Akpinar v Transport Accident Commission
[2016] VCC 683
•31 May 2016
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
Revised
Not Restricted
Suitable for PublicationSERIOUS INJURY LIST
Case No. CI-15-02088
MURAT AKPINAR Plaintiff v TRANSPORT ACCIDENT COMMISSION Defendant ---
JUDGE:
HIS HONOUR JUDGE MISSO
WHERE HELD:
Melbourne
DATE OF HEARING:
22 and 26 April 2016
DATE OF JUDGMENT:
31 May 2016
CASE MAY BE CITED AS:
Akpinar v Transport Accident Commission
MEDIUM NEUTRAL CITATION:
[2016] VCC 683
REASONS FOR JUDGMENT
---Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the right knee – creditworthiness and reliability – failure to adduce relevant evidence – whether the impairment consequences are “serious”
Cases Cited:Jones v Dunkel (1959) 101 CLR 298; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Judgment: The plaintiff’s Originating Motion is dismissed.
---
APPEARANCES:
Counsel Solicitors For the Plaintiff Mr A D B Ingram with
Mr J ValiotisSlater & Gordon Ltd For the Defendant Mr P Y Rattray QC with
Mr P J GatesSolicitor to the Transport Accident Commission HIS HONOUR:
Introduction
1 The plaintiff is a thirty-one-year-old married man who was born in 1984. He suffered an injury to his right knee on 28 October 2010 when he was struck by a car which caused him to fall to the ground.
2 The plaintiff claims that he has suffered a serious long-term impairment of the function of his right knee.
3 Mr A Ingram of counsel appeared with Mr J Valiotis of counsel for the plaintiff. Mr P Rattray QC appeared with Mr P Gates of counsel for the defendant.
The evidence
4 It is necessary to traverse the evidence in some detail because of the attack made by the defendant that the plaintiff is not a creditworthy and reliable witness, that many of the consequences contended for by him are not as potent as he contends for, and that the medical evidence relied upon by the defendant should be preferred.
5 The plaintiff was removed from the scene of the transport accident by an ambulance. He was taken to the Northern Hospital. On examination, the attending medical practitioner found that the plaintiff’s right knee was swollen and tender over the medial joint line, the ligaments were stable, and there was no sign of bruising to the knee. An x-ray demonstrated a small degree of knee-joint effusion. The plaintiff was subsequently discharged. He was able to walk with crutches and a Zimmer knee splint.
6 The plaintiff was reviewed on 8 November 2010. It was noted that the pain and swelling in his right knee was settling. There was persisting tenderness over the anterior and medial part of the knee, with some bruising of the anterior part of it. There was no significant effusion. The plaintiff was advised to use a Zimmer knee splint for a further two weeks. He was reviewed again on 22 November 2010. There was no effusion, but there was some joint line tenderness. The plaintiff was advised to continue physiotherapy. He failed to keep appointments in January and May 2011. He attended the hospital again on 27 January 2011. He told the attending medical practitioner that his symptoms were unchanged, but it is unclear what the symptoms were that he represented were unchanged. The plaintiff did not attend the hospital again.
7 The plaintiff saw Dr Kurnaz, general practitioner, on 28 October 2010. When he presented to Dr Kurnaz, he was in pain and was limping. On examination, Dr Kurnaz noted that the plaintiff had mild effusion; his range of movement was limited; he exhibited tenderness along the medial joint line, and the ligaments appeared to be intact.
8 Dr Kurnaz reviewed the plaintiff on 5, 15 and 29 November 2010, 20 December 2010, 27 January 2011 and 2 February 2011. At the review on 20 December 2010, Dr Kurnaz noted that the plaintiff told him that the pain had not subsided; his range of movement had increased; he was able to bear weight comfortably, and on examination, there was no clinical evidence of any effusion.
9 I was referred to the clinical notes of Dr Kurnaz. They reveal the following:
· On 29 October 2010, the plaintiff was provided with a prescription for Panadeine Forte.
· On 29 November 2010, the plaintiff told Dr Kurnaz that he did not require an MRI scan because of a diagnosis by medical practitioners at the Northern Hospital that he had suffered a ligamentous strain. That is inconsistent with the diagnosis made at the hospital.
· The plaintiff attended Dr Kurnaz on 29 November 2010, 20 December 2010, 27 January 2011 and 2 February 2011, and then not again until 25 February 2013. He was not provided with any further prescription for Panadeine Forte on any of those occasions.
10 Dr Kurnaz provided the plaintiff with a referral to Mr Owen, orthopaedic surgeon, on 2 February 2011. The plaintiff did not see Mr Owen until 17 April 2013 after the plaintiff was provided with a further referral by Dr Kurnaz on 25 February 2013.
11 Dr Kurnaz referred the plaintiff to have an MRI scan on 27 January 2011. The MRI scan was undertaken on 28 January 2011. The radiologist reported that the findings gave rise to a suspicion of an intrasubstance tear within the posterior horn of the medial meniscus. Additionally, there was a slightly increased signal within the posterior cruciate ligament, with no evidence of a definite tear, but in keeping with a severe sprain. No effusion was seen within the knee and there was no evidence of a chondral injury. As will be seen later, the opinion of the radiologist was not borne out by the later examinations of a number of medical practitioners.
12 The plaintiff ceased seeing Dr Kurnaz for some reason. He attended the Wells Clinic. It would appear that the plaintiff attended that clinic in the hiatus between seeing Dr Kurnaz on 27 November 2011 and next seeing him on 25 February 2013. Under cross-examination, it was put to the plaintiff that he first attended the Wills Clinic in June 2012, and that he made no complaint nor received any treatment for his right knee. The principal treatment he sought was for weight loss, and for other minor illnesses.
13 I now return to the clinical notes of Dr Kurnaz. The plaintiff next returned into his care on 25 February 2013 for treatment. The entry in the clinical notes on that occasion was emphasised by counsel for the defendant. I will set out the relevant parts of that entry in full:
“[S]ince last seen, reports he has been taking nurofen plus alternating with panadol for pain, never went to see ortho as ‘couldn’t be bothered’ or was ‘busy working as a concreter’.
[H]owever - pain has worsened now and takes analgesics on daily basis - advised needs to see ortho - referral to JOwen updated and given to pt to make own appt.”[1]
(sic)
[1]Defendant’s Court Book (“DCB”) 3
14 Dr Kurnaz provided the plaintiff with a prescription for Panadeine Forte on 17 April 2013. According to his notes, this was the second occasion he had provided such a prescription since providing the first one on 29 October 2010.
15 The plaintiff saw Dr Kurnaz again on 2 April 2014, when he was given a further referral to Mr Owen. The plaintiff saw Mr Owen on 10 April 2014. It would appear that the purpose of the referral was because the plaintiff had not experienced any improvement since he last saw Dr Kurnaz about his right knee. He was using Nurofen as a painkiller, experiencing pain and discomfort in his right knee when working, and experiencing a sensation of instability in his right knee. On examination, Dr Kurnaz noted that the plaintiff’s range of movement was “ok” but there was a large effusion, with a positive patellar tap and the presence of grating and crepitus in the right knee.
16 The plaintiff saw Dr Kurnaz again on 5 June 2014 and 8 July 2014 for unrelated matters, and then on 2 December 2014. Dr Kurnaz noted that an orthopaedic surgeon to whom the plaintiff was referred by his lawyers, spoke of the need for surgery. Dr Kurnaz referred the plaintiff to Mr Altuntas, orthopaedic surgeon. The plaintiff had difficulty remembering whether he had actually seen Mr Altuntas, but I was left with the impression that he had seen him. No report was obtained from Mr Altuntas.
17 I will now turn to the treatment provided by Mr Owen.
18 The plaintiff first saw Mr Owen on 17 April 2013. On examination, he concluded that the ligaments in the plaintiff’s right knee were intact. He referred the plaintiff to have an MRI scan which was undertaken on 8 May 2013.
19 On review on 13 May 2013, Mr Owen was of the opinion that the symptoms experienced by the plaintiff were “related to his patellofemoral joint”.[2] He concluded that the plaintiff was suffering from patellofemoral arthralgia. Importantly, his opinion was:
“… This condition was where the patellofemoral joint is irritable and it can be as a result of local trauma. It is worse in patients that are morbidly obese. It does cause problems with doing things like kneeling, squatting, going up and down stairs or ladders. It is annoying[,] often the symptoms are protracted and in patients with a big weight problem they can be almost a permanent problem. … .”[3]
[2]See report of Mr Owen to the plaintiff’s solicitors dated 22 August 2013 – Plaintiff’s Court Book (“PCB”) 26
[3]PCB 26
20 Mr Owen advised the plaintiff to have physiotherapy. The plaintiff was referred to Mr Harper, physiotherapist. The plaintiff first saw Mr Harper on 9 August 2013. On examination, Mr Harper concluded that the plaintiff had a full range of movement; no swelling; stability in the knee, and that testing of menisci and ligaments was normal. He noted that there was quadriceps wasting on the right leg. Other provocative movements such as lunging, squatting, climbing and descending stairs produced knee pain. Mr Harper concluded that the plaintiff had suffered patellofemoral dysfunction.
21 The plaintiff attended physiotherapy on two further occasions, being on 18 September 2013 and on 16 October 2013.
22 Mr Owen saw the plaintiff again on 10 April 2014. The plaintiff told Mr Owen that he was always in pain. Activities such as walking, squatting and bending at the right knee resulted in an increase in pain. He also told Mr Owen that his right knee crunched and swelled. Mr Owen repeated the same diagnosis. His primary recommendation was that the plaintiff achieve “substantial weightloss”. He also noted that the condition from which the plaintiff was suffering was very resistant to treatment, both non-operatively and operatively. Mr Owen did not anticipate that there would be any change in the pathology.
The medico-legal assessments
23 Mr Kierce, orthopaedic surgeon, examined the plaintiff on 28 November 2012 and 20 January 2016. When he first examined the plaintiff, Mr Kierce noted a number of relevant matters, but in particular, that there was 2 centimetres of wasting of the plaintiff’s right thigh. Mr Kierce concluded that the plaintiff had sustained an injury to the anterior cruciate ligament of his right knee.
24 When he last examined the plaintiff, Mr Kierce noted that there was no longer any wasting of the right thigh. He also noted that there was no effusion in the right knee joint; that there was full extension with no quadriceps lag; that the knee could be flexed through to 120 degrees; that the plaintiff was mainly tender over the patellofemoral articulation, and that there was significant crepitus on flexion-extension movements of the right knee.
25 Mr Kierce diagnosed that the plaintiff had persisting patellofemoral crepitus in the right knee consistent with chondromalacia of the right patella. He considered that the plaintiff was significantly incapacitated. He considered that the plaintiff could not work as a concreter, nor could he engage in hunting, playing soccer, engaging in martial arts and/or running. He thought that the plaintiff might require surgery to the patellofemoral joint by way of chondroplasty.
26 Dr Sillcock, occupational physician, examined the plaintiff on 14 November 2012. She has not re-examined the plaintiff. Neither counsel referred me to her report in any significant detail. In any event, Dr Sillcock made a diagnosis of a torn medial meniscus in the plaintiff’s right knee, which is inconsistent with all of the other medical opinions. Otherwise, I do not consider that Dr Sillcock’s opinion is of any importance to my considerations. In particular, this is because of the diagnosis she made and the fact that she did not consider that the condition of the plaintiff’s right knee had stabilised.
27 Dr Middleton, occupational health and rehabilitation consultant, examined the plaintiff on 15 February 2016. Interestingly, he found a 2-centimetre reduction in the circumference of the right thigh which is not consistent with the last examination undertaken by Mr Kierce. Dr Middleton found audible crepitus in the right knee and reduction in flexion. He does not appear to have come to a diagnosis himself, except that he summarised a number of medical reports. Dr Middleton’s opinion is almost exclusively directed to the plaintiff’s work capacity. He concluded that the plaintiff could not work as a concreter. He considered that he might be able to do some light work as a trades assistant. He also considered that the condition of the plaintiff’s right knee was likely to deteriorate in time, as would his capacity for work.
28 Dr Boys, orthopaedic surgeon, examined the plaintiff on 10 March 2016. I will summarise his opinion later in these reasons. For present purposes, it is sufficient to say that he considered the plaintiff had suffered degenerative changes within his right patellofemoral joint, and that the degenerative changes had been aggravated by the transport accident. However, Dr Boys considered that the transport accident “brought to light”[4] symptoms associated with the underlying degenerative condition, and that it is the strain placed upon his right knee by his morbid obesity that is the present cause of the pain and disablement he complains about.
[4]DCB 29
The Plaintiff’s evidence
29 Counsel for the defendant undertook a careful analysis of all the evidence for the purpose of demonstrating that the plaintiff’s impairment consequences must be seen in a very different light than the manner in which they were put by the plaintiff. Furthermore, it was put that a closer scrutiny of some aspects of the evidence demonstrate that the thesis of Dr Boys should be preferred.
30 In order to make sense of the submissions made by counsel for the defendant, I will outline, firstly, how the plaintiff put his case, and secondly, how the defendant put its case that I should take a different view.
31 The plaintiff’s impairment consequences are essentially as follows:
· He experiences constant pain in his right knee. It is a stabbing pain which is worsened with activity.
· He experiences a “crackling” inside his knee which is now worse.
· He is unable to bend his knee more than 90 degrees.
· He has lost strength in his right leg, and he experiences a sensation of feeling less balanced because of the loss of strength.
· He is unable to walk more than 100 metres before the pain increases. When he walks long distances, the pain radiates into his buttocks, and his knee will lock up.
· He experiences particular difficulty walking up and down stairs or over uneven ground.
· He is unable to enjoy long walks with his wife any more. As a result, he is more sedentary.
· The sedentary nature of his present lifestyle has resulted in him suffering an increase in his weight.
· He cannot sit for longer than 10 minutes, particularly if his knee is bent and he is unable straighten it. This is a particular problem when he goes on long drives because he is unable to stretch out his leg.
· Movements such as squatting, jumping and kneeling are particularly difficult. These are movements he tries to avoid.
· Lifting heavy objects places more strain on his knee; for example picking up his children and carrying them.
· He is unable to play with his two active little boys as he would like to.
· He previously enjoyed playing soccer. He finds running very difficult, which has resulted in him not being able to play soccer.
· He previously enjoyed going hunting about once a month with friends. He is unable to engage in the prolonged walking in the bush that was involved in the hunting trips.
· His sleep is broken by the pain in his right knee.
· He is no longer having any active treatment. He uses Panadeine Forte and Nurofen. He obtains Panadeine Forte from the Wells Clinic in Broadmeadows. He takes Panadeine Forte about four to five days a week. Usually, however, he uses Nurofen Plus and Voltaren. He is able to buy those two latter mentioned types of medication over the counter. He uses two to four tablets of Nurofen Plus and Voltaren a day. The medication only takes the edge off the pain.
· He uses heat packs, creams and gels and engages in exercise at a local pool, all for the purpose of managing the pain he experiences.
32 I will now summarise the plaintiff’s evidence relevant to the pecuniary disadvantage which he says he has suffered.
33 The plaintiff worked as a subcontractor for a firm engaged in concreting known as Slabon Constructions. One of the proprietors of the firm is the plaintiff’s brother-in-law, Fethi, who conducts the firm in partnership with another man. The plaintiff worked 12 hours a day, six days per week, earning $200 gross per day. He worked about 25 to 30 weeks per year. His working year was reduced because of occasions when there was inclement weather, or when he was off sick. In 2010, that is the year when the transport accident occurred, the plaintiff’s wife was pregnant. He took time off to attend to her; for example by taking her to a hospital, presumably for medical assessments during the pregnancy. His twin sons were born in November 2010. For the financial year ending 30 June 2010, the plaintiff earned $26,029. He earned less in the financial years ending 30 June 2009 and 2008, and just over $2,000 more in the 2007 year.
34 Before the transport accident, the plaintiff was involved in all aspects of the concreting work undertaken by the firm. Following the transport accident, he was seldom involved in the heavier work. When he returned to work with the firm, after an absence of about four to six months, the plaintiff was engaged in estimating work. I understood that to be taking measurements of sites where work was to be undertaken and making calculations of materials that were required. He undertook that work from the office of the firm at Lisa Place, Coolaroo. He has not worked more than four hours per day in that work.
The Defendant’s case
35 Counsel for the defendant submitted that it is the plaintiff’s morbid obesity that is responsible for the pain and disablement of which he currently complains.
36 I will firstly deal with the issue of the plaintiff’s obesity.
· On 14 October 2009, Dr Kurnaz noted that the plaintiff’s weight was 136.5 kilograms, and that his body mass index (“BMI”) was 42.1. Dr Kurnaz considered that the plaintiff was “obese”.
· On 14 May 2010, Dr Kurnaz noted that the plaintiff had reduced his weight by 10 to 15 kilograms by using a herbal weightloss remedy.
· When the plaintiff was admitted to the Northern Hospital, the attending medical practitioner noted that he was “obese”.
· When Mr Kierce examined the plaintiff on 28 November 2012, he noted that the plaintiff’s weight was 137 kilograms.
· When Dr Silcock examined the plaintiff on 14 November 2012, she noted that the plaintiff’s weight was 136 kilograms.
· When Mr Kierce re-examined the plaintiff on 20 January 2016, he noted that the plaintiff’s weight was 130 kilograms.
· When Dr Middleton examined the plaintiff on 15 February 2016, he noted that the plaintiff’s weight was 140 kilograms.
· When Dr Boys examined the plaintiff on 10 March 2016, he noted that the plaintiff’s weight was 141.8 kilograms.
· The plaintiff estimated that he now weighs 145 kilograms.
37 Under cross-examination, the plaintiff estimated that he weighed about 109 to 110 kilograms when the transport accident occurred. He told Dr Middleton that he weighed about 105 kilograms at that time. Accepting what he told Dr Kurnaz that he weighed 136.5 kilograms on 14 October 2009 and had lost 10 to 15 kilograms by 14 May 2010, and assuming that he retained that weightloss at the time when the transport accident occurred, then he had reduced his weight to 121 to126 kilograms. This is inconsistent with what the plaintiff told Dr Middleton by a significant margin of about 15 to 21 kilograms. It is also inconsistent with his evidence by not such a significant margin of about 11 to 16 kilograms.
38 It is evident that the plaintiff had a serious problem with the control of his weight. It is one of the reasons why he attended the Wells Clinic. The plaintiff sought a prescription for medication known as Duromine to effect weightloss. It would appear that at the time he attended the Wells Clinic, his weight was about 135 kilograms.
39 What is very clear from the evidence which I have just summarised is that before the transport accident occurred, the plaintiff was obese. The estimate he gave of his weight of 105 kilograms at the time when the transport accident occurred is clearly wrong. It is wrong by a significant enough margin to lead me to conclude that he was not being candid in his answers about his weight.
40 Even though the plaintiff reduced his weight by 10 to15 kilograms by October 2009, it increased to his pre-transport accident weight by November 2012. That increase in weight is unlikely to have happened quickly, but over a period of time.
41 Counsel for the defendant submitted that I should prefer the opinion of Dr Boys, orthopaedic surgeon, being that the plaintiff’s complaints of knee pain reflect strain placed upon the degenerative patellofemoral joint by his morbid obesity. That is, that those complaints are now constitutionally derived and are no longer related to the transport accident.
42 Counsel for the defendant submitted that Mr Owen and Mr Kierce partially support that conclusion.
43 Mr Owen concluded that the plaintiff suffered patellofemoral arthralgia. He described this as a condition where the patellofemoral joint is irritable, and that the irritability can be caused by local trauma. He added that this is worse in patients who are morbidly obese. In a report to the plaintiff’s solicitors dated 6 May 2014, Mr Owen described the injury as symptomatic patellofemoral arthralgia. In an earlier letter to Dr Kurnaz dated 14 April 2014, he referred to the plaintiff’s knee condition and the part played by his obesity in producing the pain and disablement complained of by the plaintiff:
“I told his solicitor that the patient’s prime problem is that he is morbidly obese. Morbidly obese people have problems with their patellofemoral joint. I am not saying that there is not an association between his accident and his pain but the management of his pain is not an operative one but in his own hands. He needs to lose 40 to 50 kilos. If he does that his knees will be a lot more comfortable. Surgery to his knees will not significantly alter his knee problem.”[5]
[5]DCB 18
44 Mr Owen’s opinion is very different from the opinion expressed by Dr Boys. Firstly, Mr Owen accepted that the plaintiff’s injury was contributed to by the transport accident. Secondly, the injury resulting from the transport accident had not resolved. Thirdly, a reduction in the plaintiff’s weight would reduce the level of his pain and disablement, but would not eliminate the transport accident as being a continuing cause of that pain and disablement.
45 Similarly, counsel for the defendant referred to observations made by Mr Kierce concerning the role played by the plaintiff’s obesity in the level of pain and disablement complained about by the plaintiff. Mr Kierce accepted that the plaintiff’s injury was contributed to by the transport accident, and he considered that his prognosis for the right knee would be improved significantly if the plaintiff lost weight.
46 Counsel for the plaintiff was very critical of Dr Boys’ opinion. Initially, Dr Boys concurred with Mr Owen’s opinion that the plaintiff was experiencing symptoms associated with degeneration of his right patellofemoral joint. Dr Boys considered the injury to be a soft-tissue injury of the right knee, comprising an aggravation of retropatellar degeneration. In answer to a specific question which was put to him, Dr Boys concluded that the plaintiff’s complaints of pain and disablement were due to strain placed upon the degenerative patellofemoral joint by his obesity.
47 Counsel for the plaintiff submitted that I should reject Dr Boys’ conclusion because the plaintiff’s right knee was asymptomatic. It became symptomatic as a result of the transport accident and has remained symptomatic. Counsel submitted that for some unknown and unexplained reason, and at some unexplained point, Dr Boys contends that the cause of the plaintiff’s pain and disablement is now a constitutional condition. I think there is merit in that submission.
48 I accept the plaintiff’s evidence that the transport accident occurred in the way described by him. It is clear that he required immediate treatment which was provided to him at the Northern Hospital. This was treatment consistent with the plaintiff having suffered an injury to his right knee, and the injury ultimately diagnosed by Mr Owen.
49 Following the plaintiff’s discharge from the Northern Hospital, he was treated by Dr Kurnaz, Mr Harper, physiotherapist, and Mr Owen. It occurs to me that the plaintiff gave consistent histories of the occurrence of the injury and the persistence of symptoms of the injury to each of them. It also occurs to me that he did the same when he was examined on a medico-legal basis by Mr Kierce, Dr Sillcock, Dr Middleton and Dr Boys. There are some aspects of what the plaintiff complained about which might be inconsistent with other evidence, and to the extent that any of those are material to my consideration of this application, I will deal with them later in these reasons.
50 The evidence of Mr Owen and Mr Kierce is that the plaintiff’s injury was caused by the transport accident. This is despite the plaintiff’s obesity and its role in the persistence of his pain and disablement. The relevance of the plaintiff’s obesity is that he would probably experience a reduction in the levels of pain and disablement if he reduced his weight substantially.
51 I do not accept Dr Boys’ opinion. It is a well-accepted trite principle that the tortfeasor must take his victim as he finds him. Both counsel accepted that this principle has application in a serious injury application. Therefore, on the basis of the finding which I have already made – that the plaintiff was obese before the transport accident occurred – then that is the position which the defendant must accept. Moreover, if that pre-existing “condition” has made the injury worse than it would for someone who is not obese, then that is not to the point.
52 Furthermore, I am satisfied that the plaintiff’s obesity is something which he has had serious difficulty controlling. Despite his reduction in weight at one time, and his resort to consultations with the Wells Clinic to procure medication to assist in weight reduction, all of those efforts failed, which resulted in him returning to a consistent pre-transport accident weight at the time of the hearing of this application.
The Plaintiff’s consequences
The Plaintiff’s case
53 Counsel for the plaintiff submitted that I should accept all of the plaintiff’s consequences, summarised above, without question. There are many which I accept are consequences that constitute losses suffered by the plaintiff, but there are others which I think are questionable.
54 The plaintiff’s wife, Arzu Akpinar, swore an affidavit on 15 March 2016 in which she confirms the plaintiff’s evidence regarding the presence of knee pain; reduction in the range of movement; difficulty sitting; difficulties going for walks; difficulties playing with his children; interference with his capacity for work, and the use of medication.
The Defendant’s case
55 Counsel for the defendant submitted that I should not accept the plaintiff’s evidence at face value. In general terms, counsel submitted that, firstly, the plaintiff is not a creditworthy nor reliable witness, and, secondly, I should not accept that he has suffered the consequences he contends for, or to the extent that he contends for.
56 In summary, I think there is merit in a number of the submissions made by counsel for the defendant. The following are submissions which I think are of significance which I accept:
· The plaintiff did not suffer an increase in his weight due to the injury to his right knee.
· The plaintiff has had a modest level of medical treatment demonstrated by his failure to seek follow-up treatment at the Northern Hospital; modest additional physiotherapy treatment; a failure to see Mr Owen when he received the first referral, and significant delay in ultimately seeing Mr Owen and anyone else for treatment.
· The plaintiff’s use of medication is likely to be limited to Nurofen. He has had very few prescriptions for Panadeine Forte. It would appear that it was after being confronted with medical records demonstrating that he has had so few prescriptions for Panadeine Forte, that he said that his source of it is his wife. The plaintiff said nothing of that sort in his affidavits, nor did his wife.
· It is likely that the function of the plaintiff’s right knee has improved over time because Mr Kierce found 2 centimetres of wasting after he first examined the plaintiff. The wasting was not apparent when he examined the plaintiff for a second time.
· The plaintiff denied that he engaged in any of the tasks involved in concreting when he returned to work for six months after the transport accident. However, he told Mr Kierce that he returned to that work and undertook the tasks of screeding, boxing up and carrying mesh, but not the tasks of smoothing out concrete or carrying heavy mesh. This is clearly inconsistent with his evidence that he has always been significantly incapacitated for work as a concreter.
· The plaintiff said that he has suffered significant interference with his sleep pattern. Dr Serry, psychiatrist, examined the plaintiff on 27 November 2012. The plaintiff told Dr Serry that his “sleep is maintained” which I take to mean that he did not suffer any interference with his sleep. This is clearly inconsistent with his evidence.
· The plaintiff’s reference to interference with soccer left me with the impression that it was a significant recreational pursuit. Under cross-examination, he said that he played soccer with eight to nine friends about once a fortnight at a soccer field in Broadmeadows. He has not been a member of a formal soccer team.
· The plaintiff’s reference to going hunting left me with the impression that it was also a significant recreational pursuit. Under cross-examination, he said that he does not own a rifle, and when he went with a friend about once every three weeks, he would “tag along”. The plaintiff said he and his friend hunted for rabbits; however, in his first affidavit, he described the hunting quite differently as being for both rabbits and “deer”, and with “friends” not with a “friend”.
· Implicit in the submissions was a caution that if the plaintiff has only had the medical treatment which I have summarised, then it suggests that he has not needed medical treatment and that I can infer that the knee injury cannot be as painful and disabling as contended for by the plaintiff. The plaintiff has described a very significant interference with the function of his knee – of an inability to bend his knee; loss of strength; an inability to walk more than 100 meters without an increase in pain; walking up and down stairs and on uneven ground, and even sitting is a problem for him if his knee is bent. Mr Owen accepted that the plaintiff’s activities would be limited where an activity involves squatting, kneeling and/or climbing up and down stairs. Mr Kierce accepted that the plaintiff was no longer fit to work as a concreter, to go hunting, play soccer or engage in tae kwon do, and that he was permanently incapacitated in engaging in any activity involving running. It seems to me that those opinions do not suggest that the plaintiff is therefore unable to engage in levels of activity. They do not suggest that he cannot for example walk and sit, and otherwise engage in other reasonable aspects of general mobility.
· The plaintiff claimed that he worked six days a week, between 10 and 12 hours per day, earning $200 per day. His taxation return for the year ending 30 June 2010 shows that he earned $26,029. Under cross-examination, his explanation for the modest income was that inclement weather and sickness saw him being unable to work much more than half a year. I find it difficult to accept that there was so much inclement weather in that year. I also find it hard to accept his explanation of how often he was ill and how long he was off through illness, and that this put him out of work for long periods of time.
· Implicit in the submissions regarding the plaintiff’s capacity for work was that I should draw an inference that, having regard to the limitations placed upon the plaintiff’s capacity to function generally together with his medical treatment, he can work as an estimator in excess of the hours he is presently working. This is because the work of an estimator is absent most of the physically provocative movements which the likes of Mr Owen and Mr Kierce say the plaintiff should avoid.
· The plaintiff did not obtain an affidavit from his brother-in-law or any other person with knowledge of his working affairs to verify that he was working six days a week doing the hours he described, and earning the income described. Counsel for the defendant submitted that I should draw an adverse inference based upon Jones v Dunkel[6] against the plaintiff. I will return to that submission later, because it also figures in a separate submission regarding the failure of the plaintiff to obtain a medical report from two medical practitioners and a dietician, along with evidence from his wife regarding the source of his Panadeine Forte.
· The plaintiff was referred to Mr Altuntas, orthopaedic surgeon; Mr Winett, who I understand to be a general surgeon who undertakes stomach banding surgery, and Ms Koufariotis, who I understand is a dietician. The plaintiff was referred to each of them by Dr Kurnaz in 2014. No medical reports were obtained from any of these practitioners.
[6](1959) 101 CLR 298
57 Both counsel appeared to accept that the Jones v Dunkel thesis involves the following when applied to the plaintiff’s failure to obtain the evidence referred to above:
· Firstly, are the relevant witnesses in the plaintiff’s camp?
· Secondly, has the failure to obtain evidence from those witnesses been explained?
· Thirdly, I cannot speculate as to what evidence those witnesses might have given?
· Fourthly, I may infer that the evidence of those witnesses would not have assisted the plaintiff.
· Fifthly, I may draw, with more confidence, any inference unfavourable to the plaintiff.[7]
[7]Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 384-385 paragraph [63]
58 I will firstly deal with the submission relevant to Mr Altuntas, Mr Winett and Ms Koufariotis.
59 In relation to Mr Altuntas, there is no doubt that he is in the plaintiff’s camp and that the plaintiff’s failure to obtain a report from him is unexplained. I will not speculate about what he might have said in a report, but I do infer that his evidence would not have assisted the plaintiff. Counsel for the defendant submitted that the inference unfavourable to the plaintiff amounts to more confidently accepting the opinion of Dr Boys. The difficulty with drawing such an inference is that there is other evidence from Mr Owen and Mr Kierce on the issue that the transport accident continues to be a cause of the plaintiff’s injury. It might be different if the evidence on causation was less persuasive than the evidence of Mr Owen and Mr Kierce, or was equivocal on that critical question; however, in the absence of his opinion, the inference unfavourable to the plaintiff which I do draw is in relation to the extent to which the knee injury continues to cause the plaintiff the pain and disablement contended for by the plaintiff, and which in turn interferes with his capacity to function.
60 As far as Mr Winett and Ms Koufariotis are concerned, their evidence goes to a different issue altogether. In the course of the cross-examination of the plaintiff and in submissions, I was left with the impression that the plaintiff was referred to each of them to deal with the his obesity, and not whether the transport accident was a cause of his knee injury.
61 I do draw an inference unfavourable to the plaintiff with respect to his brother-in-law, who could have given evidence of the work which the plaintiff undertook as a concreter before the occurrence the transport accident; the work he undertook after he returned to work as a concreter; the hours he worked and the income he earned as a concreter; whether the income he earned in the year ending 30 June 2010 was consistent with the hours the plaintiff says he worked; whether the reduced working year was as a result of inclement weather and sickness, or whether it was due to some other reason.
62 The inference unfavourable to the plaintiff is consistent with the cross-examination conducted of him. That is, the plaintiff’s explanation for his lower earnings in that financial year was not due to inclement weather and sickness, but because he did not work the hours he alleges and earned the income he alleges.
63 Lastly, on the Jones v Dunkel issue is the failure of the plaintiff to refer to the source of the Panadeine Forte in his affidavits, and the absence of any reference by his wife to being the source of the Panadeine Forte which he says he now takes. This was stressed as an important issue in the plaintiff’s case, because it was heavily relied on as a measurement of the degree of pain he is suffering. I draw an inference unfavourable to the plaintiff, and conclude that his resort to medication was mostly Nurofen, and is unlikely to have included Panadeine Forte.
Conclusions
64 The question of whether impairment consequences are “serious” or not is answered by determining what the plaintiff has lost, but what has been lost can be informed by what has been retained.
65 I am not satisfied that the consequences contended for by the plaintiff are “serious”. In summary:
· The extent of the medical treatment the plaintiff has obtained appears to me to be relatively modest and inconsistent with a significant knee injury producing significant impairment consequences.
· I do not accept the plaintiff’s evidence that his Panadeine Forte has been anywhere as near as significant or frequent as he contends for.
· I have real doubts about the extent to which the plaintiff was working as a concreter before the occurrence of the transport accident, and whether he returned to concreting or only estimating work.
· I do not accept many of the consequences contended for by the plaintiff, for example the significant level of his loss of function. This is because, for example, Mr Owen and Mr Kierce, nor any other medical practitioner for that matter, described the plaintiff as being so very seriously disabled.
· Additionally, to the last point, there is no evidence that the provocative physical movements mean he could not function at a reasonable level, for example working greater hours, if not full-time hours, as an estimator which appears to be largely sedentary work.
· The absence of evidence from Mr Altuntas, the plaintiff’s brother-in-law, and the plaintiff’s wife, on each of the issues I have analysed above, and the unfavourable inference flowing from the failure to obtain evidence from them.
· Lastly, the extent to which I have identified exaggeration on the part of the plaintiff, and a lack of evidence which could have verified what he says about such things as his work and his use of medication, have made me cautious in accepting important aspects of the plaintiff’s evidence.
66 Whilst I am satisfied that the plaintiff has suffered a knee injury which has caused him a level of pain and disablement, I am not satisfied that the pain and disablement have caused the consequences which he contends for, or to the extent which he contends for. Applying the relevant matters of reasoning of fact, degree and value judgement, I am not satisfied that the plaintiff’s impairment consequences are “serious” when judged against like impairments.
67 Therefore, I order that the plaintiff’s Originating Motion be dismissed.
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