Bell v Victorian WorkCover Authority
[2018] VCC 447
•16 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-03062
| HELEN MARY MARCELLA BELL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 April 2018 | |
DATE OF JUDGMENT: | 16 April 2018 | |
CASE MAY BE CITED AS: | Bell v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 447 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION WORKPLACE INJURY – ACCIDENT COMPENSATION ACT 1985
Catchwords: Serious injury – physical injury – injury to the right knee – application for pain and suffering damages only – aggravation of pre-existing right knee injury – whether the plaintiff satisfies the threshold test for “serious injury” in respect of pain and suffering damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: The application for serious injury certificate for pain and suffering damages in respect of an injury to the plaintiff’s right knee on 22 September 2009 is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I R Fehring | Ryan Carlisle Thomas |
| For the Defendant | Mr J L Batten | IDP Lawyers |
HIS HONOUR:
1 The plaintiff brings this application by way of Originating Motion dated 5 July 2017. The plaintiff applies for leave to bring proceedings for pain and suffering damages arising from an injury to her right knee on 22 September 2009 in the course of her employment with the Austin Hospital. The plaintiff was employed as an anaesthetic nurse at the time of the said injury.
2 The plaintiff had previously injured her right knee in the course of her employment with the Mercy Hospital in December 2007. The Court is required to determine the consequences arising from the injury to the plaintiff’s knee, which is said to have occurred on 22 September 2009.
3 The following evidence was adduced in the course of the hearing:
·The plaintiff gave evidence and was cross-examined
·The plaintiff tendered the following documents
§Exhibit “A” was the plaintiff’s Court Book (“PCB”), pages 7 to 38 inclusive.
4 The defendant tendered the following documents:
·Exhibit 1, the Defendant’s Court Book (“DCB”), pages 1 to 25, page 35, pages 37 to 43, pages 50 to 53 and pages 106 to 109
·Exhibit 2, the Camberwell Junction Medical Clinic progress notes between the dates of 29 July 2007 and 8 February 2018.
5 Mr Batten, on behalf of the defendant, identified the issues in this application as follows:
(a)The plaintiff has to prove what is the injury occasioned in this incident (22 September 2009) and what consequences flow from the injury to the right knee on that occasion;
(b)the plaintiff has to disentangle the consequences that are relevant to the injury to her right knee on 22 September 2009 from any other consequences from an earlier event;
(c)the consequences of the further injury to the plaintiff’s right knee do not satisfy the statutory test.
6 The plaintiff’s credibility during the course of this case was not challenged by the defendant. The plaintiff impressed me as a person who did her best to give honest and accurate answers to the questions asked of her. The plaintiff is a person who suffers from a number of comorbidities and does not enjoy general good health.
The statutory scheme
7 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Accident Compensation Act (“the Act”) which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
8 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999;[1]
[1]Section134AB(1) of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners Pty Ltd v Podolak (ibid) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being “more than significant or marked, and as being at least very considerable”;
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
9 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
10 I read the exhibited material and have taken into account the evidence of the plaintiff in this case in making this decision.
The Plaintiff’s background
11 The plaintiff is now sixty-seven years old. The plaintiff is a highly qualified and experienced nurse. She is now retired. The plaintiff is a divorced woman who has two adult children aged forty and forty-six.[3]
[3]PCB 6 and Transcript (“T”) 11
12 The plaintiff was educated to Year 12. She completed her general nursing training at the Austin Hospital in 1973. She then went on to be qualified as a theatre sister at the Austin Hospital in 1980. In 1989, she completed a Bachelor of Nursing at La Trobe University.[4] The plaintiff then completed a Graduate Diploma in Advanced Nursing at La Trobe University in 1990.
[4]DCB 39
13 The plaintiff commenced an Associate Diploma in Marketing at Swinburne University in 1993, but did not complete it. In 1997, the plaintiff graduated with a Certificate in Business Administration at Swinburne University. The plaintiff has subsequently qualified in areas of sterilisation, infection control and finance management within the health system.
14 The plaintiff has had a long and successful working career. Between 1984 and 1990, the plaintiff worked at the Epworth Hospital. In 1990, she moved to be the Director of Nursing at the Croydon Hospital until it closed in 1995. Between 1995 and 2006, the plaintiff worked at the Dandenong Hospital, known as Southern Health. In 2006, the plaintiff moved her employment to the Mercy Hospital at Heidelberg. She remained at the Mercy Hospital until 2009. At that hospital, she was the manager of Perioperative Services.[5] It is to be noted that the plaintiff was injured at the Mercy Hospital in December 2007. That injury was to the plaintiff’s right knee, the same body function that is the subject of this application.
[5]T11
15 On 18 May 2009, the plaintiff commenced her employment with the Austin Hospital. Her role at the Austin Hospital was that of an anaesthetic nurse.
16 The plaintiff continued her work at the Austin Hospital until 22 September 2009, when she injured her right knee. The plaintiff continued her employment at the Austin Hospital until September 2013.[6]
[6]T25
17 In September 2013, the plaintiff took up a position as a nurse educator at the Australian Catholic University. The plaintiff retired in 2014.
18 The plaintiff currently attends as a volunteer at the Epworth Hospital, and has done so since 2014, at the time of her retirement.
The injury with the Austin Hospital
19 The plaintiff commenced her employment with the Austin Hospital on 18 May 2009. The plaintiff was employed as a part-time anaesthetic nurse. Her working hours were three shifts of ten hours.
20 In her affidavit dated 10 February 2017, the plaintiff described the injury to her right knee in the following terms:
“On 22 September 2009 … I sustained injury to my right knee during my employment with the Defendant. I had to take a heavy male patient to theatre in the course of my work as an anaesthetic nurse. The operating suite worked according to a tight timeline and the patient had to be moved as soon as possible. Due to his weight, the patient had to be moved to theatre in the bed in which he was lying. He exceed[ed] the weight limit for using a trolley … .
On the said date, I was pushing the patient in the bed around a corner. I had trouble manoeuvring the bed around the corner due to the size and weight of the bed and patient. Considerable strain was placed on my knee and I felt pain in my right knee … .”[7]
[7]PCB 8 at paragraphs [9]-[10]
21 In her Claim Form dated 5 October 2009, the plaintiff described the incident causing her right injury in the following terms:
“Whilst pushing patient & trolley I made a wide turn right, I had to lean to the right to stabilise trolley. I did not feel initial pain at this stage, pain developed over the next hour. This event may have been causal agent.”[8]
[8]PCB 34
22 The defendant does not dispute that there was some injury to the plaintiff’s right knee on 22 September 2009. The defendant does dispute the mechanism of injury, whether it involved a twisting action or was some other minor incident causing the injury to the right knee. The defendant’s position in this case is that the additional injuries or consequences of the injury to the plaintiff’s right knee are not very significant.
Medical treatment
23 The plaintiff deposes in her affidavits that after the incident referred to earlier in these Reasons, she noticed pain and swelling in her right knee. She went home early on the day of the incident, 22 September 2009.[9] The plaintiff attended upon Dr Aziz at the Camberwell Junction Medical Centre on 22 September 2009.[10] On that occasion, Dr Aziz diagnosed a suspected medial ligament tear and noted that a small effusion of the right knee was present. He advised the plaintiff to elevate her right leg, apply ice and a compression bandage, and commence Mobic, an anti-inflammatory medication.[11]
[9]PCB 8
[10]PCB 9
[11]PCB 20
24 The plaintiff then attended upon her usual general practitioner, Dr Julie Doswell, at the same clinic, on 24 September 2009. On that occasion, the plaintiff was complaining of more severe pain, and she was then referred to Mr Andrew McQueen, orthopaedic surgeon, for opinion.[12]
[12]PCB 20
25 On 30 September 2009, the plaintiff attended upon Mr Andrew McQueen. Mr McQueen examined the plaintiff, and his examination revealed typical features of a medial meniscal tear. In his opinion, he considered the plaintiff had a problem with chondral pathology, as well as a possible recent tear. He noted that he was aware of an MRI scan result of the right knee which was performed on 21 January 2009 (the MRI scan was actually performed on 25 January 2008). On that occasion, Mr McQueen injected the plaintiff’s knee with Celestone and she was to contact him with regard to her progress.[13]
[13]PCB 18
26 The plaintiff did not return to consult with Mr Andrew McQueen after 30 September 2009.
27 The plaintiff has given evidence that she engages in rehabilitation by attending a swimming pool for deep-water running and/or swimming three times a week.[14]
[14]PCB 9 and 15
Medical opinions
The Plaintiff’s doctors
Dr Julie Doswell, general practitioner
28 Dr Doswell is the plaintiff’s general practitioner, and has been so for a long period of time. The plaintiff suffers from a number of comorbidities, including left knee complaints, severe asthma complaints requiring hospitalisation, high blood pressure and thyroidism. Dr Doswell manages these conditions for the plaintiff to the present time.
29 In relation to this application, Dr Doswell has prepared two reports dated 4 November 2015 and 10 December 2017.
30 In her first report, Dr Doswell’s opinion in relation to the plaintiff’s right knee is stated as follows:
“… Helen Bell has traumatic Right knee injuries sustained at her work place which involve femoral and patellar chondral loss and a significant possibility of medial ligament and meniscal tearing.”[15]
[15]PCB 21
31 I note in that section of the opinion by Dr Doswell, she does not differentiate between the injuries suffered by the plaintiff at the Mercy Hospital in December 2007 and the injury suffered by the plaintiff in September 2009 at the Austin Hospital.
32 In her second report dated 10 December 2017, Dr Doswell more fully sets out the history of the initial right knee injury to the plaintiff, which occurred in December 2007. Dr Doswell notes the findings of the MRI scan of the plaintiff’s right knee dated 25 January 2008, which precedes the subject injury in this case. The history is that the plaintiff returned to work on 8 February 2008 after her initial right knee injury.[16]
[16]PCB 23
33 In respect of the injury which occurred in September 2009, the general practitioner gave the following history and opinion:
“Mr McQueen gave the opinion that Helen may have sustained a recent medial meniscal tear and instilled a cortisone injection into her knee. Mr McQueen suggested MRI and possible Arthroscopy if her knee did not improve in the intermediate and short term.
Helen improved somewhat and returned to full-time work on the 17.10.2009.”[17]
[17]PCB 24
34 Dr Doswell then noted that:
“… Helen Bell has traumatic, recurrent and sequential Right knee injuries sustained at her work place which involve femoral and patellar chondral loss and an additional significant possibility of medial ligament and meniscal tearing.”[18]
[18]PCB 24
35 Again, Dr Doswell does not differentiate between the two injuries in 2007 and 2009, or the additional injuries or symptoms arising from the 2009 accident the plaintiff suffered at the Austin Hospital.
Mr Andrew McQueen, orthopaedic surgeon
36 Mr Andrew McQueen examined and treated the plaintiff on 30 September 2009. He prepared a report for the general practitioner dated 30 September 2009. Mr McQueen noted that on examination, the plaintiff appeared to have typical features of a medial meniscal tear to the right knee. Mr McQueen referred to the MRI scan of 25 January 2009 (scil 2008) and he noted that the plaintiff had a problem of chondral pathology as well as a possible recent tear.
37 Mr McQueen treated the plaintiff with an injection of Celestone to her right knee. He has not seen the plaintiff since that date. Mr McQueen did not order a further MRI scan of the right knee and consequently there is no comparative MRI scan before and after the subject accident in respect of the plaintiff’s right knee.
Mr Matthew Evans, orthopaedic surgeon
38 Mr Evans, orthopaedic surgeon, treated the plaintiff for her initial right knee injury in December 2007. He prepared a report dated 8 February 2008. This report was a late inclusion in the Plaintiff’s Court Book.
39 Mr Evans had, at the time of the consultation, a copy of the MRI scan of the plaintiff’s right knee which was performed on 25 January 2008. The conclusions of that MRI scan were as follows:
“Near full thickness articular cartilage loss over the median ridge and medial facet of the patella with some subchondral oedema noted at the medial most margin of the patellar and median ridge.
Subchondral cyst formation and near full thickness articular cartilage loss over the anterior aspect of the medial femoral condyle. There is marginal osteophyte formation present over both the medial and lateral joint margins.
Oedema noted superficial to the patella and patellar tendon might reflect a component of bursitis and requires clinical review in relation to this.”[19]
[19]PCB 37-38
40 After examining the plaintiff, Mr Evans stated his opinion as follows:
“[The plaintiff] brought along some plain x-rays that show chondrocalcinosis bilaterally. She has also had an MRI scan that shows some change within the meniscal substance but this is probably consistent with the chondrocalcinosis rather than a frank tear. She has also got some degenerative change particularly under her kneecap and this is (sic) almost certainly been aggravated by her fall. The MRI confirms the pre patellar bursitis also.”[20]
[20]PCB 36
41 I note, for completeness, that the plaintiff returned to work after this examination by Mr Evans on 18 February 2008.
Mr Thomas Kossmann, orthopaedic surgeon
42 Mr Thomas Kossmann examined the plaintiff for the purpose of medico-legal reporting. He prepared a report dated 28 April 2017. Mr Kossmann took a history from the plaintiff that she had pain in her right knee on and off.[21] He conducted an examination of the plaintiff and diagnosed the following conditions:
“1. Full thickness articular cartilage loss of the median ridge and medial facet of the patella;
2. Subchondral cyst formation and near full thickness articular cartilage loss over the anterior aspect of the medial femoral condyle;
3. Marginal osteophyte formation present over both the medial and lateral joint margin.”[22]
[21]PCB 27
[22]PCB 30-31
43 Mr Kossmann saw the plaintiff’s future in the following terms:
“Ms Bell’s prognosis regarding her right knee condition is guarded. She seems to suffer from a slowly developing advancing osteoarthritis in her right knee, for which she will require further treatment with pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture.”[23]
[23]PCB 30
44 In his report, Mr Kossmann did not differentiate the symptoms or consequences of the two separate injuries to the plaintiff’s right knee.
The Defendant’s doctors
Mr Iain McLean, orthopaedic surgeon
45 Mr McLean prepared two reports, both dated 30 March 2016, for the purposes of this application. His first report included a copy of the x-ray of the plaintiff’s right knee which was performed on 30 March 2016. The x-ray report was as follows:
“Films taken as requested with weight bearing. There is narrowing of both medial and lateral compartments of the knee joint and sharpening of joint margins and tibial spines is present. There is chondrocalcinosis medially and laterally in the knee joint but otherwise no evidence of any loose bodies.”[24]
[24]DCB 2
46 Mr McLean took a history from the plaintiff that she continued to be aware of variable pain to the medial aspect of her right knee. The plaintiff described the pains as feeling like “glass in the knee”. Mr McLean noted that the plaintiff was taking natural anti-inflammatory medications of fish oil and turmeric. He also noted the plaintiff continued to undertake self-directed pool exercises of swimming, along with some light walking. Mr McLean, in his report, did not differentiate between the two incidents of injury to the plaintiff’s right knee. He noted that the plaintiff would have ongoing symptomatic and problematic symptoms and disability in her right knee with the effluxion of time. He noted there was progressive degenerative changes occurring in the three compartments of her knee. The purpose of his assessment was for whole person impairment quantification. While it is not directly relevant to this application, he assessed the plaintiff as having a 3 per cent whole person impairment as a result of her right knee injury.
47 In respect of apportioning liability for the 2009 work injury, Mr McLean stated as follows:
“There is no indication for apportionment as we have no specific references relative to changes on x-rays or impairment of movements prior to the work injury of 2009; on which to base any prior joint pathology.
There was reference to the MRI changes but this cannot be applied.”[25]
[25]DCB 10
The Medical Panel Opinion dated 13 September 2016
48 The Medical Panel consisted of Dr Caroline Brand, rheumatologist, and Dr Catherine Dodgshun, general practitioner. The plaintiff had appealed the whole person impairment of 3 per cent assessment to the Medical Panel. The Medical Panel’s decision was that there was no impairment to the plaintiff. In the course of deliberations and findings, the Medical Panel stated as follows:
“The Panel concluded that the worker is suffering from residual dysfunction of the right knee secondary to an aggravation of pre-existing osteoarthritis, relevant to the accepted right knee injury. The Panel considered that the worker’s medical condition arising from the accepted right knee injury has stabilised.
…
Notwithstanding that the Panel concluded that the worker is suffering from residual dysfunction of the right knee secondary to an aggravation of pre-existing osteoarthritis relevant to the accepted right knee injury, the Panel found no clinical evidence of gait derangement, limb length discrepancy, loss of active range of motion, joint ankylosis, muscle weakness, muscle atrophy, arthritis based on radiographically determined cartilage intervals, peripheral nerve or vascular deficit or disorder, or assessable condition using the Diagnosis-based Estimates.”[26]
[26]DCB 18
49 The ultimate conclusion of the Panel was that the plaintiff did not suffer any impairment as a result of the 2009 incident.
Mr Michael Dooley, orthopaedic surgeon
50 Mr Dooley examined the plaintiff on behalf of the defendant for the purposes of medico-legal reporting. Mr Dooley prepared a report dated 1 February 2018. In his report, Mr Dooley stated, in relation to the December 2007 injury, as follows:
“… I believe that it is most likely that in this fall she sustained some impact damage to the structures anterior to the patella resulting in prepatellar bursitis. The impact may have aggravated some underlying degenerative change affecting the patellofemoral joint.”[27]
[27]DCB 24
51 In relation to the 22 September 2009 injury, Mr Dooley accepted that the knee may have been subject to a twisting-type injury. Mr Dooley described his opinion as a result of the 2009 incident in the following terms:
“… I believe that in the episode described Mrs Bell sustained a soft tissue injury to her right knee, the exact nature of which is not entirely clear. It is possible that a tear could have occurred in a degenerating area of the posterior horn of the medial meniscus at the time of the episode. Sensibly Mrs Bell declined surgical intervention. The natural history of this sort of injury is steady improvement in time. Mrs Bell has noted some ongoing intermittent knee pain. She has noted difficulty with kneeling and squatting. In the main, she has self managed her condition with low impact exercise, sensible modification of activity and simple analgesia such as Panadol Osteo, Voltaren creams etc. I do not believe that any additional treatment is required.”[28]
[28]DCB 24
52 Mr Dooley later opined, in relation to the plaintiff’s injury to her right knee joint, that she will suffer some ongoing pain which relates to her naturally occurring degenerative osteoarthritis of her knee joint.”[29]
[29]DCB 24
53 Mr Dooley’s opinion was the plaintiff will continue to note intermittent right knee pain into the future.
54 The preponderance of the medical evidence in this case is that no medical practitioners can clearly state the exact nature of the injury to the plaintiff’s right knee as a result of the incident in September 2009. The medical practitioners all agree that the plaintiff will suffer, and continue to suffer, intermittent pain in her right knee into the future. It is to be noted that after the 2007 injury, the plaintiff returned to work and continued to work between 18 February 2008 until her injury in September 2009. After her return to work in October 2009, the plaintiff continued to work until her retirement in early 2014.
55 In the time between the attendances on the general practitioner for the initial right knee injury, the plaintiff has received intravenous injections of Depo-Medrol to her left knee on three separate occasions. Those occasions are 8 June 2014, 25 February 2015 and 27 July 2015.[30]
[30]T20
56 The medical notes from the plaintiff’s general practitioner’s practice at the Camberwell Junction Medical Centre record only one attendance on 30 March 2010 in respect of any complaint of right knee injury.[31] The history given on that occasion was a twisted right medial soreness, and on examination, it was found that the right knee was tender over the tibial attachment to the medial ligament. The plaintiff was prescribed analgesia.
[31]Exhibit 2
57 In her evidence, the plaintiff denied any twisting injury at the time of the attendance on the doctor on 30 March 2010. In the period of time covered by the progress notes from September 2009 until February 2018, that is the only entry that relates to right knee injury. The plaintiff attended upon her general practitioner in the same period approximately one-hundred-and-thirty times for other comorbidity symptoms and treatment.
58 The medical evidence in this case supports the proposition that the plaintiff has mild symptoms in her right knee which commenced in 2007 and have continued through to the current time. The medical evidence, at best, for the plaintiff, only establishes a minor acceleration or aggravation of the symptoms as a result of the September 2009 accident at the Austin Hospital.
Consequences
59 The plaintiff, in her affidavits dated 10 February 2017 and 6 March 2018, has set out the consequences of the injury on 22 September 2009.
Pain
60 In her affidavit dated 10 February 2017, the plaintiff states that she has pain in her right knee most of the time.[32] I note that in the medical histories taken by the doctors who have seen the plaintiff in respect of this proceeding, they refer to the pain being intermittent.
[32]PCB 11 at paragraph [20]
61 The experience of pain is a subjective assessment by the plaintiff. In this particular case, the plaintiff has continued to work, while initially in a modified area, after the accident, for a total of approximately four years. She has then retired, not as a result of the injuries, but more likely to do with her age at the time. The plaintiff has been able to continue to work in a voluntary capacity at the Epworth Hospital one day per week. The plaintiff continues to walk and exercise in swimming pools. The plaintiff is independent in her activities of daily living.
62 In summary, I do not find that the plaintiff’s demonstrated and declared level of pain as a result of her right knee injury is of a very considerable nature.
Medication
63 The plaintiff has given evidence in this case that she takes Panadol Osteo on an as-needs basis to ameliorate her pain difficulties. It is to be noted that the plaintiff has, over the period of time since the subject injury, had three sets of injections to her left knee. The Panadol Osteo in the course of her evidence was also nominated as a medication to deal with her pain symptoms in the left knee. The plaintiff also takes what she described as medications, that is, fish oil and turmeric, to assist in the pain relief. I note that the plaintiff, in her evidence, stated that she had not been prescribed any medication by the doctors for pain relief in relation to her right knee.[33]
[33]T21
Ongoing treatment
64 The plaintiff had treatment from Mr McQueen in the form of an injection to her right knee in September 2009. The plaintiff has subsequently had no further active treatment.[34]
[34]T31
Lack of mobility and activities of daily living
65 The plaintiff has deposed to having difficulty bending and squatting as a result of her right knee injury.[35] The plaintiff says that this impacts upon her ability to do the gardening in her unit garden.[36] The plaintiff also states that she has difficulty with the heavier housecleaning tasks such as scrubbing the floor.[37] I note that the plaintiff has also had symptoms in her hips, and she agreed in her evidence that her hip complaint made it difficult for her to get up and down from the floor when scrubbing it.
[35]PCB 11 at paragraph [23]
[36]PCB 12 at paragraph [24]
[37]PCB 15 at paragraph [3]
66 The plaintiff also gave evidence that as a result of her injury to her right knee, she has ceased attending dinner dances.[38] It is difficult to reconcile this description of the right knee injury affecting her dancing ability when, at the same time, she has been treated for injury and symptoms in her left knee.
[38]PCB 12 at paragraph [25]
Sporting activities
67 The plaintiff says that she attends swimming and deep water running as a means of keeping herself and her legs mobile.[39] The plaintiff attends the swimming sessions three times per week and it was my impression from her evidence that there was some level of socialisation occurring in the deep-water running group. I do not consider that the water therapy is of such a need and level that it amounts to a significant consequence to the plaintiff.
[39]T33
68 The plaintiff also gave evidence about her inability to fully enjoy the environment of Venus Bay.[40] The plaintiff’s grandchild lives at Venus Bay with his parents. The plaintiff gave evidence that she was unable to engage in activities in the water because of the roughness of the surf, and also unable to pick up her grandchild. The plaintiff, however, was able to walk along the sandy beach, as long as it was done carefully. I do not accept that this is a significant consequence for the plaintiff.
[40]PCB 12 at paragraph [26] and PCB 15 at paragraph [4]
Analysis
69 I have considered all the medical evidence in this case and also the evidence of the plaintiff. However, I am not satisfied that the plaintiff has properly identified the consequences flowing from the injury to her right knee in September 2009. The onus is upon the plaintiff to separate or disentangle the consequences relating to the injury, the subject of the application. The plaintiff had previously been injured to the same body part, that is, the right knee, in December 2007. The radiological evidence around the 2007 incident confirms that there was considerable pre-existing degenerative change which had become symptomatic as a result of the 2007 incident.
70 In either case, the plaintiff returned to work after the 2007 incident and worked for a period of time until her injury in 2009. The plaintiff then returned to work in October 2009 and remained at work in fairly much the same capacity as she had prior to her injury at the Austin Hospital. She retired from the Austin Hospital to take up work as a nurse educator, and subsequently, as a volunteer at the Epworth Hospital.
71 The consequences that I have analysed in these Reasons which flow from the 2009 incident, when judged by comparison with other cases in the range of possible impairments or losses of a body function, in this case the right knee, cannot be described as being “more than significant or marked” and as being “at least very considerable”. The application for serious injury certification to allow the plaintiff to issue proceedings to recover pain and suffering damages as a result of the injury to her right knee on 22 September 2009 is dismissed.
72 I will hear the parties on costs.
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