Alizada v VWA
[2019] VCC 2110
•18 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-05477
| ALI DOST ALIZADA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 & 24 October 2019 | |
DATE OF JUDGMENT: | 18 December 2019 | |
CASE MAY BE CITED AS: | Alizada v VWA | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2110 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – s325 and s335 – application in respect of both loss of earning capacity and pain and suffering – reliance upon paragraph (a) of the definition – injury to the right knee and lower limb – earning capacity of the plaintiff – quantum of post-injury earnings – whether capacity exists to work longer hours – reliability of supporting documents – whether statutory test satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr D O’Brien | Zaparas Lawyers |
| For the Defendant | Mr E Makowski | Thomson Geer Lawyers |
HIS HONOUR:
(a) General background
1 This matter comes before me by way of an application pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013, (hereinafter referred to as “the Act”). The plaintiff seeks leave to bring proceedings in respect of both loss of earning capacity and pain and suffering. In so doing, he relies upon paragraph (a) of the definition of “serious injury” contained in s325 of the Act. The injury relied upon is one to the right knee and right lower limb generally, and shall hereinafter be referred to as “the injury”. The injury occurred on 18 August 2016. At that time, the plaintiff was employed as a tiler by Ultraline Tiling Group Pty Ltd, hereinafter referred to as “Ultraline”. The plaintiff suffered the injury when he fell from a ladder whilst installing tiles. That shall hereinafter be referred to as “the accident”. For the purposes of the present application, the occurrence of the accident is admitted. The plaintiff’s claim for statutory benefits was accepted. There is also no issue as to employment. In relation to these matters, I would refer to Transcript (hereinafter referred as “T”) 12.
2 Mr J Richards QC with Mr D O’Brien of counsel appeared on behalf of the plaintiff. Mr E Makowski of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct. The balance of the evidence, including surveillance material, was documentary in nature and was tendered either by consent or without objection. Further, the plaintiff gave evidence through an interpreter. I accept that he has very little English.
(b) Factual background
(i)The plaintiff’s background, education, training and employment prior to the injury
3 The plaintiff is aged 39 years, he having been born in 1979. He is a married man with three children. He came to Australia as a refugee from Afghanistan in 2011, initially spending five months in this country in a refugee camp. It would seem that, in Afghanistan, the plaintiff was a member of the persecuted minority of Hazara – see, for example, the report of Dr Hillol Das, psychiatrist, who examined the plaintiff at the request of the defendant. I accept that, as described by the plaintiff, there is quite a closely knit community of people from that region who live in close proximity to the plaintiff in the outer eastern suburbs of Melbourne.
4 In Afghanistan, the plaintiff was a farmer. He had no education at all. The only education which he has had subsequently consists of some English lessons during the five months that he was in a detention centre.
5 Initially, the plaintiff performed work as a tiler in Sydney for approximately two years before moving to Melbourne. In Melbourne, the plaintiff worked essentially as a tiler. As stated, I gather that the refugees from the particular part of Afghanistan from which the plaintiff comes have formed quite a strong community here, a community which has many members who work as tilers or in the tiling industry. I would refer, for example, to T44, 48 and 59. It is also quite apparent that the community endeavours to support its members including advancing loans and providing financial support.
6 The plaintiff had been working for Ultraline for only approximately four days when the accident occurred. The plaintiff had his own ABN, which he provided to employers. As stated, for the purposes of the present application there is no argument but that the plaintiff was an employee and a worker within the meaning of the Act at the time of the occurrence of the accident.
(ii) The plaintiff as a witness
7 I accept the plaintiff as a witness of truth. I accept the submission of Mr Richards that, in giving his evidence, the plaintiff was being honest and forthright. I note that Dr Joseph Slesenger, specialist occupational physician, examining the plaintiff at the request of the defendant, described him as giving a clear and consistent account of his injuries. Dr Slesenger also pointed out that the plaintiff cannot read or write, his English language skills are poor, and he has no computer skills. Mr Russell Miller, orthopaedic surgeon, examining the plaintiff at the request of his solicitors, referred to him as being cooperative and a clear and straightforward historian. Dr John Owen, orthopaedic surgeon, examining the plaintiff at the request of the defendant, observed that he did not detect any attempt by the plaintiff to exaggerate his condition. The plaintiff came across as “a pretty straightforward individual”. I agree with these observations.
8 Surveillance videos were shown. In my opinion, these did not damage the plaintiff’s credit. Surveillance videos taken in September and November 2018 were forwarded by the defendant to Dr Owen. It is to be remembered that Dr Owen was examining the plaintiff at the defendant’s request. In his report of 4 March 2019, Dr Owen noted that none of the videos showed the plaintiff to be kneeling or doing tiling, matters which the plaintiff had informed Dr Owen constituted his problem. The overall conclusion of Dr Owen was that “I do not think that the video footage is very helpful”. I agree entirely with Dr Owen. There is more recent video surveillance which Dr Owen does not appear to have seen. In my opinion, there is nothing in that footage which contradicts the plaintiff’s description of his activities in any major way, if at all. Certainly, in surveillance material taken in August and September of this year, the plaintiff, upon occasions, appeared to me to be limping slightly and, on one occasion, exhibiting a definite limp. The bottom line is that I am not of the view that the video material has damaged the plaintiff’s credit.
9 As stated, I accept the plaintiff as a witness of truth who did his best to give accurate and honest answers.
(iii) The state of the plaintiff’s health prior to the accident
10 The plaintiff has a lengthy history of suffering from tuberculosis. There was no challenge to the proposition that this condition is managed with medical assistance and medication and has not prevented him from working or engaging in activities of daily living. He has a scar over his left pretibial area, but this relates to a fall many years ago. There was no suggestion that this fall plays any part in his current presentation. I accept that he had no pre‑existing medical conditions of any magnitude which interfered with his ability to work or engage in normal everyday activities.
(iv) The injury, its treatment and diagnosis
11 As stated, the injury occurred on 18 August 2016, when the plaintiff fell from a ladder whilst installing a tile on the top of a wall. He suffered immediate pain in the right knee. His manager transported him to the Dandenong Hospital, where he was seen in the Emergency Department. An appropriate history was taken. There is a reference in the report from that entity of an x‑ray showing a small fracture of the lateral aspect of the patella, although the earliest radiological report tendered is dated 26 August 2016. In it, there is reference to vertical linear lucency through the lateral aspect of the patella, which was likely to represent an acute patellar fracture. The radiologist also made the comment that congenital patellar abnormality was not excluded. A further assessment by way of MRI was recommended.
12 On 24 September 2016, an MRI was performed. The conclusion of the radiologist was that the pattern of bone marrow oedema suggested potential direct contusion from the anterior lateral aspect of the knee. The focus of full-thickness cartilage and sub-chondral abnormality of the far posterior femoral condyle was likely chronic. Inferior surface tear of the posterior horn of the medial meniscus of uncertain age was noted, as was local inflammatory change of the joint margin and along the pes anserinus.
13 There is a considerably later MRI, and, whilst it is not entirely clear, it appears to have been performed on 9 April 2019. The conclusion of the radiologist was that the MRI had revealed a “Complex tear posterior horn medial meniscus and associated small parameniscal cyst”. There was also reference to minor medial osteophytic spurring, along with “Small free edge radial tear body lateral meniscus”. In addition, there is “Delaminating tear hyaline articular cartilage posterior lateral femoral condyle. Bipartite patella. Minor fissuring patellar and trochlear hyaline cartilage as described.” There is also a reference to a ganglia.
14 Returning to the course of treatment, the plaintiff had seen Dr Hill on 8 August 2016. An appropriate history was taken. Dr Hill noted on 26 January 2017 that a letter from a physiotherapist at Monash Health stated that the plaintiff was progressing slowly from a posterior horn medial meniscus tear. Dr Hill also noted that the plaintiff had commenced modified duties on 22 February 2017, as noted on his certificates of incapacity. Dr Hill diagnosed a right knee medial meniscus tear, stating that the plaintiff was fit for alternative duties that avoided kneeling and heavy lifting and with rest breaks as specified on the certificates of capacity. At that time, he was optimistic of a full recovery.
15 A report from Mr Sejin An, musculoskeletal physiotherapist, dated 4 August 2017 was also put in evidence. The plaintiff had originally presented on 15 February of that year. As at the date of his initial attendance, the plaintiff had not worked since the accident. The physiotherapy management at the time consisted of a daily home exercise program and an on-site strengthening exercise program. Mr An reported that the plaintiff made slow but steady progress over the next four months. By the end of May 2017, for the first time he was able to stand from a sitting position without arm support. He went overseas to visit his family at the end of June 2017, and, as at the date of the report, had not returned to Mr An’s clinic. Mr An referred to the plaintiff as having experienced patellofemoral pain syndrome that may have been triggered by the accident, but which had also developed over time due to repetitive kneeling and squatting. Physical deconditioning due to misuse of the limb had occurred. This may have resulted from inadequate management during the initial stages of the plaintiff’s recovery, but also because of fear, avoidance and disuse. Efforts had been made to encourage him to use and strengthen his right lower leg through education and exercise, but the plaintiff was reluctant to use the leg due to the onset of pain and the fear of aggravating his symptoms. Mr An thought that the plaintiff did not have the capacity to perform pre‑injury duties, but may have been able to perform alternative duties which did not involve squatting and kneeling. Walking and standing should be limited to 30 minutes before having a break. The plaintiff required ongoing care to continue with his rehabilitation program and had a good chance of making further progress with the right management, although he may continue to experience some intermittent knee pain.
16 The plaintiff had also been seen for medico-legal purposes. At the request of his solicitors, he was seen by Mr Russell Miller, orthopaedic surgeon, who reported on 17 August 2018. Mr Miller took an appropriate history. He noted that the plaintiff’s work as a tiler had been quite physical, involving kneeling, squatting, twisting, turning and climbing. The plaintiff had coped with such duties without any difficulties and stated that he had enjoyed his work. He described the accident and the pain, swelling and discomfort in the right knee which followed. He was off work for over 12 months following the accident. An unsuccessful attempt at return to work had occurred in December 2017. The plaintiff was currently not working. He described the aching, discomfort and pain in the knee which he was experiencing. He had difficulty with prolonged standing and walking, kneeling and squatting. His symptoms fluctuated. Mr Miller also referred to problems with anxiety, depression and the probable development of chronic pain syndrome. However, he stated that an additional assessment by a psychiatrist would be required in this regard. The plaintiff was performing a self-administered exercise program and was using a soft knee brace. He had suffered no prior relevant problems.
17 The diagnosis of Mr Miller was that the plaintiff had suffered a knee injury with a bone contusion. It is likely that “there was previously asymptomatic bipartite patellar”. This was likely to have been aggravated by the accident. The plaintiff had also suffered an injury to the patello-femoral joint with the development of chrondo pathology. Mr Miller referred to the likely development of a chronic pain syndrome. He considered the prognosis for the knee to be only fair. Whilst it was likely that there was the pre‑existing development of problems with the knee, the condition had been aggravated by the accident and further injury to the knee, involving the patello-femoral joint, had occurred. Mr Miller regarded the current clinical status of the right knee as being substantially accident related. He raised the possibility of surgical intervention with arthroscopic assessment and stabilisation of the bipartite patellar, but noted that no such recommendation had been made to date. The plaintiff would require ongoing conservative treatment. The requirement for treatment was substantially work related. Mr Miller considered that the plaintiff would have difficulty returning to work as a tiler on any significant full time or part time basis. Given the plaintiff’s lack of education and limited English language skills, a return to work would be difficult to achieve. Mr Miller considered the plaintiff’s restrictions to be permanent and to be substantially work related. His injuries had stabilised. In relation to the plaintiff’s lifestyle, he had difficulty driving or walking long distances. The plaintiff struggled with heavier domestic and gardening duties and was assisted by his wife. However, Mr Miller thought that there was only a minor reduction in his capacity for such tasks as a result of ongoing right knee problems. He noted that the plaintiff also had some reduction in his capacity for physical, leisure and recreational activities as a result of right knee problems.
18 Dr Dominic Yong, specialist occupational physician, saw the plaintiff at the request of his solicitors, reporting on 28 August 2018. Dr Yong took a detailed history, also noting that the plaintiff had suffered from some depression and anxiety. He had seen a psychologist on a fortnightly basis, having had approximately 10 sessions, but had last seen such psychologist some six months previously. The plaintiff complained of right knee pain which persisted all the time and had been unchanged since the occurrence of the fall. He also referred to sounds emanating from the knee and the fact that the pain was worse in cold weather. He was taking two to three Panadol tablets on a daily basis. Dr Yong also referred to the radiology.
19 In relation to his occupational history, the plaintiff told Dr Yong that, approximately a year after the injury, he asked some of his friends for work. He would do duties such as cleaning, sweeping and picking up rubbish and worked between 20 and 25 hours per week, spread over three days. However, he struggled with these duties and, after a few months, ceased. He thought that he had last worked in early 2018 or late 2017. He could talk a little English, but cannot read it and could write only his name. He had no computer skills. He struggled with household tasks and was not engaging in hobbies and sporting activities. In addition, he was no longer socialising with friends or playing with his children. He was independent in relation to activities of daily living, although he was unable to squat, kneel and had trouble with stairs. Having carried out a detailed examination, Dr Yong diagnosed a right knee soft tissue injury with dysfunction and deconditioning. He expressed the view that the plaintiff’s employment had been a significant contributing factor to the onset of the right knee condition and was unaware of any pre‑existing problem. In relation to any psychological comorbidity, if same existed, Dr Yong left it to one side for the purposes of his opinion.
20 Dr Yong placed a number of restrictions upon the tasks which the plaintiff could perform. These restrictions involved the avoidance of prolonged standing, walking and climbing; the avoidance of working on uneven surfaces, along with squatting and kneeling tasks and repeated firm pushing and pulling tasks; the plaintiff should avoid lifting more than 4 kilograms on a repeated basis; and there would be the need for a reduction in working hours. The plaintiff did not have the capacity to work in his pre‑injury employment. In relation to employability, Dr Yong noted that the plaintiff had not attended school at all. He had poor English language and computer skills. He had not been provided with formal vocational retraining services and, as at this time, had not done any meaningful work in the open labour market since the injury. Dr Yong expressed the opinion there was no work for which the plaintiff was currently suited and which he could perform on a reliable and consistent basis. He thought that the plaintiff should do a daily walking program, consider an exercise program in a pool or a gymnasium and continue with his home based exercise program. Dr Yong considered the prognosis to be guarded.
21 Dr Yong assessed the plaintiff again, reporting to his solicitors on 3 April 2019. Since the last review, the plaintiff’s right knee pain was no better, and worse if he did prolonged walking or standing. He was continuing to take painkilling medication. Essentially his symptoms were the same. He continued to have some mood problems, but had not seen a counsellor for some months. He continued to have pain in the right knee, worse in the front. The knee felt weak and gave way occasionally. The plaintiff was taking, on average, 12 Panadol and 12 Nurofen tablets per week, along with a sleeping tablet. The plaintiff was now doing some work. This had been organised by friends. He assisted tilers on job sites, doing tidying work. He was working a maximum of 10 hours per week. On the days that he did work, he used additional painkilling medication. The duties which he could perform included vacuuming, sweeping and picking up empty boxes. He was unable to squat or kneel and avoided twisting and turning. He was also restricted in relation to weight carrying.
22 Dr Yong put various restrictions upon the plaintiff’s activities, and in particular repeated turning and twisting. He also placed a complete restriction on kneeling and squatting and repeated climbing. The plaintiff should also avoid repeated turning and twisting, and was restricted in relation to standing for more than 10 – 15 minutes, walking for more than 30 minutes and sitting for more than one hour. The plaintiff was also restricted to 40 minutes in relation to driving and should be able to vary his posture regularly between sitting and standing. In addition, he should not lift or carry more than 4 to 5 kilograms repeatedly. The doctor had been provided with surveillance activity reports. He noted that the plaintiff had described the work that he was doing in his occupational history and that there was no reported viewing of tasks in excess of self-reported tolerances.
23 Dr Yong placed a number of restrictions upon any work to be performed by the plaintiff and these were consistent with the matters that have been listed previously. He considered that the plaintiff did not have a capacity to work in his pre‑injury employment as a tiler. Bearing a number of matters in mind, including the condition of the plaintiff’s right knee, his educational background and the like, Dr Yong stated that the plaintiff did have limitations in relation to undertaking suitable employment. He thought it unlikely that the plaintiff would increase his weekly working hours beyond a maximum of 10 per week. If he were to work more hours, it is likely that he would have further flare ups of pain and that this would impact upon his ability to work on a reliable and consistent basis. Dr Yong also believed that the core of the plaintiff’s disability, symptoms and the like related to organic factors. He thought that the plaintiff would be unable to return to tiling work in the foreseeable future and was unable to engage in his hobbies or do his domestic tasks.
24 Dr Yong provided a supplementary medical report dated 11 October 2019. He does not appear to have seen the plaintiff again, although he was provided with the plaintiff’s further affidavit of 10 October 2019. He was also provided with a number of medical reports, including that of Mr Siva Chandrasekaran of 8 April 2019; Dr Joseph Slesenger of 5 August 2019 and 19 September 2019; and Mr John Owen of 24 September 2019. He was also provided with the MRI scan of 9 April 2019. A report of psychiatrist, Dr Hillol Das, of 1 April 2019 was also forwarded, Dr Das having reached the conclusion that no psychiatric condition was diagnosed. The other reports referred to shall be discussed subsequently.
25 In essence, Dr Yong stated that he had not been provided with any new clinical information which would cause him to change the opinion which he had previously expressed. He continued to be of the view that the plaintiff had a capacity to work in alternative or suitable employment. However, the 15 hours per week which the plaintiff appeared to be working was his maximum level. There were clinical radiological features which suggested a substantial organic basis for the plaintiff’s complaints of pain and residual disability of the right knee.
26 Mr Siva Chandrasekaran, orthopaedic surgeon, saw the plaintiff at the request of his solicitors, reporting on 8 April 2019. The plaintiff told Mr Chandrasekaran that he was currently not working, although he had attempted a return to work. He complained of constant pain in the right knee, this being exacerbated by sitting and walking. It was associated with daily sleep disturbance. There were problems with kneeling and squatting, and the plaintiff described the knee as being unstable. He also had some problems with anxiety and depression. He complained of various interferences with driving, walking, domestic duties, leisure activities and the like. Upon examination, Mr Chandrasekaran noted that there was wasting of the right quadriceps muscle, with reduced girth at 1.5 centimetres compared to the left. The diagnosis of Mr Chandrasekaran was right knee patellofemoral chondral injury, exacerbation of medial meniscus tear and local inflammatory change of the joint margin and the pes anserinus. He implicated the specific incident of injury. He listed a considerable number of things with which the plaintiff had difficulty, also commenting that there was a reduced range of motion of the left knee.
27 In relation to work, Mr Chandrasekaran stated that the plaintiff would have permanent work restrictions, which included no bending, kneeling, or squatting of the knee, along with no climbing of ladders or stairs. He also stated that there should be no lifting and that the plaintiff’s driving was restricted to a maximum of 30 minutes, with walking being restricted to 45 minutes. He considered the plaintiff not to be fit for his pre‑injury employment as a tiler. The plaintiff could not mobilise ladders. He could not bend, squat or kneel as this would cause significant pain in his knee. Because of his limited educational capacity, the plaintiff would only be suited to labour-intensive work. There would be difficulty in providing sedentary type of employment. He considered the plaintiff to be not suited for any type of work and thought that he may require significant retraining, including English language courses. He considered that there was an organic basis for the plaintiff’s right knee pain. He was of the view that the plaintiff’s disability and symptoms stemmed from organic factors, although the chronic pain had caused some psychological factors best evaluated by others.
28 Mr Chandrasekaran provided a supplementary report of 11 October 2019. It would not appear that he saw the plaintiff again. He did review the MRI report of April 2019. This did not cause him to alter the opinion which he had previously expressed. He stated that the plaintiff had meniscal tears and chondral damage of the right knee associated with the development of arthritis. He was again of the view that the plaintiff would not be able to work as a tiler. He thought that the plaintiff may be able to perform desk-based duties or duties which had many restrictions involved. These included bending, lifting, squatting, kneeling, mobilising up or down stairs and prolonged standing of more than 15 minutes. He thought that the plaintiff may initially be able to work two to three days a week, four hours a day, but that would then have to be reassessed according to his pain threshold. He was also of the view that the plaintiff’s injuries had stabilised. It was his opinion that there was an organic basis for the pain and residual disability.
29 The defendant has also had the plaintiff examined for medico-legal purposes. Mr Barclay Reid, general surgeon, saw the plaintiff at the request of the defendant, reporting on 19 April 2017. The plaintiff was not working at the time. The plaintiff was taking Panadol two or three nights per week and was having physiotherapy twice per week. Mr Reid does not appear to have had any radiology results available to him. However, Mr Reid has referred to x‑rays showing a bipartite patellar, which is a congenital condition. In any event, Mr Reid stated that the plaintiff’s work-related condition had resolved and he could return to work in his pre‑injury duties and hours. This could be done immediately. In the opinion of Mr Reid, the plaintiff had recovered completely. Interestingly, he also commented that the plaintiff was able to understand English well.
30 Mr Reid reported again on 5 October 2018, having seen the plaintiff on 1 October. On this occasion, Mr Reid said that he had the advantage of the actual x‑ray and MRI reports. He regarded them as not conclusive. He did express the view that there was no doubt but that there had been some direct trauma to the patella. The plaintiff was complaining of continuous pain in the right knee, with daily fluctuations. He was not working. On this occasion, Mr Reid stated that the MRI report indicated that the plaintiff almost certainly had a linear fracture of the lateral half of the patella, which had healed. The diagnosis of Mr Reid was that the plaintiff had suffered such a linear fracture, which was undisplaced and which had healed. He did not think that further treatment was required. He also thought that the plaintiff had the capacity to engage in his pre‑injury employment duties, commencing with modified duties, but progressing within three to four weeks. There was no permanent incapacity.
31 Dr David Fish, consultant occupational and environmental physician, saw the plaintiff at the request of the defendant on 21 November 2017. He also appears to have not had the benefit of radiological investigations, although, having stated that there were no results of MRI scans or x‑ray available, he went on to comment that he had examined an x‑ray. In any event, he presumed that the plaintiff had suffered either chondromalacia patella or medial meniscus tear. He noted that the plaintiff had crepitus and recurrent swelling. The centre of attention in his report appears to have been assessment pursuant to the AMI Guides.
32 Dr John Owen, consultant orthopaedic surgeon, reported to the defendant’s solicitors on 4 March 2019. The plaintiff informed Dr Owen that his right knee was painful if he stood or sat for too long and hurt him in cold weather. He went on to say that his right knee remains painful, also referring to the fact that he cannot squat or kneel. In addition, the knee has given way and has hurt him at night time. He had obtained some medication to assist with sleep. Again, Dr Owen does not seem to have been provided with any radiological material. However, he had been forwarded the report of Mr Reid of 5 October 2018, in which there are comments concerning findings on MRI. The conclusion reached by Dr Owen was that there was pathology within the knee joint and the most likely cause of it was the patellofemoral joint. Whilst he had not been sent radiological material, he had been forwarded surveillance film. His comment in this regard was that he noted that on none of the videos was the plaintiff shown to be kneeling or tiling.
33 Dr Owen went on to say that his examination showed that the plaintiff had ongoing issues in his knee. Clinically, he had some laxity suggesting anterior cruciate pathology. Dr Owen also made the observation that it was unlikely that there would be a surgical remedy to the plaintiff’s problem. He anticipated slow progression of the problem. He believed that the accident was likely to have been an impact injury to the joint causing an aggravation or acceleration of the pathology. Strengthening of the knee was required, with the possibility of intra-articular treatment.
34 Returning to a topic previously mentioned, Dr Owen expressed the opinion that the surveillance footage was not relevant. It did not show the plaintiff kneeling. It showed him walking around doing the job which he was attempting, this being industrial cleaning. He observed that the plaintiff had received very little training, had very limited options and would need assistance in relation to retraining. Dr Owen also stated that the plaintiff cannot play soccer with his children and is obviously limited in the amount of things he could do to assist his wife. He repeated that he did not think the video footage was very helpful. Further, the symptoms complained of by the plaintiff were quite consistent with the type of damage that had been done. Dr Owen also stated that the plaintiff had some fluid on the knee, which meant that the problem within it was still active and causing problems.
35 Dr Owen provided a supplementary medico-legal report on 24 September 2019. He had been sent some additional information, including three sets of imaging of the plaintiff’s right knee. It would not appear that he saw the plaintiff again. Dr Owen expressed the view that the plaintiff had injured his knee in the fall. It was a direct contusion to his knee, without any major intra-articular damage to the patella, patellofemoral joint or the cruciate ligaments. There had been resolution of the oedema in his knee. However, Dr Owen went on to observe that “radiologists do not have quite the same sensitivity of anatomical variations that orthopaedic surgeons have in regard to the morphology of the patellofemoral joint”. Such morphology is helpful in predicting the long term outcome of patellofemoral joint problems and, if a patient is having problems kneeling, it is usually a patellofemoral joint problem. Dr Owen also thought that there was a suggestion of an infra-articular pathology that may be referrable to the meniscus causing the plaintiff’s ongoing problems. He referred to the fact that there are obvious changes in the back of the medial compartment of the knee that were evident on the first MRI and reported as being worse on the second.
36 Dr Owen was asked to describe the nature of any injuries or conditions affecting the plaintiff. He stated that it was his view that the plaintiff had a contusion to the right knee in the fall and direct contusions to articular cartilage are known to cause long term trouble and are very hard to detect. He thought it reasonable to conclude that the fall did cause some damage to the knee and materially contributed to the plaintiff’s current disability. Dr Owen thought that the short term prognosis remained much the same, it being unlikely that arthroscopic surgery of the torn meniscus would nullify the symptoms substantially. There was a low probability that the knee could deteriorate over a long period of time. His overall conclusion was that the plaintiff’s problem was a “grumbling one” related to the fall and explained to some extent his ongoing problems.
37 Dr Joseph Slesenger, specialist occupational physician, saw the plaintiff at the request of the defendant, reporting on 5 August 2019. Dr Slesenger appears to have obtained a history that the plaintiff was working as a cleaner, performing domestic cleaning tasks for eight hours per day up to two days per week. He noted that the plaintiff cannot read or write, has no computer skills and that his English language skills are poor. Dr Slesenger expressed the view that the plaintiff had sustained a soft tissue injury with chronic right knee pain, now resolved. He was of the view that any impairment had resolved. Dr Slesenger referred to numerous non-organic features.
38 Dr Slesenger provided a supplementary report on 19 September 2019. It would not appear that he saw the plaintiff again. He expressed the view that, based upon the physical right knee impairment alone, the plaintiff had a capacity for pre‑injury duties working as a tiler. He does not require further restrictions as a result of any physical injury.
39 The defendant also organised for the plaintiff to be examined by Dr Hillol Das, psychiatrist, who reported on 1 April 2019. Whilst the plaintiff is not relying upon paragraph (c) of the definition, the report has the potential to be of some relevance in relation to disentanglement of psychological or psychiatric consequences. In any event, the finding of Dr Das was that no conclusive evidence or history suggesting the presence of a psychiatric illness could be diagnosed and no specific psychiatric treatment was indicated.
40 In this matter, I prefer and accept the diagnoses given by the orthopaedic surgeons. The opinion of Dr Hill, the plaintiff’s treating general practitioner, being one of a right knee medial meniscal tear, is also consistent with such opinions. Mr Russell Miller, orthopaedic surgeon, diagnosed the aggravation by the accident of previously asymptomatic bipartite patellar. In Mr Miller’s opinion, the plaintiff had also suffered an injury to the patellofemoral joint with development of chondral pathology. Mr Siva Chandrasekaran, orthopaedic surgeon, diagnosed right knee patellofemoral chondral injury, exacerbation of medial meniscus tear and local inflammatory change. Dr John Owen, orthopaedic surgeon, examining on behalf the defendant, referred to the plaintiff as having suffered a direct contusion to the articular cartilage and considered the accident to be materially contributing to the plaintiff’s current disability. To some extent these diagnoses overlap. As stated, I am of the view that, for an injury such as this, the opinions of orthopaedic surgeons are to be preferred. Perhaps the opinion that best sums up the situation is that contained in the supplementary report of Mr Chandrasekaran of 11 October 2019 in which he states clearly that the plaintiff has meniscal tears and chondral damage to his right knee associated with the development of arthritis. Certainly this is close to the unanimous opinion of the orthopaedic surgeons. It seems to me that the orthopaedic surgeons are in an advantageous position in relation to diagnosis of an injury such as this. I accept their opinions. I might add that such opinions are essentially not inconsistent with the finding of the Medical Board of 26 March 2018 that the plaintiff suffered a chondral injury to the patellofemoral joint of the right knee and medial collateral ligament injury.
41 I am satisfied that the plaintiff suffered no relevant symptoms prior to the occurrence of the accident. In relation to the issue of whether or not the accident caused an aggravation of degenerative change in the knee, and it is certainly suggested that this has occurred, I accept that the plaintiff was asymptomatic prior to the accident and that he was able to carry out quite demanding work prior to it occurring.
42 I am also of the opinion that the consequences of the injury are permanent in that they will persist for the foreseeable future. I note that a Medical Panel assessed the plaintiff and, in reasons published on 26 March 2018, expressed the view that the plaintiff’s medical condition had stabilised and that the degree of impairment of his right knee was permanent. Of course, that is not a finding which is binding upon this Court, but it can be taken into account. Reporting on 17 August 2018, Mr Miller stated that the plaintiff’s injuries had substantially stabilised. Mr Chandrasekaran referred to the plaintiff as having permanent work restrictions. Dr Owen stated that the short term prognosis was that things would remain much the same, and in the long term there was a question as to whether the knee could deteriorate. However, he thought this to be a low probability over a long period of time. Dr Yong, whilst not an orthopaedic surgeon, expressed the view that the plaintiff’s prognosis was guarded, whilst Dr David Fish, examining on behalf of the defendant and apparently specifically in relation to assessment pursuant the AMA Guides, was prepared to make such an assessment on the basis that the degree of impairment was permanent. As stated, I am of the opinion that the plaintiff has established that the consequences of the accident are permanent.
43 Pursuant to s325(2)(h), psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition and not otherwise. In the present case, the plaintiff is not relying upon paragraph (c) and therefore consequences of a psychological or psychiatric nature are not to be taken into account. They shall not be. In any event, I am far from persuaded that such consequences are of any great magnitude, assuming that they exist. The only opinion before me from a psychiatrist is that of Dr Das and, as stated, he could find no conclusive evidence or history to suggest the presence of a psychiatric illness that could be diagnosed or that required treatment. He pointed out that certainly the plaintiff would benefit from counselling services, given his state of worry and stress related to the injury and its implications. However, he did not suggested that there are consequences of a psychological or psychiatric nature. Reference to such consequences does appear elsewhere – see, for instance, reference by Dr Slesenger to non-organic features – but I prefer and accept the opinion of Dr Das, a consultant psychiatrist. I would also point out that Dr Owen, when asked whether there was present any conscious or unconscious exaggeration of symptoms, stated that he could not detect any attempt on the part of the plaintiff to exaggerate his condition and that he came across as “a pretty straightforward individual”.
(v) Other developments since the injury
44 A principal development since the injury, and one which received considerable attention in the conduct of this case, concerns work performed by the plaintiff since the accident. In his affidavit of 31 July 2018, the plaintiff swore that he had returned to work in December 2017, working with a friend who was a tiler. He did only light duties, such as cleaning tasks, because of his knee pain. Attempts at strenuous tiling tasks were a failure. He complained of an increase of right knee pain at the end of each shift and did not know how long he could continue working. In his affidavit of 10 October 2019, he again swore that he had attempted to return to tiling work, but any type of work that involved crouching or kneeling caused a significant increase in pain. He described how he was unable to work as a tiler and how this was a significant loss, as this type of work was his chosen profession and a major source of his income in Australia. He was currently working as a cleaner on different sites, predominantly cleaning up properties after the majority of the tiling work had been completed. He had tried to work up to approximately 25 hours per week, but found it too difficult because of his knee pain and he usually averaged approximately 15 hours a week.
45 The plaintiff was cross-examined at some length about his working activities and income. As stated earlier, I found him to be an honest witness who did his best to answer questions accurately. I shall turn to the issue of the plaintiff’s earning capacity, both before and after the accident, in the ruling that follows. There have been no other developments of particular significance since the accident, leaving to one side such matters as interference with domestic and leisure activities and the like.
Ruling
(a) Loss of earning capacity
46 I am of the opinion that the plaintiff has discharged the burden of proof in relation to loss of earning capacity. I have come to that conclusion for the following reasons.
47 I am quite satisfied that the plaintiff has no capacity to perform his pre‑injury duties. I reject the opinions of Mr Reid and Dr Slesenger. I accept and prefer the evidence of the plaintiff. I accept and prefer the opinions of Mr Miller, Dr Yong, Mr Chandrasekaran and Dr Owen. As earlier stated, I accept the plaintiff as a witness of truth. The opinions of Mr Miller, Dr Yong, Mr Chandrasekaran and Dr Owen seem to me to be logical and properly based upon the examinations and investigations that have been carried out.
48 I turn now to the question of the quantum of the plaintiff’s pre‑injury earnings for the purposes of s325(2)(e) and (f). It is to be remembered that the plaintiff had only worked for Ultraline for approximately four days prior to the accident. The plaintiff’s evidence was that, prior to and at the time of the accident, the usual rate which he charged for his work was $40 per hour. It is to be remembered that the accident occurred on 18 August 2016, which was no great distance into the 2016/17 financial year. The plaintiff’s arrangements with those who employed him seems to have been that he charged at an hourly rate. Whilst this may not have been the usual type of wage structure which is seen, in the present case there is no argument that the plaintiff was an independent contractor or anything other than a worker employed by Ultraline. I would also point out that, in his Worker’s Injury Claim Form, the plaintiff alleged that, with the defendant, it was expected that he would work eight hours per day, six days per week and thus have a 48 hour working week. There is no evidence to contradict this. In the form it is also alleged that his usual pre-tax hourly rate was $40, which is consistent with what has been set out above.
49 By my calculations, even if I allow $40 per hour for a 36 hour working week (and not a 48 hour week) for 48 weeks of the year (bearing in mind that holiday pay was probably not available), this would produce a gross annual income of $69,120. In fact, the plaintiff’s tax return for the financial year ending 30 June 2016 showed a gross annual income of $68,713 – see T10. Expenses were shown as being $15,000. If these were deducted from the figure of $69,120, the result would be annual earnings of $54,120 or $1,127.50 for each of the 48 weeks worked. Without going into arguments concerning the $15,000 by way of expenses, it seems to me to be reasonable to select the figure of $54,120 as most fairly reflecting the plaintiff’s earning capacity, had the injury not occurred, and if the plaintiff was working only 36 hours per week. In the event that it was accepted that the number of working hours per week should be 48, the appropriate figure would be $77,160 after deduction of expenses.
50 I turn now to “after injury” earnings. In this regard, the opinion of Mr Miller expressed on 17 August 2018 that a return to work by the plaintiff would be difficult to achieve has been overtaken by events. The same could be said of the opinion of Dr Yong expressed in his report of 28 August 2018 that the plaintiff had no capacity to work in suitable employment. However, when Dr Yong saw the plaintiff on 3 April 2019, the plaintiff was doing tidying duties at sites where tilers were working. The maximum he would work was 10 hours per week, with his right knee becoming worse if he attempted longer hours. It should be said that tiling work of this nature is apparently a common form of employment for male members of the community of which the plaintiff is a member. In any event, when seen by Dr Yong on 3 April 2019, the plaintiff was working a maximum of 10 hours per week, doing tidying duties and the like for tilers. Dr Yong viewed some of the surveillance activity reports. He noted that there was no reported viewing of tasks in excess of the self-reported tolerances. Dr Yong expressed the opinion that the plaintiff was unlikely to increase his weekly working hours beyond 10 hours per week, referring to the need for more painkilling medication were he to exceed that figure. Further, “flares” of pain would impact upon his ability to work on a reliable and consistent basis. In a supplementary report of 11 October 2019, Dr Yong noted that, in his affidavit of 10 October 2019, the plaintiff indicated that he was working on average about 15 hours per week and that, if he worked more, it would be too difficult due to his knee pain. Dr Yong expressed the view that the plaintiff appeared to be working at his maximum level of 15 hours per week.
51 Mr Chandrasekaran specifically directed his attention to the work which the plaintiff was performing, and to his capacity, in his supplementary report of 11 October 2019. He put a considerable number of restrictions upon the duties which the plaintiff could perform, stating that he may be suited to desk-based duties. Mr Chandrasekaran observed that the plaintiff’s working capacity would be determined by his pain threshold, but he may initially be able to work two to three days a week, four hours a day, and his pain threshold could then be reassessed. I would observe that in some medical reports, such as that of Mr Chandrasekaran, there is some uncertainty as to when the plaintiff was actually working. This could well be because he was working sporadically.
52 When seen by Mr Barclay Reid on behalf of the defendant on 1 October 2018, the plaintiff said that he had tried getting work through friends, but had not lasted more than a day or two. When seen by Dr David Fish on behalf of the defendant on 21 November 2017, the plaintiff said that he had not worked since the injury. When seen by Dr John Owen on behalf of the defendant on 26 February 2019, the plaintiff referred to the fact that his knee was worse doing tiling and, in particular, he could not squat or kneel. In relation to the surveillance, which was seen by him, Dr Owen referred to the fact that it showed the plaintiff “walking around, doing his job which he said he was trying to do which he said was industrial cleaning”. Dr Owen referred to the fact that the plaintiff had very little training and very limited options. To Dr Hillol Das, similarly examining on 25 March 2019, the plaintiff referred to the fact that he had tried to find a suitable job with light duties, such as a cleaning job, but had not been successful. He said that he could find a job, but he could not continue working there and, as soon as the fact that he had an injury was known, he was sacked. He also referred to trying to work, and in fact working for three days approximately one month before the examination on 25 March 2019, but was again sacked. When Dr Joseph Slesenger examined the plaintiff at the request of the defendant on 1 August 2019, the plaintiff informed him that he was attending a job site in Toorak and that he was performing tiling duties on the upper layer of a wall. However, he fell off a ladder. Dr Slesenger observed that there was some uncertainty as to return to work arrangements, although it appeared that the plaintiff had been working as a cleaner, seeking employment via the internet. He was performing cleaning tasks including vacuuming and mopping, working up to eight hours a day, usually up to two days a week. Prospective employers were concerned about his residual injury and in particular his limp. A considerable part of the above is in accordance with the plaintiff’s evidence.
53 The plaintiff’s bank records and his invoice book were placed in evidence. Essentially, the invoice book paints a picture of someone performing sporadic work and I accept that this is usual for members of his community who work as tilers. The entries do not coincide entirely with medical histories obtained as to when the plaintiff was and was not working. The plaintiff has done some tiling work for certain jobs, but this has been “very limited” – see T17. In essence, the plaintiff said that he could work for a couple of days with an employer, but would then have to leave and find another job. Initially after his return to work, he could get a job at the $40 an hour rate, but once an employer discovered his limitations, the rate which he could charge was cut down to between $100 and $125 a day. He asked friends to try to find a job for him. I accept that, essentially, the work which he did obtain was through friends, mainly community members, and consisted of assisting tilers, vacuuming, sweeping and the like. In cross-examination, the plaintiff agreed that there were days when he could work for eight hours performing cleaning tasks, but to do that for five days in the one week was not possible. It would be usually two days per week.
54 I accept that the plaintiff has endeavoured to find various jobs where he can work within his limitations, but, once, for example, he is seen limping, his services are terminated. Essentially, I am of the view that cross-examination of the plaintiff did not damage his assertion that he was doing bits and pieces of light work for people from within his community. I also accept his evidence that some of the figures in the “credit” column of his bank statements represent advances or loans made to him by members of his community and do not represent payments for work and labour done. I accept that he and his family were and are under pressure in relation to such matters as mortgage payments and that other members of the Hazara community have assisted.
55 In essence, I accept the proposition that the plaintiff or someone on his behalf recorded the entries made in his small tax invoice book (with duplicates) and that the money which he actually received for work was so recorded. All relevant papers were given to his accountant and the annual taxation returns were prepared and subsequently executed.
56 The end result is this. The tax return for the 2016 financial year shows a total income of $43,870. Bearing in mind that the accident occurred on 18 August 2016, the total income for the 2017 financial year is $25,273. That alone represents a percentage drop in income in excess of 42 per cent. That for the 2018 financial year is $13,975 and that for the financial year ending 30 June 2019 is $13,098. If a comparison is made with the gross earnings of the 2018 financial year, the drop is a little over 68 per cent. For the 2019 financial year, the percentage drop would be greater again.
57 Even without going into figures based on an income of $40 per hour for a 48 hour week, being the figures on the plaintiff’s Worker’s Injury Claim Form and which were not challenged by the defendant, the financial loss sustained annually by the plaintiff exceeds 40 per cent.
58 The plaintiff was cross-examined at some length concerning various figures in his bank statements and particularly certain credit amounts. His assertion was that quite a number of these were loans paid directly into his account by other community members in order to assist him in paying off his mortgage and paying everyday expenses. He stated, at T34, that the borrowing of money was a tradition within his culture. The plaintiff had mortgage payments falling due, in addition to everyday expenses. The plaintiff was adamant that whatever is on the invoices in his invoice book is contained in the bank statements. The plaintiff also stated that, because of his illiteracy, someone helps him with his invoice book and this appears to me to be consistent with the apparently different handwriting styles to be found within it. Further, sometimes the person providing the work writes the invoice for him. The plaintiff was adamant that he was never paid cash without doing an invoice for the job. One of the people who had provided some work to him ultimately stopped. He was also adamant and repeated several times that whenever he does a job, he pays the tax.
59 I accept the evidence of the plaintiff that he took bank statements and the invoice book to his accountant and went through the various payments so as to be able to ascertain what his income was. I also accept his evidence that all payments for work done had been by way of bank deposit and that he has never been given cash for work done, as opposed to there being a bank transfer. I also accept that there may have been some one day or half day jobs which the plaintiff attended and for which there is no invoice in his book, but in respect of which he notified his accountant and paid tax. I accept that, as indicated in the bank records, on occasions the plaintiff borrowed the amount required to cover his mortgage payments shortly before they fell due each month. Essentially I accept his answer, given in re-examination, that he has always complied with the tax laws. I also accept his evidence, given in answer to a question of mine, that, when going through the figures with his accountant, he goes through the figures that are on the bank statements and not necessarily what is recorded in his “little book” – see T76. Sometimes those for whom he has done work do not want an invoice, but the amount always shows up in the bank statements.
60 The bottom line is this. The records contained in the plaintiff’s tax invoice book have been, at least in part, compiled by persons other than the plaintiff. The bank statements are more reliable. I accept that the plaintiff’s accountant, in preparing his taxation returns, based those returns upon what was contained in the bank statements, as explained to him by the plaintiff. In other words, I accept that the bank records provide a more accurate estimate of the plaintiff’s earnings than that provided by his invoice book. That is not to say that the invoice book contains figures that are deliberately incorrect. Rather, the book has been filled in by someone with minimal education and also by other persons who may or may not have had an understanding of what was to be recorded. As stated, the bank statements are a more accurate guide. I also accept that, at no time, did the plaintiff intend to avoid or evade tax and that he was very concerned not so to do. The bank statements contain an accurate record and these formed the basis of what was contained in the relevant tax returns, completed by the plaintiff’s accountant. I accept them as an accurate summary of the amounts that he was earning both before and after the accident. On face value, the drop in the plaintiff’s annual earnings would clearly exceed 40 per cent. Of course, that is assessing the gross income earned in, for example, the 2018 financial year (namely, $13,975) as representing the plaintiff’s earning capacity, as opposed to his actual earnings. However, I would point out the following. In his very recent report of 11 October 2019, Dr Yong, who is a specialist occupational physician, referred to the plaintiff as working at his maximum level of 15 hours per week. I prefer and accept his opinion, which seems to me to be logical and essentially in accordance with the plaintiff’s evidence, although, of course, the plaintiff’s work has been more sporadic.
61 I would also point to the following. The figure of $53,120 previously selected as a possible estimate of the plaintiff’s “without injury” gross earnings is one based upon such earnings for the financial year ending 30 June 2016. This does not take into account the fact that the plaintiff had commenced a new job on approximately 13 or 14 August 2016, only days before the accident occurred. As earlier stated, his claim form in respect of the injury refers to a pre-tax hourly earning rate of $40 and the standard number of hours to be worked each week as being forty-eight. That would produce gross weekly earnings of $1,920 or, for a 48 week working year, $92,160. If that approach were adopted (and the figures on the Worker’s Injury Claim Form were not disputed), and given the type of sporadic work performed by the plaintiff, the percentage drop in income that has occurred would be even greater.
62 In summary, I am quite satisfied that the plaintiff has been working to his full capacity and has established that he has suffered a financial loss of 40 per cent or more.
(b) Pain and suffering
63 Given that the plaintiff has discharged the burden of proof in relation to pecuniary loss damages, the requirements of the Act in relation to pain and suffering damages have also been satisfied. I would refer to the decision of the Court of Appeal in Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 and to various decisions of this Court.
64 In any event, the obvious impact upon the plaintiff’s everyday life resulting from his back injury and the pain and suffering which he has endured are sufficient to satisfy the statutory requirements. He has sworn how his pain is always present and often keeps him awake at night. He cannot play any type of games or sports with his children and struggles to maintain his home. I would refer to his affidavits and the evidence. His pain and suffering consequences could be fairly described as being more than significant or marked and as being at least very considerable. The consequences of his injury have had a very substantial adverse impact on the plaintiff’s wellbeing and his day to day activities.
Conclusion
65 The plaintiff is successful. He has discharged the burden of proof. Leave is given to him to proceed in respect of both pecuniary loss damages and pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.
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