Kljusuric v Gajjh United Pty Ltd
"In accordance with the opinion of Mr Contoyannis..., spontaneous subluxation at the relevant time was unlikely."
Date of Judgement: 20 May 2020
Court (Location): Magistrates Court of The Australian Capital Territory
Expert (for the Plaintiff): Bill Contoyannis, biomechanical engineer, Dohrmann Consulting
Legal Matter: Plaintiff sustained injury as a result of a fall at the defendant’s premises
Court Decision: Plaintiff awarded $120,000
Extracts from Magistrate Morrison's comments in relation to evidence provided by expert witness biomechanical engineer and ergonomist Mr Bill Contoyannis.
Paragraph 120: The experts agree upon the mechanisms which constitutes what Mr Contoyannis described as a “stumble recovery”.
Paragraph 124: After the description of the mechanism involved in a subluxation, Mr Contoyannis gave an example of how it might come about. He said that it might occur where a foot is planted and the body twists in the opposite direction to the direction to the direction that the foot is pointing. He gave the example of the left foot planted facing left with the knee slightly bent when the body twists to the right. He said that the interaction between the two muscle groups might be such as to occasion a subluxation. Dr Gibson said that he agreed with Mr Contoyannis “in general terms”.
Paragraph 142: The questioning which followed led to both experts agreeing that “the presence of a shallow trochlea [groove] in a knee would materially affect the amount of force required for a knee to sublux”, but did not otherwise go to any change to Mr Contoyannis’ opinion about the directional forces involved. Mr Contoyannis’ evidence was that the plaintiff’s movements prior to the fall would result in a tightening of the cables in the muscle on the inside of the thigh and a loosening of the cables in the muscle on the outside of the thigh. In other words, because of the rotation of the thigh inwards, subluxation would not have occurred.
Paragraph 144: As the basis for his opinion, Mr Contoyannis had said that the footage shows, just prior to the fall, Ivanna placing her foot to the left and beginning to turn and shift her bodyweight to the left as well. As I understood his testimony, it is that mechanism which results in the tightening of the cables of the inside thigh muscle and the loosening of those of the outside thigh muscle, thereby making subluxation unlikely.
Paragraph 150: It is apparent that Mr Contoyannis regarded his assessment of the direction of the forces applied in the plaintiff’s step and turn to the left as being those which are the usual or natural result of such a manoeuvre by any person.
Paragraph 155: It is apparent from the evidence to which I have just referred that Mr Contoyannis based his opinion upon the gross movements which he says are visible even on the unclear CCTV footage – that is, that the plaintiff “turned and moved to the left”. Inferentially, he is referring to the same observation when, in his response to Dr Gibson’s testimony just referred to, he says “places their foot to the left and turns to the left”.
Paragraph 156: Earlier in his testimony, Mr Contoyannis had referred to the plaintiff transferring or beginning to transfer “her body weight across”. He did so in this context:
In the scenario that’s viewed in the video Ms Kljusuric places her foot to the left and transfers her body weight across or begins to transfer her body weight across. Perfectly normal gait initiation with the turn to the left, okay? (emphasis added)
Paragraph 157: It is not clear to me whether Mr Contoyannis was intending to convey that he is able to observe the weight transfer he describes on the CCTV footage or rather that he can observe the foot placement (and direction of movement) and that what he says about weight transfer is the normal accompaniment of such movement. I think the latter is more likely. In any event, his opinion about normal gait initiation was not challenged.
Paragraph 159: His evidence, however, does not appear to challenge the fundamental premises upon which Mr Contoyannis’ opinion is based – namely, that the usual or normal forces involved in a step and turn to the left are as he (Mr Contoyannis) describes and make subluxation unlikely at that point.
Paragraph 165: My finding that the CCTV footage depicts such a step and turn leads to the following conclusions:
(a) that the usual or natural forces involved in such a manoeuvre are those described by Mr Contoyannis in paragraphs  and  above;
(b) that, despite the existence of other “possibilities”, the CCTV footage is not sufficiently clear to raise them beyond mere possibilities;
(c) that, as a result, and in accordance with the opinion of Mr Contoyannis (with which, I note, Dr Gibson agrees), spontaneous subluxation at the relevant time was unlikely.
Full court report can be accessed via the Australasian Legal Institute - Kljusuric v Gajjh United Pty Ltd