repair on 13 September 2021. 
54. [54]
    In those circumstances, I have concluded that the plaintiff suffered a right meniscal tear in the 10 October 2019 car accident, which was aggravated on the soccer field about 14 weeks later on 17 January 2020. 

What is the assessment of the plaintiff’s loss and damage?

55. [55]
    I assess his loss and damage accordingly having regard to the Civil Liability Act 2003 (Qld) (“the Act”) and the Civil Liability Regulation 2014 (Qld) (“Regulation”).
56. [56]
    The plaintiff has the onus to prove a sufficient connection between the breach and the loss suffered.  The plaintiff must prove that every item of loss for which he claims damages is connected to the first defendant’s wrong in the sense that the wrong caused or materially contributed to that loss.^[6]   It is a question of fact.^[7]  The relevant question is whether the first defendant’s negligence was so connected with the plaintiff’s loss or damage that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it.^[8]
57. [57]
    The plaintiff alleges that he suffered multiple injuries because of the accident.  His right knee meniscal tear is the dominant injury since his other minor injuries to his right elbow, right and left wrist, right ankle and right hip have resolved.  He is also left with surgical scarring.

General Damages

58. [58]
    From the date of his injury in October 2019 until several months after his surgery in September 2021, the plaintiff experienced symptoms and limitations compared to his post-surgical and rehabilitative state.  He now weighs 95 kg compared to 60 kg at the time of the accident. 
59. [59]
    Before the accident, he enjoyed running three to four times a week. Now, he rarely runs and mostly uses the treadmill at the gym. He also used to enjoy playing social soccer twice a week before the accident. He only recently started playing club soccer at the beginning of this year, including training two days a week and playing in the competition weekly as a defender or striker.  The Plaintiff describes his right knee as not being as strong as his left knee. It feels weaker when he plays soccer, runs, or walks for extended periods, during gym workouts, and during activities that require knee support. Additionally, his knee shakes when he walks, drives, or sits in the same position for a long time. 
60. [60]
    Dr Somerville did not provide an opinion on the whole person’s impairment from the knee injury.  I prefer Dr Nicoll’s assessment of 7 October 2022 of the lateral meniscus tear and anterior cruciate ligament strain right knee injury as leaving the plaintiff with a 4% whole-person impairment. 
61. [61]
    I think that the plaintiff's knee injury exceeds the classification of a minor knee injury under Item 140 and ought to be classified as Moderate Knee Injury under Item 139.  Item 139 comments that an ISV at or near the top of the range will be appropriate if there is whole person impairment for the injury of 8%.  Therefore, I adopt an ISV of 7 being in the mid to low end of the range of 6-10 of the Regulation
62. [62]
    An ISV of 7 results in an assessment of $11,600.00 for general damages.

Economic loss

63. [63]
    In his pleading, the plaintiff claims $29,311.00 (revised to a submission of $10,000) for past economic loss on the premises, but for his injury, he would have had steady and constant employment, earning an average of $990 net per week since November 2020.  The second defendant contends for a modest global component of $2,000, inclusive of interest, without any reliable evidence supporting an assessment of past economic loss pursuant to s 55 of the Civil Liability Act 2003 (Qld).^[9]
64. [64]
    The plaintiff is a Rwandan refugee who arrived in Australia on 14 February 2019, with very little English.  He has the equivalent of a Grade 11 education and previously worked in carpentry/labouring before coming to Australia.  At the time of the accident, he was studying English at TAFE and receiving Centrelink benefits.
65. [65]
    On 19 December 2019, the plaintiff started working at Gallina Farms casually, working three days a week for two weeks, shifting pallets of mangoes with a pallet jack in a warehouse. This role ended on 4 January 2020, when the picking season finished.  He earned $2,153.00 net in this role.  Around 3 January 2020, he began working at Widem Farming, picking lemons. This involved kneeling or crouching under trees and lifting heavy buckets of lemons, which caused him difficulty due to his right knee pain.  He had to ice and rest his knee at the end of each day and left this job on 16 January 2020.  He earned $2,294.00 net in this role. The plaintiff recalls doing a few days work while staying in Atherton which, may be attributed to the pay of $528.00 net from  Nepalaya Pty Ltd in early 2020.
66. [66]
    Between 17 February and November 2020, he completed a Certificate I - Construction Traineeship.
67. [67]
    In August 2020, he undertook a four-week trial as an apprentice carpenter with MB Design and Construction.  He struggled with heavy lifting, kneeling, and bending due to his knee pain, requiring frequent breaks.  After five days, he was informed that he was no longer needed.
68. [68]
    Throughout 2020, the Plaintiff completed his Construction White Card, First Aid Course, Disability Yellow Card, Blue Card, and EST Skills for Work course.
69. [69]
    From February 2020 to May 2021 he worked for Centacare as an Assistant Trainer, training students in construction. This role was less physical, allowing him to take breaks as needed. He received $32,073.00 net from the Roman Catholic Trust Corporation.  Between 23 November 2020 and 18 December 2020, he did casual labouring work with Atherton Tablelands Concreting. After about two weeks, he had to stop due to his knee pain and restrictions. He earned $2,336.00 net in this role.  Between February and June 2021, the Plaintiff completed the SPAYC Cadets program, a leadership and mentoring program for youths.  In June 2021, he completed four weeks of labouring work for Brendan Grant Homes, where he was paid in cash. His duties included removing rubbish, moving bricks, and clearing areas. His knee pain made it difficult to control the bobcat, leading to his termination.
70. [70]
    On 2 August 2021, the Plaintiff began a three-week trial with First Choice Render & Tile, aiming for a tiling apprenticeship.  Due to his knee restrictions and upcoming surgery, he resigned on 25 August 2021.  He earned $1,626.75 net in this role.  After his knee surgery on 13 September 2021, the Plaintiff was certified unfit for work until after 17 December 2021.  In November or December 2021, the plaintiff started an NDIS Quality, Safety, and You course, aiming to become a support worker.  On 22 March 2022, the Plaintiff obtained his MR Driver’s License.  The Plaintiff remained off work for a few weeks until he began casual employment with A&B Carriers, delivering furniture.  This physically demanding role ended in July 2022 due to his knee pain and the demands of his studies. He earned $11,646.00 net in this role.
71. [71]
    On 30 May 2022, the plaintiff completed a Quality, Safety, and You – NDIS Worker Orientation Module.
72. [72]
    The plaintiff began working as a support worker with Independent Support Solutions Pty Ltd around 4 July 2022.  He continued working for Independent Support Solutions while completing a Certificate III in Individual Support – Disability.  He earned $27,695.58 net in this role.  The plaintiff took on two more jobs.  From the end of 2022, the plaintiff also worked as a Youth Worker with Vabele Pty Ltd for about 30-40 hours per week, which he invoiced and was paid $20,395.00 gross, which I adjust to $13,868.00 after applying the tax rate of 32% for income over $45,000.00 in that year.  He added a third job as a casual Youth Support Worker with Abilities NQ, which became full-time in late January 2023, paying $30.46 per hour for 38 hours per week.  He earned $22,530.00 net up to ceasing that job in April 2023.
73. [73]
    The Plaintiff ceased receiving Centrelink benefits in February 2023. 
74. [74]
    In March 2023, he began working for National Care Society as a casual Disability Support Worker, a role he continues when required.  He earned $17,067.56 net in this role.  In April 2023, he started working for Resilience Community Services as a casual Disability Support Worker.  He also remains in this role, earning approximately $35.25 per hour, when required.  He earned $3,689.50 net in this role.
75. [75]
    The plaintiff continues consistently and steadily as a casual Youth Work and Disability Support Work with Vabele Pty Ltd, National Care Society, Resilience Community Services, and Independent Support Solutions.  His tasks in Youth Work vary depending on the needs of the children.  He spends time with them, takes them to school or appointments, and drops them home. He also does some cooking and cleaning at the care house and stays overnight when needed. While the work is not physically demanding, he sometimes notices his knee shaking or feeling weaker after being on his feet a lot or doing extensive cleaning that day.  In his role as a disability support worker, the Plaintiff cares for people with mental and physical disabilities who live in a care home. He assists them with cooking, cleaning, and bathing, and performs overnight visits. He also takes them to appointments or for social activities they enjoy.  Although the work is not heavy, moving clients is challenging at times, and his knee does not feel as strong when he needs to apply pressure on it. He also sometimes notices his knee shaking or feeling weaker after walking a lot or doing a lot of cleaning. 
76. [76]
    Notwithstanding the injury, the plaintiff has demonstrated a strong work ethic and a drive to continue his vocational education and training.  The plaintiff earned an average of $137,507.39 from 18 December 2020 to 25 October 2023, comprising

    1. Nepalaya: $528.00 net
    2. Roman Catholic Trust Corporation: $32,073.00 net
    3. Widem Farming: $2,294.00 net
    4. Gallina Farms: $2,153.00 net
    5. Atherton Tableland Concreting: $2,336.00 net
    6. A&B Carriers: $11,646.00 net
    7. First Choice Render and Tile: $1,626.75 net
    8. National Care Society: $17,067.56 net
    9. Resilience Community Services: $3,689.50 net
    10. Abilities NQ: $22,530.00 net
    11. Independent Support Solutions: $27,695.58 net
    12. Vabele Pty Ltd: $20,395.00 gross, adjusted to $13,868.00 net.
77. [77]
    However, during this period, the continuity of work was disrupted for about 32 weeks from 25 August 2021 to April 2022 for his surgery rehabilitation and vocational training. Once this is considered, the plaintiff earned $137,507.39 in the other 116 weeks, being an average of $1,185 net per week.  After the plaintiff’s knee surgery on 13 September 2021, he was certified as unfit to work for about 14 weeks until 17 December 2021.
78. [78]
    Therefore, I assess his past economic loss at $16,590.00, calculated at the rate of about $1,185 net per week for the 14 weeks he was rendered unfit for work.
79. [79]
    I will allow interest at the applicable Reserve Bank of Australia “Capital Market Yields – Government Bonds – Daily” rate and I calculate past superannuation loss at $1,659.00 using the rate of 10%.

Future economic loss

80. [80]
    The plaintiff claims $200,000 globally, pointing to the loss of endurance and lost opportunity to qualify and work as a carpenter for the remainder of his working life and discounted for contingencies.  The second defendant contends that the claim is purely speculative and that there is no evidentiary basis for a global award of future economic loss pursuant to s 55 of the Civil Liability Act 2003 (Qld).
81. [81]
    Section 55 of the Act requires the court to identify the assumptions and methodology to award a global sum for economic loss without changing the common law.  Section 55 provides:

“55When earnings cannot be precisely calculated

(1)This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.

(2)The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.

(3)If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.

(4)The limitation mentioned in section 54(2) applies to an award of damages under this section.”

82. [82]
    The plaintiff was born on 4 July 1998 and is now 26 years old, with a potential working life of 41 years to age 67 years.
83. [83]
    The plaintiff argues that his injury has caused him to suffer a significant loss of earning capacity. He relies upon Emily Howard's occupational therapy opinion of 6 August 2021 that carpenters typically earn $1,358.00 gross per week and compares this to his disability care earnings to assert a $130.00 net weekly loss, which has a present discounted value of $121,160.00 over 42 years.  Further, it is argued that the plaintiff's current casual employment lacks leave and holiday entitlements and is less stable, leading to further income vulnerability.  It is asserted that, without the injury, the plaintiff would likely have pursued higher-paid opportunities in construction, and that his injury has deprived him of advancing as a tradesperson, potentially earning 10%-20% more than the current earning rate, resulting in a $93,200-$186,400 loss.  It is then argued that the plaintiff has a restricted earning capacity that results in losses of both ongoing and higher income in a qualified position in the range from $214,000 to $302,000, discounted for contingencies (20% on the lower figure and 30% on the higher figure), to arrive at $171,000 to $211,000.  Therefore, the plaintiff seeks an allowance for future economic loss of $200,000.00
84. [84]
    The plaintiff believes that but for the injury, he would have attained trade qualifications in construction or road construction to realise his dream vocation in construction, citing his introductions to potential employers and training.  Around February 2020, the plaintiff started a Certificate I – Construction Traineeship at TAFE, a paid traineeship through Centacare. In 2020, he also completed a Construction White Card, First Aid Course, Disability Yellow Card, Blue Card, and an EST Skills for Work course.  In August 2020, the Plaintiff began a four-week trial as an MB Design and Construction apprentice carpenter. On-site building houses, he assisted by fetching tools and materials for professionals, moving bricks, and laying metal bars for the concreters. The heavy lifting, kneeling, and bending caused significant pain in his right knee, requiring frequent breaks. His right knee would swell, and he often limped at work. After about five days, he was informed that he was no longer needed.  Around mid-2021, the plaintiff did some labouring work for about four weeks for cash for Brendan Grant Homes. He performed various tasks, such as removing rubbish, moving bricks, and clearing areas with a shovel where the bobcat could not reach. One day, he needed to move the bobcat. His right leg was shaking in pain after working all day, and he crashed the bobcat. He believes this happened because his knee was sore and shaking, making it hard to concentrate and control the bobcat. He was subsequently dismissed from this job.
85. [85]
    The plaintiff will continue working as a disability support worker and in youth work with several employers and does not foresee this changing. The plaintiff has managed to cope with the increased pain from lifting, bending, and similar tasks in his work as a disability support worker, but he could not accept work that involves continuous lifting or prolonged periods of standing.  He does not know of any career path to a higher or stable income or with personal leave and holiday pay entitlements. 
86. [86]
    Dr. Nicoll opined, more than a year after the plaintiff's surgery in September 2021, that the plaintiff was incapable of resuming his previous role as a construction labourer without restrictions. He stated that the Plaintiff was fit for moderate mental activity that did not involve heavy manual work. Dr. Nicoll specified that the plaintiff would have difficulty in jobs requiring lifting objects of 15 kg or more, or tasks involving repetitive bending, twisting, or flexing of the right knee under heavy loading. Dr. Somerville did not provide an opinion on the plaintiff’s work capacity either before or after his surgery.
87. [87]
    The circumstances of this case do not enable a precise calculation of future economic loss due to numerous variables and uncertainties. I do not have sufficient evidence to assess the plaintiff’s aptitude and potential, absent any injury, to qualify and work as a carpenter or other trade until age 67.  Therefore, I do accept the plaintiff’s claim using that assumption and method.  However, because of his ongoing impairment, I accept that the plaintiff will be unable to fulfil his full-time work as a labourer in construction or road construction or even in retail work.  Instead, the plaintiff will be limited to casual pay and hours available in the youth and disability sector without any holiday or leave entitlements.  It seems to me that if the plaintiff took 5 weeks off for holidays, sickness or personal leave at the average rate of $1,185.00 net per week, he would lose about $5,925.00 net per year, being $114.00 net per week every year of his working life.  Additionally, he will be vulnerable to losing employment or reduced hours and will be disadvantaged in the open labour market due to his limited qualifications, skills, and experience. 
88. [88]
    I will allow $75,000.00 for future economic loss. I rationalise this award based on a net weekly loss of $114.00 in earning capacity from the age of 41 to the age of 67, using the 5% multiplier of 924.8 to achieve $105,427.20 and then applying a discount of about 30% for contingencies.
89. [89]
    I will allow future superannuation loss of $8,250.00 using the rate of 11%. 

Special damages

90. [90]
    The plaintiff claims past out-of-pocket expenses by himself and Medicare totalling $10,702.85. The second defendant argues that there is no proof of the quantification or payment of any heads beyond $1,000.00 to $2,000.00.
91. [91]
    The plaintiff has proved incurring expenses set out in the Medicare Notice of Charge of $3,289.00, pharmaceutical expenses of $500.00, travel expenses of $500.00, gap fees for medical expenses of $173.85, gym membership of $2,000.00, surgery costs of $2,525.00, Cairns Private Hospital fees of $4,177.00 and crutches of $38.00. 
92. [92]
    I allow the vouched Medicare Notice of Charge of $3,289.00, gap fees for medical expenses of $173.85, surgery costs of $2,525.00, Cairns Private Hospital fees of $4,177.00 and crutches of $38.00.  I also accept that the plaintiff likely incurred at least $500.00 to travel to his medical appointments at Cairns Hospital and the Cairns Family Medical Centre, and pharmaceuticals.  I also allow gym expenses of $155.04 calculated at the rate of $12.95 per week for 12 weeks of post-operative strength and conditioning recommended by his physiotherapist. 
93. [93]
    Therefore, I will award $10,857.89 for special damages, including interest.

Future expenses

94. [94]
    The plaintiff also seeks $1,500.00 for future medical expenses for over-the-counter pain relief and anti-inflammatories.
95. [95]
    The plaintiff is not currently taking any medication or undergoing any treatment. He continues exercising at home and goes to the gym about two to three times per week. He expresses a desire for future physiotherapy and other treatments, such as hydrotherapy, to help with his right knee, especially when it worsens due to work. He anticipates needing to spend money on medication for pain and inflammation in his right knee as needed.
96. [96]
    I will allow a nominal award of $500.00 for future expenses.

Conclusion and orders

97. [97]
    For these reasons, I assess damages of $124,456.89 plus interest on the amount for past economic loss summarised as follows:

98. [98]
    I will give judgment to the plaintiff against the defendants for the assessed amount of $124,456.89 plus interest on the amount for past economic loss.  I will hear the parties further on the calculation of interest and the issue of costs.
99. [99]
    Unless either party applies for, or the parties otherwise agree to, a different costs order within 14 days of this judgment, I will also order that the defendants pay the plaintiff’s costs of the proceeding (including reserved costs) to be assessed on the standard basis.

Judge Dean P. Morzone KC