Bedeux v Transport Accident Commission
[2015] VCC 1875
•17 December 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-11-03906
| GUILBERT BEDEUX | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 22 October 2015 | |
DATE OF JUDGMENT: | 17 December 2015 | |
CASE MAY BE CITED AS: | Bedeux v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1875 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to various body functions – pre‑existing condition – causation – disentanglement – credibility of the applicant – whether consequences “very considerable”
Legislation Cited: Transport Accident Act 1986
Judgment: Application refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Mr D O’Brien | Arnold Thomas & Becker |
| For the Defendant | Mr P A Scanlon QC with Mr P Bourke | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Preliminary
1 The plaintiff, Mr Bedeux, fell from his motorcycle in the course of his duties as a postman, working for Australia Post, on 8 December 2004 (“the transport accident”). He alleges he fell to his left side and injured his left knee. He briefly returned to work on reduced duties, which shortly afterwards became full time. He had another fall from his motorcycle on 3 March 2005 (“the March accident”).
2 Prior to the transport accident, he suffered a range of problems, including to his left knee, lower back and left elbow.
3 Mr Bedeux had surgery to his left knee in September 2005. As a result, he favoured his right leg and developed pain in the right knee. Further, while using crutches in 2005 and 2006, he developed problems with his left and right shoulders and elbows. He also developed problems with his cervical and lumbar spines, said to have arisen from the transport accident.
4 Mr Bedeux was retrenched from his work with Australia Post in August 2009 and has not worked since. He claims a range of recreational, domestic, social and work activities and duties are reduced or beyond him.
5 In addition, he claims to have suffered a Reactive Depressive Disorder.
6 The body functions said to be lost or impaired are:
· the spine, including the cervical and lumbar spines
· the left leg, in particular the left knee
· the right leg, in particular the right knee
· the left arm, in particular the left shoulder
· the right arm, in particular the right elbow and right shoulder.
7 The application is thus brought under ss(a) and ss(c) of the definition of “serious injury” contained in s93(17) of the Act.
8 Mr Bedeux, and his long-time treating general practitioner, Dr Grokop, were called to give evidence and be cross-examined. In addition, a number of his affidavits, an affidavit of his former wife and of a friend, together with a vast array of medical, radiological and like reports, were tendered into evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be of most relevance, which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal, are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
The issues
9 At the outset, I should say this is a complicated application as it involves an array of body functions, many of which have been symptomatic before the transport accident. The number of radiological investigations, medical and surgical procedures and treatment by a range of practitioners is vast. It has been no easy task to identify the different body functions and the consequences which are said to flow. It becomes even more complex because all of the injuries, save the original injury to the left knee and spine, are said to have arisen as a consequence of treatment for that left knee injury.
10 In light of the complexity of the matter, the parties provided written submissions. Mr Ingram’s submission on behalf of the plaintiff is summarised as follows:
· The initial injury to the left knee was a significant injury with longstanding consequences and causative of several consequential injuries.
· The injury to the right lower limb, and right knee in particular, is a consequential injury from the left knee resulting from an inappropriate return to work.
· The injury to the left upper limb, including the left shoulder, is a consequential injury resulting from the use of crutches following left knee surgery.
· The injury to the right upper limb, including the right elbow and right shoulder, is a consequential injury resulting from the use of crutches following lower limb surgery.
· The impairment of the plaintiff’s left lower limb, including his left knee, may be measured by reference to consequential impairments to his right lower limb, including the right knee; the left upper limb, including the left shoulder, and the right upper limb, including the right elbow and shoulder.
· There was an initial spinal injury.
· In the alternative, each body function, if assessed individually, reaches the “very considerable” test.
· Mr Bedeux suffered a Severe Mental Disorder arising independently of the physical injuries, and related to the transport accident.
11 Mr Scanlon, for the defendant, submitted:
· The plaintiff has not established, on the balance of probabilities, that the transport accident was a cause of anything more than an injury to the plaintiff’s buttocks and a mild and transient injury to his left knee.
· It would constitute an impermissible aggregation of injuries if the plaintiff’s left knee may be measured by reference to consequential physical injuries.
Relevant background
12 Mr Bedeux was born in Mauritius in 1963 and is now fifty-two years of age. He was educated there to Year 10 and later worked as a printer for approximately five years. He immigrated to Australia in 1988. He is divorced from his wife, with whom he has a son and daughter aged 24 and 14 respectively. In Australia, Mr Bedeux worked variously as a storeman (1989 to 1990), administrative officer (1990 to 2001) and as a mail sorter and postman (2004 to 2009).
13 Prior to the transport accident on 8 December 2004, Mr Bedeux had a number of problems affecting his lower back, left knee and left elbow. According to his affidavits and evidence, these conditions did not significantly interfere with his capacity to work or undertake activities of daily living.[1]
[1]PCB 4
14 Mr Bedeux first suffered injury to his lower back in late 1991 when he moved a pallet while working as a storeman. He took a short period off work and was treated conservatively with physiotherapy, acupuncture and a cortisone injection in 1992, which was beneficial.[2] A CT scan of the lumbar spine taken on 27 March 1992 showed no abnormalities, as did an x-ray of the same area on 8 June 1994. In the years that followed, Mr Bedeux attended his general practitioner from time to time complaining of back pain.
[2]PCB 25B and 25C
15 In 2000, Mr Bedeux had an x-ray of his left knee. He could not recall the reason for the x-ray.[3] I infer that Mr Bedeux complained about his knee at the time. The x-ray reported no abnormality.[4]
[3]PCB 25C
[4]PCB 322
16 In 2003, Mr Bedeux sought treatment for back pain from Mr Luke Surkitt, physiotherapist. Mr Surkitt diagnosed a “mild to moderate lower lumber disc disruption”.[5]
[5]PCB 130
17 In early 2004, Mr Surkitt discharged Mr Bedeux from his care “due to his excellent progress”.[6]
[6]PCB 131
18 In May 2004, Mr Bedeux attended the Hanover Street Medical Centre complaining of back pain, for which he was prescribed Tramal 100 milligram and Voltaren Rapid. In the note of that attendance, there is reference to Mr Bedeux having had the same back pain in Mauritius, thus casting some doubt as to the precise onset of back pain. The note of that attendance reads:
“31/5/04 Back pain – thoracic- has had before, when in Mauritius. Cannot sleep. ?disc”[7]
[7]DCB 112.22
19 In around February 2004, Mr Bedeux commenced part-time employment with Australia Post. Within a few months, he was offered full-time employment. He described the environment as “fast paced”.[8] From time to time, he experienced lower back pain while sorting mail.[9]
[8]PCB 25C
[9]PCB 25C
20 Mr Bedeux was involved in a transport accident on 19 March 2004. He briefly fell asleep whilst stopped at traffic lights. When the car behind beeped its horn, he reacted by accelerating into the car in front. Mr Bedeux said the impact was at low speed and he did not believe he suffered any injuries of consequence.[10] When asked in cross-examination whether he suffered an injury, he said:
“Can’t remember exactly. I know I got – I knew I got some – some pain, but is not like strong pain to just stop my work. I can’t remember what pain I got.”[11]
[10]PCB 25C
[11]T43, L9-12
21 From July 2004, Mr Bedeux’s duties were varied to postal delivery on a motorcycle. In his second affidavit, he said:
“In or around September 2004 I experienced left knee pain whilst working as a postal delivery officer for Australia Post.”[12]
[12]PCB 10
22 No specific incident was referred to and the severity of that pain was not otherwise described. He said the condition did not cause any significant interference with his capacity for work.[13]
[13]PCB 10
23 Mr Bedeux was cross-examined about an incident in September 2004 in which he fell off his motorcycle onto his left knee when he was frightened by a barking dog in a nearby car.[14] Initially, he accepted that the incident occurred[15] but later said he was unable to recall the incident and whether he suffered injury to his left knee.[16] Dr Grokop said he did not know whether Mr Bedeux injured his left knee in that incident.[17]
[14]T43, L16 – T45, L20
[15]T43, L16-18 and T43, L24-25
[16]T43, L19 – T45, L20
[17]T102 L11
24 In October 2004, Mr Bedeux began to feel pain in his left elbow which he attributed to using rubber bands around mail bundles which were not sufficiently stretchy.[18]
[18]PCB 25C and T49, L49
25 On 31 October 2004, Mr Bedeux attended Dr Grokop complaining of left elbow and thoracic pain, for which he was given a strap and prescribed Celebrex.[19] Tennis elbow was described. Dr Grokop noted that Mr Bedeux had fallen off his bike at work six weeks earlier.[20]
[19]T50, L3
[20]DCB 112.8
26 Aside from his back, left knee and left elbow problems, Mr Bedeux was otherwise well and able to work for Australia Post full time.
The transport accident and its consequences
27 At approximately 11:00am on 8 December 2004, Mr Bedeux was riding a “red postie motorbike” in heavy rain along Charman Road in East Cheltenham, when another vehicle, attempting to turn right on Alfred Street, cut him off. He attempted to turn away from the vehicle but, in doing so, he lost control of his motorcycle and fell.
28 In all three affidavits, Mr Bedeux deposed that he fell off his motorcycle onto his left side.[21] In his final affidavit, he added that he slid approximately 6 or 7 metres.[22] During cross-examination, he initially accepted that he landed on his backside.[23] Mr Scanlon put to Mr Bedeux that he did not land on his left knee, to which he replied:
“… I lose balance on the left, I finish on the right.”[24]
[21]PCB 3, 11 and 25C
[22]PCB 3 and 25C
[23]T54, L14
[24]T54, L22-23
29 Mr Bedeux then said he landed on his right side.[25] When asked what part of his body first hit the ground he said:
“Can’t remember that. I know – can’t remember.”[26]
[25]T54, L18
[26]T54, L25
30 In re-examination, Mr Bedeux further described the manner he fell in the following terms:
“I can’t remember exactly, I know I hit left first and after I turn to the right.”[27]
[27]T77, L28
31 When asked what part of his left side hit the road first, he answered:
“My knee.”[28]
[28]T78, L2
32 This evidence does not lead to any clear conclusion as to what part of his body hit the road first, and what part was injured.
33 After the fall, Mr Bedeux was able to pick up his motorcycle and complete his deliveries. On returning to work, he reported the accident.[29]
[29]PCB 25C and 25D
34 The next day, Australia Post arranged for Mr Bedeux to attend Dr Molloy, general practitioner. In the doctor’s notes, the reason for the visit was recorded as “bruised buttock”. Dr Molloy certified Mr Bedeux fit for restricted duties. Dr Molloy’s notes say the following:
“History:
Fall from motorbike 1/7 ago while doing round.
Has R lower back pain. Upper outer buttock. Some mild pain L knee.
No PHx of back problem knee problems or other injury.
Fall occurred when swerving to the left to avoid car in wet condition. Came off bike landing on R side. Initially had some pain but completed round. This am pain has been worse after waking.
Examination:
…
Limping Slow guarded movement
Tender over R SIJ and laterally
…
No bruising visible. Skin in tact. No graze
…
L Knee NAD.”[30]
[30]DCB 101
35 On the same day, Mr Bedeux attended his usual general practitioner, Dr Grokop. According to Mr Bedeux’s second affidavit,[31] he complained of left elbow and left-sided neck pain.[32] In evidence, Dr Grokop said there was no mention of the left knee.[33] He accepted the proposition that if there had been bruising, abrasions, oedema or swelling to the left knee, he would have recorded it in his notes.[34] Dr Grokop’s notes from that consultation are brief, recording only:
“9.12.04 WC?? Fell off bike at work yesterday.”[35]
[31]Sworn 4 June 2013 – PCB 11
[32]PCB 11
[33]T99 L15 and 28
[34]T99 L31
[35]DCB 112.8
36 Significantly, in a 2005 report to Australia Post Human Resources Department, Dr Grokop stated that Mr Bedeux’s predominant concern at the 9 December 2004 appointment was a right buttock injury with additional “minor soreness of his left knee and left elbow”.[36]
[36]PCB 68
37 Mr Bedeux was placed on light duties sorting mail. He was unable to recall whether he took any time off work as a result of the transport accident.[37]
[37]T55 L7-9 and L13-15
38 In an Incident Report dated 13 December 2004, the injury recorded was “Tail bone bruise”. Mr Bedeux described the incident in the following terms:
“Moved bike suddenly to avoid accident. Bike slid out from under me in the wet weather and I fell with it bruising my backside & hip.”[38]
[38]DCB 67
39 Mr Bedeux was further reviewed by Dr Molloy on 14 and 21 December 2004. Under the heading “reason for visit” for each consultation, Dr Molloy recorded “bruised buttock” and “right bruised buttock” respectively.[39] At the latter consultation, Mr Bedeux was certified fit for all duties from 21 December 2004.[40]
[39]DCB 100
[40]DCB 107
40 On or about 29 December 2004, Mr Bedeux resumed his full-time role as a postman. On the same day, he underwent a left elbow ultrasound, and the following day, an x-ray. Both tests ordered by Dr Grokop showed a normal elbow.[41]
[41]PCB 227-228
41 Mr Bedeux returned to Dr Grokop on 30 December 2004, the note of that consultation reads:
“30/12/04 3/2/52 fell off bike onto L elbow R buttock
ie on 9/12/04 lateral L knee Rx Mobic 7.5.”
42 On 3 March 2005, still in the course of his employment with Australia Post, Mr Bedeux fell directly onto his left knee when his trouser leg got caught on the kick start lever as he attempted to dismount from his motorcycle.[42] Mr Bedeux said he was placed on light duties for two weeks after the incident.[43] In cross-examination, when asked if the March accident stopped him from working, he said:
“Yes. Stopped me – they – they stopped me posting and (indistinct) mail sorting.”[44]
[42]PCB 25C
[43]PCB 10
[44]T65, L20-21
43 Mr Bedeux described the March accident and injury in minimalistic terms:
“But is nothing like – like – like big major thing, you know. It’s aching but…”.[45]
[45]T62, L13-14
44 He later described the pain as:
“I got a little bit of pain and after maybe is coming back again, is coming back like normal thing, like the way it is before. It was up and after, you know.”[46]
[46]T69, L15-17
45 On 18 April 2005, Mr Bedeux experienced pain in his right elbow whilst bundling mail with an elastic band that was too tight and applying handbrakes on his motorcycle during mail delivery.[47] Mr Bedeux attended Dr Steven Kaye, general practitioner, on 20 April 2005, who noted:
[47]DCB 73
“2 days ago noticed pain in Right elbow
Occurred whilst bundling mail
Acute, sharp pain
Increasing past 2 days – poor sleep due to pain
No prev history of pain
…
Reason for visit:
Right epicondylitis – lateral (Tennis Elbow).”
46 Dr Kaye provided a WorkCover Certificate for light duties.[48]
[48]DCB 112.26
47 Mr Bedeux returned to Dr Kaye on 29 April 2005 complaining of ongoing pain in his right elbow. Dr Kaye injected a mixture of steroid and local anaesthetic into the area and provided a further certificate for light duties.[49]
[49]DCB 112.26
48 Mr Bedeux returned to Dr Kaye on a further two occasions before undergoing an x-ray of his right elbow on 11 May 2005 which showed no abnormality.[50] A right elbow ultrasound performed on 18 May 2005 was “an essentially normal study”.[51]
[50]PCB 229
[51]DCB 230
49 On 18 May 2005, Mr Bedeux underwent an x-ray and ultrasound of his left knee. The x-ray showed a normal knee joint, while the ultrasound reported:
“There is an effusion in the supra patellar bursa. Prominent lateral meniscus could indicate pathology in this region.”[52]
[52]PCB 231
50 By Claim Form dated 23 May 2005, Mr Bedeux claimed compensation under the Comcare scheme for “left lateral meniscus injury” arising from the transport accident.[53] The claim was ultimately accepted by Australia Post on 26 August 2005.[54]
[53]PCB 309
[54]PCB 312
51 On the same day, Mr Bedeux also lodged a Comcare claim with respect to his right elbow injury of 18 April 2005.[55] The acceptance of the left knee claim does not stand as an admission against the Transport Accident Commission. Mr Ingram relied on this as a measure of the significance of the left knee injury in the transport accident. However, in the complexity of the situation at the time, with various doctors providing treatment, the range of incidents and injuries, and pre-existing conditions, the submission of this claim does not bear great significance.
[55]DCB 58-60
52 On referral from Dr Grokop, Mr Bedeux consulted Mr Robin, orthopaedic surgeon, on 27 May 2005 about his left knee. Mr Robin received the following history:
“… in December 2004 he had fallen off his motor bike whilst at work delivering mail, and developed discomfort and a cracking feeling in his left knee at the time, and then he suffered a repeat injury in March 2005, again whilst at work which made this pain worse.”[56]
[56]PCB 115
53 On examination, Mr Robin noted:
“… a moderate effusion present and marked tenderness around the lateral joint line with a firm lump or swelling in the middle of the joint line, possibly consistent with a cyst of the lateral meniscus.”[57]
[57]PCB 115
54 Mr Robin sought confirmation of his findings and ordered a left knee MRI scan. An MRI on 30 May 2005 showed:
“… a small joint effusion associated with a mild to moderate degenerative change in the medical compartment and some extrusion of the medial meniscus body but without any obvious tear. There was a small para-mensical (sic) cyst adjacent to the anterior horn of the medial meniscus but the lateral meniscus was entirely intact. The pattello-femoral compartment and lateral compartment were described as being reasonably well preserved.”[58]
[58]PCB 115
55 Due to increasing pain and difficulty weight bearing, on 1 September 2005, Mr Robin performed an arthroscopy on the left knee and osteochondroplasty of the medial femoral condyle and trochlea, followed by shaving of the patella and medial tibial condyle.[59] He provided a certificate for Mr Bedeux to remain off work for two weeks.
[59]PCB 115
56 Upon review with Mr Robin on 14 September 2005, Mr Bedeux reported considerable patellofemoral pain. He was prescribed Mobic 15 milligram daily and certified unfit for work for a further two weeks.
57 At the next review on 27 September 2005, Mr Bedeux had persistent effusion in his left knee and persistent patellofemoral pain. He was advised to wean himself off crutches and only use one crutch.[60]
[60]PCB 166
58 On 29 September 2005, Mr Robin certified Mr Bedeux unfit for motorcycle and mail sorting duties. He subsequently agreed to a modified return-to-work plan providing that there was no mail sorting, kneeling, squatting, crouching or use of stairs. The work was to be self-paced, with rest breaks every 30 to 60 minutes.[61] Mr Robin reported that Mr Bedeux’s employer ignored this advice, with the result that:
“… when he returned to work he was rapidly placed on mail-sorting duties, against this advice, which required him to do repetitive twisting of his body and knees in the process of sorting mail, and before long his right knee became painful and swollen as he was putting nearly all his weight through this (to protect his recovering left knee).”[62]
[61]PCB 116
[62]PCB 116
59 According to Mr Robin, at the next consultation on 19 October 2005, Mr Bedeux was “limping badly” with a painful swollen right knee. He ordered an MRI scan of the right knee, the findings of which included:
“… moderate chondropathy involving all three compartments with focal areas of grade II chondral loss. There were areas of scarring in the ACL and MCL, probably reflecting previous injury, but there was a large joint effusion which was indicative of recent injury. There were changes in the posterior horn of the medical meniscus which were conflicting in appearance, possibly reflecting a complex tear of the posterior horn, but the findings were not conclusive.”[63]
[63]PCB 116
60 In late October 2005, Mr Bedeux lodged a Comcare claim for “right knee injury caused by early return to work after left knee operation”.[64] Australia Post accepted the claim as a sequelae of Mr Bedeux’s left knee injury. [65]
[64]PCB 327
[65]PCB 327
61 Mr Robin performed a right knee arthroscopy and osteochondroplasty on 15 December 2005. Among other things, the findings on arthroscopy confirmed the presence of extensive chondral damage and loss of articular cartilage of the trochlea and the patella.[66]
[66]PCB 116
62 On 24 January 2006, Mr Bedeux underwent an ultrasound on his right elbow that showed:
‘Mild chronic tendinosis changes involving the deeper portion of the common exterior tendon.”[67]
[67]PCB 236
63 During the period 18 January to 3 February 2006, Mr Robin reviewed Mr Bedeux on four occasions. He noted that Mr Bedeux remained on crutches following the arthroscopy until February 2006, and that thereafter he began mobilising with a single point stick.[68] He thought that Mr Bedeux had started developing aggravating pre-existing lateral epicondylitis of the right elbow by the use of crutches.[69]
[68]PCB 116
[69]PCB 116
64 At the request of Australia Post, Mr Bedeux saw Dr Stuart Turnbull on 3 February 2006 for a fitness for duty examination. Mr Bedeux gave a history that he developed bilateral elbow pain approximately three weeks earlier, and a past history of right elbow epicondylitis in May 2005. Mr Bedeux said the elbow pain was caused by using crutches. Dr Turnbull considered that, in relation to his right elbow, Mr Bedeux had a limited capacity for work and that the injury was a flare-up of the earlier elbow injury of May 2005. He said:
“The injury to the right elbow was present in May 2005 and was treated with steroid injections. The injury appeared to flare in January 2006 and the cause is uncertain although it is most certainly not work related given that he was not worked since October 2005. In fact Mr Bedeux states he has not been doing very much mobilising at all so it is hard to connect his present injury with the use of crutches as he has been using the crutches since September 2005.
With respect to the right elbow, there is undoubtedly a capacity for work albeit limited. The patient appears to catastrophize in relation to any suggestion of return to work but I believe this man has a work capacity provided he does not use his right elbow repetitively … .”[70]
[70]DCB 19
65 At an appointment on 15 March 2006, Mr Robin told Mr Bedeux to reduce the use of crutches.[71] In a report of March 2006, Mr Robin advised against Mr Bedeux returning to work as a postman. He did however consider that Mr Bedeux “would be suitable to work in an occupation where he is not required to kneel, stoop, crouch, squat or frequently use steps, stairs or ladders”. He noted that both Mr Bedeux’s knees were symptomatic, with the right more severe than the left.[72]
[71]PCB 119
[72]PCB 117
66 Mr J G Mander, orthopaedic surgeon, examined Mr Bedeux on 10 March 2006 at the request of Australia Post. He thought Mr Bedeux was unfit to work by reason of his right elbow. He was provided with Dr Turbull’s assessment and disagreed with it. He suggested that Mr Bedeux may require either decompression of the lateral epicondylitis and/or ulnar nerve transfer.[73] In a supplementary report, he said Mr Bedeux was unfit for various sedentary duties available at Australia Post by reason of his “multiple complaints with knees and elbows which together are currently an insurmountable problem”.[74]
[73]PCB 202
[74] PCB 204
67 On 20 February 2006, Mr Bedeux submitted a Comcare claim with respect to “right elbow epicondylitis aggravated whilst on crutches after right knee surgery”.[75] Australia Post accepted the claim on 30 March 2006.[76]
[75]PCB 331
[76]PCB 334
68 An MRI scan of Mr Bedeux’s left shoulder on 5 May 2006 showed:
“… superior labral tear extending posteriorly to involve almost the entire posterior labrum” together with “[m]ild tendinosis of the supraspinatus.”[77]
[77]PCB 238
69 Mr Bedeux consulted Mr Barwood, orthopaedic surgeon, on 24 May 2006 in relation to his elbows and shoulders. That practitioner received a history of bilateral elbow pain from January that year. The pain in both arms extended from the neck to both hands, with paraesthesia in the right ulna, particularly at night. He noted that the May 2006 MRI showed some degeneration in the posterior labrum of the left shoulder. He recorded that Mr Bedeux was taking the medications Mobic, Tramal and Celebrex. Mr Barwood appears to have had some difficulty assessing Mr Bedeux due to pain during the examination. Mr Barwood diagnosed bilateral elbow Regional Pain Syndromes and recommended conservative treatment. He thought surgery would likely exacerbate the condition. As for the degenerative posterior labrum in the left shoulder, he did not think it was of any significance and an arthroscopy was unlikely to be of any benefit.[78]
[78]PCB 42
70 Mr Pullen, orthopaedic surgeon, examined Mr Bedeux on 14 June 2006. Mr Bedeux tested positive for bilateral tennis elbow and demonstrated restricted range of movement in his left shoulder. Mr Pullen discussed performing a right tennis elbow release and left shoulder arthroscopy with labral repair and debridement of cyst.[79]
[79]PCB 110
71 On 4 December 2006, Mr Bedeux received an ultrasound-guided injection of steroid and local anaesthetic into his left shoulder. He derived only temporary relief from the injection.[80]
[80]PCB 14
72 Mr Bedeux presented to Dr Grokop again on 24 May 2007 complaining of left arm pain and paresthesia. Dr Grokop ordered a cervical spine MRI scan which reported, on 20 August 2007:
“Mild multilevel degenerative disc disease. Uncovertebral osteophytes and facet joint hypertrophy produce a mild left foraminal stenosis at C4-5 ... .”[81]
[81]PCB 242
73 On referral from Dr Grokop, Mr Warwick Wright, orthopaedic surgeon, examined Mr Bedeux on two occasions in 2008 in relation to his left shoulder and right elbow. In a letter dated 15 September 2008, Mr Wright reported the following:
“This man has severe chronic pain syndrome. There is no evidence of structural pathology that would benefit from surgery in my opinion. In fact, I strongly feel that an operation on his left shoulder and his right elbow would in all likelihood only result in an aggravation of his existing symptoms.”[82]
[82]PCB 144
74 At Mr Pullen’s request, Mr Douglas Li, orthopaedic surgeon, provided a second opinion on the management of Mr Bedeux’s left shoulder. On examination, Mr Li noted no signs of complex regional pain and found the shoulder to have a full unrestricted range of movement. Mr Li advised non-operative treatment in the form of analgesia, anti-inflammatories and an ultrasound-guided steroid injection to the left glenohumeral joint.[83]
[83]PCB 96
75 At the next review, Mr Pullen, on the recommendation of Mr Li, advised Mr Bedeux to try further conservative treatment and provided a referral for an autologous blood injection.[84] Mr Bedeux received that injection on 27 November 2008.[85]
[84]PCB 112
[85]PCB 248
76 In 2009, Mr Bedeux underwent various radiological investigations of his right elbow and left shoulder.[86]
[86]PCB 15, 249, 250, 251
77 In May 2010, Mr Bedeux underwent a left shoulder arthroscopic labrum debridement and subacromial decompression[87] and in October 2010, a right knee arthroscopy.[88]
[87]PCB 295
[88]PCB 16
78 In May 2011, Mr Bedeux underwent a right shoulder debridement. At about the same time, Dr Grokop began prescribing Lyrica for neuropathic pain.[89]
[89]PCB 17
79 In August 2011, Mr Bedeux came under the care of Mr Ash Moaveni, orthopaedic surgeon, in relation to his right elbow. Mr Moaveni obtained a history that Mr Bedeux was injured when hit by a car on his motorbike doing his usual mail round and since then he has had ongoing problems with the elbow.[90] Mr Moaveni performed an open ulnar nerve release and debridement of the posterior compartment of the right elbow on 30 September 2011.[91]
[90]PCB 102
[91]PCB 298
80 Mr Bedeux returned to Mr Moaveni in late 2012 and reported pain radiating from his neck down into the posterior aspect of his shoulder and elbow. Mr Moaveni thought the arthritis in Mr Bedeux’s shoulder was the reason for the pain, so he performed a right shoulder hydrodilatation on 29 November 2012.[92] Upon review however, Mr Bedeux reported no difference to his shoulder pain.[93]
[92]PCB 106
[93]PCB 106
81 In November 2012, Mr Bedeux underwent a further right knee arthroscopy and debridement.[94]
[94]PCB 308 and 106
82 Mr Bedeux consulted Mr Greg Etherington, spinal surgeon, in April 2013 on referral from Mr Moaveni. Mr Etherington obtained a history that Mr Bedeux started to develop pain in his neck and down both arms after he had been using crutches for a while. In a 2013 report to Mr Bedeux’s then solicitors, Mr Etherington concluded that Mr Bedeux “does not have a serious spinal problem. It is just some degeneration which may be causing pain”.[95] Mr Etherington said he was unable to comment on the aetiology of Mr Bedeux’s injuries.[96]
[95]PCB 64
[96]PCB 64
83 On 4 July 2013, Mr Chia, orthopaedic surgeon, placed Mr Bedeux on the public waiting list for a total right knee replacement. Pre-operatively, on 27 February 2014, Mr Chia cancelled the procedure due to concerns about:
“… the disparity between the degree of degenerative change, his age and the severity of pain experienced. There was real concern that his pain may persist even despite a well performed [total knee replacement].”[97]
[97]PCB 51
84 The consequences which Mr Bedeux claims to suffer as a result of his injuries are set forth in his affidavits sworn 25 November 2010, 4 June 2013 and 20 October 2015. All three affidavits address consequences in respect of all of his injuries and conditions.
85 Mr Bedeux says that:
· He has required multiple surgical procedures.
· He has required numerous medications including Tramal, Lyrica, Celebrex, Cymbalta,[98] Niitrazepam,[99] Norspan patch,[100] Gabapentin[101] and Morphine.[102]
[98]PCB 127
[99]PCB 127
[100]PCB 125
[101]PCB 125
[102]T85, L3-5
· He requires a walking stick and can no longer walk unaided. He has difficulty with stairs, walking long distances and cannot run.
· He requires a total knee replacement but is too young for the procedure.
· By reason of his injuries, he was forced to cease working, and has been unable to return to work.
· He has difficulty with a range of domestic and recreational activities. In particular, he has difficulty with self-care, including dressing, and relies on the assistance of others. It takes him a long time to get ready.
· He has difficulty driving a car and taking public transport. At times he is unable to do either by reason of his injuries.
· He has difficulty sleeping, mostly due to pain knee pain.
· He has lost interest in sex because of pain and lethargy from poor sleep.
· His relationship with his children has changed and he is unable to play and keep up with them.
· His relationship with his wife broke down because of his altered life circumstances after the transport accident.
86 When looked at overall, there is no doubt these consequences meet the “very considerable” test. However it is a much more difficult task to determine which of the consequences relate to which of the injuries, and more importantly, which relate to the transport accident.
Medical opinions
Mr Robin, orthopaedic surgeon
87 Mr Robin treated Mr Bedeux from 2005 to 2010. Several of his reports were tendered into evidence, the most recent of which was written in 2015, five years after the last consultation. Mr Robin diagnosed Mr Bedeux’s left knee condition as “medial and patella[r] compartment chondral injuries and secondary degeneration (ie arthritis)”.[103] He considered that Mr Bedeux’s left knee condition “was almost entirely due to the injury sustained at work in December 2004, probably with a twisting or direct impact to the patella-femoral region …”.[104]
[103]PCB 123
[104]PCB 124
88 Earlier in 2006, Mr Robin described the cause of Mr Bedeux’s left knee condition in somewhat different terms:
“… the use of the motorbike was a main cause of this man’s left knee injury, subsequently aggravated and compounded by the fall off the bike in December 2004.”[105]
[105]PCB 121
89 Mr Robin diagnosed the right knee condition as “medial, lateral and patellofemoral compartment chondral injuries and degeneration (ie arthritis) …”.[106] He thought:
“… the right knee condition may have in part been caused by the same accident in December 2004, but more likely was aggravated by the need for [Mr Bedeux] to shift weight to the right knee whilst suffering (and later recovering from) knee surgery to the left knee.”[107]
[106]PCB 124
[107]PCB 124
90 Mr Robin thought that the long-term prognosis of both knee conditions was poor and likely to gradually deteriorate over time and develop full blown and established osteoarthritis of both knees, the right more rapidly than the left.[108]
[108]PCB 124
Dr Grokop, general practitioner
91 In a 2005 report, Dr Grokop diagnosed Mr Bedeux’s left knee injury as an “extrusion of his left medial meniscus”. When asked about the cause of the injury, Dr Grokop did not distinguish between the transport accident and March 2005 incident. He wrote:
“… the falls from his work cycle during the course of his normal duties on December 8th 2004 and again in March 2005.”
92 He further wrote:
“The repeated trauma to his left knee through falls from his work cycle and normal daily activities since these falls have cause his current injuries.”[109]
[109]PCB 67
93 In a 2013 report, Dr Grokop gave a clinical history of the left knee having been “injured in [a] motorcycle accident [in] December 2004, re injured [in] March 2005. No pre-employment history of same or similar.”[110] He then stated globally that Mr Bedeux’s employment materially contributed to the onset of his left knee condition.[111]
[110]PCB 81
[111]PCB 82
94 In cross-examination, Dr Grokop was taken to a letter he wrote dated 3 October 2015 in which he said:
“The above patient has a large number of varied problems including widespread degenerative disorders of his hips, neck, shoulder, lower back, knees, both ankles, elbows and wrists.
He has a variety of sinus and migraneous (sic) headaches.
The initial injuries occurred in 2004 and you are fully aware of these.
It is nearly eleven years later and the degenerative processes are underway.
I am unable to given an attribution or causation to his varied symptoms.”[112]
[112]PCB 91
95 Dr Grokop maintained that he is still unable to give a causal attribution to each of Mr Bedeux’s symptoms.[113]
[113]T107, L24 – T108, L24
96 In cross-examination, Dr Grokop was asked:
MR SCANLON:
Q:“on the balance of probabilities whether it’s likely or not, it would be highly unlikely, would it not, that this knee problem he has is related to the 8 December 04 accident, is that right?---
DR GROKOP:
A:yes, from the … certificates, that would be my conclusion.”[114]
[114]T107, L16-21
97 In re-examination, Dr Grokop was asked:
MR INGRAM:
Q:“On the balance of probabilities, is it more probable than not that there was a left knee injury on that date?---
DR GROKOP:
A:On the balance of probabilities, there is a distinct probability that he injured his left knee on that day.[115]
[115]T118, L16-19
… .”
HIS HONOUR:
Q:“Does that mean more probably than not there was left [knee] injury?---
DR GROKOP:
A:More probably than not.[116]
[116]T118, L30-31
…
HIS HONOUR:
Q:It is more likely to be possible than it is more likely to be probable, is that right?---
DR GROKOP:
A:It it’s all right. I can’t answer the question. I think that’s my answer.[117]
…
MR INGRAM:
Q:Can I ask you again, on the balance of probabilities, is it more probable than not, that there was an injury to the left knee in that accident on 8 December 2004?---
A: On the balance of probabilities, is it probable, possible, m’mm, no I’d have to stick to my original testimony that it was possible that there was an injury to the left knee on that date.”[118]
[117]T119, L21-23
[118]T120, L3-9
98 Mr Ingram submitted that Dr Grokop’s evidence should be accepted with a degree of circumspection.
99 With regard to causation, Mr Ingram further submitted that Dr Grokop did accept a causative relationship between the transport accident and the left knee injury. At the end of the day, Dr Grokop’s evidence amounts to no more than a possibility that Mr Bedeux’s left knee problems were related to the transport accident.
Mr Chia, orthopaedic surgeon
100 Mr Chia treated Mr Bedeux between 2013 and 2015. Treatment concerned bilateral knee osteoarthritis as well as hip and low back pain.[119] In a 2015 report confined to Mr Bedeux’s knee problems, he was unable to comment on the causal relationship between the transport accident and Mr Bedeux’s knee conditions. He wrote:
“I am unsure of the type or severity of injuries sustained at that time. Osteoarthritis is a chronic progressive condition that it usually secondary to an initiating ‘insult’ or ‘injury’ to the joint and with further exacerbations. It may have been caused or exacerbated by the fall on 8 December 2004 or by any other injuries to his knee prior or since. Dr Adam Watson sums it up well in his letter dated 09/05/13 ‘Whatever the initiating cause, at the moment now he has bilateral knee osteoarthritis, right worst than left’.[120]
[119]PCB 44
[120]PCB 52
101 Regarding prognosis, he wrote:
“The long term prognosis is poor. Osteoerathritis (sic) is a chronic condition and Mr Bedeux will likely require a total knee replacement at same stage in the future” [sic][121]
[121]PCB 52
102 Mr Chia recommended that Mr Bedeux avoid activities he knows will cause an exacerbation of knee pain. He suggested low impact exercises, limiting prolonged weight bearing and walking, avoidance of stairs, ladders and carrying heavy loads.[122]
[122]PCB 52
Mr Jones, orthopaedic surgeon
103 Mr Jones assessed Mr Bedeux at the request of Australia Post in July 2005, approximately seven months after the transport accident, and four months after the March accident. Mr Jones obtained a history that after the transport accident, Mr Bedeux had pain in his left knee with additional symptoms of cracking.[123] No treatment was advised and he continued to work. Following the March 2005 accident, he developed a limp but continued to work. In April 2005 he had increased pain and noticed a cracking sensation in the left knee. Mr Jones remarked that the x-ray of 18 May 2005 and MRI of 30 May 2005 revealed changes consistent with early degeneration and changes suggestive of a torn or displaced meniscus. Mr Jones agreed with Mr Robin’s recommendation that an arthroscopy was required.
[123]DCB 1
104 In relation to causation, Mr Jones made the following significant comments:
“This patient describes a number of work injuries including 09.12.04, March 2005 and April 2005. I cannot exclude that one or other of the described incidents may have caused some of his current knee problems.” [124]
[124]DCB 3
105 He further commented:
“Possible incidents causing meniscal tears are usually those involving some twisting injury to a joint, which is usually under load. Either of the incidents of 09.12.04 and March 2005 may have caused or aggravated some degeneration of his medial meniscus, causing or aggravating a tear in that structure.”[125]
[125]DCB 3
Mr Brearley, orthopaedic surgeon
106 Mr Brearley assessed Mr Bedeux at the request of his solicitors in May 2012 and provided two reports. At the time of writing the first report in 2012 he did not have to hand any medical reports from the treating surgeons. It is unclear whether Mr Brearley was informed about the March accident either.
107 Mr Brearley was of the opinion that Mr Bedeux had suffered a soft tissue injury to the neck. He thought there was some damage to the rotator cuff short of demonstrable tearing in the right shoulder and a tear of the labrum and tendinosis of the supraspinatus tendon in the left shoulder.
108 In relation to the knees, he said there had been internal derangement of the right knee joint and similar symptoms in the left knee because of some probable tearing of the menisci.
109 As for the right elbow, he thought there was chronic lateral epicondylitis and ulnar nerve entrapment syndrome.[126]
[126]PCB 149
110 When asked about the aetiology of Mr Bedeux’s injuries, he wrote:
“All of his injuries are the result of the accident of 8th December 2004 when he was thrown off his motor bike during the course of his employment with Australia Post.”[127]
[127]PCB 150
111 In Mr Brearley’s final report, he thought Mr Bedeux’s cervical spine and knees would not be symptomatic but for the transport accident. Further, he attributed 100 per cent of Mr Bedeux’s back symptoms to the transport accident whereas, in relation to the left and right knees, he attributed 90 per cent to the transport accident and 10 per cent to the March accident.[128]
[128]PCB 156 and 158
112 No explanation was given for the apportionment, in particular, to the right knee which did not sustain any trauma in the March accident. I have distinct reservations about Mr Brearley’s opinion for this reason and because of the flawed history he received.
Mr Myers, vascular surgeon
113 Mr Myers assessed Mr Bedeux initially in March 2012 and again in 2013 and provided two reports. In the 2012 report he considered that Mr Bedeux suffered the following injuries as a result of the transport accident:
“Aggravation of degenerative intervertebral disc disease and spondylitis in the cervical spine;
Probable aggravation of degenerative intervertebral disc disease and spondylitis in the lumbar spine;
Rotator cuff injuries to both shoulders;
Bilateral tennis elbow;
Aggravation of pre-existing degenerative arthritis of both knees.”[129]
[129]PCB 182
114 Mr Myers re-examined Mr Bedeux in 2013. He expressed the view, on the balance of probabilities, that Mr Bedeux’s cervical spine and knee conditions would not be symptomatic and incapacitating (as at the time of the examination), had it not been for the transport accident.[130] Further, he considered all of Mr Bedeux’s disability in his cervical spine and both knees related to the transport accident with minimal contribution from prior or subsequent injuries.[131]
[130]PCB 188 – 190
[131]PCB 188 – 190
115 Mr Myers observed that Mr Bedeux’s cervical spine and right and left knee pathology has had significant consequences for Mr Bedeux’s ability to engage in unrestricted social, recreational and domestic activities.[132]
[132]PCB 188 – 190
116 I find Mr Myers views of little assistance. There is no clear assessment of each of the various injuries and how they came about. Indeed in the history, he was told Mr Bedeux suffered injuries to “… both legs, both arms and his spine ...”.[133] There are various inaccuracies including that he was referred to Mr Robin shortly after the transport accident.[134]
[133]PCB 179
[134]PCB 179
Mr Shannon, orthopaedic surgeon
117 Mr Shannon was asked to provide a report to the TAC in 2012. As to the injury Mr Bedeux suffered as a consequence of the transport accident, he said:
“The injury sustained as a consequence of the transport accident in December, 2004 are soft tissue injury to the left knee, soft tissue injury to the buttocks and possibly lumbar spine.”
(a) I think that he may have significant impairment of function in the left knee, but this would clearly relate to pre-existing and indeed symptomatic degenerative change.”[135]
(b) I have no evidence that he sustained any injury or impairment to his right lower extremity, but he apparently has significant degenerative change in the right knee.
(c) I have no evidence that he sustained an injury to the cervical spine, but he may have sustained a soft tissue injury to the low back.
(d) I am unable to establish any information to suggest that he sustained any injury to his upper extremity, shoulder or elbow in the accident.
(e) I am unable to establish that he sustained significant injury to his right upper extremity, particularly the right shoulder and elbow in the accident.”[136]
[135]DCB 37
[136]DCB 37 – 38
118 In relation to Mr Bedeux’s left knee condition, he said:
“Certainly the radiological and arthroscopic information would suggest that he has significant degenerative change in both knees and I have no doubt that this pre-existed the motor cycle accident.
In the left knee it could have been aggravated, but it would appear that the symptoms and signs in the left knee were quite modest and that he in fact got back to riding his motor cycle within a week of the accident.”[137]
[137]DCB 37
119 As for prognosis he reported:
“The prognosis for his various conditions is essentially the prognosis of the underlying degenerative change and it would appear for example that both knees will continue to deteriorate and may ultimately require knee replacement in the long term, but I have little evidence that either his back or his left knee was seriously injured in the accident described.”[138]
[138]DCB 38
120 Mr Shannon commented that he was not permitted to adequately examine Mr Bedeux due to a ‘total lack of cooperation”.[139]
[139]DCB 38
Associate Professor Bruce Love
121 Associate Professor Love examined Mr Bedeux in July 2015. At the outset, I note that it is unclear whether he was made aware of the March accident. Mr Ingram submitted that he had available to him a range of documents referring to the reports of Mr Robin which identified the March accident.[140]
[140]Plaintiff’s submission in reply at 14(d)
122 Associate Professor Love said:
“it is more probable than not that [Mr Bedeux’s] fall on 8 December 2004 was the incident that induced the development of osteoarthritis of the left knee”.[141]
[141]PCB 194
123 With regard to the right knee, he said:
“it is more probable that right knee condition was a consequence of an unrecognised injury to the meniscus at the time of the original motor cycle accident and the presence of the left knee condition has thrust more load onto the right knee by aggravating that condition and leading to the current circumstances.”[142]
[142]PCB 194
124 He considered Mr Bedeux’s capacity for employment requiring prolonged standing, walking distances, bending or squatting was absent.[143] He thought Mr Bedeux required treatment by way of analgesia. He noted that Mr Bedeux’s social and domestic activities are marginally restricted as a consequence of his knee injuries.
[143]PCB 195
Mr Gardiner, orthopaedic surgeon
125 Mr Gardner examined Mr Bedeux in July 2015. He noted the March 2005 accident from the material provided and commented that Mr Bedeux did not tell him about that incident in the examination. Mr Bedeux complained that his walking distance was reduced to 15 minutes due to pain, he had difficulty standing and was unable to perform any activities requiring a bent knee posture. He had difficulty sleeping due to pain. Mr Gardiner said the following about Mr Bedeux’s left and right knees:
“I believe that Mr Bedeux has an injured left knee, which is most likely an aggravation of some mild pre-existing degenerative changes that were aggravated by the significant trauma of the motor bike accident.
The subsequent development of more severe and painful arthritis in the right knee without further trauma is more difficult to understand. It is more likely that he had pre-existing arthritis in the right knee, which was asymptomatic at the time of the motorbike accident and was aggravated by the excessive weight placed on the right side during left knee rehabilitation …”[144]
[144]PCB 164
126 With regard to Mr Bedeux’s capacity for employment, Mr Gardiner thought that the left knee prevented Mr Bedeux from performing vigorous bent knee activities but he would be fit for clerical duties. In relation to the right knee, he did not believe that Mr Bedeux had any capacity for employment. Mr Gardner stated that Mr Bedeux’s left and right knee conditions significantly restricted his daily life including his ability to engage in unrestricted social recreational and domestic activities.[145]
[145]PCB 166
Mr Dooley, orthopaedic surgeon
127 In a 2015 report, Mr Dooley, engaged by the defendant, obtained a history that Mr Bedeux has “constant ongoing pain in relation to his knees, neck, back, shoulders and upper limbs”.[146] Mr Bedeux described the pain as “severe and vicious”. Mr Bedeux said his knees tend to give way with walking and he gave his dog away because he struggled with walking. Mr Bedeux told Mr Dooley that he was not doing much during the day. On examination Mr Dooley noted generalised tenderness in the right elbow. The elbow fully extends. Mr Dooley noted some restriction in movement of the cervical spine and shoulders.[147]
[146]DCB 50
[147]DCB 51
128 Mr Dooley suggested that there may have been a twisting injury to the left knee or an impact injury in the transport accident. He found that Mr Bedeux suffered a soft tissue injury to the left knee and lumbar spine in the transport accident.[148] He concluded that Mr Bedeux did not injure his right knee in the transport accident notwithstanding that he developed symptoms in time. He did not think the injury to that knee could be specifically related to favouring a knee. It is unclear if Mr Dooley was informed about the March accident.
[148]DCB 51
129 Mr Dooley considered that Mr Bedeux has mild to moderate medial compartment osteoarthritis affecting both knee joints. He thought that the partial meniscectomy after the accident contributed to the development of osteoarthritis of the left knee joint. He said Mr Bedeux has naturally occurring degenerative osteoarthritis of the left knee joint that is evolving.[149]
[149]DCB 53
130 In relation to Mr Bedeux’s right elbow, Mr Dooley said:
“In the attached documentation, it is evident that Mr Bedeux complained of right elbow pain in April of 2005 when banding and handling mail. He was diagnosed with lateral epicondylitis. I would accept that it is possible that the use of crutches then aggravated this underlying condition. Ultimately he was seen at the Alfred Hospital in relation to right elbow pain. He was diagnosed with osteoarthritis and possible ulnar nerve irritation at the elbow. Subsequently he underwent arthroscopy, removal of loose bodies and ulnar nerve transposition. In my view these conditions are entirely separate to lateral epicondylitis. They do not relate to the motor vehicle accident. Lateral epicondylitis is not the cause for Mr Bedeux’s ongoing right elbow pain.”[150]
[150]DCB 52
131 As to Mr Bedeux’s shoulder pain, Mr Dooley opined:
“Mr Bedeux reported bilateral shoulder pain in relation to the use of crutches. My personal view is that I would not expect the use of crutches to precipitate shoulder pain in this setting. I would expect that patients using crutches, depending on whether they are forearm crutches or axiliary (sic) crutches, can note some muscular pain in the upper limbs. This pain settled after the cessation of the use of crutches. The use of crutches would not cause ongoing shoulder pain related to what are in my view naturally occurring degenerative conditions such as tendinosis of rotator cuff tendons, degenerative labral tearing etc… I do not believe that these conditions and the surgeries carried out for them relate to the motor vehicle accident either directly or indirectly.[151]
[151]DCB 52
Conclusions as to Ms Bedeux’s left knee prior to the transport accident
132 I am satisfied that prior to the transport accident Mr Bedeux was not suffering from any left knee condition of any significance thus the principles in Petkovski v Galletti[152] do not apply. While I infer that Mr Bedeux had some sort of left knee complaint in the year 2000, some four and a half years prior to the transport accident, the radiology showed a normal knee.
[152] [1994] 1 VR 436
133 I am not persuaded that Mr Bedeux suffered any significant left knee injury in September 2004 when he was frightened by a barking dog and fell off his motorcycle. He did not require treatment after that incident and was able to continue postal deliveries by motorcycle as usual. Mr Bedeux appears to have mentioned the incident to Dr Grokop at a consultation 6 weeks later (31 October 2004) however no treatment for a knee injury was provided.
134 While I have reservations (discussed below) about Mr Bedeux’s evidence, I conclude that his inability to recall the September 2004 incident and whether he suffered any injury as a result, supports the view that the incident was a relatively minor one. Additionally, Dr Grokop’s comment in cross examination that he did not know whether Mr Bedeux suffered an injury to his left knee in September 2004[153] is further support for the minor nature of the incident.
[153]T102, L10-11
135 Notwithstanding the lack of any significant symptoms to the left knee, it is clear nonetheless from the opinions of almost all of the doctors who inspected the relevant radiology, that Mr Bedeux had a significant underlying degenerative condition in both knees at the time of the transport accident. Mr Shannon[154] had no doubt that the changes pre-existed the transport accident. The real question is the extent to which those changes were aggravated and made symptomatic by the transport accident.
[154]DCB 37
Conclusions as to Ms Bedeux’s spine prior to the transport accident
136 Mr Bedeux complained of back pain in the early 1990s and received beneficial treatment by way of a cortisone injection. Radiology of the spine in 1992 and 1994 disclosed no abnormality. In the years that followed, he complained from time to time to general practitioners about back pain for which he received some physiotherapy in 2003 and 2004 and was discharged several months prior to the transport accident due to excellent progress. While Mr Bedeux curiously attended two general practitioners complaining of back pain on the same day on 31 May 2004, neither doctor requested further radiology or made any referral to any specialist. It appears that only one practitioner prescribed analgesic pain relieving medication. Given the modest number of complaints over the years and limited treatment for back pain, I am satisfied that Mr Bedeux was not suffering from any significant spinal condition at the time of the transport accident.
What injury did Mr Bedeux suffer to his left knee in the transport accident?
137 The issue of most significance in this application, in my view, is whether Mr Bedeux suffered any injury to his left knee in the transport accident. Despite the opinions of many doctors, it is difficult to be precise about the nature and extent of any injuries resulting from the transport accident.
138 Many of the consultant practitioners who have examined Mr Bedeux have seen him many years after the event. With the complexity of the onset of symptoms, the multiple transport accidents and the pre-existing history, the reports of those practitioners do not provide very much assistance. Further, many practitioners have received inaccurate histories of precisely the injuries Mr Bedeux suffered in the transport accident.
139 The defendant contends that it is not possible from the evidence before the Court to form a concluded view that there was any significant left knee injury in the transport accident, at least one sufficient to trigger the underlying degenerative change in that knee. There is force in that submission.
140 I found the reports of Mr Robin of limited assistance beyond setting out in detail Mr Bedeux’s treatment. He did not differentiate between the symptoms which arose in the transport accident with those which arose in the March accident except that Mr Bedeux suffered worsening pain after the March accident.[155] As to causation, Mr Robin, in a December 2006 report, attributed Mr Bedeux’s knee condition to the use of a motorcycle at work and the transport accident without mentioning the March accident.[156] In a 2015 report he “almost entirely”[157] attributed causation for Mr Bedeux’s left knee condition to the transport accident, again without commenting on the role of the March accident. I consider Mr Robin’s somewhat shifting views on causation an attempt to support a long suffering patient. I also query the reliability of Mr Robin’s 2015 report when he hadn’t seen Mr Bedeux in five years.
[155]PCB 115
[156]PCB 121
[157]PCB 124
141 I am unable to discern exactly what injury Dr Grokop thought Mr Bedeux suffered in the transport accident. In viva voce evidence, Dr Grokop expressed the view it was possible and not probable that Mr Bedeux suffered an injury to his left knee that day. In his reports, Dr Grokop did not distinguish in any meaningful way the transport accident and March 2005 accident. Overall I did not find Dr Grokop’s evidence of any great assistance.
142 I reject the opinions of Mr Brearley. I reject what is said in his first report of 30 May 2012 on the basis that it does not appear that he was made aware of the March 2005 accident. I reject what is said on his subsequent report, which specifically does refer to the March accident, but does not disclose the reasons behind the apportionment of left and right knee conditions between the transport accident and March accident. I struggle to comprehend Mr Brearley’s attribution of 10 per cent of the right knee condition to the March 2005 accident when that knee did not sustain any trauma at that time.
143 I give little weight to the reports of Associate Professor Love and Mr Dooley in so far as they relate to Mr Bedeux’s left knee on the basis that it is unclear whether they were informed of the March 2005 accident. Similarly I am cautious of Mr Gardiner’s opinion as he does not, in my view, give any real consideration to the March 2005 accident.
144 I am assisted by the reports of Mr Jones and Mr Shannon. Mr Jones saw him in mid 2005 and obtained a history that Mr Bedeux developed a limp after the March accident and increased symptoms of pain and a cracking sensation with swelling in April 2005. That history demonstrates worsening symptoms which appear to flow from the March accident. I accept Mr Shannon’s view that there is limited evidence that Mr Bedeux had significant symptoms as a result of the transport accident as this accords with Dr Molloy’s and Dr Grokop’s notes.
145 Medico-legal opinions aside, my determination rests largely upon the objective evidence that existed around the time of the transport accident. After the transport accident Mr Bedeux consulted with Doctors Molloy and Grokop both of whom examined Mr Bedeux’s left knee and found no abnormality. Mr Bedeux was certified fit for light duties by Dr Molloy until 21 December 2004. The certificates appear to have been given by Dr Molloy because of a buttock injury and not a left knee injury. Mr Bedeux resumed working full duties on about 29 December 2004. According to Dr Grokop’s notes Mr Bedeux’s first complaint of knee pain was made to him on 30 December 2004. The treatment flowing from that consultation concerned only a cortisone injection to the left elbow which occurred on the following day. There is no evidence that Mr Bedeux complained about his left knee in January or February 2005. At the time of the March accident Mr Bedeux was performing his duties on a motorcycle and had been for some time.
146 The plaintiff’s evidence as to what part of his body hit the ground in the transport accident is quite confusing. It was completely unclear, in the course of cross-examination, which part of his body hit the ground and what area suffered injury. There was an attempt in re-examination to clarify the position and, in the end, Mr Bedeux said that his knee hit the road first.[158] However, in the light of the evidence which proceeded it, that answer was very much a matter of reconstruction.
[158]T78, L1-2
Mr Bedeux’s credit
147 In assessing Mr Bedeux’s credibility, I bear in mind that English is not his primary language and that he is a relatively unsophisticated man with modest education. Nonetheless, I found his evidence at times confusing and sometimes contradictory. Overall, I assessed him as an unreliable witness. The situation is made none the easier as it is now more than ten years since the transport accident and with the various incidents and injuries he suffered over the period 2004 and 2005, it is clearly no easy matter to isolate particular incidents and to record precisely what injuries occurred. Regularly, in the course of his cross-examination, he said he could not remember events or instances. He could not recall the incident of September 2004 when he fell off his bike when startled by a dog.[159] In cross-examination, he subsequently said he could remember the incident but could not remember if he suffered any injury.[160] Despite his affidavit referring to the March accident, in cross-examination he said he could not remember it.[161] His cross-examination about which side of his body he fell in the transport accident was confused. At one point he accepted he landed on his backside.[162] His evidence about a person knocking on his front door asking if he was looking for work is quite unbelievable.[163]
[159]T44, L5 – T45, L20
[160]T44, L5 – T45, L20
[161]T45, L25
[162]T54, L14
[163]T64, L10
148 He did say that the most serious injury to his left knee occurred in the transport accident. Again, I find this a reconstructed version of events. The reality, in my view, is that he has little coherent recall of the transport accident and the injuries suffered.
149 The affidavit of his former wife, Ms Basset, is of little assistance. It was sworn some nine years after the transport accident. It is difficult to understand how she could recall with such precise detail that he fell onto his left side and he complained of pain in his left knee. That evidence stands in contrast to the reports to the doctors at the time.
150 Likewise, the affidavit of Mr Abraham. He said that after the transport accident, Mr Bedeux injured his neck, shoulders and knees. That is clearly inaccurate. I do not accept other parts of his evidence that Mr Bedeux struggled with his work duties thereafter. There is no reference to the March 2005 accident.
151 Mr Ingram, in submissions, said that while the plaintiff resumed fulltime duties, he did not return to the motorcycle riding, but was involved in mail sorting. However, the evidence of his client in this regard was difficult to follow. In cross-examination, he said he returned to fulltime duties, meaning riding the motorcycle.[164] In re-examination, at one point he was asked:
[164]T55, L20
Q:“Mr Scanlon asked you about – you kept on full duties during that period of time, but how much of the time was spent on the motorbike as against sorting the mail at the post office?- - -
A: On the full duties?
Q: Yes?- - -
A:Maybe sometime, say, four – four hours, sometimes you can say four and five. It depends, because I can’t remember exactly after this accident if I am – if - I can’t remember exactly if I going this three-month period, what you’re just saying, December 2004 to March. If I doing the full duties, I am inside. I think I am inside – I am inside the post office, inside the (indistinct).”[165]
It was clear Mr Bedeux was struggling to recall what he was doing at this time.[166] There is no reference in his affidavits to being unable to ride the motorcycle in the period between the transport accident and the March accident.
[165]T79, L14-25
[166]T79, L28 – T80, L12
152 Overall, I find I am unable to rely upon Mr Bedeux’s evidence of:
·which part of his body hit the ground when he came off his motorcycle in the transport accident
·whether there was anything more than a relatively minor and transitory injury to the left knee
·that there was any significant interference, aside from a short, initial time off work, to his work duties between the transport accident and the March accident.
153 I am thus reliant upon the objective evidence of what was reported to doctors around the relevant time.
154 Of most assistance was the report of Mr Jones, who saw Mr Bedeux in July 2005. He noted that Mr Bedeux was able to get up from the accident and complete his mail round. This hardly speaks of anything more than a minor soft tissue injury. By April 2005, he noted limping, swelling and a cracking sensation in the left knee. This all occurred after the March accident. At around that point, he was referred for an ultrasound and x-ray. It is significant the first radiological investigations did not occur until May 2005.
155 Mr Jones thought that either the transport accident or the March accident may have caused or aggravated some degeneration in the structure of the knee. He was also of the view that the underlying degenerative condition can become symptomatic, leading to a spontaneous tear to the meniscus without any injury occurring. There is the distinct possibility that occurred in Mr Bedeux’s case.
Conclusions as to the consequences arising from the transport accident
156 Taking into account all of the evidence, I find that Mr Bedeux probably suffered a physical injury in the form of a soft tissue injury to his left knee in the transport accident but that injury either resolved or had little impact on Mr Bedeux by the time of the March 2005 accident. The medical evidence shows that following that accident, Mr Bedeux developed a limp and experienced increased pain as noted by Mr Shannon and prompted Dr Grokop to make a referral to Mr Robin for left knee treatment.
157 The onus is on Mr Bedeux to establish, that the transport accident was causative of serious consequences. Having regard to my finding that he suffered only a soft tissue injury in the transport accident and required only medical assessment and light duties for a period of approximately two weeks or thereabouts, there was no significant impairment to Mr Bedeux’s domestic, recreational or work activities as a result.
158 Mr Ingram’s contention is that the injuries or conditions to the right knee, left elbow/shoulder and right elbow/shoulder are all, in some way, consequential upon the original left knee injury. Absent the necessary causative relationship between what is undoubtedly a significant left knee condition, and the transport accident, the application in relation to those various body functions must also fail.
159 To the extent the claim relates to a severe mental disorder, there is little evidence to support such a condition. Mr Bedeux was seen by Dr Dush Shan, psychiatrist, through the Caulfield Hospital Pain Management Clinic in 2012. There is reference to the prescription of an anti-depressant. There is further reference in a number of reports to Mr Bedeux suffering a Chronic Pain Syndrome.
160 In a report of August 2012, Dr Kaplan, consultant psychiatrist, referred to a history of depression and irritability. Dr Kaplan diagnosed an Adjustment Disorder with Mixed Anxiety and Depression, directly related to physical injuries. Dr Kaplan thought, from a psychiatric perspective, in particular frustration, impaired memory and concentration, there was likely to be some impact upon his capacity to work full-time in pre-injury employment, although that was largely to be determined by the physical injuries.
161 Dr Timothy Entwisle, psychiatrist, who examined Mr Bedeux in 2015 noted Mr Bedeux was not undergoing any psychological nor psychiatric treatment and that he was no longer being managed for depression. According to the history provided, Dr Entwisle considered the transport accident as “minor” and as such there were no traumatising features. He noted Dr Engel had diagnosed a Chronic Pain Syndrome. He thought the prognosis from a psychiatric perspective was good. He thought the transport accident did not interfere with Mr Bedeux’s domestic and leisure activities, and that he had the ability to work.
162 Overall I am not satisfied that, even if it could be said that Mr Bedeux’s psychological symptoms are related to the transport accident, that they achieve the “severe” level the legislation requires.
163 Likewise, there is not sufficient evidence to attribute Mr Bedeux’s current condition in his lumbar and cervical spines, such as they are, as being related to the transport accident. To Dr Molloy, the day after the transport accident, Mr Bedeux reported right lower back pain. No treatment appears to have been provided. There is reference in Dr Grokop’s notes of right buttock pain, but little else. Again, Mr Bedeux returned to full-time duties. In the early part of 2005, there is no reference to any upper or lower back pain and even in May 2005, medical attention focussed on the left knee and right elbow. There is no reference in the various reports of Mr Robin to any lower back problem in 2005. There are some consultant practitioners who have attributed the spinal condition to the transport accident, but that is many years after the event and without concise histories.
164 If Mr Bedeux suffered some injury to his lumbar or cervical spine, again, I am satisfied that it was no more than transitory. I am not satisfied that any current condition in the spine is related to the transport accident.
165 In the circumstances, the plaintiff’s application fails. I shall make consequent orders as to costs.
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