Aykut v Transport Accident Commission

[2012] VCC 182

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted

AT MELBOURNE

CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No.  CI-11-01801

SALIH AYKUT	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	30, 31 January and 1 and 2 February 2012
DATE OF JUDGMENT:	14 February 2012
CASE MAY BE CITED AS:	Aykut v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2012] VCC 182

REASONS FOR JUDGMENT

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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Transport Accident – serious injury – impairment to the right knee – psychiatric impairment.
LEGISLATION CITED – Transport Accident Act 1986, s.93
CASES CITED – Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 129; Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69;

JUDGMENT – Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr V A Morfuni SC with Mr S D Martin	Nowicki Carbone All States Legal Pty Ltd
For the Defendant	Ms A C Ryan	Hall & Wilcox

HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 17 August 2009 (“the said date”).

2 Section 93(6) of the Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

3       

The definition of “serious injury” relied upon by the plaintiff is under

s.93(17)(a) – “a serious long term impairment or loss of a body function”. The body function pursuant to (a) relied upon by the plaintiff is the right knee and right shoulder.

4       The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.

5       The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment.  What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.

6       In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?:  see Humphries v Poljak [1992] 2 VR 129, at 140-1.

7       The application was also brought in relation to sub-paragraph (c), claiming a severe long term mental or sever long term behavioural or emotional disturbance or disorder. 

8       The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would, prima facie, arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning.  Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.

9       Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)

10      The plaintiff relied upon two affidavits and gave viva voce evidence.  He also relied on an affidavit sworn by his daughter, Yasemin, on 28 December 2011.  The plaintiff’s treaters, Dr Alekozoglou and Dr Piperoglou, were required for cross-examination, as were medico-legal examiners, Mr Haw and Dr Weissman.

The Plaintiff’s Evidence

11      The plaintiff is presently aged sixty three, having been born in Turkey in 1948.  He completed secondary school and then commenced a journalism course, which he did not complete.  Over a number of years, he worked as a car pool dispatcher and an air force interpreter, and then completed his mandatory military service.

12      The plaintiff came to Australia in 1972 and worked as a cleaner in a nightclub in Perth for a few months.  In 1972, he also worked in Western Australia as a trade assistant for a mining company for about a year.

13      In 1973, the plaintiff moved to Sydney where he spent a couple of years performing manual labour for several different employers.

14      In about 1975, the plaintiff moved to South Australia and worked as a manual labourer at a steelworks factory until about late 1976, when he returned to Sydney and worked for some time as an assembly worker for Holden.

15      In 1977, the plaintiff obtained his taxi drivers licence in Sydney and worked in that capacity for almost a year.  In about 1978, he returned to Turkey and spent a year with his family.

16      The following year, the plaintiff returned to Australia and obtained a Victorian Taxi Licence, driving taxis in Melbourne for about six months.

17      In or about 1979, the plaintiff commenced working for Telstra as a linesman, working there until 1990.  During that period of employment, the plaintiff was involved in a transport accident in which he suffered injury to his back.

18      The plaintiff lodged a WorkCover claim and was off work for a couple of years in or about the late 1980s as a result of his back injury.  Throughout that time, he experienced some psychological disturbances because of his injury.  However, with physiotherapy and psychiatric treatment he made a good recovery.

19      In cross examination the plaintiff explained he received treatment from Dr Riley, psychiatrist, initially arranged by his employer and later as a private patient until 2001 or 2005, when Dr Riley retired.  Dr Riley gave the plaintiff some injections and prescribed Lovan and sleeping pills.  The plaintiff was not hospitalised as a result of his psychiatric condition.

20      In cross-examination, the plaintiff advised Dr Riley was treating him for severe depression following his back injury and problems with his former employer.  During that time the plaintiff had suicidal thoughts.

21      The plaintiff deposed that he ceased taking psychiatric medications in or about 2005.  In cross examination, the plaintiff said that after he ceased seeing Dr Riley, Dr Alekozoglou, the plaintiff’s general practitioner, continued to prescribe Lovan until about 2003.  Dr Alekozoglou did not give the plaintiff counselling as the plaintiff “was not bad then” and he only used Lovan a bit and then gave it up.

22      The plaintiff continued to experience some back pain but it did not affect his ability to work or his enjoyment of life. 

23      Further, since about 2001, the plaintiff has suffered from gastric problems; however, he managed that condition with Nexium and a good diet.

24      The plaintiff deposed that in about 1993 he returned to Turkey and was involved in construction work, acting as a foreman but not generally doing physical work.

25      In cross examination the plaintiff agreed he returned to Turkey during this time so his small daughter could learn Turkish before later starting school in Australia.

26      In about 1996, the plaintiff returned to Perth, where he stayed for about four months, and then went to Sydney for about six months.  Throughout that time, he performed varied casual work, such as delivering pizzas.

27      In about 1997, the plaintiff returned to Melbourne and resumed driving taxis, and since then had driven taxis periodically and also had been engaged in various labouring jobs, such as picking fruit and vegetables.

28      In cross examination the plaintiff explained that during that time he continued to receive Centrelink because he could never get a job that would see him through.

29      The plaintiff  thought he was on a disability support pension until the time he started working for Mr Matta in early 2009.  The plaintiff was not seeing any doctors for DSS certificates.  Dr Alekozoglou did not provide DSS certificates.

30      The plaintiff thought he was put on this pension by Dr Riley because of his psychiatric condition and also because he had a little bit of back pain. 

31      The plaintiff went to Turkey in 2003 as his mother was very ill.  He looked after her there for about two months and he then returned to Australia.  His mother died later that year.  After her death, the plaintiff returned to Turkey to sort out her estate.  The plaintiff received in total about half a million dollars, having access to some of these funds before his mother’s death 

32      The plaintiff commenced taxi driving for Mr Matta in February 2009.  Three or four times the previous year the plaintiff had driven taxis for other owners but did not tell Centrelink because his earnings were too low.

33      The plaintiff was cross examined in relation to an attendance with Dr Alekozoglou in June 2009, two months before the said date.  He thought he would have attended to get some sleeping pills but he did not recall feeling stressed at that time.  The plaintiff took sleeping tablets now and then before the said date.

The Accident

34      On or about the said date, when performing his taxi driving duties, the plaintiff was crossing the road on a pedestrian crossing when another taxi driven at high speed collided with his right leg (“the accident”). 

35      The plaintiff was thrown down onto the road and the left side of his forehead impacted upon the road.  He tried to stand up but his right leg collapsed under him.

36      In cross examination, the plaintiff agreed he suffered no direct trauma to his right shoulder in the accident but he later suffered symptoms.

37      An ambulance and police attended the accident scene and the plaintiff was transported to The Royal Melbourne Hospital (“the Hospital”).  Scans were conducted and the plaintiff was told by doctors at the Hospital that there was injury to his right and left lower limbs, injury to the left eye, various lacerations and bruises.

38      Whilst an inpatient at the Hospital, the plaintiff’s right knee was bandaged and placed in a splint and he was treated with painkillers and sedatives, and subsequently discharged the following day.

39      A week after discharge, the plaintiff attended Physical Healthcare Physiotherapists where he was treated by Mr Giles.

40      When he swore his first affidavit in August 2010, the plaintiff continued to undergo physiotherapy regularly and was treated by various practitioners at that clinic.  The treatment involved exercise and manipulation but it provided the plaintiff with only temporary relief from his symptoms.  At that stage, the plaintiff was about to commence hydrotherapy, and the physiotherapist had discussed with him the possibility of cortisone injections in his right shoulder.

41      The plaintiff had continuing physiotherapy treatment until 2011 when Workcover ceased funding. 

42      Soon after attending the physiotherapist for the first time, the plaintiff attended Dr Alekozoglou, his general practitioner, who prescribed painkillers and has continued to care for the plaintiff.

43      In September 2009, the plaintiff underwent an MRI scan of his right knee which he understood revealed damage.

44      In November 2009, the plaintiff attended Mr Goldwasser, orthopaedic surgeon, who recommended the plaintiff undergo surgery on his right knee and referred him for an x-ray, which took place in about November 2009.

45      On 18 January 2010, Mr Goldwasser performed surgery on the plaintiff’s right knee (“the operation”).  In more rent times, Mr Goldwasser has advised the plaintiff that he could have further surgery on his right knee but it may not improve his symptoms. 

46      In cross examination, the plaintiff agreed he had had a very good result from knee surgery.  He then said that down the track, the improvement stopped.  In re examination, he described the condition of his knee as “maybe slowly getting worse.”

47      In early 2010, the plaintiff attended Dr Piperoglou, psychiatrist, whom he continues to see for psychiatric treatment.

48      The plaintiff initially took Axit, Naprosyn, Nexium and Stilnox daily, and he took Zydol when needed.  As of December 2011 he was taking three or four Naprosyn tablets a week, Prozac, Seroquel and Valdoxan once daily and Stemetil.  He also was taking a Stllnox once daily but often substituted it with Temazepam. 

49      In cross examination the plaintiff said that he now takes a 1,000 milligram tablet of Naprosyn once per day, prescribed by Dr Alekozoglou.  He then said he does not take this tablet every day but probably on average five days a week as he tries to get by without them.

50      The medication is mainly for his knee pain but he also gets relief from his shoulder pain.

51      The plaintiff also takes Panadeine Forte intermittently.

52      The plaintiff continues to suffer pain and restriction of movement of the right leg, with the most severe pain in the knee.  Because he has to avoid putting pressure on his right leg, he often has to use his arms to support himself and as such, he has developed pain and restriction of movement in the right shoulder, his dominant limb. 

53      In cross examination, the plaintiff agreed his shoulder had improved significantly after treatment but in re examination he confirmed he had continued to have problems with his shoulder.

54      The plaintiff deposed that as a result of right leg, right knee and right shoulder pain, he has a lot of difficulty falling asleep at night.  He finds it hard to get comfortable and when finally asleep is usually woken by the pain, which tended to be more severe when he rolled on his right side.

55      Since the accident, the plaintiff has found that crouching or squatting causes pain in his right leg and knee to increase significantly.  When he has to bend down for some reason, he tries to lower himself to the ground without bending his right knee.  For example, if he took a DVD out of the bottom shelf he almost had to lie on the ground.  That was awkward and difficult and could also cause pain in his right shoulder to flare up. 

56      Prior to the accident, the plaintiff enjoyed walking and he loved the outdoors.  Since the accident, he has developed a limp and finds walking long distances causes the pain in his right leg and knee to flare up.  As such, he limits his walking to shorter distances where possible and tries to avoid walking on uneven ground, because it increases the strain on his right leg and right knee.  The plaintiff still tries to walk but has to stop and have a rest after a while.  As a result of his altered gait, the plaintiff experiences back pain. 

57      Since the accident, the plaintiff has found that standing in one place for more than a short period causes right leg pain and knee pain to flare up.  If he has been standing in the one place for more than about ten minutes, he often has to sit down or lean on something to relieve the pressure on his right lower limb.  For example, when he did a bit of shopping, he often leant on the trolley when standing in the checkout line, to relieve some of his pain.

58      Since the accident, the plaintiff has found it difficult to climb up and down stairs, because of right leg and knee pain.  He struggles with stairs that are steep and narrow or staircases that do not have banisters to hold onto.  If there is an elevator he generally uses it instead of trying to use the stairs. 

59      Since the accident, the plaintiff has tended to avoid lifting heavy items because it aggravates his shoulder pain.  His wife now purchases fifteen kilogram bags of Kitty Litter as the plaintiff has difficulty carrying it.  The plaintiff also tries to avoid lifting items off the floor because it hurts his right leg and knee to lower himself to the ground. 

60      Since the accident, the plaintiff has found that performing tasks above shoulder height, such as washing his hair, tend to hurt his right shoulder.  The plaintiff  tends to rely on his left arm more for those sorts of tasks.

61      Prior to the accident, the plaintiff often assisted his wife with household tasks; for example, moving the furniture while she vacuumed.  Since the accident, the plaintiff tends to avoid assisting her with these tasks because even moving light furniture aggravates his right leg, right knee and right shoulder pain.  He is generally limited to lighter tasks such as washing a few dishes in the sink.  The plaintiff’s wife and daughter perform most of the household tasks.

62      Prior to the accident, the plaintiff loved riding his bicycle and rode it almost every day to the shops.  It was a good way to stay fit and he enjoyed the scenery and fresh air.  Since the accident, it has been difficult for him to ride his bicycle because pushing the pedal with his right foot hurts his right leg and knee and gripping the handlebars hurts his right shoulder.  He tends to avoid riding his bicycle now because of the pain and restrictions caused by his injuries.

63      The plaintiff deposed that prior to the accident, he enjoyed playing tennis with his wife and daughters regularly at a tennis court near their home.  Since the accident, he tended to avoid trying to play tennis because he was worried that moving around quickly and shifting his weight would cause further injury to his right leg and knee.  He was also concerned that swinging the racket with his right arm would hurt his shoulder.  The inability to play tennis upset him, because not only did he enjoy tennis, but it was a good way to spend time with his family. 

64      In his most recent affidavit, the plaintiff deposed that he had not played tennis since the accident because of ongoing knee and shoulder symptoms.

65      In cross examination, the plaintiff said he played tennis on a couple of occasions and last played in 2007, two years before the accident.

66      Since the accident, the plaintiff has been able to drive a car; however, he does not tend to drive long distances because pressing the accelerator and the brake with his right foot hurt and gripping the steering wheel hurts his right shoulder.  He also finds that driving could make him nervous because he is scared of being involved in another accident.  As such, he tries to limit himself to short trips where possible or asks a family member to drive. 

67      Prior to the accident, the plaintiff used to perform a lot of general maintenance tasks around the house, such as fixing large appliances and performing minor car repairs.  He has tried on a few occasions since the accident to do these sorts of tasks but found it painful and difficult.  He tried to perform a minor repair on his daughter’s car but it was too hard to get underneath because of the strain on his right limb and shoulder and he had to get someone else to do the work.  As such, he now tends to avoid performing general maintenance tasks.  He had to call a professional repairman to fix the washing machine because he would have struggled to crouch down to fix it. 

68      Prior to the accident, the plaintiff enjoyed dancing occasionally at events, such as dinners and weddings, but since injuring his knee, he has tended to avoid dancing because it places too much strain on his right leg.  He is also worried that he would be bumped and suffer further injury.  Accordingly, he tends to sit and watch. 

69      Prior to the accident, the plaintiff loved to go camping with his family in their campervan when they took holidays together.  They usually went on trips together at least a couple of times a year but since the accident, he tends to avoid such activity because it involves too much strain on his right limb and right shoulder and he is worried about re-injuring himself.  For example, tasks such as setting up the tent, collecting water and firewood and carrying bags all aggravate his right limb and right shoulder pain, and as such, he has now given his campervan to one of his daughters.

70      In cross examination, the plaintiff described how he outfitted the Toyota cruiser in 1998 to go camping.  He made no mention of using a tent when camping as he had earlier deposed.

71      Prior to the accident, the plaintiff went swimming regularly in the summer and he enjoyed going to the beach as he was an outdoor person.  Since the accident, he tends to avoid swimming because kicking hurt his right limb and performing strokes with his arms hurt his right shoulder.  On the few occasions when he tries to go swimming, the plaintiff tends to wade gently in the water because it is too painful to do anything more than that.

72      In cross examination, the plaintiff described how he used to able to swim upstream when he went camping.  He now swims only a lap of the pool and then gets pain.  He attends the gym three times a week doing weights for his knee.  He also has hydrotherapy treatment at the gym. 

73      Prior to the accident, the plaintiff enjoyed taking his family to the snow in winter, going to the mountains almost every year and playing snow games, such as tobogganing.  Since the accident, the plaintiff tends to avoid going to the snow because trudging through it hurt his right limb and he is worried he will slip and sustain further injury.  He is also scared of falling off the toboggan and sustaining further injury.

74      Prior to the accident, the plaintiff loved to perform gardening tasks.  He had a vegetable patch at home in which he spent a lot of time and took pride in, providing his family with their own fresh produce. 

75      The plaintiff used to mow the lawn regularly, but since the accident, he tends to avoid doing so because steering the lawn mower hurt his leg and shoulder.  His wife now tends to mow the lawn – he occasionally tries to do so but has to rest because his pain is aggravated and his wife takes over.  The plaintiff also tends to avoid looking after the vegetable patch because of his pain when he tries to crouch down on the ground.  He has tried, but found it very difficult and painful and as such, much of the vegetable patch had died away.

76      Since the accident, the plaintiff tends to wear comfortable, padded shoes to relieve some of his leg pain.  He tends to wear slippers and runners, because they are more comfortable and he can fit insoles to provide further padding.  He avoids wearing stiff or formal shoes because they cause his leg pain to flare up and that makes it difficult to dress for formal events.

77      Since the accident, the plaintiff has become edgy and nervous when going out into the street.  Walking along the footpath and on a pedestrian crossing make him anxious and he finds himself looking around a lot, because he is scared he will again be hit by a car.  It is very stressful for him to leave the house and he does not enjoy going out as much as he did prior to the accident. 

78      Since that time, he has become more stressed and anxious and worried about his injuries and how he will support his family.  That stress, combined with the anxiety he feels walking on the street or when driving a car, means the plaintiff spends a lot of time in an anxious state.

79      Since the accident, the plaintiff has become depressed.  He has come to feel useless because he is able to do very little to support his family and he struggles to do many of his pre-accident tasks.  He often feels guilty relying on his family so much and it hurts him that he cannot not do more to assist them.  His daughters now tend to ask other people for help.  The plaintiff has lost much of his motivation, energy and positivity and feels that he has suddenly become lethargic and helpless.  He notices he has become forgetful since the accident and he often finds it difficult to concentrate.

80      Prior to the accident, the plaintiff worked approximately thirty eight hours a week as a driver for Mr Matta earning approximately $400 gross per week.  Mr Matta owned the licence plates and the taxi which was one with disabled access.

81      In cross examination the plaintiff confirmed he worked two twelve hour shifts on the weekend and an evening shift on Monday and Tuesdays.  His earnings were irregular and $400 a week was a round figure.

82      The plaintiff agreed he had been on Workcover payments since the accident, save for when he was working as a traffic controller.  The plaintiff notified Centrelink when he was on Workcover.  Correspondence received form Centrelink referred to the amount of the plaintiff’s Workcover benefits.

83      The plaintiff has been advised by Centrelink that he was overpaid $4,000 which he must repay. 

84      The plaintiff was cross examined about his tax returns which were prepared on his behalf earlier this year.

85      The plaintiff agreed that he earned $200 per week in 2008 delivering Turkish newspapers.  He was in receipt of a disability support pension during that time, and after the deduction of expenses, he was never over the threshold he was permitted to earn.

86      In the 2008/9 year, the plaintiff agreed his declared income from taxi driving was $4,351 for the five month period, with expenses claimed of $500.  The following financial year, he earned $2,056 for the six weeks driving until the accident

87      When operating a disabled taxi, the plaintiff was required to take passengers and assist them into the vehicle.  Since the accident, the plaintiff found this type of physical activity very stressful, strenuous and painful and for that reason he does not feel he could return to such employment.

88      Since the accident, the plaintiff has found that driving cars aggravates his right leg and shoulder pain and as such, he does not feel he would be able to return to work as a taxi driver.  Sitting in a car for a long time aggravates his right knee and shoulder pain and using the steering wheel hurts his shoulder.  Driving a taxi would also be difficult because of his anxiety.

89      In about January 2011 the plaintiff did a course to perform traffic control work .  He worked part time for a couple of months with Highway Traffic Control.  He generally worked about four hours per day, three days per week directing traffic with a lollipop.  This task often placed strain on his knee and between traffic duties, he rested on the side of the road to relieve his pain.

90      The plaintiff was also required to set up and pack away small road signs.  He struggled with these duties as carrying the signs placed strain on his knee and right shoulder and he performed this task slowly.

91      After the plaintiff had worked in this job for a couple of months, the employer stopped calling him.  In cross examination the plaintiff stated that there was still work available but he had not been offered it. 

92      The plaintiff deposed at the end of 2011, he was applying for a new licence to perform more work in this area.  He did not know whether he would be successful as a result of his ongoing right knee and shoulder pain. 

93      In cross examination, the plaintiff explained that he liked the traffic controller job because it was good pay.  He could lean on a sign when directing traffic but after twenty minutes standing he had to have a rest as his knee would start to hurt.  He coped “ok” directing the traffic but at the end of the shift he had difficulty when picking up road signs, bollards and witches hats.

94      The plaintiff agreed that IPAR told him he could do the traffic controller job and mail sorting but they did not tell him he could return to taxi driving.  The plaintiff did not think he could drive a normal taxi because of his anxiety and level of agitation.

95      A teachers aid job was suggested to the plaintiff but Workcover was not prepared to fund the necessary training.  The plaintiff had never worked as an integration aid but he would be prepared to try.  He would have to obtain a degree before he would be qualified to work as an interpreter.

96      As a result of his injuries, the plaintiff feels that he would not be able to do any manual work involving heavy or repetitive duties and he has no training or experience making him suitable for sedentary or clerical work.

97      Since being unable to work, the plaintiff has had difficulty paying the rent, which had recently increased, and he had to borrow money from friends, and currently owed $5,000.

Summary of the Plaintiff’s Taxation Returns

Financial Year Ending 30 June	Total Gross Income	Expenditure	Taxable Income
2005-2006	$4,600	$465	$4,135
2006-2007	$10,200	$1,100	$9,100
2007-2008	Nil	Nil	Nil
2008-2009	$4,351	$500	$3,851
2009-2010	$2,056	$150	$2,056
2010-2011	$2,214 (Trustee for Highway Traffic Control Unit Trust)	Nil	$2,214

Lay Evidence

98      The plaintiff’s daughter, Yasemin Aykut, swore an affidavit on 28 December 2011.  She is presently aged twenty four and lives at home with her parents,

99      Prior to the accident, she observed the plaintiff was a relatively fit and active person who enjoyed a variety of hobbies and activities.  She was aware that the plaintiff had experienced some intermittent back pain some time prior to the accident, but she could not recall him complaining of any pain or physical limitations.

100     The plaintiff enjoyed staying healthy and used to ride his bicycle and swim regularly.  He also enjoyed sports and played tennis with Ms Aykut’s mother regularly.  He also used to like to go with her mother for walks at least a few times a week.

101     Ms Aykut confirmed the plaintiff would take the family tobogganing.  She also described the plaintiff as a very useful handyman around the house and how he was able to perform some maintenance on their cars.

102     Ms Aykut confirmed the plaintiff’s involvement contributing to household tasks and the fact he used to take care of most of the gardening tasks, mowed the lawn regularly and grew a variety of vegetables.

103     Ms Aykut confirmed the plaintiff loved the outdoors and enjoyed camping at locations, such as Echuca.  She observed that the plaintiff was able to perform tasks, such as setting up a tent without difficulty.

104     Ms Aykut always found the plaintiff to be an interactive and sociable person, attending parties and weddings.

105     Ms Aykut confirmed that the plaintiff had been a taxi driver for many years prior to the accident and that he was required to drive for extended periods, often working long hours.  The plaintiff told her he enjoyed working with disabled passengers.  He was dedicated to his family and took pride in being able to provide for them.

106     Ms Aykut confirmed that the plaintiff had received treatment in relation to his right leg and shoulder injuries.  She confirmed that since the accident, he continued to experience pain and restriction of his right knee and struggled to do activities, such as crouching, squatting or kneeling.  As a result, more strain was placed on the plaintiff’s back and she had witnessed him have difficulty performing tasks that required him to bend or twist his back.

107     As a result of the accident, the plaintiff continued to suffer pain and restriction of movement in his right shoulder and had difficulty with heavy or repetitive tasks and tended to favour his left arm.

108     The plaintiff had difficulty now riding his bicycle because of his knee and shoulder symptoms and no longer rode regularly as he did before the accident.

109     Since the accident, she had not seen the plaintiff play tennis.  She knew he still tried to swim but she understood it was gentle wading rather than swimming fast laps. 

110     Since the accident, she had not seen the plaintiff go camping or to the snow.

111     The plaintiff had difficulty walking for extended periods and would often walk with an altered gait and did not go walking regularly as he did before.  He also had problems standing for extended periods and problems using the stairs, and avoided doing so if he could.

112     The plaintiff struggled to perform home maintenance tasks and now tended to use the services of a handyman or a mechanic for home and car maintenance.

113     The plaintiff was now very limited in his ability to perform household tasks, with the rest of the family performing the majority of tasks and the plaintiff trying to do what he could, like washing a few dishes.

114     The plaintiff now struggled with gardening tasks and tending to his vegetable patch, which had gone to seed.  The plaintiff still mowed the lawn but less often than before the accident, and he did so slowly and carefully.

115     The plaintiff tended to avoid trying to lift heavy items and his wife did most of the grocery shopping but avoided carrying heavy bags.

116     Ms Aykut had observed that the plaintiff tended to avoid dancing because of ongoing knee symptoms and tended to sit down and watch the dancing rather than participating.

117     The plaintiff had difficulty driving for extended periods, as it aggravated his knee and shoulder pain.  He had also become an anxious driver.

118     Ms Aykut had noticed the plaintiff often looked tired during the day from a lack of sleep.  He no longer looked as happy as he was before the accident and he was quieter and more reserved.  He also seemed anxious and stressed, particularly around traffic, and he worried about the family finances.

119     The plaintiff did not socialise anywhere near as much as prior to the accident, and had become more socially withdrawn.

120     The plaintiff was very upset about his inability to return to taxi driving because he enjoyed the work.

121     Ms Aykut observed in early 2011 that in the evenings after the plaintiff came home from working as a traffic controller, he often looked tired and worn out and he told her on a number of occasions that he was having difficulty performing those duties.  She deposed that after approximately a few months the employer stopped calling the plaintiff for work.

122     The plaintiff would like to continue trying to work but he has told her he is struggling because of his symptoms and she could see that upset him, because he could not provide for his family.

The Plaintiff’s Medical Evidence

123     The ambulance report set out that the plaintiff was struck by a vehicle to the right side in a taxi car park.  He had head strike and was unsure if he hit his head on the car or the road.  He was unsure of a loss of consciousness; however, a bystander stated the plaintiff got up and walked, limping to his vehicle.

124     The plaintiff complained of right knee pain.  It was reported he had an injury to both knees and to his left hip.  He had a haematoma to the left forehead and complained of generalised left sided neck pain briefly, but stated shortly after it was gone and there was no spinal tenderness.

125     It was noted there was a pre-existing history of gastric reflux, for which the plaintiff was taking Nexium.

126     Dr Marley, Medical Officer from the Hospital wrote to Dr Alekozoglou in September 2009, confirming the plaintiff’s presentation at the Emergency Department on 2 September 2009 when an injury to the muscle tendon of the knee was diagnosed.

127     On examination, the plaintiff was lax over his medical collateral ligament (“MCL”)  and lateral collateral ligament (“LCA”), and it was also queried whether his anterior cruciate ligament (“ACL”) may also have been involved.

128     Dr Marley thought it likely the plaintiff had a tear in his MCL and possibly his LCL and ACL and would require an MRI scan, before a Fracture Clinic appointment that day.  She also wrote a prescription for Panadeine Forte.

129     Ms Bridget Shaw, physiotherapist, fitted a limited motion knee brace at the Hospital on 2 September 2009.

130     Mr Giles, physiotherapist, thanked Dr Alekozoglou by letter of 26 August 2009 for seeing the plaintiff in relation to his knee injury.

131     Mr Giles reported to Dr Alekozoglou that on examination, the plaintiff had some laxity, suggesting a possible ACL injury.  Mr Giles noted, as far as he knew, there were no scans done to assess for ACL damage, as the plaintiff was discharged overnight.  He thought the plaintiff would benefit from orthopaedic review to determine whether a brace was required and whether any damage had been done to the ACL.

132     Dr Alekozoglou reported in August 2010 that the plaintiff presented on 27 August 2009 with injuries to the left side of the face, left hip and right knee following the accident.

133     On examination, the plaintiff had a bruised left eye, bruises on both his thighs, left knee abrasions, right knee pain and swelling.

134     Dr Alekozoglou noted the plaintiff was taken to hospital and assessed overnight, and discharged with a diagnosis of Grade II injury to the right cruciate ligament.  His leg was splintered and he was advised to see his local physiotherapist.

135     Dr Alekozoglou noted that Mr Goldwasser did not find an ACL tear on arthroscopy.

136     Dr Alekozoglou reported the plaintiff continued to have physiotherapy once a week and was on a self-managed exercise program and had an exercise bike at home.  His depression was then stable and he was not on any medication.

137     The plaintiff presented on 5 July 2010 complaining of right shoulder pain, which he had had for several months, relating to the use of his crutches.

138     Clinically, the plaintiff had impingement signs to the right shoulder and he was referred to the local Future Medical Imaging Group for an ultrasound of the right shoulder which revealed bursitis and a supraspinatus tear.  A request had been made that Workcover fund injections to the plaintiff’s shoulder.

139     Dr Alekozoglou then thought the plaintiff was unable to return to work as a taxi driver at present due to right knee and right shoulder pain.  He noted the plaintiff drove a taxi and would have difficulty with strapping the wheelchairs to the floor of the vehicle as this required kneeling, and he would not be capable of wheeling patients to their homes due to his shoulder injury.

140     In cross examination, Dr Alekozoglou confirmed he sees the plaintiff monthly.  He is prescribing simple analgesics and in the past has prescribed sleeping medication. 

141     Dr Alekozoglou treated the plaintiff some time ago (in excess of seven years ago, records of which have been destroyed) and then resumed treating him a few years before the accident.  He saw the plaintiff in 2009 for treatment in relation to his smoking habit.  He could not recall when before the accident the plaintiff had stopped anti-depressant medication.

142     It appeared from Dr Alekozoglou’s notes the first attendance in the period prior to the accident was on 24 May 2008 when he recorded a past history of severe depression, as well as thoracic sprain.

143     Dr Alekozoglou agreed that the plaintiff had been prescribed Nexium in 2008 for a stomach problem.

144     Dr Alekozoglou explained that on 2 June 2009 he prescribed Oxazepam to settle the plaintiff’s agitation.

145     Dr Alekozoglou agreed a patient needed a report from their doctor every two years in support of an ongoing entitlement to a disability support pension.  He has never provided any such certificates to the plaintiff but he was aware the plaintiff was in receipt of this pension.

146     Dr Alekozoglou agreed that in recent times the plaintiff had mechanical back pain for which Naprosyn was prescribed.  Dr Alekozoglou explained that if you had a knee injury for which may you tend to limp, it might cause some spasm of the lower back.  He had not treated the plaintiff for any back complaint in the year before the accident. 

147     Dr Alekozoglou agreed there was a late onset and complaint of right shoulder after the accident.  He is presently prescribing Naprosyn for the plaintiff’s back and shoulder condition.

148     Dr Alekozoglou confirmed there had been a good result from cortisone injections to the shoulder and the plaintiff did not complain to him of any ongoing pain or disability to him in relation to his shoulder.  Dr Alekozoglou described the plaintiff’s shoulder condition as a “variable thing.” 

149     Dr Alekozoglou confirmed that his notes of an attendance on 3 October 2010 indicated the steroid injections improved shoulder mobility and decreased suffering.  He agreed the plaintiff was not a man for whom he was prescribing regular pain relief, noting patients should try to avoid non-steroidals because of the side-effects and they were encouraged to take just Panadol when required.  If the plaintiff had been taking Panadol, Dr Alekozoglou would have mentioned it in his notes. 

150     Dr Alekozoglou agreed in essence, the plaintiff was self-managing his knee and shoulder and he was functioning quite well. 

151     Dr Alekozoglou confirmed he had most recently certified the plaintiff as fit for modified duties in July 2011 and he was right to go back to work.  However, there would be problems with driving a maxi taxi.  He thought obviously the plaintiff can do a lot of work but he needed to avoid lifting anything heavy or above shoulder height in particular.  Dr Alekozoglou thought the plaintiff’s shoulder problem prevented disabled taxi driving but he could drive a normal taxi.

152     In re-examination, Dr Alekozoglou confirmed primarily the knees were the plaintiff’s complaint and there was not much mention of the back.  There had been consistent and constant complaints about right knee pain, not so much the shoulder.

153     On 14 June 2010, the plaintiff complained of night pain and poor sleep associated with his right shoulder.  Dr Alekozoglou expected the plaintiff would have shoulder pain on and off although he was “usually pain free”.

154     Dr Alekozoglou left the plaintiff’s psychiatric management to Dr Piperoglou.

155     Dr Alekozoglou thought the plaintiff’s knee would not improve.  The only way to improve the knee was physiotherapy and a lot of bike work, and walking would also help.  He was aware the plaintiff had arthritis in his knee.

156     The plaintiff attended Mr Goldwasser on 6 November 2009 on referral from Dr Alekozoglou. 

157     The plaintiff presented with a history of suffering injury to his right knee in the accident.  He attended with photographs which showed extensive bruising on both legs.

158     On examination, the plaintiff walked with a limp and used a hinged knee brace.  Flexion was from 15 to 110 degrees.  There was an effusion present in the knee and marked tenderness of the medial joint line and mild tenderness on the medial femoral condyle.  Mr Goldwasser noted the knee appeared to be stable.

159     Mr Goldwasser referred to the MRI scan taken in September 2009, and advised further investigation and treatment with arthroscopy.  He also requested an x-ray, which was shown to be normal.

160     On 18 January 2010, an arthroscopy of the right knee was performed.  Mr Goldwasser diagnosed a complex tear of the medial meniscus, posterior third and a chondral flap tear of the medial femoral condyle.

161     At operation, a partial medial meniscectomy was performed and a chondroplasty of the chondral flap tear of the medial femoral condyle was performed.

162     There was noted to be some Grade III degenerative changes in the medial femoral condyle adjacent to the meniscus tear, Grade II to Grade III degenerative changes in a small central portion of the patella and there were Grade II degenerative changes in the lateral tibial plateau.

163     The plaintiff was reviewed on 3 February 2010, when he was noted to be making satisfactory progress and getting a range of movement beyond 90 degrees of flexion.  He was walking with a mild limp.

164     Mr Goldwasser referred the plaintiff for physiotherapy to help his knee function and to help him increase his level of activities.  He considered the plaintiff would not be ready for work for at least another two weeks, and gave him a certificate.

165     On examination, flexion of the knee was from zero to 110 degrees.  The plaintiff had a very mild limp.  There was minimal tenderness and he could not yet kneel or squat easily.

166     Mr Goldwasser concluded that in the accident the plaintiff suffered injury to the MCL of the knee and bone contusion to the femur and probably aggravated or possibly caused a tear of the medial meniscus.  When he last saw the plaintiff in February 2010, he considered the plaintiff’s condition had not stabilised.

167     Dr Piperoglou, psychiatrist, first saw the plaintiff in January 2010 on referral from Dr Alekozoglou and has subsequently seen him almost monthly. 

168     The plaintiff told Dr Piperoglou of the accident and his physical injury.

169     The plaintiff told Dr Piperoglou he found it hard not to be active and to sit down all day; he felt old and useless.  He felt too cautious with other cars and his concentration and memory were terrible.

170     In terms of past psychiatric history, the plaintiff told Dr Piperoglou that after the car accident at Telecom, he started seeing a psychiatrist, Dr Riley who gave him a course of injections in his rooms.  The plaintiff was commenced on the anti-depressant, Lovan, by Dr Riley, and remained on it until about 2003.  He was put on Lovan after some period off it, until 2005.  He was also on and off Murelax and Serepax for his sleeping problems and anxiety for at least ten years from about 1988 to 1998.  He was also on and off anti-inflammatory medication and analgesic medication between 1988 and 1998 for lower back pain.

171     This history was also set out a treatment questionnaire completed by Dr Piperoglou in January 2012.

172     When Dr Piperoglou first saw the plaintiff, on initial mental status examination, the plaintiff was anxious and depressed.  His attention and concentration seemed poor at times and he was negative about his future.  There was no evidence of delusions, hallucinations or thought disorder.

173     Dr Piperoglou thought, from a psychiatric point of view, the plaintiff was suffering from a Chronic Adjustment Disorder, with anxiety and depressed mood secondary to the accident injury and restrictions. 

174     Dr Piperoglou noted forced, premature and unplanned retirement, in a man with few other outside hobbies and interests, had been psychologically detrimental to him.

175     Dr Piperoglou thought the plaintiff’s prognosis rested with that of the underlying physical condition in the right knee and whether the plaintiff could return to gainful and meaningful employment.

176     In his view, the psychiatric injury per se would preclude the plaintiff from returning to taxi driving as he was now too anxious generally and he had problems with attention and concentration.

177     Dr Piperoglou noted the plaintiff had been tried on a number of different anti-depressants and also various hypnotic medications.  From June 2011, the plaintiff had been on Prozac and in early December 2011, the anti-depressant, Valdoxan was added to Prozac to help the plaintiff’s residual depression, anxiety and insomnia.

178     The plaintiff is presently taking 20 milligrams of Prozac and 25 milligrams of Valdoxan daily and a small dose of Stilnox and/or Seroquel, but now not on a daily basis, for insomnia.

179     Despite the aforementioned treatment, the plaintiff continued to have residual anxiety and depression, and Dr Piperoglou considered he would require ongoing treatment into the future.  Since the prescription of Prozac with Valdoxan, Dr Piperoglou believed the plaintiff’s condition had stabilised from a psychiatric point of view.  He thought the plaintiff’s injuries were consistent with the accident circumstances in a man with a past history of psychiatric illness.

180     Dr Piperoglou was cross-examined about the attendance on 7 January 2010 and confirmed that was the extent of the previous history given.  He was aware that the plaintiff had worked delivering Turkish newspapers.  He thought the plaintiff was a part-time taxi driver before the accident and he had been forced to retire from that activity as a result of the accident.  He confirmed he thought the plaintiff did not have many outside hobbies apart from going to Turkey every two years to sell property.

181     Dr Piperoglou noted there were some people who seemed to be on disability support pensions for long periods and were not reviewed.  He did not think the plaintiff should have been in receipt of that pension for psychiatric reasons but he really could not comment.  He would just be guessing as to why Dr Alekozoglou prescribed Oxazepam in June 2009.

182     Dr Piperoglou thought the plaintiff could do physical work, as long as it was appropriate for his knee injury, but his psychiatric condition would preclude returning to taxi driving.

183     Dr Piperoglou agreed when he examined the plaintiff in March 2011 he noted partial improvement and the plaintiff said he was less depressed and sleeping better, doing the traffic control course and going to the gym three times a week.

184     Dr Piperoglou considered the plaintiff’s symptoms still exist.  They are better than they were when he first saw the plaintiff.  There was some fluctuation but he would not say the plaintiff’s condition was mild.  It had basically plateaued with some fluctuations.

Medico-Legal

185     Dr Malcolm Brown, occupational physician, examined the plaintiff in May 2010 on behalf of Gallagher Bassett to determine ongoing liability for his WorkCover claim and also his employment capacity.

186     The plaintiff advised he had worked as a taxi driver for about nine months prior to the accident and had previously driven taxis and done cleaning and labouring jobs.  He worked with a disabled taxi, normally working twelve hour shifts on Saturdays and Sundays and an evening shift on Mondays and Tuesdays, totalling up to forty hours a week.

187     The plaintiff advised he had not returned to work as he felt he would have difficulty with tasks involving strapping the wheelchairs to the floor of the vehicle – a task requiring kneeling – and he was also concerned about having to wheel passengers into their homes.

188     In addition to the knee injury, the plaintiff also suffered some right shoulder symptoms dating from about November or December 2009, which he related to the use of crutches.

189     The plaintiff told Dr Brown he continued with physiotherapy once a week, as well as an exercise program, and he had taken some anti-inflammatory medication initially but that had ceased.  There had been some anxiety and he continued to see a psychiatrist.

190     Dr Brown noted the plaintiff had no history of musculoskeletal conditions but did have a previous psychiatric history.

191     On examination, there was no tenderness around the right shoulder, and supraspinatus testing was normal and pain free.

192     In the right knee, there was no obvious swelling and there was an unrestricted range of movement.  There was some palpable crepitus.  There was no evidence of muscle wasting.

193     Dr Brown thought the plaintiff had suffered a traumatic injury to the right knee, a secondary right shoulder condition and separately he had an active depressive condition.  Dr Brown thought the plaintiff did not yet have a capacity to return to unrestricted pre injury duties but did have a current work capacity.

194     Dr Brown thought the plaintiff could return to normal taxi driving duties on usual hours, and could also do other work which did not involve constant walking or the use of the right leg.  He considered there were active psychiatric factors present but these did not appear to be affecting the plaintiff’s recovery and return to work.

195     Dr Brown thought the right knee injury had been treated surgically with a good result.  In his view, there was no evidence of instability and the plaintiff had a good result from the rehabilitation program and should continue with his current treatment.

196     Dr Brown noted the supraspinatus pathology, but that the plaintiff had only mild symptoms and incapacity relating to that condition, which was to some extent secondary to his knee injury.

197     Dr Brown noted the plaintiff’s previous psychiatric history, as documented by Dr Jager, but he doubted that condition was having much impact on the plaintiff’s physical symptoms.

198     Dr Brown thought the plaintiff had progressed quite well but the main issue arose from the specific nature of him driving disabled taxis.  He thought the plaintiff did not have a capacity to kneel down to safely secure passengers in wheelchairs, but he would have little difficulty moving them in wheelchairs. 

199     Dr Brown thought the plaintiff should continue with physiotherapy for another six or eight weeks and then attempt pre injury duties.

200     The plaintiff was examined by Dr John Davis, specialist in occupational medicine, in August 2010.  The plaintiff was then taking Panadeine Forte, Naprosyn and Stilnox.

201     The plaintiff reported that in addition to the right knee injury, he developed some pain around the right shoulder in December of 2008, which he related to the forceful use of that arm when getting in or out of a car.

202     The plaintiff reported ongoing pain of a variable degree in his right knee, which prevented him from running or dancing and restricted his overall ambulatory tolerance.  He was unable to squat without aggravation and unable to maintain kneeling on his right knee, as well as experiencing considerable difficulty when attempting to rise from that position.  Further aggravation resulted from the use of stairs or walking on uneven ground.  Right shoulder pain was also continuing, associated with reduced movement and difficulty with overhead work. 

203     The plaintiff’s sleep patterns were disturbed and there was restriction of general social interaction, as well as an inability to garden or cycle.

204     On examination, there was no obvious gait antalgia observed, and weight bearing was symmetrically distributed at rest.  There was no effusion of the right knee and range of movement was zero to 130 degrees with obvious crepitus.  Clinically, there was good stability of the LCL, together with severe laxity of the MCL.  There were negative Lachman and pivot shift tests.  McMurray’s test was also negative, although there was a positive patellar grind test.  There was 1.5 centimetres of wasting of the right calf.

205     There was depression of the right scapular of at least a centimetre and there was some flattening of the posterior shoulder musculature.  The plaintiff was tender to palpation over the insertion of supraspinatus tendon in the right side.

206     In Dr Davis’ view, as a result of the accident, the plaintiff suffered significant trauma to the right knee involving ligaments and chondral damage, which included complete rupture of the MCL and a complex tear of the medial meniscus.  The chondral damage not only included the tibial plateau and medial femoral condyle, but also the chondral surface of the patella, where there was palpable crepitus present.

207     Furthermore, the plaintiff developed right shoulder symptoms, confirmed on investigations as a complete tear of the supraspinatus tendon.  Dr Davis believed the plaintiff must have sustained some injury in the shoulder at the time of the accident.

208     Following surgery to the knee, the plaintiff had been left with a considerable degree of instability, as well as ongoing pain of a tri-compartmental nature and pain and functional restriction with regard to his dominant right upper limb.

209     Dr Davis considered as a result of his injuries, the plaintiff was restricted in various activities, which would include any weighted or forceful work, repetitive reaching, repetitive work above mid chest level, repetitive or sustained squatting, sustained kneeling, working in confined or awkward spaces or prolonged periods of driving.

210     Dr Davis believed the plaintiff’s injuries resulted in his inability to return to his pre-injury duties, and the plaintiff would certainly not be able to return to work as a linesman, builder or maintenance person.  In fact, given his degree of impairment, Dr Davis did not believe in reality the plaintiff would ever find further formalised employment.

211     Dr Davis thought the plaintiff should undergo subacromial injection to his shoulder, although if that failed to resolve his symptoms, he would require a decompressive procedure.

212     In Davis’ view, the plaintiff had and would continue to suffer with variable degrees of pain which at times had been and would be quite significant, and the injury had impacted quite adversely upon a number of activities of daily living, as well as the plaintiff’s ability to enjoy the general amenities of life.  His ambulation was restricted, as was his ability to travel comfortably or to garden or cycle.

213     Dr Davis thought the plaintiff should avoid prolonged static standing, which would further restrict social activities, and he thought the plaintiff required domestic assistance for at least six hours a week.

214     In Dr Davis’ view, the plaintiff’s knee injury may be described as having achieved maximal medical improvement, although he did not believe that all interventions had, as yet, been explored with regard to treatment of his right shoulder.

215     In the long term, as a result of the chondral damage within the knee compartment, Dr Davis thought the plaintiff was likely to require a total knee replacement.

216     Mr Chris Haw, orthopaedic surgeon, saw the plaintiff in October 2011.

217     Mr Haw had available to him reports from Mr Goldwasser and also the MRI dated 10 September 2009.

218     The plaintiff told Mr Haw he was still having significant problems from his right knee, with an inability to squat and take significant loads on it, despite extensive treatment over the previous three months.  The plaintiff could no longer run or go for walks with his daughters because of a feeling of insecurity of the knee, unless on a very even surface, as on an uneven surface the knee tended to give way.

219     The plaintiff could no longer go camping or garden.  He could no longer do car maintenance.  His old back problem had been aggravated by his inability to bend his knees.

220     Mr Haw noted that because of increasing demands on his right shoulder, the plaintiff had torn the supraspinatus tendon; however, that had responded very well to physiotherapy and cortisone injections and was now largely asymptomatic.

221     Mr Haw noted that following the accident, the plaintiff had severe psychological problems, with a tremendous amount of anxiety and stress because of the pain and his restriction.  Depression had also been precipitated but it was now to some extent resolved with medication.

222     On examination, there was one centimetre of quadriceps wasting.  The right knee exhibited a positive anterior draw test.  There was also a positive Lachman’s test and Mr Haw felt the plaintiff had a slightly positive pivot shift test.  The plaintiff was markedly tender over the medial joint line but had no effusion and his right hip showed no sign of any abnormality.  He was still tender over the anterior aspect of the right shoulder but there was full range of movement and good power.

223     Mr Haw thought the diagnosis was one of a ruptured ACL and healed MCL and early post traumatic arthritic change of the right knee, with persisting instability as a result of a motor vehicle accident, together with aggravation of a pre-existing problem in the lumbar spine but resolution of an aggravated right shoulder.

224     Mr Haw thought further treatment was likely to be required for the right knee and this may necessitate total joint replacement in five to ten years.  It was his opinion there would be a slow, progressive arthritic problem that would progress in the right knee, and the accident had been a significant precipitating factor in that degenerative process.

225     From a medical point of view, Mr Haw thought the situation had largely plateaued, in as much as the plaintiff’s knee was now not rapidly deteriorating and had largely plateaued.

226     Mr Haw thought the plaintiff’s social life had been interfered with significantly and that he could not walk with his daughters, assist with car maintenance and no longer garden or go camping. 

227     Mr Haw thought the plaintiff’s earning capacity had been severely interfered with on a permanent basis unless he could obtain work as a traffic control officer.

228     In examination-in-chief, Mr Haw confirmed there was evidence of quadriceps wasting, which meant there was less control of the knee joint and less power of extension of the joint.  He confirmed that it was very likely, on his findings, that the ACL ligament had been ruptured.

229     Mr Haw based his view that the plaintiff may require joint replacement surgery in five to ten years time on his examination findings and the arthroscopic findings of Mr Goldwasser.

230     Mr Haw, having been advised of Mr Dooley’s opinion that the chance of surgery overall was low, explained it was clearly a matter of opinion, but with the degree of instability the plaintiff exhibited and with the arthroscopic findings, Mr Haw thought his chances of surgery were a lot higher than that.

231     Mr Haw explained that the ACL was much more involved in stability than the PCL and “you could get away” without the repair of the PCL.

232     Mr Haw noted the composite ligament involvement shown on the arthroscopic findings, while treated conservatively, does not usually heal to 100 per cent and there is still potential laxity.

233     Mr Haw did not attach any significance to the tear of the synovium.

234     In cross-examination, Mr Haw confirmed he based his opinion on further surgery on a presumption there was an ACL involvement/tear.  He agreed however he would defer to the operating surgeon’s views.  He confirmed that the instability pattern associated with the PCL was less likely to put significant sheer stresses on the articular cartilage.  If there was a posterior tear, on balance he would not suggest it was a likely outcome for surgery.  He confirmed however his examination did indicate the ACL had ruptured.  This rupture could have been missed by Mr Goldwasser on surgery.

235     Mr Haw had not seen the actual MRI thus he could not correlate it with his clinical findings.

236     Noting the findings on the arthroscopy and operation report, Mr Haw explained the plaintiff had in fact had an incomplete dislocation of the knee and that would not be compatible with no injury to the ACL.

237     Dr David Weissman, psychiatrist, examined the plaintiff in November 2011.

238     The plaintiff told Dr Weissman, in terms of past history, he had had a back injury about twenty years ago and he had four or five years off work.  He developed depression after that injury and was not working.  He was prescribed Lovan for about five years.

239     The plaintiff told Dr Weissman that he liked the traffic control work that he had done in February and March 2011 and thought he had performed the job well.  However, it involved moving and erecting signs and he could not continue working because of his bilateral knee pain. 

240     The plaintiff described his concentration and memory as forgetful.  He described limitation in activities, such as camping, jogging and playing tennis, and that he did not socialise any more.

241     The plaintiff told Dr Weissman he was feeling quite depressed after the accident, although less depressed now.  His appetite fluctuated and there had been some reduction in his interests, energy and motivation.  He had reduced enjoyment and pleasure in things.  He was anxious when driving, and very anxious, nervous and hyper vigilant when crossing the road.  The plaintiff had thoughts about driving a taxi again but told Dr Weissman he could not bear the thought.

242     On mental state examination, the plaintiff appeared mildly anxious.  There was no formal thought disorder and the quality of his affect was mildly anxious, mildly depressed and mildly reduced in range.

243     In Dr Weissman’s view, the plaintiff reported mild to moderate Post-Traumatic Stress Disorder symptoms and features of traumatisation and also mild to moderate mixed reactive anxiety and depressive symptoms, themes and features.

244     There were no formal abnormalities of perception and the plaintiff’s higher centre cognitive function appeared grossly intact.  His insight and judgment were characterised by a lowered self esteem and confidence.

245     Noting the history given by the plaintiff as to his pre-existing psychiatric condition, Dr Weissman commented that the plaintiff came across as someone with a good, solid premorbid level of function, quality of life, level of activity, occupational capacity and mental/ emotional health.

246     Dr Weissman noted the plaintiff was suffering from a moderately severe mixed reactive depression syndrome when referred to Dr Piperoglou.  Associated with this was significant sleep disturbance.

247     Dr Weissman thought that the moderately severe depressive syndrome had improved somewhat with regular psychiatric treatment and a combination of medication.  He thought the plaintiff was still suffering from a mild to moderate, closer to moderate, mixed reactive depressive and anxiety syndrome as a consequence of, or secondary to his accident related pain, injuries, disabilities, limitations and restrictions and resultant financial impact.  He had also sustained and developed a Chronic Adjustment Disorder with depressed and anxious mood of moderate intensity or severity.

248     Dr Weissman thought the plaintiff’s psychiatric symptoms had stabilised.

249     Based upon his anxiety, particularly with respect to taxis, Dr Weissman did not think the plaintiff would be able to return to his pre injury duties as a taxi driver and would obviously be unable to do wheelchair taxi driving because of his knee injuries.

250     Dr Weissman thought, on purely psychiatric grounds, as a result of his psychiatric condition, the plaintiff was probably partially incapacitated for work.  However, he could not say that on purely psychiatric grounds alone in terms of only the transport accident, that the plaintiff was totally incapacitated for all work.

251     In Dr Weissman’s view however, when one considered the plaintiff’s entire situation and circumstances, including his physical and psychiatric state, his advancing age, time away from permanent employment and limited transferrable skills outside of manual labour, he imagined the plaintiff was totally unemployable at present and for the foreseeable future.

252     Dr Weissman considered the plaintiff should continue to see Dr Piperoglou six weekly for about a year, and he should remain on his current psychotropic medication.  He considered the plaintiff’s psychiatric prognosis was fair.

253     In cross examination, Dr Weissman was told by counsel for the defendant that the plaintiff had been on a disability pension for some time before the accident in relation to both a psychiatric condition and a back injury.

254     Dr Weissman thought this evidence was a bit vague.  He confirmed it was his understanding the plaintiff’s depression had resolved before the accident.  The plaintiff was working, had a good quality of life and he had a pretty good level of function.  He was not taking anti-depressants and he was having no psychiatric treatment.  The extra material given to him by counsel for the defendant did not necessarily contradict that position.

255     Dr Weissman agreed the entry in Dr Alekozoglou’s notes of an attendance on 2 June 2009 was relevant when considering the plaintiff’s pre accident psychiatric condition and there seemed to have been at least mild mood and stress symptoms and sleep disturbance two months before the accident.

256     Having been given the extra material by counsel for the defendant, Dr Weissman thought there would be some contribution from pre-existing factors to the plaintiff’s present psychiatric condition, in other words, not all the depression was due to the accident alone, but he could not really say more than that.

257     In re-examination, the plaintiff’s level of activity as deposed to by him was put to Dr Weissman.  Dr Weissman explained that people with mild depression could still do those activities, “so it did not necessarily call it either way in terms of those activities.”  He confirmed the most relevant thing was the plaintiff was not on any psychotropic medication at the time of the accident.

258     The plaintiff was examined by Dr Jager, forensic psychiatrist, on behalf of the workers’ compensation insurer in February 2010 and re-examined by him in August 2011.

259     On the first occasion, the plaintiff gave a history of having depression after a worker’s compensation claim in 1985 and having seen Dr John Riley for several years.  The plaintiff was on Oxazepam and given injections to help him sleep.  He took Fluoxetine for ten years until 2006.

260     On mental state examination in February 2010, the plaintiff’s tone was flat and unreactive.  His thought stream was slowed but coherent.  He described no bizarre beliefs or abnormal sensory perception.  He was alert, attended well to the interview but showed slow mental processing.

261     Dr Jager noted the plaintiff still had pain, for which he took analgesics, and he had lowered mood, sleep, energy and libido.  Dr Jager diagnosed a Major Depressive Disorder as a consequence of the plaintiff’s physical injury and a biological predisposition to the development of a depressive condition.  He then thought the plaintiff was unfit for pre-injury duties due to slow thinking and mental processing.  He thought the plaintiff required treatment with anti-depressant medication. 

262     Dr Jager considered the plaintiff had a capacity for work not operating machinery or a motor vehicle and not requiring intense prolonged concentration. 

263     Dr Jager thought the plaintiff could work for six hours a day, five days a week undertaking alternate duties.  He estimated the plaintiff would require six fortnightly sessions with a psychiatrist, followed by three monthly sessions, before cessation of therapy.

264     On re-examination, the plaintiff told Dr Jager he still experienced low back and right knee pain.  His mood was not the best but it was alright day by day, and he enjoyed the work he had done earlier in the year.  He slept okay with pills and his energy was okay and his appetite good.  He was forgetful.

265     On examination, Dr Jager thought the Major Depressive Disorder was now in partial remission, with appropriate treatment, noting Dr Piperoglou told the plaintiff he was getting better.  Dr Jager thought the plaintiff needed to continue the treatment indefinitely, but it was approaching the time when the treatment could be managed by his general practitioner, as he had stabilised.

266     Dr Jager now considered the plaintiff fit to return to pre-injury duties and hours within physical restrictions.  He noted the plaintiff had a longstanding, pre-existing psychiatric condition following the work injury and his physical injury in the accident contributed to a relapse and employment was still a cause of his psychiatric condition.

Photographs

267     Photographs of the plaintiff’s head and lower limb injuries taken a couple of days after the accident showed extensive bruising on both legs and on the plaintiff’s face.

Investigations

268     Dr Alekozoglou arranged for a lumbar spine x-ray on 30 July 2010.  It was reported there was mild to moderate lumbar spondylosis, disc narrowing at L4-5 and L5-S1, moderate degenerative changes of the lower lumbar facet joints, a transitional L5 vertebral body and greater than forty per cent loss of vertebral body height of T12.

269     A right shoulder ultrasound was organised by Dr Alekozoglou in February 2010.  It was reported there was a full-thickness tear of the supraspinatus and subacromial bursitis.  It was noted ultrasound-guided steroid injection may be useful if clinically indicated.

270     An MRI scan of the right knee was organised by Dr Alekozoglou in September 2009.

271     It was reported there was a Grade III complete rupture of the proximal portion of the medial collateral ligament, a tear of the medial patellar retinaculum, medial and lateral subcutaneous soft tissue contusion and medial and lateral femoral condyle subcortical bone contusion and a complex horizontal tear of the posterior horn and posterior body of the medial meniscus.  The cruciate ligaments were intact.

Defendant’s medical evidence

272     Dr Alekozoglou provided a Certificate of Capacity dated 27 July 2011 certifying the plaintiff was fit for modified duties on the basis of his right shoulder condition.

Medico-Legal Evidence

273     Neil Sherburn, physiotherapist, examined the plaintiff on behalf of the WorkCover insurer in December 2010.

274     The plaintiff complained of pain in the right knee most of the time, and problems walking on uneven ground and getting up and moving from a chair.  He reported taking Panadeine Forte and Naprosyn.

275     Examination of the right knee showed the surgery scars; otherwise a normal appearance with no swelling.  There was a full range of movement with crepitus in the patellar femoral joint and the plaintiff could do no more than a third squat without pain, and could not kneel.

276     An examination of the right shoulder was unremarkable, with a good range of pain free movement.

277     In Mr Sherburn’s view, the plaintiff was now able to cease physiotherapy given the time from his surgery and his clinical presentation.  He recommended the plaintiff attend that treatment once a week for four weeks, once a fortnight for four weeks and a final review four weeks later, after which physiotherapy could cease.

278     Mr Sherburn thought the plaintiff was capable of returning to work as a taxi driver but would have difficulty undertaking his pre-injury duties with the disabled taxi.

279     Dr Kornan, psychiatrist, examined the plaintiff in January 2011.

280     The plaintiff’s ongoing problems were that his right knee gave him problems when he tried to bend and at times there was bad pain and a cracking sensation.  He also had pain in his back and in recent months, he had had some right shoulder problems.

281     In terms of past psychiatric history, the plaintiff reported that when he had problems with Telecom and hurt his back, he was subsequently on Lovan until 2000.  He had come back from Europe, having been in Turkey for three years between 1997 and 2000, and there were problems about leaving Turkey, and family issues.  Since that situation, he had been treated by Dr Piperoglou.

282     The plaintiff told Dr Kornan he did not do much except casual work every now and then.  His mother had left him an inheritance of about half a million dollars so he brought the money to Australia.  He worked for a year helping friends and then might not have worked for six months.  His different jobs included landscaping, renovations and working in a restaurant.  His last job was taxi driving, which he did for nine months.

283     The plaintiff told Dr Kornan he could not drive for more than thirty minutes because of right arm pain, and he found it difficult to get in and out of the car.

284     On mental state examination, the plaintiff’s intelligence was normal.  There did appear to be some problems with memory and concentration.  There was no disorder of perception.  Dr Kornan thought the plaintiff’s judgment was influenced by his personality type and mood situation.  He gained the impression the plaintiff was someone who had a comfortable life, including private school when younger, but for personality reasons had not found a niche for himself in later life.  There was some ongoing distress and heightened subjective distress and some heightened mood features.  There was evidence of some anxiety and depression and the plaintiff’s behaviour showed a man who had problems with confidence levels and self esteem.

285     Dr Kornan wondered about the plaintiff’s personality presentation but there did not seem to him to be immediate evidence of a personality disorder.  There were no psychotic features, delusions or hallucinations.

286     Dr Kornan thought the plaintiff had an Adjustment Disorder with Mixed Anxiety and Depressed Mood which was to the upper level of mild severity.

287     From a psychiatric perspective, Dr Kornan thought there was no limitation to the plaintiff’s daily activities of living and he was fully fit to work.  His psychiatric condition represented a disability but not an incapacity.  If he could not work it would be due to physical factors.

288     Dr Kornan thought the plaintiff was having the correct treatment in attending a psychiatrist and taking psychotropic medication.

289     Dr Baker, occupational medicine physician, examined the plaintiff in February 2011.

290     The plaintiff told Dr Baker he had a good range of movement with the right shoulder and his main problem related to the knees.  He could not crouch or kneel, run or walk fast.  He also complained of symptoms in his lower back because he had problems bending his knees.

291     On examination, there was a good range of movement of the upper arm at the right shoulder joint and there was a good range of thoracolumbar movement.

292     On examination of the right leg, there was wasting of the thigh muscles by one centimetre compared to the left.  There was a good range of movement of the knee and no patellofemoral discomfort detected.  There was a range from full extension through to a flexed angle of 140 degrees.  There was no collateral or cruciate ligament laxity and the joint was stable.

293     Dr Baker noted the plaintiff had suffered intraarticular damage to the knee which required arthroscopy, and had improved.  He allowed a nil impairment under the AMA Guide because of a good range of movement.

294     Dr David Barton, occupational physician, examined the plaintiff in September 2011.

295     The plaintiff told Dr Barton of the knee injury in the accident and the subsequent development of problems with the right shoulder.  The plaintiff advised he had worked for six weeks as a traffic controller, up to twenty five  hours a week, until the work was stopped when the employer was no longer prepared to provide it.

296     The plaintiff said he had good and bad days and he “had now stopped healing.” He described pain around the front of the right knee and he had difficulty bending.  His symptoms were generally worsened with exercise and activity.  There was some crepitus.  The plaintiff went on to say he had recently developed some back problems because he could not bend his knees.

297     On examination, there was no observed swelling, deformity or wasting of the lower limbs.  There was some minor tenderness around the patella area on the right.  There was a full range of movement on both sides of the knees.  There was some minor ACL laxity on the right and there was no evidence of any joint effusion.  There was some mild patellar femoral crepitus felt moreso on the right.

298     Specific examination of the right shoulder showed no particular areas of tenderness and a full range of movement.

299     At that stage, Dr Barton believed the plaintiff had some persisting right knee dysfunction following soft tissue injuries treated surgically.  He did not believe there was any medical condition relating to the right shoulder or back relevant to the claimed injury.

300     Dr Barton thought that whilst the plaintiff may struggle to do long periods of taxi driving, he could do shorter shifts driving a taxi without the need to deal with wheelchairs as well as undertake some general duties consistent with the vocational assessment.  He agreed that both job options suggested were within the plaintiff’s physical capacity.

301     Professor Mendelson, psychiatrist, examined the plaintiff in September 2011.

302     The plaintiff told Professor Mendelson that for several years he attended a psychiatrist and took Lovan.  He might have started to see the psychiatrist about ten years ago and continued treatment for some five or six years.

303     In Professor Mendelson’s view, the plaintiff did not have any diagnosable mental disorder and there was no indication of loss of work capacity due to any psychiatric illness or psychiatric impairment.  He noted the plaintiff described irritability as the result of what he said was persistent pain in the right knee, the resultant restrictions on his activities and his current situation.

304     Professor Mendelson noted any specific depressive symptoms secondary to his physical condition and its sequelae which the plaintiff might have previously experienced were currently well controlled with the use of Prozac and supportive psychotherapy from Dr Piperoglou.

305     Professor Mendelson thought the plaintiff’s overall prognosis was that of his physical condition and there was no psychiatric contraindication to him undertaking gainful employment within the limitations of his physical condition.

306     In Professor Mendelson’s view, it was not inappropriate the plaintiff continue with his current treatment under the care of Dr Piperoglou until he returned to gainful employment.

307     Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in October 2011. 

308     The plaintiff told Mr Dooley of improvement over a several month period after knee surgery, then his symptoms plateaued.

309     The plaintiff noted ongoing intermittent right back pain and said at times his knee could be quite sore and at other times he felt minimal pain.  He told Mr Dooley he felt unable to work as a taxi driver because he got right knee pain getting in and out of a car and he could drive for half an hour before getting significant knee pain.  Mr Dooley also mentioned the plaintiff had some difficulty driving because of left shoulder pain.

310     On examination, there was evidence of wasting of the quadriceps muscles and there was no effusion of the right knee.  There was mild medial and lateral joint line tenderness.  The knee moved from full extension through to 130 degrees of flexion.  The knee was stable in extension.  In 30 degrees of flexion there was evidence of laxity of the MCL, and Mr Dooley thought there might be some mild laxity of the PCL.

311     Mr Dooley believed that in the accident, the plaintiff sustained a soft tissue injury to the right knee that involved the rupture of the MCL and a strain of the PCL.

312     In Mr Dooley’s view, the injury and period of immobilisation required after it, had probably aggravated underlying degenerative changes within the posterior horn of the medial meniscus, including degenerative type tearing.

313     Mr Dooley thought, in the plaintiff’s case there was underlying degenerative tearing of the posterior horn of the medial meniscus and it was felt most likely that the plaintiff’s ongoing pain related to that condition. 

314     Mr Dooley noted partial meniscectomy resulted in a significant improvement in the plaintiff’s pain.  However, the plaintiff felt ongoing intermittent pain which Mr Dooley thought would be expected from the type of injury he had sustained. 

315     Mr Dooley considered treatment in the future should involve undertaking regular low impact exercises, such as bike riding and water exercise.  He thought it probable the plaintiff could not regain full quadriceps muscle strength but it was important he continued regular exercise.  He noted degeneration of the left shoulder from the plaintiff’s complaints.

316     Mr Dooley thought, essentially, the plaintiff’s knee condition could be self-managed and he agreed with the plaintiff’s treating orthopaedic surgeon that it was unlikely further surgery would predictably improve his symptoms.

317     Mr Dooley believed the diagnosis in relation to the right knee was a tear of the MCL and a partial tear or sprain of the PCL.  The MCL tear involved a complete rupture, whereas the injury to the PCL ligament had been mild. 

318     From an orthopaedic point of view, Mr Dooley would expect the plaintiff to note some ongoing intermittent right knee pain as he had described.  He thought the plaintiff would have difficulty with activities that involved any regular twisting or turning or any regular kneeling or squatting.  He would have difficulty carrying heavy physical work and work that involved a lot of kneeling and squatting on the right knee.

319     Mr Dooley considered the plaintiff had the capacity to work as a traffic controller, courier or mobile safety camera operator.  In relation to working as a courier, his trips would need to be relatively short and not involve any heavy loading or unloading of vehicles.  Mr Dooley noted the plaintiff had some difficulty driving for a significant period of time because of a left shoulder condition, which was unrelated to the accident.

320     Mr Dooley provided a supplementary report, having been given the reports of Dr Davis and Mr Haw.

321     Mr Dooley advised the tear of the posterior horn of the medial meniscus represented a degenerative tear which was probably present at the time of the accident.  The injury and subsequent immobilisation probably aggravated the underlying situation and the plaintiff noted some ongoing medial joint pain, some of which related to the MCL tear.

322     In terms of the requirement for a total knee replacement, Mr Dooley noted the plaintiff was now aged sixty three.  Overall he rated the likelihood of the plaintiff requiring such surgery, either as a consequence of his naturally occurring degenerative osteoarthritis or as a consequence of a ligamentous injury sustained in the accident, as overall being low. 

323     Mr Dooley explained a patient who sustains a complete rupture of the PCL resulting in significant posterior sagging of the tibia and femur develops post-traumatic osteoarthritis of the knee joint over a twenty to thirty year period.  The plaintiff sustained a partial tear of the PCL.  That, on the scale of mild, moderate and severe would be rated as mild.  The arthritis that was associated with a significant rupture of the PCL tended to affect the patellofemoral joint and the medial side of the knee, not the whole joint.  Overall one carried out very few knee replacements for patients who had previously sustained soft tissue ligamentous injuries to the knees.

The Defendant’s Vocational Evidence

324     IPAR provided a return to work plan of 18 January 2010 following an initial assessment report of 13 January 2010.  These assessments preceded surgery. 

325     In January 2010, there were no alternate suitable duties due to the nature of work.  The employer, Mr Matta advised it was not feasible for the plaintiff to drive and for him to load the bags and wheelchairs. 

326     There was a one month progress report of 14 February 2010 when the plaintiff had just had surgery.   In March 2010, Dr Alekozoglou said he would not approve a return to work until six weeks post surgery and until an assessment by a physiotherapist.

327     In a 130 Week Vocational Assessment Report prepared by IPAR on 14 July 2011, the jobs of traffic controller, security officer, gatehouse, mailroom clerk and receipt and dispatch clerk were identified as suitable for the plaintiff.  The plaintiff advised he would be interested in working in security and as a mailroom clerk or even a receipt and dispatch clerk.  Ongoing pain and physical restrictions were determined as being barriers.

328     Joanne Bryant, occupational therapist, from Co-Work provided an occupational and labour market analysis report in September 2011.  In that report, she recommended the jobs of traffic controller, courier – pathology, dental – and mobile safety camera operator as suitable for the plaintiff.

Claim Documentation

329     In his Claim for Compensation under the Act, the plaintiff set out on 28 August 2009 his injuries were of the head, right knee and left knee.  He described workdays driving taxis, consistent with his affidavit evidence.  He also noted he had last seen Dr Riley five years ago and as at the time of the accident he was taking Nexium.  The plaintiff disclosed a history of back injury and also psychiatric treatment.

330 In his Claim for Compensation under the Accident Compensation Act, signed on 15 September 2009, the plaintiff stated his usual pre tax weekly earnings were $340. This figure was confirmed by his employer on its claim form.

Overview

331     There is no dispute that the plaintiff suffered injury to his right knee in the accident, having been struck by another vehicle when crossing the road.  Photographs taken of the plaintiff in the days following the accident showed extensive bruising of his lower limbs.

332     As treating surgeon Mr Goldwasser concluded that in the accident, the plaintiff suffered injury to the MCL and bone contusion to the femur and probably aggravated or possibly caused a tear of the medial meniscus. 

333     The weight of medical opinion is that the ACL does not appear to have been injured in the accident.  There were no findings in relation thereto by Mr Goldwasser on surgery and the MRI was reported to show intact cruciates. 

334     Mr Haw however thought it unlikely that the ACL would not have been involved given his examination findings of ACL laxity, and the extensive damage and in effect partial dislocation of the knee in the accident.  ACL involvement was queried in the Hospital Emergency on admission date and on examination one week thereafter, physiotherapist Mr Giles found ACL laxity.

335     However, in this case where it is accepted that there is an accident related knee injury, the involvement of the ACL is relevant only when considering the likelihood of knee replacement surgery in the future.

Credit of the Plaintiff

336     Maxwell P said, in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, at paragraph 12:

“The weight to be attached to the plaintiff account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

337     I found the plaintiff to be a genuine, truthful witness.  There were submissions made by counsel for the defendant that he was unreliable in that he overstated the level of his pre-accident activities, such as tennis.  However, in my view this minor issue did not affect his credibility generally. 

338     Further, the plaintiff volunteered in cross examination that he had severe depression before the accident and that he was in receipt of a disability support pension for both his back and psychiatric conditions, when there was no other evidence before the Court in that regard.  His evidence that Centrelink was aware of his WorkCover payments, forwarding him correspondence on various occasions setting out the respective amounts to be paid to him under both schemes was not challenged.

339     The plaintiff was also prepared to admit to examining doctors that there had been an improvement in his mental condition in recent times.

340     Further, there is no surveillance film or any evidence that the plaintiff’s complaints as to his level of pain and restriction are exaggerated.  No medical practitioner thought that there were inconsistencies on examination or that  the plaintiff exaggerated his right knee symptoms.

Consequences

341     At the time of the accident, the plaintiff had worked for the preceding nine months driving a disabled taxi.  Whilst he had a back injury many years ago, there was no evidence that this or any other condition restricted his ability to work in his job which required lifting and manoeuvring wheelchair bound passengers.

342     This job was part time with two weekend and two week day shifts as confirmed by his employer in the Workcover claim documentation. 

343     From his taxation returns, it is clear the plaintiff did not regularly earn $400 per week as he deposed.  His taxable earnings were about $4,000 for the five months worked in the 2008-2009 financial year, and he earned nearly $2,000 in the six weeks worked in the following financial year before the accident.

344     Whilst this work was of a very part time nature, it was a job the plaintiff enjoyed and he has not been able to return to since the accident.

345     The consensus of medical opinion is that the plaintiff would not be able to work driving a disabled taxi because of the lifting and moving of wheelchairs involved.  In particular, he would have difficulty kneeling to strap the wheelchair to the floor of the taxi.

346     However most doctors agree the plaintiff would not have the same physical problems driving a normal taxi.  The plaintiff maintains he would have problems with prolonged sitting and he would also experience anxiety when driving.

347     I accept that whilst the plaintiff could probably return to normal taxi driving, at least on a part time basis, because of his right knee condition, he is limited generally as to work requiring prolonged standing, bending or lifting.

348     This situation was confirmed by the plaintiff’s experience on his return to work as a part time traffic controller in early 2011.  Whilst he enjoyed this job, the plaintiff had difficulty with prolonged standing directing traffic and he also experienced problems lifting road signage at the end of his shift.

349     Despite surgery, the plaintiff has had ongoing problems with his right knee which Dr Alekozoglou confirmed were not going to get better.

350     Although the plaintiff had some improvement following surgery, since that time he has continued to have right knee pain which he believes is maybe slowly getting worse. 

351     Movement of the plaintiff’s knee is restricted.  He has continuing problems squatting, kneeling, crouching and bending – all restrictions accepted by doctors such as Mr Dooley as related to his knee condition.

352     The plaintiff has problems with his ambulation generally.  He is limited in his ability to walk long distances and at times he walks with a limp.  He has difficulty walking on stairs or uneven ground.

353     As a consequence of his altered gait, the plaintiff has experienced increasing back pain.  Whilst he had a significant back injury working with Telstra many years ago, in the year or so before the accident when Dr Alekozoglou recommenced treating him, the plaintiff made no complaint of back pain.

354     Further as a result of the requirement to use crutches for his right knee and restrictions associated with that injury, the plaintiff has developed right shoulder problems. 

355     Since the accident, the plaintiff has required pain killing medication at various times, for his knee pain.  The Naprosyn he continues to take for his knee pain also relieves his back and right shoulder pain.

356     The plaintiff has lost strength in his right quadriceps muscle as a result of his knee injury.  Wasting and a loss of power has been confirmed by a number of medical examiners.  The plaintiff has shown motivation to improve his knee strength by undertaking exercises at the gym on a regular basis.

357     As a result of his knee pain, the plaintiff has problems with sleeping, a matter which Maxwell P, in Haden Engineering (supra) at paragraph 45 described as one of great significance.

358     The plaintiff is restricted in his ability to engage in activities he previously enjoyed such as his vegetable garden, car and home maintenance, camping and various social activities. 

359     The plaintiff’s level of pain and restriction was confirmed by his daughter Yasemin.  Her affidavit evidence was unchallenged.

360     In addition to the physical consequences of his knee injury, I am entitled to take into account the expected emotional consequences of the plaintiff’s physical injuries, such as frustration, irritability and upset at his inability to do his previous activities – see Winneke P in Richards v Wylie (supra).

361     As Professor Mendelson noted, the plaintiff described irritability as the result of what he said was persistent pain in the right knee, the resultant restrictions on his activities and his current situation.

362     The potential for further degeneration is a relevant factor to consider when looking at the seriousness of an application pursuant to subsection (a) as the Court of Appeal set out in Stone v Jarvis, one of the cases referred to in Barwon Spinners.

363     I am satisfied that in this case where there is established damage to the MCL , there is a risk of knee replacement surgery in the future although such a risk is small or low as Mr Dooley and Dr Davis agreed.  Mr Haw thought the chances of surgery were somewhat higher.  Having found a progressive arthritic problem in the right knee and on the basis of his findings of ACL laxity, he thought the plaintiff may require a total knee replacement in five to ten years.   

364     I am satisfied, taking into account all of the evidence, that the plaintiff has an impairment to his right knee which meets the test of serious in Humphries v Poljak (supra).  I also accept given the duration of the plaintiff’s symptoms and the consensus of medical opinion, that such impairment is likely to last into the foreseeable future.

365     Having found a serious injury in relation to the right knee, I am not required to determine the application in relation to the right shoulder, which was not seriously pursued in any event.  Further, I am not required to determine the application under subsection (c) in relation to psychiatric impairment.

366     Having found a serious and long term impairment of the right knee, I grant leave to bring proceedings for damages in relation to the transport accident.

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