Baker v Western Region Water Corporation
[2013] VCC 204
•22 March 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-00749
| WAYNE BAKER | Plaintiff |
| v | |
| WESTERN REGION WATER CORPORATION | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
| and | |
| TRANSPORT ACCIDENT COMMISSION | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 March 2013 | |
DATE OF JUDGMENT: | 22 March 2013 (Revised) | |
CASE MAY BE CITED AS: | Baker v Western Region Water Corporation & Ors | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 204 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the left knee – whether the consequences of the impairment of function the left knee was “serious” – whether other injuries suffered by the plaintiff cause the same consequences
Legislation Cited: Transport Accident Act 1986, s93(4)(b) and (6)
Judgment: The plaintiff has leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti SC with Mr G Pierorazio | Michael El Moussalli & Associates |
| For the Defendants | Mr C Blanden SC with Mr D Oldfield | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 25 February 2011 by which the plaintiff applies for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages for injuries suffered by him arising out of a transport accident which occurred on 7 October 2007.
2 Mr T Monti SC appeared with Mr G Pierorazio of Counsel for the plaintiff and Mr C Blanden SC appeared with Ms D Oldfield of Counsel for the defendants.
3 The application is brought pursuant to s93(4)(d) of the Act. Subsection (6) provides that a Court must not grant leave under ss(4)(d) unless the Court is satisfied that the injury is a “serious injury”.
4 The definition of “serious injury” relied upon by the plaintiff is under ss(17):
“(a) serious long term impairment or loss of a body function.”
5 The injury suffered by the plaintiff for which leave is sought is an injury to the left knee.
6 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”) pages 14-24 and 25-52H: Exhibit A;
· The defendant tendered its Court Book (“DCB”) pages 1-131: Exhibit 1.
The Plaintiff's Background
7 The plaintiff was born on in 1956. He is now fifty-six years of age. He was born and raised in Hamilton. He attended the Hamilton Technical School to the level of Form 4. He is a married man with a number of children and grandchildren.
8 After the plaintiff left his formal schooling, he took up an apprenticeship in plumbing and gas fitting. It is the specialist area which he has pursued over his working life.
The Transport Accident
9 The plaintiff commenced employment with the first defendant, or its predecessor, on 12 December 1988 as a planning inspector. His unchallenged evidence is that the work was heavy work.[1]
[1]PCB 15
10 On 7 October 2007, he was unloading an excavator off the back of a trailer. As he was backing the excavator off the trailer, he noticed that the ground beneath him was moving. The weight of the excavator was lifting the back wheels of the truck off the ground. He drove the excavator back onto the trailer.
11 The plaintiff was in some fear that an incident might occur because of the movement of the trailer. He got off the excavator and jumped off it onto the bitumen road surface below. The plaintiff landed heavily on his left leg. He experienced immediate and severe pain in his left knee.
The Issues
12 Mr Blanden informed me that the plaintiff suffered an injury to his right knee and left shoulder before he suffered the injury to his left knee, and subsequently suffered an injury to his right shoulder. He submitted that the consequences claimed by the plaintiff in this proceeding relevant to his left knee are the same consequences which the plaintiff has suffered as a result of the injuries to his right knee, left shoulder and right shoulder and the impairments caused by them.
13 Mr Monti submitted that on any view of the evidence, it was clear that the impairment of function of the plaintiff’s left knee produced consequences which were discrete to the left knee and which amounted to a serious injury.
The Other Injuries
14 On 28 November 1990, the plaintiff suffered an injury to his right knee. He was referred to Mr Dalziel, orthopaedic surgeon. Mr Dalziel noted that the plaintiff had previous surgery to his right knee in about 1982, which comprised a near total medial.[2]
[2]DCB 2
15 Mr Dalziel diagnosed that the plaintiff had suffered damage to his anterior crucial ligament. He undertook a knee ligament reconstruction and a partial lateral meniscectomy of the plaintiff’s right knee on 23 October 1993.[3] The plaintiff’s right knee continued to trouble him so much so that, on 28 February 2012, Mr Dalziel performed knee replacement surgery on the plaintiff’s right knee.
[3]DCB 2-3
16 The plaintiff said that he made a good recovery from the knee replacement surgery. He had some time off work, and was then able to return to work with the defendant on a full-time basis.
17 On 24 July 2006, the plaintiff suffered an injury to his left shoulder. He was referred to Mr Dalziel. He diagnosed a torn right rotator cuff. He performed surgery on the plaintiff’s left shoulder in August 2006 to repair the rotator cuff.
18 The plaintiff said that he made a good recovery from the left shoulder surgery. He had some time off work, and was able to return to his normal duties with the defendant on a full-time basis.
19 The plaintiff then suffered the injury to his left knee on 7 October 2007. He was referred to Mr Dalziel. Mr Dalziel diagnosed that the plaintiff had a complete disruption of his anterior cruciate and medial ligaments. He performed surgery on the plaintiff’s left knee on 26 October 2007 to repair the ligament damage and to repair his medial meniscus.[4]
[4]PCB 28
20 The plaintiff said he made a good recovery from the left knee surgery. He had some time off work, and was able to return to his normal duties with the defendant.
21 The plaintiff had some complications with the injury to his left knee. Mr Dalziel performed further surgery on the plaintiff's left knee on 12 February 2008 which the plaintiff says was to remove scar tissue.[5]
[5]DCB 13
22 The plaintiff said he made a good recovery from the second episode of left knee surgery. He had some time off work, and was able to return to his normal duties with the defendant.
23 On 6 July 2009, the plaintiff suffered an injury to his right shoulder and left hand. The injury to his right shoulder was a significant injury. He was referred to Mr Dalziel. He performed surgery on the plaintiff’s right shoulder on 23 September 2009. The plaintiff continues to have stiffness in his left middle finger. He described having a broken bone at the base of his left little finger and fractures to the knuckles. The plastic surgeon inserted wires into his left little finger which has left it in a “gooseneck” fixed position.
24 The plaintiff did not make such a good recovery from the injury to his right shoulder. He conceded that it was the most troublesome of the injuries he has suffered. However, he was able to return to suitable light work with the first defendant. The work is rather more supervisory than similar to the hands-on work which the plaintiff had previously undertaken with the first defendant. He continues to do that type of work with the first defendant.
The Plaintiff's Evidence
25 The following is a summary of the evidence which the plaintiff gave of the consequences to him of the impairment of the function of his left knee:
· His right knee is much better following the knee replacement. It is stable. He only has a little pain in the knee.
· His left knee is painful and unstable. If he steps the wrong way it will give way. It swells nearly every night. He uses an ice pack on the left knee frequently. He estimates that when his knee is very painful it can be as much as an 8 out of 10 in terms of his subjective assessment of the level of pain he can experience.
· His capacity to go on long walks, squat and kneel are significantly impaired by the impairment of function of his left knee. He is accustomed to going on nightly walks with his wife. He now walks about once or twice a week and about half a kilometre before he experiences worsening pain and the development of a limp.
· He now mows his lawns in two stages. He mows the front lawn and the nature strip. He then stops because the pain in his left knee becomes unbearable. He goes inside his house and rests. He then mows his back lawn when the pain in his left knee has receded sufficiently for him to be able to undertake that task.
· In 2012, he travelled to Thailand with his wife. He described it as really not being a holiday in the end. He was unable to walk more than half a kilometre because of pain and soreness in his left knee. The impression I gained from his evidence was that he was unable to join his wife on outings as much as he would have liked.
· He estimates that between 2009 and the present time, he has lost significant movement in his left knee. The extent to which he can flex his knee has been reduced down to 100 degrees, and in comparison he can flex his right knee to 125 degrees.
· The plaintiff was using Panadol and an anti-inflammatory medication which he described as “Heron Blue” to deal with the pain which he experienced in his shoulders and his right knee. He said that he continues to take the same medication, but it is more to treat the pain in his left knee than for the other injuries.
26 Mr Monti referred me to the opinion of Mr Maclean, orthopaedic surgeon, who provided a lengthy report on his examination of the plaintiff which he conducted on 26 February 2013. Mr Maclean had available two MRI scans, taken on 18 October 2007 and 6 April 2010, and a plain x-ray of 26 February 2013. He subsequently examined the plaintiff and found that the plaintiff’s range of movement was from zero degrees to 100 degrees and that there were a number of significant abnormalities in his left knee.
27 Mr Maclean’s diagnosis was that the plaintiff was suffering from chronic anterior cruciate deficiency in his left knee with progressive three compartment degenerative changes. His prognosis was very guarded with respect to the anterior cruciate ligament deficiency. He considered that the degenerative changes in the plaintiff’s left knee would progress with increasing symptoms of pain and progression of the three compartment osteoarthritis. He was positive, in expressing an opinion, that the plaintiff will require a total knee replacement.[6]
[6]PCB 52A-52H.
28 I was taken to other reports by Mr Monti, but I consider that it is unnecessary to refer to them because none of the medical evidence, and in particular the medical evidence of Mr Maclean, was challenged in any respect at all. I accept the opinions of Mr Maclean without reservation.
29 Mr Monti referred me to the examination of the plaintiff conducted by Mr Jones, orthopaedic surgeon, on 17 November 2010. On examination, he found that the plaintiff could flex his left knee to 130 degrees.[7] Mr Moran, orthopaedic surgeon, conducted an examination of the plaintiff on 12 April 2012. On examination, he found that the plaintiff could flex his left knee to 110 degrees,[8] and Mr Maclean, whose examination results I have referred to, found that the plaintiff could flex his need to 100 degrees.
[7]PCB 43
[8]PCB 50
30 Mr Monti submitted that if I accepted that the plaintiff was a creditworthy and reliable witness, then I should accept that the examination results obtained by each of those orthopaedic surgeons, and that what they demonstrate is that between November 2010 and February 2013, the plaintiff’s left knee flexion has reduced by 30 degrees which is consistent with the plaintiff’s own evidence.
Findings
31 I have no hesitation in accepting all of the plaintiff’s evidence without reservation. He struck me as being an utterly believable witness in all respects. Indeed, I accept the submission made by Mr Monti that the plaintiff is a true stoic. His capacity to overcome major injuries and return to work is commendable. It demonstrates that he is someone who has not allowed injuries to overpower him.
32 What is clear is that the impairment of the function of the plaintiff’s left knee is deteriorating and is causing the plaintiff a great deal of difficulty in terms of pain, and his capacity to undertake domestic and pleasurable pursuits.
33 According to Mr Maclean, he has a knee which is significantly impaired by discernible objective pathology. He will require a total knee replacement. The plaintiff said that he, in his own estimation, will need that in the next year or so. He gave that evidence based upon his experience with his right knee.
34 I accept the plaintiff’s evidence that he has consequences of the impairment to his left knee of the kind and to the degree which I have summarised in paragraph 25 above. I accept that he is using Panadol and Heron Blue more to treat the pain in his left knee than for his other injuries. It should be noted that his right knee no longer produces significant pain. His left shoulder seems to be stable according to the evidence I have read about it, and I should add that there is not much evidence in either Court Book relevant to the left shoulder. I accept the plaintiff’s evidence that his right shoulder has been a significant problem for him and that it is responsible for the fact that he is now undertaking light work full-time with the first defendant.
35 I do not accept the submission made by Mr Blanden that there is a commonality of consequences produced by the injuries to the plaintiff’s shoulders and the knees. What is abundantly clear to me is that the consequences which I accept that the plaintiff experiences arising out of the impairment of function of his left knee, are as a consequence of that impairment, and not of the other impairments of the shoulders and the right knee.
36 I am satisfied that the degree of the pain and suffering consequences suffered by the plaintiff are major. The plaintiff’s capacity to function has been very seriously impaired, and the level of impairment will continue to increase, according to Mr Maclean, leading the plaintiff to the inevitable result of major surgery with all of its attendant risks. The level of the plaintiff’s impairment in terms of pain it causes in a dramatic impact upon his capacity to function are extensive and serious.
37 It is for these reasons that I find that the plaintiff has suffered an impairment of the function of his right knee which has consequences in terms of pain, disability, interference with the plaintiff’s capacity to engage in pleasurable activities which easily meets the statutory test of seriousness.
Conclusion
38 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law.
39 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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