Borg v Transport Accident Commission
[2013] VCC 206
•14 March 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-01138
| JODIE BORG | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 February 2013 | |
DATE OF JUDGMENT: | 14 March 2013 (Revised) | |
CASE MAY BE CITED AS: | Borg v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 206 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport Accident – injury to the right knee – whether pain and suffering consequences were “serious”
Legislation Cited: Transport Accident Act 1986, s93(4)(b)
Cases Cited: Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26
Judgment: The plaintiff’s Originating Motion is dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Garnham | Nowicki Carbone |
| For the Defendant | Mr D Curtain with Ms A Magee | Wisewould Mahony |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 16 March 2011 by which the plaintiff applies for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages for injuries suffered by her arising out of a transport accident which occurred on 8 January 1999.
2 Mr M Garnham of Counsel appeared for the plaintiff and Mr D Curtain QC appeared with Ms A Magee of Counsel for the defendant.
3 The application is brought pursuant to section 93(4)(d) of the Act. Subsection (6) provides that a Court must not grant leave under ss(4)(d) unless the Court is satisfied that the injury is a “serious injury”.
4 The definition of “serious injury” relied upon by the plaintiff is under ss(17):
“(a) serious long term impairment or loss of a body function.”
5 The injury suffered by the plaintiff for which leave is sought is an injury to the right knee.
6 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
· the plaintiff gave evidence and was cross-examined;
· the plaintiff tendered her Court Book (“PCB”) pages 5-14, 31-49, 59-81 and 102A – 102G: Exhibit A;
· the defendant tendered its Court Book (“DCB”) pages 16-62: Exhibit 1.
The Plaintiff's Background
7 The plaintiff was born in April 1981. She is now thirty-two years of age. She is a married woman. She has one child who is two years of age. She is expecting another child in May this year.
8 The plaintiff completed Year 12 at a secondary school when she was seventeen years of age in 1998. She subsequently commenced a five-year apprenticeship in hairdressing, which she completed in 2003.
9 The plaintiff left the hairdressing industry at the end of her apprenticeship in 2003. She obtained employment in the retail industry with Priceline. The plaintiff’s employment with Priceline was terminated. She then obtained employment with HBA, and then, in 2009, she obtained employment with Beacon Lighting, where she is presently employed in sales.
10 The plaintiff worked on a permanent part-time basis with Beacon Lighting. She worked four days per week. She reduced the days she worked down to three days per week, and recently she has cut it down even further to two days per week because of the advanced nature of her pregnancy. She works from 9.00am to 3.00pm.
The Transport Accident
11 On 11 September 2006, the plaintiff was driving her car along Ballarat Road in Sunshine. A car pulled out from a side street to her left across the front of her car. She had no time to brake successfully with the result that her car collided into the other car.
12 The plaintiff was removed from the scene of the transport accident by ambulance. She was taken to the Sunshine Hospital. She had pain in her head and neck, and lacerations to her right knee which required sutures. She was discharged from the hospital later that day.
The Medical Evidence
13 Following the plaintiff's discharge from the Sunshine Hospital, she saw Dr Sheriff, general practitioner. It would appear that the plaintiff attended Dr Sheriff's medical clinic and had sutures in her right knee removed. It was noted, at that time, that she had swelling in her right knee. It would also appear that the plaintiff's complaints of pain in her neck and back became the focus of treatment until some months passed, when she returned and saw Dr Sheriff complaining of right knee pain.
14 Dr Sheriff referred the plaintiff to have an x-ray and ultrasound, which were taken on 29 October 2007.[1] There seems to have been a break in her treatment, although Dr Sheriff noted that she was self-treating with analgesics. She returned on 25 May 2009 complaining of pain and swelling in her right knee, and difficulty kneeling. Despite what appears to be a break in her treatment, it would appear that Dr Sheriff referred the plaintiff to have an ultrasound of her right knee which was undertaken on 5 February 2009.
[1]PCB 31
15 After the plaintiff saw Dr Sheriff on 25 May 2009, he referred her to have an MRI scan, which was undertaken on 19 October 2009.[2] He then referred her to Dr Stockman, rheumatologist, who saw the plaintiff on 14 July 2009. He examined her, finding no swelling or deformity in the knee, but a slight wasting of the right quadricep muscle. Pressure over the patella caused a feeling of grating in the knee, but did not produce pain. There was no discomfort on squatting, but slight discomfort on kneeling.
[2]PCB 36
16 At that stage, Dr Stockman considered that the plaintiff was suffering from mild chondromalacia patellae or very early patello-femoral osteoarthritis. He considered that an MRI scan would be required if her symptoms persisted.
17 It was following that consultation that Dr Sheriff referred the plaintiff to have the MRI scan of her right knee. The plaintiff’s solicitors requested a report from Dr Stockman. He was provided with the report of the radiologist. Dr Stockman referred to the report of the radiologist. He appears to have agreed with the findings of the radiologist which were of a signal abnormality of the cartilage measuring approximately 6 millimetres at the lateral aspect of the medial femoral condyle which was likely to represent a cartilage defect. The radiologist noted the presence of a tiny right knee joint effusion as well. There was no other abnormality referred to by the radiologist.
18 Dr Stockman considered that the cartilage defect in the medial femoral condyle articulated with the patella which he considered was consistent with the clinical findings he made when he examined the plaintiff on 14 July 2009. It led him to conclude that the plaintiff was suffering from early degenerative changes in her right knee. He considered that she was fit for a job as a sales assistant but would not be fit for job that involved frequent walking up or down an incline or stairs, or repeated kneeling or squatting. He suggested that the plaintiff undertake quadricep exercises. His prognosis was guarded. He considered that the plaintiff might continue to have pain in her right knee, and the damaged cartilage might worsen in time. He considered that she could face mild pain or disability for many years.[3]
[3]PCB 51-52
19 Dr Sheriff also referred the plaintiff to Mr Goldwasser, orthopaedic surgeon. He examined the plaintiff on 29 September 2009, and again on 26 June 2012, but on the latter occasion on referral by Dr Sleaby, general practitioner, who she commenced seeing on 6 August 2010. On examination, Mr Goldwasser noted that the plaintiff's right knee was neither swollen nor tender and that she had a good range of motion. The only pain elicited by Mr Goldwasser was pain on straight leg raising, which he considered was possibly a referred component of pain from the plaintiff's lumbar spine. The plaintiff told him that she had noticed pain in her right knee, but also in her lower back, radiating down into her right shin and foot.
20 Mr Goldwasser referred the plaintiff to have an MRI scan of her lumbar spine which was undertaken on 9 July 2012.[4] The only other radiology he had was the x-ray and ultrasound of the plaintiff's right knee undertaken on 29 October 2007, and a further x-ray undertaken on 15 September 2011 on referral by Dr Sleaby.[5] Mr Goldwasser could not make a clear-cut diagnosis of an injury to the plaintiff’s right knee. He considered that she had probably suffered a soft -issue injury. He was unable to say whether the right knee injury had stabilised.[6]
[4]PCB 37
[5]PCB 35-36
[6]PCB 53-60, and in particular, at 58-59
21 Dr Sleaby provided a report dated 14 February 2009. He was of the opinion that the plaintiff had suffered traumatic chondromalacia patella. He was of the opinion that the plaintiff had no capacity for “her pre-injury employment at this stage”, but it is not possible to say what employment he was referring to, because the plaintiff had quite clearly worked in sales with Beacon Lighting from 2009, initially four days a week, and then reduced to suit her domestic circumstances and her present state of advanced pregnancy.
The Medico-Legal Assessments
22 Both Mr Garnham and Mr Curtin addressed me at some length on the histories taken by the medico-legal assessors, the product of examinations of the plaintiff's right knee and their opinions. This occurred in the setting of a concession by the defendant that the proceeding concerned whether the consequences to the plaintiff were serious.
23 The plaintiff saw Mr Doig, orthopaedic surgeon, in September 2009 and in November 2011. In his first report, he obtained a history that she continued to have pain and swelling in her right knee which worsened in warmer weather and with heavy activity. She emphasised that the pain worsened with prolonged bending. On examination, it would appear that the only abnormality found was of some mild patellofemoral crepitus, which Mr Doig considered to be “"inconstant”.[7] On the basis of his examination and the radiology he had available at that time, he was of the opinion that the plaintiff had suffered traumatic chondromalacia patellae of the right knee. He considered her prognosis to be “actually fairly good”.[8]
[7]Meaning not constant or changeable
[8]PCB 62-63
24 On the second occasion he examined the plaintiff, he was provided with the MRI scan undertaken on 18 October 2009. He became aware of the articular cartilage change on the medial femoral condyle. The results of his examination of the plaintiff do not appear to be much different from the results of his previous examination. He made a finding of mild patellofemoral crepitus which was not there all the time, although the plaintiff told him that was worsening. He did not find any wasting of the musculature around the right knee. He was of the opinion that the plaintiff had some mild crepitus on the patellofemoral joint, although he commented that it was not that marked when he examined her that day. He noted that she complained of ongoing pain and swelling in the knee which he considered to be consistent with the injury he diagnosed. He considered that the plaintiff's prognosis to be “a little guarded”. He added that he thought that the plaintiff would continue to have ongoing problems with her knee.
25 Mr Doig conducted an impairment assessment. On the lifestyle valuation, the plaintiff told him that she cannot run easily, and if she does she pays for it the next day. She cannot bend easily for prolonged periods of time. She was told not to do gardening. She found her house work difficult. She had to sit and let things settle down before doing “too much work”.[9]
[9]PCB 64-65
26 Mr Grossbard, orthopaedic surgeon, examined the plaintiff on 12 April 2011 and 21 November 2012. In relation to her right knee, the plaintiff told him that she had pain in her right knee which worsened during her pregnancy. She was treated by prescription of Panadol Osteo which he was using to three times a week. She soaked her right knee in the bath as part of her self-treatment. She also told him that the right knee tends to lock two or three times a week when she bent her knee. She noticed occasional swelling and a tendency for her knee to give way when pushing a shopping trolley. The knee was also painful going up and down steps and worsened after she stopped activity. She had no difficulty walking. She was able to jog for a few minutes. She could only squat for short periods of time, describing a pulling sensation in her knee when she did. She said she was unable to rollerblade.
27 Mr Grossbard was of the opinion that the plaintiff probably suffered post-traumatic chondromalacia of the patella. He considered that it was likely to continue to be a problem for her, and that she would have exacerbations of pain which might go on to develop into patellofemoral arthritis of which chondromalacia is a precursor.[10]
[10]PCB 75-77
28 On the second occasion Mr Grossbard examined the plaintiff, he found some mild patellofemoral crepitus and irritability. He was provided with medical reports of Mr Hart, orthopaedic surgeon, and Mr Jones, orthopaedic surgeon, which he then considered in the context of his own examination findings and opinion. He was of the opinion, ultimately, that the plaintiff was suffering from post-traumatic patellofemoral pain which suggested a degree of chondromalacia patella, and he repeated that it might progress to full-blown osteoarthritis of the patellofemoral joint, but that would not occur for some years.
29 Mr Garnham emphasised that in Mr Grossbard’s first report, he proposed that if the osteoarthritis continued and progressed, the plaintiff might require surgery. However, Mr Grossbard put that proposition on the basis that it would depend on whether the osteoarthritis continued, and then it would be necessary to determine what sort of surgery would be required. He did not say that the osteoarthritis would continue and progress to such a stage that surgery would be required. I am not persuaded that I can make much of that part of his opinion, given the manner in which it has been expressed.[11]
[11]PCB 77
30 Mr Hart, orthopaedic surgeon, examined the plaintiff on 13 July 2011, 28 March 2012 and 5 December 2012. On the first occasion Mr Hart examined the plaintiff, she told him that she had anterior and posterior pain in her right knee which was intermittent and which was aggravated by repetitive squatting, running and repetitive kneeling. She said her knee swelled in hot weather. She said she had not experienced any locking or giving way, but experienced a catching sensation occasionally. On examination of her right knee, he noted that she was able to walk, run and hop on the right leg without difficulty. He found tenderness over the medial and lateral retinaculum slightly proximal to the patella, but no distal tenderness. There was a good range of movement and no pain or crepitus on movement of the patella. There was no muscle wasting around the right knee.
31 Mr Hart also obtained a history from the plaintiff that she was able to walk 1.5 kilometres. She was able to jog, but that she did not run. She could travel in a car for up to two hours. She could ascend and descend stairs foot over foot, but preferred to use a rail. She was assisted by her husband in performing household duties, and in that respect, she referred to washing, vacuuming, gardening and outside activities. She has not gone rollerblading since she suffered the injury. She had played tennis on a limited basis. She was able to attend a gymnasium.
32 On examination, Mr Hart could not find evidence of an organic abnormality in the plaintiff’s right knee. He did not consider that she was suffering from chondromalacia patellae. He found no other abnormality. He considered that the plaintiff could work full hours with Beacon Lighting.[12]
[12]DCB 19-25
33 On the second occasion Mr Hart examined the plaintiff, the history he obtained of the plaintiff's progress since the last examination had changed. The plaintiff told him that her right knee pain had persistent. She developed a limp at the end of the day. The pain was aggravated by bending. She said that she did not ascend hills or stairs. Her right knee swelled during the day and had locked in extension occasionally and would catch. She said that it had given way when pushing a shopping trolley. She was aware of some crepitus on movement of the right knee.
34 The plaintiff also told Mr Hart that she had no problem walking, or difficulty pushing a shopping trolley. She no longer jogged. She was limited to driving a car for one hour. She was able to perform household duties with occasional help from her husband. She had attempted to rollerblade without success. Walking was her major recreational activity.
35 The product of Mr Hart’s examination on this occasion was not much different from his first examination. He considered that the complaints by the plaintiff of right knee pain were likely due to a contusion or bone bruise on the medial femoral condyle which he considered was detected on the MRI scan undertaken on 19 October 2009. He disagreed with Mr Doig’s diagnosis of significant chondromalacia patellae, and added that he considered that the likely diagnosis was one of tensor fascia lata syndrome. He found no swelling in the knee. He considered she was capable of working full time with Beacon Lighting.[13]
[13]DCB 31-36
36 On the last occasion Mr Hart examined the plaintiff, the history he obtained of the plaintiff’s progress since the last examination had changed. The plaintiff complained of pain at multiple sites around her knee, calf pain, pain in the right buttock which extended to her back. The pain was aggravated by squatting and kneeling. She said that stairs did not bother her. She said that her knee swelled in hot weather. He recorded that she told him that “the knee never locks, but occasionally catches”. She said there was no significant giving way of the knee. She said her knee tended to grind and click on occasions.
37 The plaintiff also told Mr Hart that her walking was limited to forty minutes. She did not jog. Her driving of a motor vehicle had been reduced to twenty minutes. She said she had no problem with stairs. She continued to perform household duties. Her mother helped her with cooking. When asked about recreations, the plaintiff then said that she walked up to fifteen minutes, which is in contrast to what she earlier told Mr Hart – that she could walk up to forty minutes.
38 The product of Mr Hart’s examination was significantly different on this occasion when compared with the other two occasions. The plaintiff was able to walk freely and could squat fully, although it produced slight discomfort in the knee. There was no swelling. She was markedly tender around all margins of the patella. There was no pain or crepitus on movement of the patella across the femoral condyle. There was a good range of movement otherwise. There was no instability in the knee. There was no muscle wasting around the knee.
39 Mr Hart’s opinion on this occasion is consistent with the opinions expressed on the other two occasions when he examined the plaintiff. He was of the opinion that there was no physical reason why the plaintiff could not be working full time with Beacon Lighting.
40 Mr Jones, orthopaedic surgeon, examined the plaintiff on 15 March 2012 and 10 December 2012. On the first occasion he examined the plaintiff, she told him that she had pain in the front of her knee. It was most noticeable if she attempted to undertake repeated squats, such as squatting when undertaking house work. She experienced a pulling sensation on the outer side of her right calf. The pain in her calf extended to her thigh and buttock. The right knee swelled in warmer weather. She could run for about three minutes. She could walk without restriction for thirty minutes at a medium pace. Sitting caused pain in her thigh and buttock and caused stiffness. She cannot rollerblade.
41 The only abnormality detected by Mr Jones on examination was mildly perceptible crepitus of the patellofemoral joint on flexion and extension, but no pain on patellofemoral compression. Mr Jones noted that the MRI scan undertaken on 19 October 2009 appeared to demonstrate some slight changes of wear affecting the femoral condyle over its cartilage affecting the patella.
42 Mr Jones was of the opinion that the plaintiff had evidence of minor wear affecting the articular surface of her patella, and mild wear of the medial femoral condyle, and some clinically evident but very mild crepitus at the back of her knee reflecting early wear of the articular surface of the patella. He was of the opinion that the plaintiff had an unrestricted capacity to work. He considered that repeated squatting, kneeling, stair or ladder climbing might aggravate her "extremely" mild symptoms of anterior knee pain.[14]
[14]PCB 53-55
43 On the second occasion Mr Jones examined the plaintiff, she told him that squatting or kneeling to pick up toys or food for her child would aggravate the symptoms of her knee pain. She is able to walk for up to thirty minutes, but noticed pain in her knee walking on flat level surfaces. Standing in one position could aggravate her knee pain requiring her to move about. His examination of the plaintiff’s knee and his opinion regarding diagnosis and the plaintiff capacity to work were essentially the same as contained in his first report.[15]
[15]PCB 57-61
44 In a short report dated 6 February 2013, Mr Jones was of the opinion that the plaintiff would not obtain any clinical benefit from hydrotherapy or chiropractic treatment of her right knee.[16]
[16]PCB 62
The Plaintiff's Evidence
45 I will firstly turn to the plaintiff's affidavits. In her first affidavit sworn 1 June 2009, the plaintiff described the pain and suffering consequences arising from the impairment of the function of her right knee as follows:
· Pain and restriction in her right knee.
· Swelling in her right knee, and in particular, in warmer weather.
· Difficulty putting weight on her right knee for too long.
· Difficulty kneeling when gardening, and remaining in that position for too long because of the pressure put on the knee.
· Alteration of her gait was a tendency to put more weight on her left leg.
· Difficulty wearing high-heeled shoes because of an increase in pain and with pain going on the back of her right leg.
· A reduction in working hours with Priceline from 38 hours per week with occasional overtime to about 30 hours per week.
· Difficulty managing her duties at Priceline because of having to remain on her feet for the duration of her shift.[17]
[17]PCB 6-7
46 And in her second affidavit sworn 14 February 2013:
· Pain in the right knee, more so with too much activity or when she is on her feet too much. Pain in the front of the knee, with pain going down her leg to the ankle and sometimes up into her buttocks.
· The right knee often “goes” to give way.
· An inability to walk too far, being limited to 15 to 20 minutes.
· An increasing difficulty walking on stairs and on uneven ground.
· Kneeling and squatting is more difficult.
· An inability to crawl freely on the floor with her child.
· Pain in her right knee can throw out her lower back and cause more pain in her lower back.
· Suffering exhaustion from her injuries, resulting in assistance from her mother, who cooks for her twice a week, and mainly on Monday on Fridays.
· Obtaining assistance from her mother when shopping by pushing a shopping trolley.
· An inability to drive a car as far as she once did.
· Having difficulty undertaking household chores, resulting in a reliance on her husband to help her with the more difficult tasks such as vacuuming, which can cause her an aggravation of the pain she experienced in her right knee.
· Obtaining assistance at Beacon Lighting by being allowed to sit behind the service desk if she stopped serving a customer.
· An inability to rollerblade, undertake aerobics, play tennis, attend the gym and walk her dog regularly.
· She stopped taking Panadol Osteo for pain relief when she fell pregnant, and now takes a Panadol occasionally.[18] She attends a pool at Taylors Lakes approximately two to three times a week to carry out hydrotherapy exercises.
[18]PCB 9-11
47 The plaintiff's husband, John Borg, swore an affidavit on 14 February 2013, setting out his observations of occasions when the plaintiff has pain in her knee, and essentially corroborating what the plaintiff has said about the pain and suffering consequences in her own affidavits.[19]
[19]PCB 12-14
48 Mr Curtain cross-examined the plaintiff. The relevant parts of the cross-examination are:
· She experienced pain in the back of her right knee when sitting, but conceded that she had never told any examining medical practitioner that she experienced pain in that situation.[20] She also conceded that she said nothing about that in either of her affidavits.
[20]Transcript 11-12
· The nature of the plaintiff’s work at present involves her in sitting and standing consistently with what other staff do during a working day.
· She last had this hydrotherapy two months ago in a community pool at Taylors Lakes because of difficulties in obtaining a babysitter for her child. This was in contrast to what she said in her second affidavit, that she is presently attending a pool at Taylors Lakes for hydrotherapy two to three times a week.
· She previously used Panadol Osteo for pain relief. She ceased using it when she fell pregnant. She now uses Panadol, probably taking a Panadol once a week.
· She saw Dr Sleaby four weeks ago. He recommended the plaintiff continues swimming. I assume the plaintiff met hydrotherapy.
· She saw a chiropractor two or three weeks ago for treatment for her knee.
· She said she wears a brace when it swells up.
· She has not taken any time off work.
· She said that she did not tell Mr Hart, when he last examined her, that her knee never locks up. She said that when Mr Hart recorded that there had been no significant giving away, she said that it gives way when she puts full pressure on her right knee or pushes trolleys. She later added that if she stands up her knee will give way when she puts full pressure on it.
· The knee does not give way when she walks.
· Doing the washing aggravates her knee because of the weight of the basket of washing.
· Her mother helps her do the vacuuming.
Serious Injury
49 I have set out the plaintiff's evidence, the histories taken by the medical practitioners in the opinions principally because of what Tate JA said in Hawkins v DHL Express (Australia) Pty Ltd,[21] that in determining the pain and suffering consequences of an injury, it is necessary to consider not only what the plaintiff says about the pain both in court and to medical practitioners, but also what the plaintiff does about the pain, for example, taking medication, resting, seeking medical treatment, as well is what the medical practitioners say about the extent and intensity of the plaintiff’s pain and what the objective evidence shows about the disabling effect of the pain.
[21][2013] VSCA 26 at paragraph 63
50 Mr Curtain and Mr Garnham expended the majority of their addresses, concentrating on the diagnosis of the injury suffered by the plaintiff. Whilst there seems no doubt that the plaintiff has suffered an injury, there is doubt about the identification of a pathological process said to constitute the injury, and its gravity.
51 I have considered all the evidence and the submissions made by Mr Garnham and by Mr Curtain, and I have concluded that the consequences to the plaintiff of the impairment of the function of her right knee are not serious.
52 My starting point in disclosing my pathway of reasoning is to firstly make a trite statement, and that is, that it is not the injury which is the starting point, but whether the consequences of the impairment of function are serious. However, consistently with the observations made by Tate JA, I must analyse the objective evidence and what it shows about the disabling effect of the pain. The objective evidence calls into question the diagnosis of a pathological process which is responsible for the pain and other consequences suffered by the plaintiff, and the medical evidence that points to that pathological process is rather modest.
53 The low point is the opinions of Mr Hart and Mr Jones. Mr Hart does not accept that the plaintiff has suffered an organic abnormality in her right knee. He was certainly not convinced that she was suffering from chondromalacia patellae. In endeavouring to determine the cause of the plaintiff's pain, he considered that the plaintiff had suffered bone bruising and it was more likely that she was suffering from a syndrome known as tensor fascia lata. The only abnormality Mr Jones could detect was mildly perceptible crepitus of the patellofemoral joint, but no pain on patellofemoral compression. Both were of the opinion that the plaintiff was fit for full-time work with Beacon Lighting.
54 Mr Doig found some mild crepitus in the patellofemoral joint, and was of the opinion that the plaintiff was suffering from chondromalacia patella. Initially, he considered the plaintiff’s prognosis to be fairly good, but later considered that perhaps the prognosis was “a little guarded”. Mr Grossbard was of a similar opinion to Mr Doig. He found some mild patellofemoral crepitus and irritability in the right knee.
55 The flavour of the opinions of each of these medical practitioners does not strike me as being very different. While they might be of different opinions regarding the pathological process which is responsible for the plaintiff pain and consequences, it seems to me that they consider that the pathological process to be rather minor. Furthermore, despite the histories given to each of them by the plaintiff of a declining physical capacity, for example, the histories taken that her capacity to walk has reduced over time, none seemed to be particularly influenced by that to say that the plaintiff has a pathological process which is much more than minor. I should add that the opinions of Dr Sheriff, Dr Stockman and Mr Goldwasser are similar.
56 I will lastly deal with the opinion of Dr Sleaby. It is an unusual opinion when compared with the opinions of the other medical practitioners who have examined the plaintiff on a medico-legal basis. He was of the opinion that the plaintiff had suffered chondromalacia patella, but he made the curious observation that the plaintiff had no capacity for her pre-injury employment without saying what he meant by that statement.
57 Mr Garnham submitted that that I should accept that the plaintiff suffered some degree of muscle wasting, but the opinions on that are more in support of the conclusion that there is inconsequential muscle wasting or none at all. He also submitted that the plaintiff may be a candidate for surgery. I have already dealt with that to some degree. It seems to me that the surgery is based upon the plaintiff suffering osteoarthritis. However, the development of osteoarthritis does not mean that she will require surgery that will depend on an assessment at that time. As I understand the evidence, the plaintiff is probably not suffering from osteoarthritis, so the circumstances to make that assessment had not yet arisen. I do not see how I can take the mere possibility of surgery in the future as a consequence of much significance.
58 Mr Curtain cross-examined the plaintiff, and in the course of that cross-examination, he questioned whether the plaintiff was indeed suffering consequences to the extent which she described in her affidavits. There were three matters which were unearthed during cross-examination which I find troubling.
59 The first was that she conceded that she had not told any examining medical practitioner that she suffered pain in the back of her right knee when sitting. It was my impression that the plaintiff was, in effect, saying that she was in pain even at rest.
60 Secondly, the history she gave to Mr Hart regarding whether her knee locks up or not is odd. To accept the plaintiff’s evidence is to accept that Mr Hart was seriously careless in what he recorded of her history.
61 Thirdly, the plaintiff said in her second affidavit that she attends a pool at Taylor’s Lakes approximately two to three times per week to carry out hydrotherapy exercises. That affidavit was sworn on 14 February 2013. In examination-in-chief, the plaintiff said that she had read that affidavit. She said there were no errors in the affidavit which she wanted to correct. When confronted with her oral evidence that she stopped hydrotherapy at the end of November or at the start of December 2012, she said that that was her previous regime of hydrotherapy, and not a current regime.
62 There are principally five reasons why I have ultimately reached the conclusion that the consequences contended for by the plaintiff are not serious. Firstly, the medical evidence impresses me that the plaintiff has suffered a minor injury, and that seems to be the thrust of the opinions of the examining medical practitioners, and, in particular, of those who have examined the plaintiff recently. Secondly, the reduction in the plaintiff's physical capacity is not explicable by the medical practitioners, bearing in mind their opinions that the injury is relatively minor. Thirdly, I was unimpressed by some of the plaintiff’s evidence, and in particular, what she said about attending hydrotherapy at the present time when that is patently wrong. Fourthly, the plaintiff has been capable of working the hours which she has set for herself at Beacon Lighting, and is capable of doing that work without interference. She conceded that what she does in that job is consistent with what other sales staff do. Fifthly, the plaintiff is capable of undertaking the domestic and working routine reasonably well, although I accept that she obtains assistance from her husband and her mother. I accept that she has attempted rollerblading and found it to be difficult, and led her to not repeat the attempt.
63 Gathering together the particular factors which Tate JA said are necessary to consider when considering pain and suffering consequences, I find that the plaintiff suffered an injury, and that has caused the development of chondromalacia patellae. However, I find that the injury is a relatively minor one unlikely to cause the degree of consequences which the plaintiff described. The plaintiff may well have some degree of pain in her knee, and may have some interference with her domestic and work routine, but it seems to me that, when what she has lost is balanced against what she has retained, the consequences of the impairment of the function of her right knee are not serious.
Orders
64 On the basis of the foregoing reasons, findings and conclusions, I order that the plaintiff's Originating Motion be dismissed.
65 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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