Azzopardi v Victorian WorkCover Authority

[2017] VCC 1036

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
 (Not) Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-17-00104

Joseph Azzopardi	Plaintiff
v
Victorian WorkCover Authority	Defendant

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July 2017
DATE OF JUDGMENT:	4 August 2017
CASE MAY BE CITED AS:	Azzopardi v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2017] VCC 1036

REASONS FOR JUDGMENT
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Subject:  Common Law           
Catchwords:   Serious Injury Application    
Legislation Cited:  Accident Compensation Act 1985 (Vic)

Cases Cited:Sabo v George Weston Foods [2009] VSCA 242; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Fleming v Hutchinson (1991) 66 ALJR 211; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46; TAC v Dennis [1998] 1 VR 702; Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260

Judgment:  Leave granted to the plaintiff

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	G. Coldwell	Slater & Gordon
For the Defendant	M. Tait	Russell Kennedy

HER HONOUR:

1 Mr Azzopardi applies under s.134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (“the Act”) for leave to issue proceedings for the recovery of damages for pain and suffering only in respect of an injury to the right knee sustained on 4 April 2011 while working for the defendant as head clerk. The injury to the right knee was sustained when he tripped on a wobbling gangway while disembarking a ship, fell forward, caught his foot on a step, and twisted and wrenched his knee.

2       He felt immediate severe pain and his right knee swelled up. He had physiotherapy, then MRI, then underwent surgery in the form of an arthroscopic partial medial meniscectomy on 10 October 2011. After surgery, he developed a deep vein thrombosis which required treatment with Warfarin for three months. He was off work for 5 weeks. Although the surgery gave him benefit in terms of reduced pain and a better range of movement, he suffers constant right knee pain, swelling in the knee after exertion, is restricted in standing, bending, squatting and crouching, and in putting on socks and tying shoelaces, walking on uneven ground, descending stairs, walking long distances, kneeling to garden, doing maintenance and repair work around his 30-acre property, and chopping wood. His right knee often gives way when he walks, and when he gets up it makes grinding noises. He continues to work full time, but has trouble walking on gangways and has a stiff and sore right knee at the end of the day. He gets sharp pain in the right knee if he twists, stumbles or moves suddenly. During breaks at work he puts his right leg up, and 3 or 4 times per week he ices the knee at home at night. He limps on occasions. In particular, he can no longer play sport or exercise at anywhere near the same level as he did before his injury. Prior to the right knee injury he was a fast-bowler on the same cricket team as his sons and loved playing with them. He also used to exercise 6 days per week – cycling, running and going to gym. He could cycle and walk long distances and over hilly terrain. Running now causes him right knee pain. He can no longer play cricket or cycle long distances. He can no longer play football with his sons. He has become less active and put on 12kgs. He takes anti-inflammatory medication about twice per week and has physiotherapy and massage every few weeks. He has arthritis in the right knee and has been told that he may need a total knee replacement in the future. Although he injured his left knee in mid-2012, the symptoms in that knee are mild compared to those in the right knee.

3 The defendant says the consequences of the right knee injury must be separated from the consequences of the left knee injury, which occurred in mid-2012 when the plaintiff was running. The defendant concedes that the pain and suffering consequences of the right knee injury are considerable, but says that they are not “more than considerable” as required under the Act, when bearing in mind that he works full time, hardly takes any medication, does not suffer constant right knee pain, still goes to the gym regularly, can take care of himself and only has minimal physical restrictions such as squatting, kneeling, and taking the stairs. The defendant says that the possibility of a need in the future for a right knee replacement is speculative and should not be taken into account.

4       The defendant accepted the plaintiff’s claim in respect of the right knee, has paid all medical and like expenses in relation to it, and has made a lump sum award of impairment benefits in relation to it.

5       I turn briefly to the plaintiff’s evidence. As at the date of the hearing, the plaintiff confirmed the pain and restrictions as outlined above in paragraph 2. In cross-examination, he said that in 2012 he was trying to get back to running by doing a lap around the Tan, but that this was achieved by alternating between running and walking, three minutes at a time. He denied playing nine cricket matches since his right knee surgery, and said that the document suggesting this was the case was inaccurate. He said he could no longer tolerate the twisting of the right knee required as part of his bowling action. He said that kicking a football causes him too much pain, and that he can walk for an hour but then his right knee gives him trouble. He can kneel when weeding for short periods. Some weeks he does not take any Nurofen. In re-examination, he said that he used to kick the football with his sons to help them with their training about 4 times per week. Prior to the right knee injury, he would run 2-3 laps of the Tan about 3 times per week. He misses playing cricket. His right knee pain is not constant, but occurs almost daily.

6       I turn briefly to the medical evidence. There is no issue that the plaintiff suffered a symptomatic medial meniscus tear of his right knee at work on 4 April 2011, which was surgically repaired.[1]

[1] Plantiff’s Court Book (PCB) 32

7       An MRI in March 2012[2] showed mild degenerative changes affecting the articular cartilage in the medial compartment, and a mild effusion decompressing into a sizable popliteal cyst.

[2] PCB 36

8       His treating orthopaedic surgeon, Christos Kondogiannis, reported on 19 January 2016 that the right medial meniscus was surgically repaired and that ongoing right knee symptoms were caused by “any ongoing chondral degeneration that may occur”.[3] The plaintiff reported left knee symptoms in April 2013, and arthroscopy was discussed, but the plaintiff did not pursue this option.           

[3] PCB 33

Plaintiff’s medico-legal reports

9       Mr Iain McLean, orthopaedic consultant, reported on 29 March 2017[4] that the plaintiff complained that due to ongoing right knee problems and then the development of left knee problems, he had lost the motivation and ability to return to his prior physical activities of running and longer cycling and gym work, with persistent restricted mobility. Mr McLean found, in relation to the right knee, that there was “ongoing pain and functional disability; with evidence of progressive medial compartment degenerative change”[5] and a significant restriction in the sporting and fitness activities that were undertaken before the right knee injury. He concluded that the plaintiff would continue to suffer mild to moderate restriction in the following activities which involved loaded, bent knee and twisting activities: bending, lifting, twisting, stooping, pushing, pulling, lifting, repetitive or prolonged use of right knee, overhead activities, kneeling, squatting, crouching, prolonged sitting, walking or standing, walking up or down inclines, using steps or ladders, fine knee movements. He said that his right knee condition would continue to deteriorate over time and that there “is definitely an increased likelihood of undergoing right total knee replacement surgery at an earlier stage than would otherwise have been expected had he not suffered the work injury and resulting surgery”.[6]

[4] PCB 40

[5] PCB 44

[6] PCB 47

10      Dr Graeme Doig reported on 14 June 2017[7] that at the time of the incident on 4 April 2011, the plaintiff had articular cartilage in the right knee, but that the incident caused a new injury, a tear of the medial meniscus and aggravation, as a result of the partial medial meniscectomy that was required, of the pre-existing cartilage damage by rendering it symptomatic. He considered that the tear and resulting surgery resulted in a loss of cushioning effect of the shock-absorbing structure of the knee, which had the potential to accelerate any pre-existing arthritic changes within the medial compartment. For this reason, he agreed with Mr McLean’s opinion that the plaintiff would be likely to require a total right knee replacement at an earlier stage than he would if the incident of 4 April 2011 had not occurred.[8]

[7] PCB 56

[8] PCB 56

Defendant’s medico-legal reports

11      Dr Michael Baynes, occupational physician, reported on 1 November 2012[9] that the injury to the right knee was work-related but that Mr Azzopardi required no further physiotherapy treatment and could move to a self-managed exercise program.

[9] Defendant’s Court Book (DCB) 5

12      Dr Geoffrey Graham, occupational physician, reported on 28 June 2013[10] that the injury to the right knee was work-related, but that the injury comprised aggravation of pre-existing degenerative changes and a possible pre-existing medial meniscus tear. He noted the complaints of instability on turning, some soreness when walking, inability to kick a ball, difficulty getting up from kneeling and a limited ability to squat.[11]

[10] DCB 10

[11] DCB 8-9

13      Mr Peter Battlay, surgeon, provided an impairment assessment of both knees on 13 January 2016 and noted that the plaintiff told him he has recurrent right knee pain through prolonged knee flexion, has trouble walking on stairs, has stopped running, mows with a ride-on mower, and no longer plays cricket.[12]  Mr Battlay considered that the right knee injury, which required surgery, was work-related.[13]

[12] DCB 17-18

[13] DCB 19

14      The Medical Panel’s reasons for opinion dated 23 June 2016[14] note the plaintiff’s complaints of constant right knee pain, an ability to swim and cycle for 30 minutes at slow speeds and low pressure, an inability to kneel to weed the garden and difficulty using the stairs at work. The Panel concluded that the plaintiff was suffering residual dysfunction of the right knee, due to osteoarthritis associated with a meniscal tear of the right knee, surgically treated with a partial medial meniscectomy.[15] The Panel was not satisfied that the current osteoarthritis was evidence of any pre-existing functional impairment of the right knee, as there was no history of symptomatic pain or dysfunction due to underlying constitutional changes prior to the work injury.

[14] DCB 25

[15] DCB 28

Legal principles

15 In order to make out the serious injury within paragraph (a) of the definition in s134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent impairment or loss of a body function, and that the consequences to him in terms of pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.[16] The Court must consider the impairment of a body function suffered by the particular applicant, but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments.[17]

[16]Accident Compensation Act 1985 (Vic) s 134AB(38)(c).

[17] Sabo v George Weston Foods [2009] VSCA 242, [66]; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [42] (Ashley J).

16      On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[18]

[18]Fleming v Hutchinson (1991) 66 ALJR 211.

17      The “pain and suffering consequence” of an injury encompasses the plaintiff’s experience of pain and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. The intensity and frequency of the pain must be assessed in the light of the plaintiff’s evidence (which may be affected by the Court’s assessment of the plaintiff’s credibility), the treatment received, the medical evidence, and the objective evidence about the disabling effect of pain.[19]

[19] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [9]-[12]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [45]-[47] (Tate JA).

18      Generally, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[20]

[20]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199] (Dodds-Streeton JA).

19      Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[21] 

[21] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [16]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46.

20      Some weight must be given, in considering that the pain and suffering consequences of the plaintiff's impairment are at least very considerable, to the adverb “very”.[22] Each case has to be determined in the light of its own facts.[23] 

[22]TAC v Dennis [1998] 1 VR 702, 703 (Callinan J).

[23]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.

21      In determining the application, the whole of the evidence is to be considered, and a successful return to work by a stoic worker is not determinative against a worker on the issue of pain and suffering, particularly where the alternative employment found by a worker has not had the effect of reducing his symptoms.[24] Overall the Court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what he has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[25]

[24] Sutton v Laminex Group Pty Ltd [2011] VSCA 52, 79 (Tate JA); Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.

[25] Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [95].

FINDINGS AND REASONS

22      I found the plaintiff to be a straightforward and fairly stoic witness. He was candid in acknowledging that he can work full time, drive, and take care of his personal needs, and that he takes limited medication. No issue was taken with the extent of his pain and restrictions flowing from the permanent right knee impairment resulting from the work-related injury to the right knee. I accept his evidence in this regard. It is consistent with the medical evidence. The pain he experiences is significant in its relative constancy. Whilst he still works full time, he has pain at work, often has to put his right leg up during breaks, and frequently has to ice the right knee at night. The list of restrictions outlined by Mr McLean at paragraph 9 is extensive and striking. In its terms, it demonstrates how so many of the movements performed by the plaintiff are permanently affected by the right knee impairment. In addition, there has been substantial loss of fitness and of enjoyment of life from the fact that he is now very limited in the extent of sport and fitness activities he can undertake. He was exceptionally fit and active before the right knee injury, played competitive cricket with his sons, ran, swam and attended gym almost daily. He can no longer play cricket or football, and is limited in the time he can spend cycling, swimming, walking or in the gym. He used to work extensively, doing maintenance and repair work on his large property, and can no longer do so. I also accept that he faces the prospect of needing a total knee replacement at an earlier point in time than a person who has not sustained a right knee injury of the kind he sustained.  

23      In all the circumstances, leaving aside any left knee issues, I am satisfied that the pain and suffering consequences of his right knee impairment are more than considerable when compared with other cases in the range of permanent impairments of the function of the knee.

CONCLUSION

24      Leave is granted to the plaintiff to bring proceedings for the recovery of damages for pain and suffering in respect of the injury to the right knee suffered on 4 April 2011 while working for the defendant.

25      I reserve the question of costs.