Aquilina v Toyota Motor Corporation Australia Limited
[2021] VCC 1446
•7 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-00377
| PETER AQUILINA | Plaintiff |
| v | |
| TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED (ACN 009 686 097) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 20 and 21 September 2021 (via Zoom) | |
DATE OF JUDGMENT: | 7 October 2021 | |
CASE MAY BE CITED AS: | Aquilina v Toyota Motor Corporation Australia Limited | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1446 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the left knee – injury to other body parts – other concurrent medical conditions – whether the evidence permitted an assessment of whether the left knee injury alone is “serious” – whether the injury to left knee has consequences which are “serious” – creditworthiness and reliability – pain and suffering and loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Ansett Australia Ltd v Taylor [2006] VSCA 171; Advanced Wire & Cable Pty Ltdv Abdulle [2009] VSCA 170; Peak Engineering Pty Ltd & Anor Mackenzie [2014] VSCA 67; Sednaoui v AMAC Corrosion Protection Pty Ltd [2017] VSCA 66; Pullicino v Burden’s Plumbing (Vic) Pty Ltd [2019] VSCA 88
Judgment: The plaintiff is granted leave for both pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I McDonald QC with Mr B House | Henry Carus and Associates |
| For the Defendant | Mr B McKenzie with Mr M Clarke | Lander and Rogers |
HIS HONOUR:
Introduction
1The plaintiff was employed by the defendant as a maintenance fitter at its plant at Altona. He commenced his employment with it in about 2003. He was made redundant, with the larger part of the Toyota workforce, in late 2017.
2The plaintiff suffered a number of injuries resulting from work duties he performed in about January 2017. He submitted that the injury to his left knee constitutes a serious permanent impairment of the function of his left knee with consequences which equate with it being a serious injury. The defendant submitted that the plaintiff could not succeed in proving that he has suffered a serious injury for many reasons which I will turn to later in these reasons.
3Mr I McDonald QC appeared with Mr B House of counsel for the plaintiff. Mr B McKenzie, lead counsel, appeared with Mr M Clark for the defendant.
A compensable injury?
4There was a hint in the defendant’s submissions that it took issue with whether the plaintiff had suffered a compensable injury or, alternatively, the plaintiff’s conduct at a particular point in time calls into question whether he suffered an injury to his left knee of any particular moment.
5I am satisfied that the plaintiff did suffer a compensable injury. I will summarise the relevant facts starting with the work the plaintiff performed which he says resulted in the left knee injury, and then trace through some aspects of the claim he made and its acceptance. Some of that will also be useful in laying out the background to addressing the many issues raised by the defendant.
6In the plaintiff’s first affidavit affirmed on 29 September 2020,[1] he described the particular tasks which resulted in him suffering the injury to his left knee, as follows:
“On or about 9 January 2017, I was performing preventative maintenance works during a scheduled shut working on the vehicle run. I started the job at about 6am in the morning and was working by myself. To perform the task, I had to stoop and crawl under the conveyor line on my hands and knees. I estimate that the area I was required to work in was no more than 600mm high. By about lunch time that day, I was in excruciating pain in both of my knees, and my left knee was cramping. I also noticed some pain from my lower back.”[2]
(sic)
[1] Plaintiff’s Court Book (“PCB”) 4-13
[2] PCB 5
7Under cross-examination, the defendant spent some time taking the plaintiff through its medical records[3] to demonstrate that the plaintiff made complaints of suffering injury on other occasions, yet, having suffered a left knee injury of some apparent consequence, there is little to be found in the medical records. The first report made by the plaintiff was on 30 June 2017. What is recorded is not entirely consistent with the plaintiff’s account of how he came to be injured, however, the entry refers to the plaintiff’s work on 9 January 2017, the onset of a problem with his left knee, and a cryptic summary of a diagnosis of the injury which I will refer to in more detail later in these reasons.
[3] Defendant’s Court Book (“DCB”) 163-172
8In addition to what is recorded in the medical records, the defendant raised an injury management plan dated 30 June 2017 in which there is a short description consistent with the relevant entry in the medical records. There is a cryptic handwritten notation “Has WCC current” which probably refers to the plaintiff having a workers’ compensation claim on foot.[4]
[4] DCB 175
9Additionally, the subsequent entries in the medical records concern other medical issues, and no further complaint by the plaintiff of any problem with his left knee. The defendant essentially submitted, that absence was a demonstration that whatever problem the plaintiff was having with his left knee was of little inconvenience to him and, furthermore, it sought to reinforce that submission by pointing to the fact that the plaintiff continued working relatively unhindered until he was made redundant.
10The reference to the plaintiff having a current workers’ compensation claim is probably a reference to a Worker’s Injury Claim Form dated 30 June 2017[5] in which he identified the date of injury as 9 January 2017 and referred to suffering a left knee injury. It refers to the work he was performing at the time when he suffered the left knee injury, and a short description of the injury. None of that is inconsistent with any of the evidence I have referred to thus far. He also referred to Dr Reza Ahmadi, general practitioner, as his nominated treating medical practitioner.
[5] PCB 21-22
11The plaintiff did not obtain a conventional medical report from Dr Ahmadi; however, my review of all of the medical reports referred to by the plaintiff and the defendant demonstrate that no issue of causation was raised specifically for comment from any treating or medico-legal medical practitioners. Those who chose to address the issue of causation accepted that the work described by the plaintiff was a cause of the left knee injury for which they treated the plaintiff, or on which they gave an opinion on a medico-legal basis.
12Furthermore, the plaintiff relied upon the acceptance by the defendant of his claim for compensation for the left knee injury. By letter dated 26 July 2017, the defendant informed the plaintiff that his claim for the injury or condition of “Left knee/Sore calf/Ruptured cyst/Cramps” which he suffered on 9 January 2017 was accepted relevant to medical and like expenses associated with the claim for compensation he made on 30 June 2017.[6]
[6] PCB 87-89
13The plaintiff relied upon two authorities for the proposition that the acceptance of a claim consistent with the defendant’s acceptance of the plaintiff’s claim is ordinarily to be regarded as very significant, and therefore, contextually very significant in this case.[7] Although, there is little evidence from the defendant (if any at all) to suggest that there is other evidence upon which the defendant might have come to a different conclusion than accepting the plaintiff’s claim, I do not consider that it is necessary to resort to an analysis of the claim in the context of the two authorities. I accept the plaintiff’s evidence that he was engaged in the work described in his first affidavit. I accept his evidence that he suffered a left knee injury resulting from that work. I accept the strong body of medical evidence that the left knee injury is causally linked to that work.
[7]Ansett Australia Ltd v Taylor [2006] VSCA 171, and Sednaoui v AMAC Corrosion Protection Pty Ltd [2017] VSCA 66
The Plaintiff’s creditworthiness and reliability
14The central focus of the defendant was an attack on the plaintiff’s creditworthiness and reliability which it submitted impacted upon the factual basis which underpinned the plaintiff’s case in almost all respects.
15Part of that attack was based upon the fact that the plaintiff made a complaint to the defendant of suffering the left knee injury recorded in the defendant’s medical records and the injury management plan on one occasion with no other complaint of persisting left knee problems. Additionally, that the plaintiff worked consistently in the same role, and would probably have continued doing so indefinitely, had he not been made redundant with the majority of the defendant’s workforce.
16At the outset of the cross-examination, the defendant showed film of the plaintiff which it ultimately submitted demonstrated that there was very little wrong with the plaintiff. I will now summarise the substance of parts of the films upon which the defendant relied. I note that the films occupied about two hours, making it unrealistic, if not impossible, to do much more than provide a summary to the extent I have just referred to.
17The first film was taken on 23 October 2019. The film commenced at about 9.26am and ran through until about 12.14pm.[8] In summary, it showed:
· At about 9.26am, the plaintiff emerged from his home, entered the garage at his home, entered a small sedan motor vehicle and reversed it out onto the street.
· At about 9.45am, the plaintiff was observed walking with a walking stick in his left hand. He entered the small sedan and drove off.
· At about 11.08am, the plaintiff was observed walking in and around cars at a car sales yard. He remained at the car yard for a while, after which he drove a small black VW sedan from the car yard.
· At about 11.46am, he parked the black VW sedan. He alighted from it after a short time, then got back into the car. At this point the film was fast forwarded by about eight minutes or so. He then alighted from the car, opened the boot, and in the company of his wife, placed shopping in the boot of the car. He then stood on the pavement eating a pizza from a small pizza box. He walked a short distance and deposited the empty pizza box into a dustbin, returned to the car and at about 12.17am, he drove off.
[8] Exhibit 2. The film was of about 26 minutes’ duration
18The next film was taken on 21 November 2019. It commenced at about 10.51am and ran through until about 11.26am.[9] In summary, it showed:
· At about 10.51am, the plaintiff was at a tram stop in Collins Street with his wife with a walking stick in his left hand. He then entered a tram with his wife and travelled some distance along Collins Street, before alighting from the tram.
· The balance of the film showed the plaintiff walking on Collins Street; walking into a shop; walking along the Bourke Street Mall; sitting on a bench situated on the Bourke Street Mall; walking into the Myer store, and standing at a lift within the Myer store.
[9] Exhibit 3. The film was of about 13 minutes’ duration
19The next film was taken on 11 January 2020. It was shown to the plaintiff in three parts, with each part interrupted by cross-examination. The first part of the film commenced at about 11.05am and ran through until about 11.43am.[10] In summary, it showed:
· At about 11.05am, the plaintiff was at the boot of his SUV car. He lifted an object out of the boot, and walked around the car.
· At about 11.10am, he was observed to bend fully at the back.
· At about 11.16am to about 11.24pm, he used a portable leaf blower to blow leaves and debris from his driveway. It was held in his right hand.
· At about 11.24pm, he removed a walking stick from the car.
· At about 11.25am to about 11.39am or thereabouts, he backed the SUV out of the garage onto the driveway. He then connected a small vacuum cleaner to a power source using an extension cord, and he vacuumed the front seat area and the passenger seat area in the boot area. He climbed into the passenger seat area holding the vacuum cleaner nozzle and appeared to be bent over as he used it. He climbed onto the driver’s side running board to get into the SUV. He also used a rag and a spray cleaner to clean the interior of the car. He then packed it all up and put it away in his garage.
[10] Exhibit 4. The total length of all parts of that film was about 76 minutes.
20The second part of the film commenced at about 11.44am and ran through to about 12.15am.[11] In summary, it showed:
· at about 11.44am, the plaintiff obtained a Karcher style pressure hose device off the wall of his garage. He connected a garden hose to a tap in the front garden onto the Karcher device, and then connected a nozzle to the hose of the Karcher. He connected it to a power source.
· At about 11.51am to about 12.01pm, he used the nozzle to apply water under pressure to the body of the SUV. At one point he stood on the side running board of the SUV and appeared to stand on the balls of his feet in order to apply water under pressure to the roof of the SUV.
· At about 11.59am to about 12.01pm, he used the Karcher to apply water under pressure to the side of his house and also onto the driveway.
· At about 12.03pm, he bent fully at the back of the Karcher while performing some adjustments on it. He then applied a soap dispenser to the nozzle of the Karcher and applied soap over the body of the SUV.
· At about 12.05pm, he used a sponge held in his hand to rub down the soap on the body of the SUV.
· At about 12.08pm, he reconnected the nozzle to the Karcher and washed down the body with clean water.
· At about 12.11pm through to about 12.15pm, he used the nozzle to wash down the driveway and the body of the SUV, and used a yard broom to do some sweeping of the driveway. He then adjusted the Karcher and again bent fully at the back while doing so.
[11] Exhibit 5
21The third part of the film commenced at about 12.20pm and ran through to about 12.43pm. In summary it showed:
· At about 12.20pm through to about 12.39pm, he adjusted the hose at a tap fitting at the front of his house; connected the hose to a hose reel, bending fully at the back while doing so; packed up the Karcher, the hose and the power source, and put all of it into his garage, bending fully at the back while doing so.
· At about 12.42pm through to around 12.43pm, he used a cloth to wipe down the body of the SUV, and then drove it back into the garage.
22The next film was taken on 12 January 2020.[12] It commenced at about 12.57pm and ran through to about 12.01pm. In summary, it showed the plaintiff at the rear of the SUV lifting a largish crate into the boot area; reversing the SUV out of the garage; using a broom to sweep the garage floor, and driving the SUV back into the garage. It showed the plaintiff and his wife alighting from one of their cars, walking along the pavement and entering a private dwelling.
[12] Exhibit 6
23The next film was taken on 13 January 2020.[13] It was very short, commencing at about 9.50am and running for only a few minutes. In summary, it showed the plaintiff parking his SUV, alighting from it and entering a 7-Eleven store, and then returning to the SUV with some goods he had purchased, and then driving off.
[13] Exhibit 7
24Under cross-examination, the plaintiff admitted that he was the person shown in each of the films.
25In relation to the film taken on 21 October 2019, the plaintiff agreed that at 9.45am, he had just attended the rooms of his general practitioner and was using a walking stick. He agreed that he attended a car yard with his wife and during the time he was at the car yard, he did not use a walking stick. It was either at this point or later that he described having two walking sticks. One was a fixed walking stick, and the other a collapsible walking stick which he said he usually kept in a bag.
26Under cross-examination in relation to the film taken on 21 November 2019, the plaintiff agreed that he had attended the rooms of Dr Baker, and he was using a walking stick. He also agreed that at one point in the film, he ceased using the walking stick, and alighted the few steps leading into the Myer store without using a walking stick, or the handrail or having any assistance by his wife, who was his companion on that occasion.
27Under cross-examination in relation to the first part of the film taken on 11 January 2020, the plaintiff agreed that he was not using a walking stick at any stage. He denied that there was no evidence of him limping in the film. He said that on his good days he could move consistently with what was shown on the film, and he emphasised that after using medication, he can move more freely, but after activity of the kind seen in the film, he would fall into a heap.
28Under cross-examination in relation to the second part of the film taken on 11 January 2020, the plaintiff disagreed that the film showed him having no physical difficulty, and that he was not limping. He said that he observed limping toward the end of the film.
29Under cross-examination in relation to the films taken on 12 and 13 January 2020, the plaintiff agreed he was not using a walking stick, but he said he observed limping. Curiously, in relation to the film taken on 13 January 2020, he said he could observe limping by favouring his right knee, not his left knee.
30Essentially, the cross-examination concentrated on the plaintiff’s capacity to engage in apparently full, free and unrestricted movement of his upper body, shoulders and arms, spine and legs, and, in particular, both knees. I reviewed the films, paying particular attention to parts of the films which the plaintiff referred to in his final address where he said limping was observable. I did not observe any sign of a limp at any time, although, I will return to this subject later in these reasons.
31Additionally, the fact that the plaintiff used a walking stick when he went to see his general practitioner and Dr Baker was said to be here using the walking stick as a prop, and I took that to mean to try to impress both medical practitioners that he must have a left knee injury of some significance if he required assistance with his mobility. It was a proposition denied by the plaintiff.
32Additionally, the plaintiff was tackled on his evidence that he falls into a heap after engaging in activity of the kind seen in the films of 11 January 2020 because his movements were apparently full, free and unrestricted on 12 and 13 January 2020, and, in particular, it was emphasised that on 12 January 2020, he drove something approaching 45 minutes to a private address without any apparent concern.
33During the defendant’s address it pointed to apparent conflicts in the plaintiff’s evidence when a comparison is made with the films and his affidavits and histories recorded by a number of medical practitioners. I propose to summarise them only briefly:
· The plaintiff was only observed using a walking stick when he went to see his general practitioner and Dr Baker, suggesting it is a prop. Otherwise, the films demonstrate very little, if any, discernible interference with the plaintiff’s gait and general mobility.
· Dr Baker recorded that the plaintiff complained of symptoms affecting his right knee and lower back when he examined him on 21 November 2019 when a comparison with the films taken in that year and in 2020 suggest that the plaintiff has no such symptoms in either the right knee or the lower back.
· Additionally, Dr Baker recorded on 21 November 2019, that he uses the walking stick to help with his balance; that he has difficulty putting on shoes and socks, presumably due to the problems he has with his knees and his back, and that he only drives short distances, with his wife otherwise driving him around. Again, the defendant emphasised that the films would suggest that those complaints are essentially an exaggeration.
· The film taken on 11 January 2020 was about 76 minutes’ long, showing the plaintiff at moderate physical effort on his feet for a significant period of time with no discernible interference with his gait or mobility, suggesting that he is capable of significant physical activity for extended periods of time and, in particular, without any discernible problem with his knees or lower back. The defendant, in particular, emphasised that the plaintiff was engaged in significant weight bearing on both legs, and on occasions was seen to stand on tip toes on the running board of the SUV in contrast to what the plaintiff said in his first affidavit that he has a permanent limp, has a limited capacity to stand, and avoids walking on uneven ground and up and down stairs.
· The plaintiff’s evidence that he falls in a heap through extended activity is not borne out by the fact that he was engaged in the activities on 11 January 2020, and then was able to engage in further activity on the following two days. In particular, the plaintiff’s evidence that he only drives short distances is not borne out by the fact that on 12 January 2020, he drove the 45 minutes to a private residence in Epping.
· The film of 13 January 2020 also does not demonstrate any limp nor need for a walking stick, and the defendant emphasised that the plaintiff pointed to more significant problems with his right knee, saying that he observed a problem with his right knee, resulting in him limping.
34The defendant submitted that the surveillance is critical to its case, that the plaintiff is not creditworthy nor reliable, and that the film is in significant contrast to the extent to which he says he is disabled by the left knee injury. Interestingly, however, the plaintiff submitted that the surveillance does him no harm in terms of creditworthiness and reliability, but rather demonstrates significant limited movement, supporting the plaintiff’s case that he has an actively symptomatic left knee injury which is incapacitating. The plaintiff pointed to the fact that he did not bend significantly at the knees, and, if he did so, it was insignificant, but rather bent at the back, and nor did he squat at any time when perhaps squatting might have been called for on many of the occasions when he engaged in activities with hoses, electrical extension cords, the Karcher, the vacuum cleaner and in the pursuit of the activity seen on the films taken on 11 January 2020.
35In addition to the films, the defendant pointed to the fact that the plaintiff continues to complain of significant problems with his lower back. In his second affidavit sworn 16 September 2021,[14] the plaintiff described suffering increasingly significant pain in his lower back since he swore his first affidavit describing sharp pain travelling down into his left leg with a pinching-type sensation, and flareups every couple of days requiring medication and rest. He described having difficulty touching his toes and struggling to cut his toenails and put on his socks, as well as stiffness and pain associated with difficulty getting out of bed.
[14] PCB 14-16
36The defendant also pointed to the fact that the plaintiff made similar complaints of lower back problems to Dr Joseph Slesenger, specialist occupational physician, who examined the plaintiff on 16 August 2021,[15] and to Mr Thomas Kossmann, orthopaedic surgeon, who examined the plaintiff on 7 September 2021.[16] Additionally, the plaintiff told Mr Kossmann that he has pain in both of his knees most of the time, and significant interference with his mobility, sleep and other matters which I have already summarised from his affidavits.
[15] PCB 50-67
[16] PCB 68-84
Other medical conditions
37Under cross-examination, the plaintiff was referred to the medical records of Dr Soroush Habibi, general practitioner,[17] who recorded complaints by the plaintiff of what appear to be generalised osteoarthritic changes in his shoulders, hands, knees and right ankle. His clinical notes for 24 February 2021 refer to the prescription of medicinal cannabis to treat chronic pain, with a reference to osteoarthritis in “knees, shoulders, R ankle, hands” with a recording of the plaintiff’s pain levels at being 6 to 7 out of 10. The same medical conditions were referred to in the clinical notes for 9, 16, 23 and 30 March 2021, 6 and 13 April 2021, and 4 May 2021. Additionally, on 30 March 2021, Dr Habibi recorded that the plaintiff had suffered a left frozen shoulder which was better, and there is a reference in subsequent attendances to the same issue.
[17] DCB 259-266
38Dr Habibi appears to have diagnosed that these conditions amount to the plaintiff suffering from chronic pain. It would appear that the prescription for medicinal cannabis was to treat all of those medical conditions.
39Under cross-examination, the plaintiff was referred to the clinical notes of Havanna Remedial, where the plaintiff has remedial massage, and according to the notes, on three occasions in 2020 and six occasions in 2021. The masseur recorded that either the plaintiff complained of pain in particular areas of his body, or he was provided with massage to those areas of his body, but whichever is the case, the notes contain references to his neck, trapezius area, right shoulder, fingers, lower back, gluteal and hamstring area, and knees and ankles, with a note that the plaintiff was in receipt of a prescription for medicinal cannabis for joint pain.
40It was my impression that the plaintiff had some difficulty recalling that he complained of widespread osteoarthritic changes as noted in the clinical notes of Dr Habibi, and that he had remedial massage as extensively as noted in the Havanna Remedial clinical notes; however, it was also my impression that he did not necessarily contest that he made the complaints which are recorded and he had the treatment referred to in the clinical notes.
41The defendant submitted that if the plaintiff has chosen to limit his serious injury application to the left knee injury, then it is for him to satisfy me that where there are other medical conditions concurrently producing pain and suffering consequences for the plaintiff, that it will be necessary for me to make findings about all of the pain and suffering consequences which are operative at the date of trial in order to decide which of the pain and suffering consequences are attributable to which injury or medical condition.[18]
[18]Peak Engineering Pty Ltd v Victorian WorkCover Authority & Mackenzie [2014] VSCA 67 at paragraph [24] (“Peak Engineering”)
42The defendant submitted that it is not only the plaintiff’s left knee injury which contributes to his pain and suffering and loss of earning capacity consequences, but also his lower back, right knee and the osteoarthritic conditions referred to in the clinical notes of Dr Habibi and Havanna Remedial. The plaintiff submitted that all of the issues raised by the defendant going to the plaintiff’s creditworthiness and reliability as well as this issue of attribution can be answered by reference to the medical evidence on which he relies. It is now appropriate to turn to the relevant medical evidence.
The medical evidence
43The plaintiff was referred to Mr William Pianta, orthopaedic surgeon, by Dr Ahmadi. He first saw him on 5 December 2017. Mr Pianta arranged to review the plaintiff reasonably frequently. Courtesy letters which he wrote to Dr Ahmadi, and letters to WorkCover, have been reproduced in the Plaintiff’s Court Book. I propose to trace through the more significant observations made by Mr Pianta in those courtesy letters, and in his report to his solicitors, to summarise the complaints made by the plaintiff and the treatment provided by him.
44In a courtesy letter dated 5 December 2017,[19] Mr Pianta accepted that the plaintiff had suffered a medial meniscal tear. He noted on examination, that there was joint effusion, patellofemoral joint crepitus, and tenderness of his medial joint line. He noted that the ultrasound revealed a ruptured Baker’s cyst.
[19] PCB 32
45In his next courtesy letter dated 31 January 2018,[20] Mr Pianta viewed an MRI scan taken on 11 December 2017[21] which confirmed that the plaintiff had suffered a medial meniscal tear and early cartilage damage within the medial compartment and patellofemoral joint.
[20] PCB 33
[21] PCB 24-25
46In his next courtesy letter dated 11 July 2018, Mr Pianta noted that the plaintiff had undergone a Synvisc injection,[22] and had undergone physiotherapy and hydrotherapy. He noted the plaintiff’s complaints of ongoing medial sided left knee pain during the day and at night, and a limitation on his ability to walk up to 15 minutes. His examination of the plaintiff on that occasion does not appear to be any different than the previous examination referred to above. It was on this occasion that Mr Pianta felt confident to propose that the plaintiff needed a unicompartmental knee replacement, however, given his age, he recommended that it be delayed for as long as was reasonable.
[22] PCB 29
47In his next courtesy letter dated 5 November 2018, Mr Pianta noted that the plaintiff continued to have physiotherapy and hydrotherapy. On examination, he noted that his quadriceps muscles evidenced wasting. I think the other relevant courtesy letters of 22 March 2018,[23] 14 March 2019,[24] 15 July 2019[25] and 24 March 2020[26] confirm his diagnosis and prognosis, and, importantly, that he remained of the opinion that the plaintiff required a knee replacement. He noted that the plaintiff continued to complain of pain, exacerbations of pain intermittently during the week, and the need to use medication, for example OxyNorm and Tramadol.
[23]PCB 45. There are two bearing the same date – one to WorkCover and the other to Dr Ahmadi
[24] PCB 42
[25] PCB 44
[26] PCB 47
48The courtesy letters of mid-2019 and early 2020 are of some significance, because they coincide with the films taken of the plaintiff upon which the defendant placed much reliance. It is noteworthy that on 15 July 2019, Mr Pianta noted that the plaintiff’s knees were playing up; that he was taking Tramadol daily and OxyNorm about fortnightly, and that on examination, there was notable patellofemoral joint crepitus. At a Telehealth conference on 23 March 2020, Mr Pianta noted that the plaintiff was managing his left knee, although he was experiencing pain, cramps numbness and cracking, and that “injections” had not been very effective.
49That brings me to the first medico-legal report provided by Mr Pianta dated 25 August 2021.[27] Mr Pianta firstly described the left knee injury as an exacerbation of degeneration of the left knee encompassing cartilage damage, meniscal tear and the rupture of the Baker’s cyst. He considered that the left knee injury was work-related due to the kneeling which the plaintiff performed, with Mr Pianta describing the result of the kneeling as resulting in “sharp, ripping pain in the anterior knee, calf and thigh”. Presumably that description was either given to him by the plaintiff in that form, or in a form which warranted the resulting pain being described that way.
[27] PCB 48-49
50Mr Pianta described the plaintiff’s symptoms as left knee pain with numbness, cracking and cramps. He noted that he had undergone injections and conservative treatment and used a single point walking stick to mobilise. On the basis of the diagnosed injury, and the symptoms reported by the plaintiff, he considered his prognosis to be poor without left knee replacement surgery, and he considered that the plaintiff’s left knee would continue to “show continued worsening of pain and deterioration in function”.
51Mr Pianta was asked to answer a number of questions by excluding any other physical conditions and any psychiatric condition. He answered the questions based upon an assumption that the plaintiff has successful knee replacement surgery. He considered that the plaintiff could engage in occasional pushing, pulling or lifting without restriction; that repetitive pushing, pulling or lifting would only be recommended with a weight limitation of less than 20 kilograms; that prolonged sitting, standing or walking would be allowed without restriction – although he noted the need to occasionally rise and move around from a seated position – and that squatting, crouching, kneeling and getting up off the ground and stair climbing “can be difficult”.
52Mr Pianta was lastly asked whether the plaintiff could return to his former work as a fitter and turner. He noted that it was a physically demanding role involving lifting, squatting, crawling under lines and negotiating stairs, and that even with a successful knee replacement, it would be “extremely unlikely” that he would be able to return to that job.
53Mr Iain McLean, orthopaedic surgeon, examined the plaintiff on 20 July 2017 and provided a report dated 24 July 2017.[28] The plaintiff saw Mr McLean before Mr Pianta commenced treating him. Mr McLean obtained a very good history of the work which the plaintiff was doing when he suffered the left knee injury. He had no radiology except for a venous Doppler of the plaintiff’s left lower limb taken on 10 June 2017.[29] Despite only seeing the plaintiff once, he provided an opinion that the plaintiff suffered a left knee internal derangement relative to menisco-chondral pathology, joint effusion with secondary Baker’s cyst and rupture, and ongoing calf tightness. He considered that the work the plaintiff was performing in January 2017 initiated the symptoms in his left knee and the secondary calf problems. He considered that even at that early stage, there needed to be an ongoing modification of the plaintiff’s work for him to avoid deep knee squatting, kneeling, loading and stressing through his left knee.
[28] DCB 42-49 (tendered by the plaintiff as part of Exhibit A)
[29] PCB 23
54Dr Slesenger examined the plaintiff on 16 August 2021, and provided a report dated 24 August 2021.[30] He was provided with a significant volume of medical and vocational material. He examined the plaintiff by firstly observing the plaintiff’s general movements, noting, for example, that the plaintiff was using a walking stick held in his left hand; that he was unable to squat, stand on his tiptoes, or stand on his heels. He noted that the plaintiff walked with a left-sided limp. He subsequently examined the plaintiff’s lower back, hands, right knee and left knee. He reviewed reports he was provided, and, in particular, from Mr Pianta, and then reviewed relevant radiology. He diagnosed the plaintiff’s injury as complex which appears to me to be consistent with the diagnosis of Mr Pianta. He considered that the work which the plaintiff performed in January 2017 was the cause of his left knee injury. He considered that his prognosis was guarded.
[30] PCB 50-67
55Dr Slesenger understood that the plaintiff’s job as a maintenance fitter/engineer required squatting, bending, forward reaching, over-shoulder reaching, forcefully pushing and pulling, lifting weights in excess of 20 kilograms, using power tools, driving a forklift and other vehicles, operating overhead cranes and working in restricted and confined spaces. He considered that on assessing the plaintiff’s “left lower limb injury” on its own, that relevant restrictions would be:
· no pushing, pulling, carrying or lifting over 5 kilograms
· no repetitive bending or twisting
· no squatting
· no kneeling
· no walking on uneven ground
· avoiding climbing; and
· limited walking.
56Dr Slesenger considered that those restrictions would apply into the future. He was asked similar questions to those asked of Mr Pianta. He considered that the plaintiff could not return to work as a maintenance fitter/engineer with the defendant. He was asked whether the plaintiff could undertake work as a despatch and receiving clerk, purchasing officer, delivery driver, lawn maintenance/groundskeeper or trades sales assistant.[31] He considered none of these alternative forms of employment were suitable.
[31]These jobs are referred to in a vocational assessment report of Ipar dated 14 December 2017 at DCB 97-116
57Mr Kossmann examined the plaintiff on 7 September 2021 and provided a report bearing the same date.[32] He was provided with a similar volume of medical and vocational materials as was Dr Slesenger. On my comparison between the content of his report and that of Dr Slesenger, it would appear that he took a similar approach to Dr Slesenger in his analysis of the material he was provided, his examination of the plaintiff and his process of reasoning. His diagnosis is different to that of Mr Pianta and Dr Slesenger, in that he considered that the plaintiff had suffered an aggravation of advancing osteoarthritis in his left knee in the form of a new injury, being a meniscal tear, and an old injury, being degenerative changes in his left knee. He reached the same conclusion on causation.
[32] PCB 68-84
58Mr Kossmann was asked similar questions to those asked of Mr Pianta and Dr Slesenger, and, in particular, gave a similar opinion to Dr Slesenger regarding the restrictions that should be imposed on the plaintiff in consideration of any work as a fitter and turner or return to work in suitable employment. He gave a similar opinion to Mr Pianta and Dr Slesenger, that the plaintiff could not return to work as a fitter and turner. Where he disagreed with Dr Slesenger is that he considered that the plaintiff could work as a despatch and receiving clerk, purchasing officer and trades sales assistant as long as the physical demands of each of those jobs did not exceed the restrictions which he considered should apply. It would appear that he considered that he should initially commence those jobs at 20 hours per week and then increase his hours to full time.
59Dr Slesenger and Mr Kossmann were both aware of the fact that the plaintiff was also complaining of medical conditions affecting his lower back and right knee. It is clear that they went to some lengths to record his complaints relevant to those medical conditions and to make an assessment of how they would impact on his functioning generally, and, in particular, on his capacity to return to suitable employment. Mr Pianta would appear to have been aware of those medical complaints as well, but he did not assess them nor analyse them to the extent undertaken by Dr Slesenger and Mr Kossmann.
60The defendant submitted that Mr Pianta, Dr Slesenger and Mr Kossmann were not given an adequate enough history of the plaintiff on two counts: firstly, his apparent capacity to function as demonstrated through the films, and, secondly, of the widespread osteoarthritic changes of which he complained to Dr Ahmadi. That might be so relevant to Mr Pianta and Dr Slesenger, but not so in relation to Mr Kossmann in relation to the content of the films. Mr Kossmann was in fact provided with the surveillance report dated 25 February 2021,[33] and it is obvious that he read and paid due regard to it, because he referred to it in the body of his report, and indeed, provided a fair summary of its contents. The relevant surveillance report covers the film taken of the plaintiff on 11, 12 and 13 January 2020 which constitutes the major film relied upon by the defendant in its attack on the plaintiff’s creditworthiness and reliability. It is clear that Mr Kossmann was not impressed by what he read in the surveillance report for it to have any material impact upon his assessment of the plaintiff generally, and with respect to his capacity to return to suitable employment.
[33]Neither the plaintiff nor the defendant tendered the surveillance report. I communicated with the parties, enquiring whether either intended to tender the report so that I could make a comparison between the content of the report, the films and Mr Kossmann’s summary of the report. They were content to permit the report to be tendered except for the last page of the report at DCB 157. I will record the tendered report as Exhibit 8
61Dr Chris Baker, specialist in occupational medicine, examined the plaintiff on 26 March 2018. He provided a report dated 28 March 2018[34] and a supplementary report dated 7 May 2018.[35] He re-examined the plaintiff on 21 November 2019 and provided a further report dated 29 November 2019.[36] Like Dr Slesenger and Mr Kossmann, he was provided with a similar volume of medical and vocational material, and on my comparison between the content of his report and that of Dr Slesenger and Mr Kossmann, it would appear that he took a similar approach to them in his analysis of the material he was provided, his examination of the plaintiff and his process of reasoning.
[34] DCB 20-29
[35] DCB 30-31
[36] DCB 32-41
62Dr Baker considered that the plaintiff had suffered an internal derangement of his left knee, resulting in menisco-chondral pathology, joint effusion and a secondary Baker’s cyst which ruptured, and ongoing calf tenderness affecting the left lower leg. He reached the same conclusion on causation as did all the other medical practitioners whose evidence I have reviewed thus far. He considered that the plaintiff’s complaints he noted when he examined him on the second occasion were of a minor nature. He did not consider that the plaintiff was capable of returning to his job as a fitter and turner at the time he examined him, however, he considered that he did have a current work capacity, and that each of the jobs referred to by Ipar were both reasonable and suitable occupations for the plaintiff to return to.
63Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on 17 November 2020, and provided a report dated 30 November 2020.[37] His opinion is seriously at odds with Mr Pianta, Mr McLean, Dr Slesenger, Mr Kossmann and Dr Baker in almost all respects. Firstly, he diagnosed a soft tissue injury and did not find evidence of any of the pathological processes on which the diagnosis of the other examining medical practitioners was based. Secondly, he considered that the symptoms complained of by the plaintiff would have been expected to improve substantially over six weeks or so. Thirdly, he considered that there was a psychological reaction which was influencing the plaintiff’s presentation. He gave the briefest answers to the questions he was asked. Rather than giving a more comprehensive opinion on the plaintiff’s capacity for work, he merely said that the plaintiff would have difficulty with regular heavy physical work and work that involved a lot of kneeling, squatting and similar postures. Unlike Mr Pianta, who considers that the left knee injury is of real substance, Mr Dooley considered that all the plaintiff would experience was noting some ongoing intermittent left knee pain.
[37] DCB 57-61
Conclusions
64I have considered all of the evidence, the very helpful submissions made by the plaintiff and the defendant, and based upon the evidence and the submissions, the following are the conclusions I have reached.
65Firstly, I prefer the evidence of Mr Pianta relevant to a diagnosis of the plaintiff’s left knee injury. I am fortified in reaching that conclusion, because it is supported by the opinions of Mr McLean, Dr Slesenger, Mr Kossmann and Dr Baker. I reject the opinion of Mr Dooley, because it is seriously out of keeping with these compelling opinions.
66Secondly, I do not accept that the surveillance of the plaintiff is the be all and end all, which is essentially the way which the defendant chose to challenge the plaintiff’s case. It is trite to say that the films speak for themselves. The plaintiff was capable of doing all of what I saw in all of the films, and it would appear that he appeared to be capable of full, free and unrestricted movement of his neck, shoulders, arms, spine and legs.
67Thirdly, I did not observe the plaintiff to have any discernible limp in any of the films except in the film taken on 21 November 2019 after he saw Dr Baker, and when he and his wife were in Collins Street, then the Bourke Street Mall and moving in and around shops, eventually entering the Myer store. He appeared to me to move in a guarded and somewhat slow manner, and appeared to be reliant upon his walking stick.
68Furthermore, I was invited by the plaintiff to review the films by having regard to particular times in each of the films when it was said that I would observe the plaintiff limping. I watched the films again, paying attention to the particular times in each of those films as I was asked to, but I was unable to discern any limp. One of the reasons may be that the limp might have been rather more subtle and difficult to pick up, but another is that some of the films were of generally poor quality, because they did not record fluid motion of the plaintiff walking. The films tended to be a bit jumpy, which made discerning any degree of limp, if it was present, almost impossible. That was not so much the case with the films taken on 11 and 13 January 2020, which were clearer, and which showed the plaintiff moving around his garage, driveway and garden without any apparent difficulty.
69However, the question is whether what the plaintiff was able to do is inconsistent with the left knee injury which Mr Pianta was treating in 2019 and 2020. I made specific reference to his courtesy letters in those years which demonstrate that he was convinced that the plaintiff had an actively symptomatic left knee warranting the diagnosis which he came to. I am not convinced that I should accept the films as being as destructive of the plaintiff’s case as the defendant contended should be so. I do not accept that the plaintiff was necessarily engaged in physical activity inconsistent with the diagnosis made by Mr Pianta in 2019 and 2020. I am fortified in reaching that conclusion because Mr Kossmann had the relevant surveillance report which did not impress him as containing material inconsistent with the history given to him by the plaintiff.
70Additionally, the films were taken about 20 months ago in the setting of a left knee which has continued to deteriorate, and will deteriorate to the point where the plaintiff will need the surgery proposed by Mr Pianta. I think it is probable that it has deteriorated in the way described by Mr Pianta since the films were taken.
71Fourthly, part of the defendant’s attack upon the plaintiff was that the walking stick is a prop. It married up the use by the plaintiff of the walking stick when he saw Dr Baker and his general practitioner as an attempt to emphasise the condition of his left knee injury by the walking stick bringing a greater dimension of seriousness to it than in reality is the case. The plaintiff pointed to the observation made by Dr Slesenger that he noted that the walking stick was “worn both at its base and its handle”. He noted that the plaintiff had evidence of uneven wear on the base of his shoes and that he was using the walking stick as an aid in his mobility. It was open to Dr Slesenger to make some comment about whether that was a performance being put on by the plaintiff or not, but he did not, and what I take from that is that he accepted that there were physical signs consistent with the plaintiff limping, using the walking stick, and needing to use it.
72Furthermore, on each occasion that the plaintiff was seen not using the walking stick in the films, he was cross-examined to emphasise that fact, but I was under the impression that the plaintiff used the walking stick when he was likely to be walking or on his feet for a period of time, rather than it being required every time he was on his feet and being mobile.
73Fifthly, I do not accept the fact that the plaintiff continued working with the defendant up until the time of his redundancy means that if he had not been made redundant, that he would still be working for the defendant or, alternatively, would have continued working with the defendant for some greater period of time. The evidence of Mr Pianta, Dr Slesenger, Mr Kossmann and Dr Baker is to the contrary. All of them are of the opinion that the plaintiff cannot return to work as a fitter and turner with the defendant, and although Mr Dooley did not tackle the issue as the others did, the restrictions he would place on the plaintiff probably mean that the plaintiff would not be able to return to that work.
74Sixthly, I accept that the opinions of Mr Pianta, Dr Slesenger and Mr Kossmann that they did, and were able to, consider the plaintiff’s left knee injury alone by ignoring other medical conditions for the purpose of determining whether it alone incapacitates the plaintiff for work as a fitter and turner and for any other work said to be suitable employment. That deals very adequately with the issue raised in Peak Engineering.[38]
[38]Supra
75Seventhly, I do not accept that the generalised osteoarthritic changes in his shoulders, hands, knees and right ankle are of themselves as disabling as the defendant submitted they are likely to be. Under cross-examination, the plaintiff denied that the generalised osteoarthritic changes incapacitated him to any material extent. He also denied that he was experiencing any particular problems with those areas of his body. He had limited recall of the entries in the clinical notes of Dr Habibi and of Havanna Remedial, however, it was my impression that he had some recall of having massage to the areas of his body referred to in those clinical notes. He denied that any of those problems had anything to do with the decision he made to sell his caravan and his Harley-Davidson motorcycle, nor that any of those problems would interfere with his capacity to work.
76Eighthly, I do not accept the proposition that because the plaintiff did not inform Mr Pianta, Dr Slesenger and Mr Kossmann of the generalised osteoarthritic problems, that it undermines their opinions of the extent to which the left knee injury alone incapacitates the plaintiff for work as a fitter and turner. In preferring the plaintiff’s evidence about the nature and extent of how the generalised osteoarthritic problems affect him, leads me to conclude that they are not of any particular importance in relation to his capacity for work. In turn, and therefore, they cannot impact upon their opinions relevant to the plaintiff’s capacity for work. Furthermore, the fact that they concentrated on the plaintiff’s left knee injury in isolation is of itself, compelling evidence that whatever other medical conditions may be affecting the plaintiff are of no importance.
77Ninthly, although the defendant did not strenuously submit that the plaintiff did not suffer an aggravation of the pre-existing condition of his left knee, I think the plaintiff’s evidence, coupled with medical evidence of Mr Pianta, Dr Slesenger and Mr Kossmann, clearly demonstrate that he suffered a major aggravation of the pre-existing pathology in his left knee. I do not think it is necessary for me to say much more than the plaintiff was asymptomatic prior to undertaking the work which he says produced the left knee injury, and that his evidence, together with that of the medical evidence, demonstrates very significant pathology resulting from his work, and very significant impairment of function which satisfies the test relevant to whether an aggravation of itself has produced a serious injury.[39]
[39] Pullicino v Burden’s Plumbing (Vic) Pty Ltd [2019] VSCA 88
Loss of earning capacity consequences
78I will deal with the plaintiff’s evidence relevant to loss of earning capacity first.
79The plaintiff submitted that his gross income from personal exertion for the year ending 30 June 2016 was $111,255. The defendant did not cavil with the proposition that it is that year and those earnings which most fairly reflect the plaintiff’s earning capacity had the injury not occurred. A breakdown of that figure amount is $2,139.51 gross per week, and 60 per cent of that figure is $1,283.71.
80The plaintiff submitted that if I was satisfied by the plaintiff’s evidence that he is effectively incapacitated for work as a fitter and turner, but the jobs on which Dr Slesenger, Mr Kossmann and Dr Baker were asked to comment constituted suitable employment, then a comparison between the 60 per cent figure and what the plaintiff could earn in any of those jobs means that the plaintiff has succeeded in proving the requisite degree of loss. The defendant did not cavil with that submission, and indeed, after making the comparison myself, it is clear that the plaintiff’s submission is correct.
81I should pause here to observe that only Dr Slesenger, Mr Kossmann and Dr Baker considered the jobs referred to in the report of Ipar in detail. I prefer the conclusions reached by Mr Kossmann that the plaintiff has a residual capacity which he can exercise in the jobs which he considered were suitable employment. I do not entirely discount the methodology of Dr Slesenger, but my preference for Mr Kossmann’s opinion is that he also had available to him the surveillance report which probably gave him a better understanding than Dr Slesenger of the plaintiff’s capacity to function. I reject the opinion of Dr Baker that the plaintiff is capable of returning to all of those jobs because he considered that the left knee injury was minor, which is inconsistent with the compelling evidence of Mr Pianta, Dr Slesenger and Mr Kossmann that the plaintiff suffered a very significant and disabling left knee injury.
82In circumstances where a plaintiff satisfies the loss of earning capacity requirements, the relevant provision of Workplace Injury Rehabilitation and Compensation Act 2013 also permits the plaintiff to claim damages for pain and suffering.[40]
[40] Advanced Wire & Cable Pty Ltdv Abdulle [2009] VSCA 170 at paragraphs [62]-[64]
83I think the evidence of the plaintiff and the medical evidence which I prefer overwhelmingly satisfies me that the plaintiff is incapacitated for his pre-injury job of fitter and turner with the defendant. If he does have a retained capacity which he can exercise in suitable employment consistent with the conclusions reached by Mr Kossmann, then he has not only satisfied the loss of earning capacity requirements, but is also then entitled to leave relevant to pain and suffering.
84Finally, I am satisfied that the impairment of the function of the plaintiff’s left knee is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, more than significant or marked and is at least very considerable relevant to his application for loss of earning capacity, and it must therefore follow that the same applies relevant to his application for pain and suffering.
Orders
85I will grant the plaintiff leave to bring a proceeding both with respect to pain and suffering and loss of earning capacity.
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