Beasy v Keighran's Cleaning Service Pty Ltd
[2010] VCC 1133
•16 August 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WANGARATTA
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-00415
| CHERYL YVONNE BEASY | Plaintiff |
| v | |
| KEIGHRAN’S CLEANING SERVICE PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Wangaratta |
| DATE OF HEARING: | 3 August 2010 |
| DATE OF JUDGMENT: | 16 August 2010 |
| CASE MAY BE CITED AS: | Beasy v Keighran’s Cleaning Service Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1133 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the left knee – causation – pain and suffering only – whether consequences to the plaintiff are serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti and | Kim Bainbridge Legal Service |
| Mr G Pierorazio | Pty Ltd | |
| For the Defendant | Mr W R Middleton SC and | Wisewould Mahony |
| Ms J M Forbes | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant on or about 1 February 2002 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the left knee.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 Subsection 38(h) provides that consequences which are psychologically based are to be wholly disregarded in applications pursuant to paragraph (a).
9 By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and in Grech v Orica Pty Ltd and Anor (2006) 14 VR 602 in reaching my conclusions.
12 In conformity with Barwon Spinners, in the present case I must identify the injury and impairment arising after 20 October 1999. I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after the injury: See Petkovski v Galletti (1994) 1 VR 436; Guppy v Victorian WorkCover Authority (2010) VSCA 164.
13 The plaintiff relied upon two affidavits and she was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
14 The plaintiff is presently aged sixty five, having been born on 28 January 1945.
15 The plaintiff has had a limp since she was a young girl due to osteomyelitis. In cross-examination, the plaintiff explained that this condition affected the top part of her left leg, for which she had had surgery to attempt to arrest the growth.
16 The plaintiff agreed that before this surgery she had a two to three centimetre shortening and thought that after the surgery it ended up being about half an inch shorter.
17 The plaintiff had not had any trouble with either knee before the said date.
18 The plaintiff was educated to Year 10. After leaving school, she worked in a clerical capacity for about five years, and then undertook employment in grape picking and other part time casual work whilst raising a family. She then worked with the local newspaper, working in guillotining.
19 The plaintiff started work as a casual cleaner with the defendant in 2000, having done casual cleaning for several years. She worked fifteen hours per week.
20 On the said date, whilst working at the Swan Hill Library, the plaintiff caught her foot on the electric cord of an upright vacuum cleaner, as a result of which her left knee became badly twisted and she suffered injury (“the incident”).
21 The plaintiff did not fall to the ground in the incident nor did any part of her body hit the ground. The plaintiff continued to work that day, but she was in pain.
22 The plaintiff thought that probably within a month or two – she could not be certain – she had told a director of the defendant, Mrs Keighran, about the incident, having been tangled up in the vacuum cleaner and hurting herself. The plaintiff agreed she had formally made a complaint on 26 February 2003.
23 The plaintiff was cross-examined about the Claim Form signed by her on 4 March 2003. The plaintiff left blank the date in February 2002 when the incident occurred. She wrote “Not applicable” as to the date she ceased work as a result of her condition. It was noted the plaintiff reported the incident to Diane Keighran on 26 February 2003.
24 The plaintiff deposed that she attended her general practitioner, who sent her for an x-ray, and she continued to work despite her knee symptoms. The plaintiff was then referred to an orthopaedic surgeon, who referred her for an MRI scan and recommended surgery.
25 In cross examination, it became apparent that the plaintiff did not have treatment until she saw her general practitioner, Dr Booth, much later in 2002.
26 The plaintiff agreed she first attended Dr Booth on 28 November 2002, about nine or ten months after the incident. She did not mention her knee to him earlier because she could manage her pain at that stage. The pain was just a continuous niggle and she could not see any point in mentioning it to the doctor. Very rarely was the pain sufficient to require medication, but then the plaintiff said she did not have any medication or physiotherapy during that time.
27 The plaintiff preferred not to go to doctors as she had had a lot to do with doctors when she was little
28 In cross-examination, the plaintiff disputed she had told Mr Kierce that after the incident she did not have any significant trouble with her left leg until twelve months later. She had had constant niggling pain for twelve months after the incident and the pain had never gone. While she might have said she did not have any significant trouble, that did not mean she did not have pain. The plaintiff said the pain was there from February 2002 until she went to her doctor.
29 The plaintiff agreed that about a year after the incident, her left knee started to become painful and it gave way. She could not remember what date it was giving way and locking, but it was quite frequently and that is what caused her to go to the doctor.
30 In re-examination, the plaintiff could not give a timeframe for how long the locking had been happening before she saw her doctor in November 2002. She thought it would probably be several weeks.
31 Prior to undergoing knee surgery in July 2003, the plaintiff was having severe pain in her left knee; worse with activity, particularly with any twisting, bending or squatting. She had difficulty kneeling and working with a mop, or vacuuming for any distance. Her knee would lock up. She was also having difficulty with gardening and shopping, and she was limited in her ability to line dance.
32 The plaintiff underwent surgery on 17 July 2003 (“the first operation”) which provided temporary improvement, but her knee then worsened. On 30 August 2007, the plaintiff’s left knee just went from under her when she walked inside her home to get ready for work.
33 The plaintiff was referred to another orthopaedic surgeon, Mr Hunt, who referred her for investigations, following which he operated on the plaintiff on 15 May 2008 (“the second operation”).
34 Following the second operation, the plaintiff’s knee remained symptomatic. She deposed in her first affidavit that she could not continue working, despite the fact that she had no intention of retiring. The plaintiff was forced to cease work in July 2008, and has not worked since.
Current Pain
35 The plaintiff deposed in January 2010 that, despite time and treatment, she continues to suffer constant pain, made worse with activity, in particular, line dancing, which aggravates her pain. The cold weather increases her knee pain. The plaintiff’s knee can also be painful spontaneously
36 Prior to the incident, the plaintiff used to love walking, talking to people, keeping fit and looking at things. Her knee is now unstable and sometimes gives way on her, especially if she moves suddenly.
37 The plaintiff’s limp is contributed to by her knee injury, although she has had a limp since she was a young girl.
38 The plaintiff’s knee swells at times and it grates, creaks and cracks with movement. In cross-examination, the plaintiff agreed that her left leg was not wasted.
39 The plaintiff believes that over the past several months there has been a deterioration in the level and extent of her symptoms, which has worried her, because she has been advised she will require a total knee replacement in the future, and it seems that time is coming sooner than she expected.
40 The plaintiff remains limited in walking distances, kneeling is out and squatting is difficult. She has particular difficulty with rough ground, stepladders and stairs, which she tries very hard to avoid. If she has to walk up and down stairs it takes a long time to do so.
41 The plaintiff deposed that she has had to ease up on her involvement in line dancing because of her knee injury and she rarely had been able to return to that activity. She had been line dancing for about fifteen years and derived great enjoyment from it.
42 The plaintiff still goes to dancing at the Tooleybuc Club and other social venues, but it is only about ten to fifteen per cent of what she was doing before she suffered injury in terms of the time she spends dancing and the type of dancing that she now does. She always enjoyed dancing – the fun of it, the movement, socialising and meeting and making friends.
43 However, in cross examination, the plaintiff said that she was only line dancing socially once a week prior to the incident, whereas in earlier years she had been dancing competitively and danced five or six nights a week.
44 The plaintiff returned to line dancing after the first operation, continuing dancing until the second operation and then resuming dancing weekly thereafter.
45 The plaintiff does not continuously dance for the two and a half hours she spends at the Club on a Wednesday night. On and off, possibly she dances for an hour. She does not do the strenuous line dancing she used to. She does not do a lot of twisting and turning. She does the slow dances. She has problems with the pain that goes through her knee.
46 The plaintiff is unable to drive for lengthy distances and drives an automatic car as she would have great difficulty driving a manual.
47 The plaintiff is also limited in her ability to do household tasks, especially doing cleaning at heights, cleaning the shower and vacuuming. She is unable to use a ladder to do higher cleaning because she cannot put pressure on her knee to go up a ladder. She uses a long handled broom to perform these tasks. The plaintiff does not get any assistance with the housework from her husband as he is very ill.
Work 48
The plaintiff deposed that she could not continue working despite the fact that she had no intentions of retiring. She was forced to cease work in July 2008. She remains unfit for work and is unable to work.
49
The plaintiff later deposed that she worked until what she considered was the appropriate time to retire. She had had enough of work.
50
The plaintiff is in receipt of Social Security Benefits which she has received since she retired at the age of sixty-three-and-a-half.
51
In cross-examination, the plaintiff said that she was happy when she reached retiring age because she was going through an awful lot of pain with her knee. Her sixty-third birthday was the date she could retire “so she decided to and, yes, she had had enough of work”.
52
The plaintiff did not exactly retire because of her knee. She had to keep working she guessed. She had no option, because it was her only income and once she was able to retire she did not have to work. She was glad the date for retirement came around, because she was in too much pain at work and she was happy to finish up.
53
The plaintiff was asked by the defendant to come back to do cleaning duties, which she undertook on two days for three hours a day. However, because of her knee pain, she has not pursued further work. On these occasions, her knee pain varied. Her knee just got a lot sorer doing a lot of bending, cleaning toilets, vacuuming, washing, mopping floors and dusting.
54
The plaintiff has tried to avoid taking medication as she does not like the concept of taking strong prescription medication, but in the last few weeks prior to the hearing she had resorted to taking medication because of an increase in pain. The plaintiff has taken Voltaren and Panadol for pain, all non prescription. Before that she took very little medication, but would not say she did not take any medication.
55
The last time the plaintiff took medication was on the morning of the hearing and the night before when she took Voltaren and Panadol Rapid.
56
The plaintiff started to take medication in the last month, because some of the pain just gets excruciating at night and she cannot sleep. She tosses and turns and cannot get comfortable in one spot.
57
At the suggestion of Mr Hunt, the plaintiff continues to perform leg strengthening exercises four times a week at Curves, women’s gymnasium in Swan Hill, to try and keep her knee as mobile as she can.
58
The plaintiff has problems with machines where she is required to operate them with her left knee so she mainly uses upper body machines. When she does use the leg machines, she mainly uses her right leg.
59
After sitting for periods of time it takes the plaintiff a little while to loosen up so she can walk freely. She is unable to run at all or ride a bike.
The Plaintiff’s Medical Evidence
60 Mr Moloney, physiotherapist, wrote to Dr Booth on 19 February 2003. He thanked Dr Booth for seeing the plaintiff, who had injured her left knee about a year ago in a work-related accident when she became tangled in a vacuum cleaner cord.
61 Mr Moloney advised that on examination on that day he felt the plaintiff had medial meniscal lesion and laxity (?tear) of the anterior cruciate ligament of the left knee and he thought she would benefit from an orthopaedic opinion.
62 On 26 February 2003, Dr Booth from the Swan Hill Medical Group wrote to Mr McQueen thanking him for seeing the plaintiff. Dr Booth noted the plaintiff had a twelve-month history of knee pain, particularly the posteromedian aspect. He gathered the plaintiff became entangled in a vacuum cleaner cord at work at that time.
63 Dr Booth advised he saw the plaintiff in November 2002, and at that stage a plain x-ray was essentially normal although there did appear to be a benign bone cyst in the lower tibia. He suspected the plaintiff warranted an arthroscopy and welcomed Mr McQueen’s thoughts.
64 Dr Booth provided a report dated 30 October 2008. Dr Booth advised of the referral to Mr McQueen and the fact that the plaintiff had injured her knee in a work-related accident in February 2002 and had had trouble with the knee ever since.
65 He noted, following the first operation, the plaintiff was reasonably well until 2007, when he again referred her to an orthopaedic surgeon, this time Mr Hunt.
66 Dr Booth advised that comparative x-rays from 2007 to the time he initially saw the plaintiff in 2002 showed arthritic changes in the medial compartment which he thought would be consistent with the initial incident.
67 He noted Mr Hunt performed an arthroscopy, at which time he confirmed moderate osteoarthritic changes in the medial compartment which Dr Booth thought would be consistent with the previous medical meniscal injury.
68 Dr Booth concluded the plaintiff’s knee was currently stable but was likely to continue to problem her in the future. He thought she was very likely to eventually require at least a knee replacement.
69 Mr McQueen wrote to QBE Insurance on 14 April 2003 advising that he had seen the plaintiff following an MRI scan which showed a medial meniscal tear, as well as some chondral pathology, and he requested approval for surgery.
70 Mr McQueen’s operation note of 17 July 2003 set out that he had performed an arthroscopic medial meniscectomy and chondroplasty (“the first operation”). He noted the arthroscopy revealed a complex tear of the medial meniscus associated with Grade 2 chondral flaps affecting the entire weight bearing area of the medial femoral condyle and preservation of the lateral and patellar lateral compartments. A torn portion of the medial meniscus was excised at seventy per cent, along with the chondroplasty of the medial femoral condyle.
71 Mr Hunt, orthopaedic surgeon, wrote to QBE Insurance on 7 December 2007, seeking permission to perform an arthroscopy and debridement as the plaintiff had increasing symptoms in her left knee from her previous injury on 1 February 2002, having had ongoing symptoms since that time but recently more severe.
72 Mr Hunt reported to QBE Insurance on 20 July 2008, having seen the plaintiff on 15 November 2007.
73 The plaintiff told Mr Hunt she had sustained an injury to her left knee in February 2002 and that she had had trouble with it ever since.
74 On examination, the plaintiff described pain on the medial joint line and said she had pain over the posterior aspect of her knee and that she re-injured it on 30 August 2007, which made her symptoms worse.
75 On examination, there was tenderness along the medial joint line to deep palpation and mild patellofemoral crepitus.
76 Mr Hunt noted x-rays showed medial compartment arthritis and a subsequent arthroscopy of the left knee in May 2008 showed a medial meniscal tear and arthritis of the medial compartment of the knee which was of moderate severity with fibrillation down to the bone.
77 Mr Hunt noted x-rays post-operatively showed medial compartment osteoarthritis and patello baja, a low riding patella.
78 Mr Hunt noted from the history he had obtained that the plaintiff had ongoing symptoms of joint pain. Following the first operation, the symptoms were mild, and then there was the exacerbation in August 2007.
79 Mr Hunt saw the plaintiff for medico-legal purposes on 23 June 2010.
80 At that time, the plaintiff said she had ongoing trouble with left knee pain, the symptoms of which Mr Hunt thought were consistent with arthritis. She indicated the pain in the knee was aching and it could be stabbing at times. She described global knee pain both anteromedially lateral and posterior and the pain was made worse by movement.
81 On examination, he noted the plaintiff had varus malalignment of her left knee. She had a small effusion in the knee. She had significant patellofemoral crepitus. She had a fixed flexion deformity of 5 degrees and flexion up to 150 degrees. She had good ligamentous stability but did have medial ligament pseudo laxity due to wear and tear of the medial compartments and articular surfaces.
82 Mr Hunt diagnosed post-traumatic osteoarthritis of the left knee. He noted the plaintiff had progression of her symptoms with the development of post- traumatic osteoarthritis. She had had two operations following traumatic injury to her left knee. He noted the meniscectomies had resulted in progression of the medial compartment arthritis to the point now where she had very significant and severe arthritis of the left knee. Mr Hunt thought the plaintiff may benefit from further arthroscopic debridement but it was more likely that she would require a knee replacement procedure in the future as the symptoms of osteoarthritis progressed.
83 Mr Hunt considered that the plaintiff’s prognosis was poor and that she would have ongoing symptoms which would continue to limit her activities of daily living and lifestyle to a significant degree. In his view, the plaintiff’s symptoms clearly originated from the original injury in the incident and she had had ongoing pain symptoms since that time and had progression of osteoarthritis, which was now severe, involving her left knee.
84 Mr Hunt provided a supplementary report on 9 July 2010, having reviewed recent imaging carried out on 24 June 2010. He thought this imaging showed evidence of severe osteoarthritis, predominantly involving the medial compartment and the patellofemoral compartment. He noted that within the medial compartment there was almost complete loss of joint space. He thought it likely the plaintiff had exposed the bone in the medial compartment at the knee joint and it was likely her symptoms would be ongoing and may become more severe over time as degenerative change progressed in the medial compartment of her knee. He therefore thought her prognosis was poor.
Medico-Legal Evidence
85 Mr David McIntosh, consultant orthopaedic surgeon, examined the plaintiff at the request of QBE Insurance on 5 May 2003.
86 The plaintiff told him of the incident and the fact she continued working that day and ever since, although the pain had gradually worsened.
87 The plaintiff told Mr McIntosh she attended her doctor and underwent x-rays and that she had recently seen Mr McQueen.
88 On examination, the plaintiff said her main problems were within the region of the left knee with any sort of activity and her knee particularly worried her when she twisted, bended or squatted.
89 The plaintiff told Mr McIntosh she had had to give up line dancing and she had difficulty with gardening and shopping.
90 On examination, the plaintiff walked with a significant limp, partially due to shortening of the leg and partially due to knee pain. Mr McIntosh noted her left leg was 3 centimetres shorter than the right.
91 The plaintiff’s main problem related to her left knee, where she experienced pain on extremes of movement. The joint was stable and there was no effusion. There was well localised tenderness of the posteromedial joint margin noted. The plaintiff demonstrated fairly poor quadriceps muscle control.
92 Mr McIntosh noted the MRI scan of 14 April 2003.
93 Mr McIntosh concluded the plaintiff gave a clear history of an injury to her left knee and the symptoms and signs were quite consistent with the tear of the medial meniscus – which had been confirmed on MRI. He thought her symptoms, signs and diagnosis were quite consistent with the incident. In his view, her condition was a tear of the posterior horn of the medial meniscus to which her employment was a significant contributing factor.
94 He noted the plaintiff was performing her normal duties at that time with discomfort.
95 Mr McIntosh concluded there was likely to be a small degree of permanent impairment due to the injury as the treatment would require partial meniscectomy. He considered there did not appear to be any other non work- related factors in the plaintiff’s claim.
96 He thought arthroscopic surgery was a very reasonable option and was likely to significantly improve the plaintiff’s symptoms. He felt the need for that surgery to be directly related to her work-related injury.
97 Mr Paul Kierce, orthopaedic surgeon, examined the plaintiff for QBE Insurance on 28 May 2009.
98 The plaintiff told him of the incident and that thereafter she did an hour’s work then finished. The plaintiff could not remember whether her knee was swollen after the incident.
99 The plaintiff told Mr Kierce she then did not have any significant trouble with her left knee until twelve months later when it started to become painful and gave way. She told him that when doing her favourite exercise of line dancing she “just about fell over”.
100 The plaintiff told Mr Kierce that at first she saw a physiotherapist, then her doctor, who referred her to Mr McQueen, surgeon.
101 The plaintiff underwent an arthroscopy on 17 July 2003 (“the first operation”) and returned to work on her pre-injury duties three weeks later.
102 The plaintiff told Mr Kierce the first operation helped for a couple of years but her left knee was still painful and it gradually went downhill. She continued to work and did not have any other treatment.
103 The plaintiff then underwent surgery performed by Mr J Hunt on 15 May 2008. Six weeks after the second operation the plaintiff did not feel any better. She told Mr Kierce that her retirement age had come around and she ceased work of her own volition.
104 The plaintiff told Mr Kierce she suffered pain on the inside of her left knee and on the front aspect of her left knee. Her left knee gave way about once a week. It locked occasionally and she had to wriggle it to unlock it. She was unable to kneel and stairs were particularly difficult. She told Mr Kierce that it was very hard to get comfortable at night. She never got a full night’s sleep. She did not know where to put her left leg in bed.
105 At the time of that examination, the plaintiff was not having any treatment.
106 The plaintiff told Mr Kierce that she was not able to walk as she used to and she could not do line dancing, nor could she exercise at the gymnasium like she used to.
107 On examination, the plaintiff presented as a sensible woman who limped on her left leg. Mr Kierce found the plaintiff had 5 centimetres of shortening of the leg which contributed to the limping, but it was his impression that her gait was antalgic.
108 All movements were conducted in an active manner.
109 Mr Kierce noted the plaintiff’s left knee was in 5 degrees of varus. There was a 15 degree flexion deformity when she was standing, which was 10 degrees when lying down. She was able to flex the left knee through 90 degrees. He was not able to demonstrate any ligamentous injury. The plaintiff was tender over the medial joint line and the ligaments of the left knee were stable.
110 Mr Kierce noted the MRI scan of the left knee undertaken on 14 April 2003 and an x-ray on 21 September 2007. Mr Kierce diagnosed osteoarthritis of the left knee aggravated by the injury in the incident.
111 Mr Kierce considered the plaintiff aggravated pre existing osteoarthritis of the left knee and tore the left medial meniscus in the incident, as well as damaging the articular cartilage in the weight bearing area of the medial femoral condyle as was described by Mr McQueen in his operation note:
“Grade 2 chondral flaps of the whole weight bearing area of the medial
femoral condyle.”
112 Having noted some pre-existing arthritis of the left knee, and given the surgeon, Mr McQueen’s description of chondral flaps, it indicated to Mr Kierce that there was a significant injury to the articular cartilage at the medial femoral condyle in the incident.
113 On 24 February 2009, the Medical Panel found that the plaintiff was suffering from residual dysfunction of the left knee following a surgically treated meniscal tear occurring as an aggravation of pre-existing degenerative changes of the left knee relevant to the claimed injury.
114 In the Panels’ opinion, the medical condition which led to the requirement for the surgery on 15 May 2008 was materially contributed to by the claimed knee injury of February 2002.
Investigations
115 An x-ray of the plaintiff’s left knee was taken at the Swan Hill District Hospital on 2 December 2002. There was no bone trauma demonstrated and the medial and lateral knee joint compartments were normal. There was an unusual lytic lesion in the lower tibia, just above the knee joint. This had a regular sclerotic margin and most probably a large benign bone cyst. It was noted that no pathological fractures had resulted from this.
116 An x-ray of the plaintiff’s left knee was taken at Swan Hill District Hospital on 26 February 2003 at Dr Booth’s request. It was noted configuration of the femoral condyles was abnormal and suggested previous slightly impacted supracondylar fracture. Appearances were unaltered since the November study. Minor osteoarthritic changes were confirmed in the knee joint. There was no osseous cyst or other focal lesion detected.
117 An MRI scan of the left knee was organised by Mr McQueen on 14 April 2003.
118 It was concluded there was mild joint effusion and a moderate sized popliteal (Baker’s) cyst. There was previous low-grade injury with intrasubstance degeneration involving the posterior cruciate ligament towards the proximal femoral attachment. There was degenerative fraying and irregularity of the medial meniscus without discrete tearing which was associated with mild degenerative thinning covering the medial femoral condyle. There was full thickness loss of cartilage noted covering the inferior aspect of the patellar apex with minor fraying of cartilage covering the femoral trochlea. Patella baja was noted.
119 An x-ray of the left knee undertaken on 21 September 2007 was reported by Mr Kierce as showing medial compartment narrowing with medial osteophytes.
120 Mr Hunt’s comments on recent investigations undertaken on 24 June 2010 are referred to in paragraph 93.
The Defendant’s Medical Evidence
121 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on 24 November 2009.
122 The plaintiff told him she first had trouble with her left knee in February 2002 when her left foot became caught in a vacuum cleaner cord.
123 The plaintiff told him she reported the incident, her knee swelled and she rested for about ten minutes and continued working. She told him she did not seek medical advice and, indeed, the knee seemed satisfactory until about a year later, when she developed increased pain all over the knee which she could not localise.
124 The plaintiff told him x-rays were taken, she was referred to a specialist and underwent an arthroscopy. Following that surgery, she was off work for three weeks and her symptoms improved.
125 However, in 2007, the plaintiff was simply walking up the passage at home and her knee gave way. She went to work but was hobbling around and she underwent a second arthroscopy in July 2007 without improvement.
126 The plaintiff told Mr Shannon her knee still gave way and she had constant pain. Further, she informed him that she could not sit in one position for any length of time, she could not run and had difficulty with stairs. The plaintiff told Mr Shannon that she had worked until retirement age.
127 Mr Shannon noted the plaintiff had a significant past history of what she described as osteomyelitis in the left femur. She had developed a growth arrest in the left femur resulting in surgery to equalise leg lengths.
128 On examination, the left knee had a mild varus deformity with 10 degrees fixed flexion deformity and further flexion to 100 degrees.
129 Despite earlier leg surgery, the plaintiff still had 2 to 3 centimetres of apparent shortening of the left lower limb. The left leg was stable without significant crepitus. The plaintiff had patella infera. There was no significant thigh wasting.
130 Mr Shannon had available to him x-rays taken in September 2007 and an MRI scan of 14 April 2003. He noted the orthopaedic surgeon’s operation report following both operations.
131 Mr Shannon noted the history that he obtained regarding the original injury was that the plaintiff’s knee did not cause significant trouble until about a year later and that was the first time when she saw her doctor. The plaintiff told both Mr Shannon and Mr Kierce that she retired because she reached retiring age and not because of her knee injury.
132 Mr Shannon concluded the plaintiff was suffering from osteoarthritis of the left knee. He had no doubt that pre-existed the injury at work and was probably related to childhood osteomyelitis, although he noted the precise location of the osteomyelitis was unclear and the plaintiff had no surgical scars. It did, however, result in significant growth arrest and although the plaintiff had shortening of her right lower limb, and had surgery in relation thereto, there was still a 2 to 3 centimetres shortening of the left leg.
133 Mr Shannon noted that the plaintiff also had a patella infera. He thought that appeared to be associated with the childhood injury and he had no doubt that the osteoarthritis was the result of the childhood injury.
134 Mr Shannon noted the plaintiff described a twisting injury to her knee in the incident which he thought could well have resulted in a meniscus tear but he noted the changes described in the MRI scan and an arthroscopy were consistent with degenerative change.
135 Mr Shannon thought the plaintiff would eventually come to joint replacement surgery and he suspected that that was due predominantly to the underlying degenerative change. He thought a decision about the relationship to employment was very much dependent on the accuracy of the plaintiff’s history.
136 Mr Shannon noted, whilst accepting a twisting injury at work, it seemed that that was not of sufficient severity to warrant the plaintiff seeking medical advice.
137 He stated, if indeed the plaintiff was relatively symptom free for a year after the original incident before developing giving way and locking, then he thought it could be said that the original incident at work was a relatively minor contributing factor.
138 If, however, the plaintiff had significant problems during that year, then it could be argued employment resulted in aggravation and acceleration of degenerative change, including a meniscus tear.
139 In Mr Shannon’s view, there was no evidence of a functional component or psychological reaction. He thought the plaintiff did not have the capacity to work as a cleaner, although she would be capable of doing sedentary work.
140 The defendant tendered typed clinical notes from Dr Booth’s surgery relating to attendances by the plaintiff commencing on 28 November 2000, the next being on 11 November 2002 and 23 December 2002. There were eight attendances in 2003 where no mention was made of a knee complaint.
141 The plaintiff attended on 21 September 2007 reporting further knee injury three weeks earlier. Investigations were requested as to what was noted to be a recurrent left knee injury.
142 The handwritten notes set out a left knee x-ray on 28 November 2002 and further mention of the left knee on 16 February 2003, 22 July 2003 and in August and September 2003.
143 Dr Booth referred the plaintiff to Mr Hunt by letter dated 18 October 2007.
144 Mr Hunt wrote to Dr Booth on 31 January 2008 and 19 June 2008. On the latter date he advised the plaintiff was doing well with her recovery after the second operation and she was now back at work and her knee looked good without much residual swelling. He noted the plaintiff wanted to return to line dancing which he thought would be a good idea to maintain the strength around her knee.
The Defendant’s Lay Evidence
145 Mrs Diane Keighran, director of the defendant, swore an affidavit on 22 January 2010.
146 Mrs Keighran deposed that the plaintiff started work with the defendant on 6 March 2000 and cleaned at Swan Hill North School, the library and the Magistrates’ Court. As of the said date, the plaintiff’s work consisted of cleaning the Swan Hill Library. At the time of the alleged injury, the plaintiff was using an upright vacuum cleaner as she did not like using back vacs.
147 The first time Mrs Keighran was informed of the plaintiff’s injury was towards the end of February 2003. The plaintiff contacted her by telephone to inform her that she had hurt her knee at the library some three weeks earlier. She indicated her leg became entangled in the electrical cord and said she had been “a bit careless”. Mrs Keighran noted that that comment was recorded in the original Claim Form dated 4 March 2003.
148 Mrs Keighran stated that the date of injury given by the plaintiff verbally, namely early February 2003, did not correlate with the date the injury was said to have occurred in the Claim Form, namely twelve months prior, in February 2002.
149 At the time, Mrs Keighran was surprised at the injury given the plaintiff had been using that specific vacuum cleaner for years. Further, it was noted the plaintiff had worked since the alleged date of injury, aside from the time in which she had an arthroscopy.
150 Mrs Keighran found the plaintiff’s statement that she had no intention of retiring and was forced to cease work in July 2008 somewhat surprising. She noted it was true the plaintiff retired at the end of July 2008, however it was indicated at least twelve months prior that the plaintiff would do so when she was eligible for the pension. To the defendant’s knowledge, the plaintiff was looking forward to ceasing work and obtaining the pension.
151 The plaintiff did not request any lighter duties as a result of her knee condition. During ensuing years Mrs Keighran made enquiries about the plaintiff’s knee and was informed by her that it would lock up a bit but otherwise she made no complaints.
152 Following the plaintiff’s retirement, the defendant engaged her to work on two occasions on a casual basis. The plaintiff was happy to undertake this work. At no time did the plaintiff mention she was still having a knee problem doing this work.
153 Mrs Keighran then commented as to liability matters not relevant for the purposes of this application.
The Defendant’s Other Evidence
154 The defendant tendered the summary of the plaintiff’s taxable income:
Financial Year Ending Gross Earnings
30 June 2000 $11,333.00 30 June 2001 $17,936.00 30 June 2002 $11,884.00 30 June 2003 $11,467.00 30 June 2004 $10,945.00 30 June 2005 $ 8,544.00 30 June 2006 $12,467.00 30 June 2007 $12,195.00 30 June 2008 $12,089.00
155 The defendant also tendered the plaintiff’s WorkCover Claim Form signed by her on 4 March 2003.
156 The plaintiff set out in the Claim Form that she suffered a left knee injury on “February 2002” and that was the date she first noted the condition. She answered “not applicable” to the dates she ceased work.
157 At the time of the incident, the plaintiff was working approximately 15 hours a week earning $15.50 per hour and had average ordinary weekly gross earnings of $200 a week.
Overview
158 The first issue for consideration is whether the plaintiff suffered a compensable injury in the incident.
159 I am mindful of the fact that the defendant accepted liability for the payment of medical expenses relating to the incident. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171, such an admission should ordinarily be regarded as very significant
“…albeit not conclusive because a defendant in a particular case might
be able to satisfactorily explain its conduct.”
160 No such explanation has been forthcoming in the present case.
161 Counsel for the defendant submitted that while the incident may have occurred, any knee pain which was experienced at that time resolved and is not a cause of any current problem.
162 It was submitted that the need for surgery, the plaintiff’s ongoing problems and the prospect of further surgery were due to the osteoarthritic process unrelated to the incident injury.
163 Counsel for the defendant argued that this was an aggravation case as the plaintiff was suffering pre-existing osteoarthritis related to childhood osteomyelitis and also the presence of a low riding patella.
164 It was submitted that for the plaintiff to succeed she needed to demonstrate quite clearly that the pre-existing osteoarthritis was aggravated by the incident to the point of being serious. In this regard, reliance was placed on Petkovski v Galletti [1994] 1 VR 436.
165 The Court of Appeal, consisting of Maxwell P, Nettle JA and Emerton JA, recently dealt with the question of aggravation cases in Guppy v Victorian WorkCover Authority (supra).
166 The Court, at paragraph 19, referred to the decision in Petkovski v Galletti, in which the Appeal Division of the Court held:
“… in relation to broadly equivalent provisions of the Transport Accident Act 1986 (Vic), that where there was an aggravation of a pre-existing condition or injury, the applicant was required to establish what injury was caused by the accident. An analysis had to be made of the extent of impairment of a body function before and after the relevant injury, and the additional impairment had to involve serious long term impairment of body function.”
167 In the footnote to that reference, paragraphs 443-4 in Petkovski of Teague and Southwell JJ, was referred to. It was noted that:
“Their Honours observed that the Transport Accident Act 1986 (Vic) did not affect the long-established principle that a person injured could be compensated for, but only for, such disabilities as were proved to have resulted from the relevant accident. There appeared to be some question in the mind of the learned judge below as to whether Grech v Orica Australia Pty Ltd (2006) 14 VR 602 … rather than Petkovski was the authority that he should follow.”
168 While it was clearly appropriate for the learned trial judge to follow Petkovski, the Court of Appeal held there was no inconsistency between Petkovski and
Grech.
169 In the present case, whilst the plaintiff suffered from osteomyelitis from childhood, the condition was asymptomatic. The condition affected her upper left thigh and resulted in a shorted left leg. Prior to the incident, the plaintiff had no knee problems.
170 The osteomyelitis did not cause the plaintiff any ongoing problems or require any treatment. The plaintiff was able to engage to a significant extent in the vigorous activity of line dancing on a competitive basis even with a shorter left leg, although having reduced her participation in that activity to only once a week socially in the years closer to the incident.
171 There was no evidence of any restriction on the plaintiff’s mobility prior to the incident.
172 Counsel for the defendant also submitted that any problems experienced with the left knee following the incident quickly resolved, as was evidenced by the delayed reporting of the incident and the fact the plaintiff did not seek treatment until ten months later.
173 Much rests in these circumstances on whether or not I accept the plaintiff’s evidence as to whether she suffered ongoing problems with her knee following the incident which led to surgery and her current condition.
174 I accept the plaintiff was a candid, straightforward witness who gave her evidence truthfully.
175 Whilst surveillance was referred to in the defendant’s Court Book index, there was no video surveillance produced. There was no evidence of the plaintiff performing activities inconsistent with the level of pain and the restrictions described by her.
176 Further, there was no medical evidence that there was a functional component to the plaintiff’s complaints, nor that she was exaggerating her pain or disability.
177 I accept that the plaintiff had constant niggling pain for twelve months after the incident and the pain had never gone. While she might have said she did not have any significant trouble, that did not mean she did not have pain. I accept the plaintiff’s evidence that the pain was there from February 2002 until she went to her doctor in November 2002.
178 I accept the plaintiff’s evidence that she initially managed her pain and did not seek medical assistance, being a person who was reluctant to attend doctors and take medication because of her childhood experience and leg surgery.
179 I accept that later in 2002, the plaintiff had increasing knee problems, experiencing locking and instability, which caused her to see Dr Booth in November 2002.
180 In relation to causation, counsel for the plaintiff relied upon Kirby J’s comments in Chappel v Hart 195 CLR at 269, where his Honour set out causation was usually a question of fact to be resolved as a matter of common sense.
181 Reliance was also placed on the decision of the Court of Appeal in Forder v Hutchinson [2005] VSCA 281, at paragraph 47, where the Court held that the law is that even where medical evidence goes no higher than an event is capable of being a possible cause of an observable medical condition, it may still be inferred upon the totality of the evidence that the event was a cause of the condition.
182 In the absence of any other injury to the knee and the plaintiff being asymptomatic in terms of osteomyelitis at the time of the incident, and accepting her evidence as to ongoing knee problems of increasing severity since the incident, I accept that the incident is a cause of her present condition which has required surgery on two occasions, the cost of which was met by the defendant.
183 Save for Mr Shannon, the medical evidence is supportive of the incident playing an ongoing role in the plaintiff’s present condition.
184 Treating surgeon, Mr Hunt, noted that the plaintiff had had two medial meniscectomies following traumatic injury which had resulted in the progression of medial compartment arthritis to the point now where the plaintiff had very significant and severe arthritis to the left knee.
185 Mr Hunt also thought that the plaintiff may benefit from further arthroscopic debridements and that it was more than likely that in the future she would require a total knee replacement
186 Mr Kierce, who examined the plaintiff on behalf of the defendant, described the plaintiff’s work-related injury as an aggravation of pre-existing arthritis, torn left medial meniscus, as well as damaging the articular cartilage in the weight bearing area of the medial femoral condyle.
187 The Medical Panel found that the plaintiff was suffering from residual dysfunction of the left knee following a surgically treated meniscal tear occurring as an aggravation of a pre-existing degenerative change in her left knee relevant to the claimed injury. The Panel considered that the medical condition which led to the requirement for the surgery on 15 May 2008 was materially contributed to by the claimed knee injury of February 2002.
188 In 2003, Mr McIntosh thought the plaintiff’s signs and diagnosis were quite consistent with the incident.
189 Mr Shannon is the only practitioner who does not make a similar finding. However, he considered the incident was a relatively minor contributing factor. However, he did concede that if the plaintiff had significant problems following the incident, it could be argued that employment had a greater role.
190 As Ashley JA stated in paragraph 58 of Grech (supra), a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.
191 I am satisfied that the incident materially contributed to the plaintiff’s knee impairment and its consequences and will continue to do so permanently.
192 The role of other injuries, namely osteoarthritis, does not preclude the conclusion that there was an appropriate causal link between the compensable injury on the one hand and the consequences relied upon on the other.
193 Having found that the incident is a cause of the plaintiff’s ongoing knee problems, the issue for consideration is whether any impairment relating to the plaintiff’s left knee condition is serious and permanent.
194 The focus of cross-examination was on the issue of causation and save for her participation in line dancing, there was no real challenge as to the plaintiff’s evidence in relation to her level of pain and disability.
195 The plaintiff has undergone the two operations, but symptoms remain despite Mr Hunt’s optimistic prognosis as of June 2008.
196 The plaintiff continues to suffer knee pain. Her knee is unstable and it gives way on her and also locks. She is limited in the distances she can walk and she has particular difficulty climbing stairs or walking over rough ground. Her childhood limp is now more pronounced because of her left knee condition. She cannot kneel.
197 Over more recent times there has been some deterioration in the level and extent of the plaintiff’s symptoms and she has been advised as to the requirement for a total knee replacement in the future. She has had to resort to taking medication such as Voltaren and Panadol as she does not like taking strong prescription medication.
198 The plaintiff’s sleep is disturbed by her left knee pain as she cannot get comfortable in bed.
199 Whilst the plaintiff did not cease work because of her knee injury, I accept that it gave her difficulties with the performance of her work duties and that she was glad to be able to retire at the age of sixty-three- and-a-half.
200 The plaintiff has attempted two brief cleaning sessions, each of about three hours since she retired. She had problems with cleaning duties because of her knee and cannot do further work. I accept, as Mr Shannon concluded, the plaintiff does not have a capacity for work as a cleaner.
201 Although she was line dancing socially only once a week at the time of the incident, the plaintiff’s ability to enjoy that recreation has been limited as a result of her knee injury. She is now only able to engage in slower dances which involve less twisting movement.
202 The plaintiff has experienced problems with her left leg when trying to do leg strengthening exercises at the gymnasium as suggested by her surgeon.
203 The plaintiff has difficulty with her housework, particularly cleaning and vacuuming, and has had to make modifications to performance of higher cleaning tasks as she cannot climb on a ladder.
204 Because of her knee pain, the plaintiff is limited in the time she can drive a car. She cannot run at all or ride a bicycle.
205 I accept that the prognosis for the plaintiff’s knee condition is poor, as described by treating surgeon Mr Hunt. There is a likelihood that she will come to joint replacement.
206 In such circumstances, I accept that the plaintiff would continue to have ongoing symptoms which will continue to cause her pain and limit her activities of daily living and lifestyle. This situation is permanent.
207 Taking into account all the evidence, I am satisfied that the plaintiff has a serious injury in relation to her left knee.
208 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering in relation to her left knee.
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