In brief - Meniscal tear in plaintiff's knee found to be unrelated to earlier incident
The NSW Court of Appeal recently reduced the damages awarded to a plaintiff by the District Court from $456,500 to $73,800, predominantly on the basis that there was insufficient evidence to attribute the entirety of the plaintiff's injuries to the defendant's negligence.
Plaintiff catches foot in unguarded drain way in hotel car park
In the case Wurth v Sampco Pty Ltd t/as The Knickerbocker Hotel  NSWDC 173, the plaintiff, Ms Wurth, was a 50 year old female who, on 19 February 2011, caught her right foot in an unguarded drain way and fell in the car park of the Knickerbocker Hotel, which was occupied by the appellant, Sampco Pty Ltd ("the incident").
The plaintiff twisted her right foot, breaking a bone and bruising her foot, as well as sustaining bruising and grazing to her knees.
Approximately six months after the incident, the plaintiff began to complain of pain in her left knee, which was ultimately found to be a meniscal tear. District Court Judge Levy found that the meniscal tear was caused by the incident.
The judge awarded a little over $456,500 in damages.
Sampco appeals against scale of damages awarded to plaintiff
On appeal, in Sampco Pty Ltd v Wurth  NSWCA 117, the appellant did not challenge the finding of negligence against it. The appeal was limited to the assessment of the plaintiff's loss, particularly with regard to whether the meniscal tear in the plaintiff's knee was a consequence of the incident.
The issues for determination on appeal were:
- whether the meniscal tear in the plaintiff's left knee was caused by the accident
- whether the award of damages for non-economic loss at the level of 28% of a most extreme case was excessive
- whether the award for future economic loss was appropriate
- whether the statutory thresholds for past and future gratuitous domestic assistance were reached
- whether an award for future domestic assistance at commercial rates was erroneous
Court of Appeal finds accident not related to meniscal tear in plaintiff's knee
The appeal was allowed and the award of damages to the plaintiff was reduced from $456,500 to $73,800.
The Court of Appeal unanimously held that there was no proper evidentiary basis for the finding that the meniscal tear in the plaintiff's left knee was caused by the incident, and as such the assessment of damages would need to be revisited.
The court cited the following reasons in finding that Levy J erred in his findings:
- there was no medical evidence as to a possible mechanism by which the knee injury had occurred in the course of the accident
- the plaintiff did not complain of any changes in her left knee until at least late September 2011, some seven months after the incident, which led to a strong inference that the meniscal tear occurred well after the incident
- there was strong evidence to suggest that the knee injury occurred at the gym
- the plaintiff attended numerous medical examinations with various practitioners between the incident and filing of the claim without complaining of a knee injury, which raised a strong inference that the plaintiff herself did not identify the problem with her left knee as being related to the incident
Ultimately the Court of Appeal found that the plaintiff failed to prove on the balance of probabilities that the injury to her left knee occurred as a result of the incident (section 5D(1)(a) of the Civil Liability Act 2002 applied).
Assessment of damages
The trial judge's assessment of non-economic loss was based on the finding that the meniscal tear was a result of this incident. The Court of Appeal reduced the initial assessment of 28% of the most extreme case to 25%.
In doing so, the Court of Appeal said it was "erring on the side of generosity to the plaintiff", given it was assuming the injury to her knee had relatively minor consequences with respect to her general enjoyment of life.
Past economic loss
The plaintiff worked as a full time administrative clerk at Nepean Hospital prior to the incident. She took eight weeks off to recover from her injuries and then continued with the same full-time employment thereafter.
There was no challenge to the trial judge's award.
Future economic loss
The trial judge awarded a buffer in the amount of $130,000, on the basis that the plaintiff's knee injury was a result of the incident.
At the time of the trial, the plaintiff had been in full-time employment and none of her treating doctors suggested there would be a deterioration in the plaintiff's right foot (except for possible arthritis). The court did, however, accept that there was some diminution of earning capacity and made an allowance that also factored in a significant discount, due to the possibility that the plaintiff may also suffer a worsening of the arthritis in her hands (unrelated to the incident).
The Court of Appeal awarded $30,000 as a buffer for future economic loss.
Past domestic assistance
The Court of Appeal found that the trial judge erred in his calculations by:
- averaging the hours per week of assistance required from the day following the accident to the day of assessment
- awarding more than the amount claimed, and also noting that the trial judge was entitled to put little, if any, weight on the hourly calculations provided by medical practitioners
The Court of Appeal held that the question should be not what assistance the plaintiff has been provided by others, but "the reasonable need for the services to be provided", which are to be calculated on a weekly basis.
The plaintiff failed to meet the requirements for an award for past domestic assistance.
Future domestic assistance
The trial judge calculated the award for future domestic care based on eight hours of care per week at the commercial rate of $40 per hour for the remainder of the plaintiff's life, which was then discounted by 40% for the plaintiff's underlying arthritis in her hands. In order to make the award at a commercial rate, the trial judge found it was "unlikely" that the plaintiff's husband would continue to provide domestic services.
The Court of Appeal found that the plaintiff expressed a preference to have services provided commercially, and that if her husband had been willing to provide assistance in the past, it was not unreasonable to expect that this would continue into the future.
The court found the plaintiff would require no more than three or four hours' care to be calculated at the gratuitous rate.
Evidence fails to establish causal link between accident and meniscal tear
In the absence of sufficient expert, lay and contemporaneous evidence to link a subsequent injury to the original event, the Court of Appeal could not find that the plaintiff's initial injury was causative of a meniscal tear which occurred months after the incident.
No indication that gratuitous domestic assistance could not be sustained
This decision also provides guidance on the method of assessment of future domestic assistance. The Court of Appeal considered recent authorities (Gordon v Truong; Truong v Gordon  NSWCA 97; Miller v Galderisi  NSWCA 353) and concluded that the plaintiff was not entitled to future commercial assistance in circumstances where she is receiving gratuitous assistance, and there is no indication that that gratuitous care could not be sustained.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.