Bainbridge v E&S Jacatine
[2010] VCC 743
•9 July 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-04444
| Ian Bainbridge | Plaintiff |
| v | |
| Edward James & Sylvia Jacatine (trading as | First Defendant |
| JAMES LEIGH PROMOTIONS) | |
| And | |
| Liuzag Custodian Pty Ltd | Second Defendant |
| And | |
| Victorian WorkCover Authority | Third Defendant |
---
| JUDGE: | S. Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 June 2010 |
| DATE OF JUDGMENT: | 9 July 2010 |
| CASE MAY BE CITED AS: | Bainbridge v E&S Jacatine & Ors |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0743 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s134AB(16)(b) – Permanent serious impairment or loss of a body function – Injury to the left knee – pain and suffering
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B. Collis QC | Vincent Verduci & Co |
| with Mr A. Ingram | ||
| For the Defendant | Mr M. Titshall QC | Hall & Willcox |
| with Mr S. Smith | ||
| HER HONOUR: |
1 The plaintiff applies for leave under section 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act”) to issue proceedings for the recovery for damages for pain and suffering only in respect of the permanent impairment of the left knee sustained during the course of his employment with the first defendant on 22 December 2007 when he was kicked in the left knee by an unknown youth (“the incident”).
2 The defendants concede that the plaintiff suffered a compensable injury to his left knee in the incident (liability for the claim made on 18 February 2008 was accepted on 1 April 2008, and liability for a total left knee replacement was accepted on 16 April 2008) but say that the consequences of his left knee impairment are not more than considerable when compared with other cases in the range of similar impairments.
3 The plaintiff is now 61 years old. As a teenager, he did two years of a painting apprenticeship but did not complete it. He worked for three years as a sales representative and from 1973 to 1985 worked as a semi-professional drummer for a number of bands. He resumed sales work from 1985 until 1999, when he suffered a stroke after a fall. He recovered slowly after a number of complications. In 2001 he underwent a right knee replacement. He resumed working in 2002 in sales and promotion. In May 2005, he underwent a left knee replacement. He was off work for 12 months, but according to his affidavits, recovered from surgery well and regained very good function in the left knee.
4 As a result of the incident, he experienced pain in the left knee and saw Dr Lisner, who recommended Panadeine and the use of heat packs. He continued working on December 23 and 24. He noticed bruising on the back of his left knee. His left knee pain had worsened and his mobility was affected. He sought further medical treatment and Dr Sadhai arranged for x-rays of the left knee which suggested tibial prosthetic loosening. He attended Mr Miller, orthopaedic surgeon, who confirmed that revision surgery would be required. The surgery was undertaken on 8 May 2008. Following the surgery, the plaintiff developed an infection in his left leg and lower leg cellulitis which gradually resolved, but was left with ongoing left knee symptoms. He returned to work part-time in October 2008, in computer sales. He has been in receipt of disability support benefits since his stroke in 1999.
5 According to his affidavits, prior to the revision surgery, the plaintiff had very good function in the left knee and was pain free. He did not have any medical treatment from Dr Lisner for his left knee in the year before the incident. After surgery, however, he had intermittent ache and discomfort in the left knee joint, which has given way a number of times. Prior to the revision surgery, he was able to walk up stairs. Now, he has to take the stairs one at a time. He feels the cold more and is not as mobile as before. Whereas prior to the revision surgery he was able to kneel, he is no longer able to kneel on the left knee. He is no longer able to use a ladder, which he was able to do prior to the incident.
6 According to his affidavits, as a result of the incident he is no longer able to climb ladders, play ten pin bowling with his children, play golf or work as a painter. He is limited to working twenty hours per week because a trial of additional hours in April 2009 led to increased pain.
7 At the hearing, the plaintiff said that after his left knee surgery in 2005, he recovered very well and the left knee was stable. He occasionally took ordinary Panadol for about twelve months and then had no further treatment. He said that since the revision surgery in 2008 he takes 6 Panadol Osteo each day, because the heavier analgesics or anti-inflammatories affect his stomach or his blood pressure. He said that he had not seen a doctor in relation to any left knee complaints since 2009.
8 He said that after the incident and left knee revision surgery he could no longer play drums because of the pressure it puts on his left leg. In cross- examination, he agreed that he last played drums semi-professionally in 1998 and last played drums in 2002 before moving to Melbourne. He agreed that he last played golf regularly in 1998 or 1999 and stopped after his stroke and his right knee replacement in 2001. In 2006 he played a few games but was losing interest and did not have the time to play because he was working more hours. In 2007 he tried to play but found it was too much for him. He agreed that he went bowling with his two youngest daughters three to five times per year until October 2009, but that they no longer came to see him. He agreed that he had not worked as a painter for 40 years but said that before the revision surgery he had done some painting at work and helped his boss paint two stores. He said that he was being paid for four hours work per day, but agreed that he was alone at the store each week day from 9 am till 5 pm, that he opened the store at 9 am and closed the store at 5 pm and that throughout the day he served customers and learned about computers.
Medical reports
9 The defendant relied on the reports of Mr Dooley, orthopaedic surgeon, dated 10 September 2009 and 15 March 2010. In his reports, Mr Dooley agreed that the x-rays taken in January 2008 showed probable loosening of the tibial component of the left knee replacement. He felt that the loosening was present prior to the incident but that the incident rendered the process symptomatic, with ongoing pain leading to the decision to have revision surgery. He felt that the majority of patients after such surgery will have intermittent knee pain and some problems kneeling and squatting. In his second report, Mr Dooley noted that plaintiff had ongoing left knee aching and was taking three Panadol Rapid per day.
10 The plaintiff relied on medical reports of general practitioners Dr Sadhai and Dr Sooknandan, physician Dr Peter Sutherland, and orthopaedic surgeon Mr Miller. The reports of Dr Spelman and Dr Sutherland relate to the medical complications following the plaintiff’s left knee revision surgery and it is not necessary to refer to them further. The report of Dr Sooknandan notes that since the revision surgery the plaintiff has had “an ongoing ache and discomfort in the knee which caused him to walk with a limp”.[1] The reports of Dr Sadhai trace the plaintiff’s treatment up until May 2008.
[1] Plaintiff’s Court Book [PCB] pg 80(a).
11 Mr Miller provided 5 reports. In his second report dated 27 January 2009, Mr Miller opined that in the incident the plaintiff suffered a traumatic injury to the total knee replacement and there was now loosening of the tibial component. Mr Miller noted that in April 2008 the plaintiff’s symptoms were deteriorating and he was minimally mobile “even with the use of walking sticks”.[2] Mr Miller described the revision surgery he performed. He concluded that the plaintiff would ultimately require re-revision surgery and that his “ongoing requirement for treatment in terms of the knee would relate significantly to the effects of the traumatic events outlined above”.[3] In a report dated 28 April 2010, Mr Miller noted that the plaintiff had a well functioning left total knee replacement before the incident, after which his knee function diminished. He felt that further revision surgery would likely be necessary within 10 years. The final report of Mr Miller relates to the symptoms in the right knee and is not relevant to the matters in issue in this application.
[2] PCB pg 60.
[3] PCB pg 61.
12 At the hearing, Mr Miller said that most loosening is symptomatic so that it was unlikely that prior to the incident there was any loosening of the left knee prosthesis. He said that if the incident had not occurred, the first left knee prosthesis would have lasted between 10 and 15 years, but that in the light of the first revision occurring only three years after the first left knee replacement, a second round of revision surgery would probably be needed within 7 to 10 years. He said that with each knee replacement, the patient is left with 50 to 70% of their pre-operative level of function and likely time to further surgery. He noted that the revision surgery involved the use of a different prosthesis and that it was necessary to insert rods into the bones to obtain sufficient fixation. Mr Miller concluded that the cascade effect had been brought forward significantly for the plaintiff, given that his first revision surgery had occurred only 3 years after the first knee replacement rather than 10 to 15 years after it as would have been the case if the incident had not occurred.
Legal Principles
13 I turn briefly to the legal principles applicable in this case. In order to make out a serious injury within paragraph (a) of the definition in s.134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious 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.[4] The court must consider the impairment of 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.[5] On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[6] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[7] The proper analysis involves establishing that the plaintiff suffered compensable injury after 20 October 1999, establishing what that injury was, determining the consequences which the plaintiff alleges have resulted and determining that those consequences were materially contributed to by the compensable injury and finally, determining whether those consequences meet the very considerable level in terms of pain and suffering.[8]
[4] See sub-section 38(c) of s.134AB of the Act.
[5] Vladimir Sabo v George Weston Foods [2009] VSCA 242 at [66]; Maro Stijepic v One Force Group Aust Pty Ltd and VWA [2009] VSCA 181 per Ashley J at [42].
[6] Fleming v Hutchinson (1991) 66 ALJR 211.
[7] Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [58].
[8] Ibid at [80].
14 Some weight must be given, in considering whether the pain and suffering consequences of the plaintiff’s impairment are “at least very considerable”, to the adverb “very”.[9] Each case needs to be determined in light of its own facts.[10]
[9] TAC v Dennis, [1998] 1 VR 702 at 703 per Callinan J.
[10] Stijepic v. One Force Group Australia Pty Ltd & Anor [2009] VSCA 181.
15 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.[11] What matters is the extent to which an area of work which the plaintiff enjoyed has been closed off to him.[12]
[11] Dwyer v. Calco Timbers (No.2) [2008] VSCA 60; Stijepic v. One Force Group Australia Pty Ltd & Anor [2009] VSCA 181.
[12] Dwyer v. Calco Timbers (No.2) [2008] VSCA 60 at [25].
16 In relation to the experience of pain, the Court must assess the intensity and frequency of pain in the light of the plaintiff’s evidence in court and to doctors as to what he says and does about the pain; the doctors’ evidence about the extent and intensity of the plaintiff’s pain; and the objective evidence about the disabling effect of the pain.[13]
[13] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at [11].
17 Apart from capacity for work, assessing the extent to which the pain interferes with the ordinary activities of life will typically 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 life; and enjoyment of life.[14]
[14] Ibid at [16].
18 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.[15]
[15] Dwyer v. Calco Timbers (No.2) [2008] VSCA 60 at [27].
19 I am entitled to take into account that the plaintiff is 61 years old and that, compared with other persons with impairments of the knee, he will experience these pain and suffering consequences for a shorter period of time.[16]
Findings and reasons
[16] Stijepic v One Force Group Aust Pty Ltd and VWA [2009] VSCA 181 per Ashley J at [44].
20 No significant credit issues were raised by the defendants. I found the plaintiff to be a straightforward witness and I accept his evidence as to his left knee symptoms and mobility prior to the incident in December 2007 and as to his symptoms and restrictions as at the date of the hearing. I accept Mr Miller’s evidence that the loosening of the first left knee prosthesis was related to the trauma to the knee in the incident, and that as a result of the incident the plaintiff faced revision surgery only three years after his initial left knee replacement, which was much earlier than the 10 to 15 years time frame before revision surgery which he would have faced had the incident not occurred. I also note that the typical cascading effect of subsequent surgery (with each intervention leaving the plaintiff with only 50 to 70% of his pre- operative function) has in effect been brought forward for the plaintiff because of the incident which resulted in the need for early revision surgery in 2008, only three years after the first left knee replacement. I accept the conclusions of Mr Dooley and Mr Miller that he has suffered a significant loss of knee function which is permanent. I also accept Mr Miller’s evidence that he will need further revision surgery on the left knee within 10 years.
21 I accept that the plaintiff suffers some greater aching in the left knee since 2008, that he walks with a limp, and that he takes over the counter medication in the form of Panadol Osteo (6 tablets per day) for this pain. I also accept that he can no longer kneel on the left knee, climb ladders, or use stairs except one at a time. I also accept that he no longer paints, plays drums, golf or tenpin bowls, although it is clear from his evidence at the hearing that he had only played a few social rounds of golf since his stroke and first left knee replacement, and tried again in 2006 and 2007 but found it was too much for him. He had stopped playing drums semi-professionally in the late 1990’s because the band he was playing with broke up. His outings to play tenpin bowls with his daughters, which occurred only a few times per year, had ceased in late 2009 because they no longer came to stay with him. He was not using ladders regularly for painting or other domestic or recreational activities.
22 I acknowledge that the plaintiff has been able to maintain his employment in spite of the adverse consequences of the incident. Nonetheless, the plaintiff’s pain and mobility in the left knee and surgical prognosis as at the date of the hearing are very different to what they were prior to the incident. Prior to the incident the plaintiff had very good mobility in the left knee, which felt stable. He was able to kneel, climb a ladder and climb stairs. He did not require any pain-relieving medication, nor any medical treatment. He was facing the prospect of a further left knee replacement sometime between 2010 and 2015.
23 As at the date of the hearing, he suffers ongoing aching in the left knee for which he takes 6 Panadol Osteo per day, in circumstances where stronger medication affects his stomach. His left knee gives way occasionally. He can only use stairs one at a time. He has already had the first revision surgery on the left knee in 2008, some seven years earlier than would have been the case had the incident not occurred. The revision surgery involves the use of a different prosthesis than that used in a first knee replacement, and requires the insertion of rods into the bones of the leg to assist fixation. He faces the prospect of further revision surgery within 7 to 10 years and can expect to experience a further significant loss of function as a result of that further surgery.
24 In all the circumstances, I consider that the pain and suffering consequences of his left knee impairment are fairly described as being more than significant or marked and as being at least very considerable when compared with other cases in the range of possible impairments of losses of a body function.
25 It follows that leave is granted to the plaintiff to bring proceedings for the recovery of damages for pain and suffering in respect to the injury to the left knee suffered during the course of his employment with the first defendant on 22 December 2007. I reserve the question of costs.
0
7
0