Bownds v Nybar Pty Ltd

[2012] VCC 1215

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No.  CI-11-00846

GLENN BOWNDS	Plaintiff
v
NYBAR PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	22 and 23 August 2012
DATE OF JUDGMENT:	17 September 2012
CASE MAY BE CITED AS:	Bownds v Nybar Pty Ltd
MEDIUM NEUTRAL CITATION:	[2012] VCC 1215

REASONS FOR JUDGMENT

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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – injury to the right shoulder – pain and suffering only – whether consequences to the plaintiff are “serious”
LEGISLATION CITED – Accident Compensation Act 1985, s134AB
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; Richards v Wylie (2000) 1 VR 79; Ansett Australia Ltd v Taylor [2006] VSCA 171; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon v Filipowicz [2012] VSCA 60; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.

JUDGMENT – Leave granted to bring proceedings for damages for pain and suffering

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Garnham	Shine Lawyers
For the Defendant	Mr T Ryan	Thomsons Lawyers

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 11 January 2008 (“the said date”).

2       The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.

3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. The body function relied on is the right knee.

4       Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

5       The impairment of the body function must be permanent.

6       The plaintiff bears an overall burden of proof upon the balance of probabilities.

7       By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.

8       I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

9       I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Petkovski v Galletti [1994] 1 VR 436.

10      The plaintiff relied upon two affidavits and was cross examined.  His wife, Victoria Bownds, swore affidavits on 22 June 2011 and 18 January 2012 and she was required for cross examination.  The plaintiff also relied upon an affidavit of his mother, Veronica Blundell, sworn 4 July 2011.  The plaintiff’s general practitioner, Dr Chia, was required for cross examination.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s Evidence

11      The plaintiff is presently aged thirty three, having been born in February 1979.  He is married with a son aged seven.

12      Having left school at about fourteen, halfway through Year 8, the plaintiff then worked at Tuckerbag and KFC before starting work with Dercon Security Fencing (“Dercon”), where he worked on and off as a welder for a number of years. 

13      At various times while not working for Dercon, the plaintiff carried out welding for various companies through labour hire firms.  He also worked with Classic Truck Bodies and Medical Tables Australia as a welder.

14      Further, in about 2003, the plaintiff worked for a short time as a car detailer and tried operating his own business for about six months but that was unsuccessful.  For about eighteen months he then worked as a courier driver for Vic Fast Couriers, during which time he obtained a security licence.

15      In 2005, the plaintiff commenced working for the defendant as a mobile patroller.  He was required to visit a number of sites during a twelve hour shift, checking they were secure.

16      The plaintiff deposed that prior to working for the defendant, he had a few injuries.  He hurt his back while working at Bombardia Transport and had about two weeks off work.  He does not have any back trouble now. 

17      In cross examination, the plaintiff said that he jarred his back whilst working for Inter Industrial in 2003.  He was not aware of receiving any compensation at that time.  He was working for a labour hire firm and was not entitled to compensation.  His claim came to nothing.  Having had two weeks off work, the plaintiff was then told his job was no longer available.

18      When working for Dercon, the plaintiff hurt his right shoulder and saw an orthopaedic surgeon.  The muscle at the front of his shoulder moved in a loose way if he flexed his shoulder.  Some right shoulder looseness persisted but that did not really limit the plaintiff’s work or leisure activities.

19      In cross examination, the plaintiff agreed that he first had a right shoulder problem in 1996. 

20      When he started work with the defendant in 2005, the plaintiff was asked whether he had been on WorkCover at any time and he answered “No”.  He agreed it appeared to be the wrong answer.  He agreed that in 2002, Holding Redlich had put in a permanent impairment claim in relation to his right shoulder.  He received an impairment benefit but was not paid any weekly payments. 

21      The plaintiff was cross examined about an affidavit he swore in 2002 in support of the 1996 injury claim.  He deposed to repetitive use of the right arm while working for Dercon.  At the time he swore that affidavit, his right shoulder problem was of such severity that he was not working.  He agreed he deposed he then suffered from constant aching of the right shoulder.  He was not able to even lift a two litre Coke bottle freely.  He had problems throwing a basketball and also with playing squash and ten pin bowling. 

22      The plaintiff agreed he presented to surgeon, Mr Broughton, at that time with an unstable right shoulder and he had attended at the Long Beach Medical Centre in Chelsea Heights on numerous occasions.  Mr Broughton referred the plaintiff to a public hospital to be added to the waiting list for shoulder surgery. 

23      The plaintiff agreed his right shoulder had plagued him on and off from 1996 but disagreed that he perfected putting it back into position and that it was a bit of a party trick, as some doctors had noted.  What was happening was that when the plaintiff moved his arm, the muscle flexion on his chest moved his shoulder up and down and it looked funny.  He had never dislocated his shoulder before the said date, as Mr Khan reported on examination in 2002.

24      In 2003, the plaintiff had right knee pain for a few days after kneeling on it when upholstering chairs at home. In cross examination, the plaintiff agreed that he had had some bruising on his knee in 2003 whilst upholstering some chairs.  He was prescribed Vioxx at that time. 

25      The plaintiff could not recall having strained his right knee when carrying steel up stairs, as was recorded in the notes of the Select Medical Group (“Select”). In cross examination, the plaintiff confirmed he had always disputed that he had hurt his right knee carrying steel, as this incident simply did not happen. 

26      The plaintiff deposed he injured his right knee on a few occasions whilst working for the defendant.

27      In May 2005, when he got out of the work car and stepped into a pothole, (“the pothole incident”), the plaintiff twisted his right knee, tearing the cartilage.  After that incident, he saw Mr Tange, orthopaedic surgeon, who operated on his knee (“the first knee surgery”) and the plaintiff was off work for a month. 

28      The plaintiff agreed that following the pothole incident, there was swelling and some restriction of movement because of pain in his knee.  He was prescribed Panadeine Forte and also Voltaren and sent for radiology. 

29      There was a further injury a week later and further knee pain when the plaintiff’s right leg went through a floor at work in Doveton.

30      The plaintiff would not say he re-injured his knee in 2005 because he thought the problem in 2003 was bruising and had nothing to do with the cartilage. 

31      Following the 2005 incidents, there was a sensation of the knee cap grabbing and locking, as noted by Dr Chia on 28 June 2005.

32      The plaintiff agreed that he was limping when he saw Dr Julien on 2 August 2005 and at that stage, he was having hydrotherapy and undertaking an exercise program.

33      The plaintiff had some time off work before and after the first knee surgery. He had not returned to work in January 2006.  He could not weight bear at that stage, and his knee was swelling up as of February 2006. 

34      The plaintiff agreed that prior to 2008, his right knee had been causing him considerable trouble and considerable grief.  He agreed that in February 2006, he wrote to the defendant, advising that he could not do his job any more because his knee was swollen and sore.

35      The plaintiff was involved in a transport accident in March 2007 when his car collided with a pole.  He injured his right shoulder and may have hurt his left knee.  He was not sure.  He was taken by ambulance to Frankston Hospital and later had some physiotherapy treatment.   

36      On 11 April 2007, the plaintiff tripped over a sprinkler head while working and that caused more right knee pain.  He saw Mr Steele, orthopaedic surgeon, who recommended conservative treatment and organised an MRI scan.  In cross examination, the plaintiff confirmed making a claim in relation to this incident.

37      The plaintiff thought this was the last time he saw Mr Steele and he could not recall seeing him in March 2008, two months after the said date.

38      In cross examination, the plaintiff agreed that his right leg collapsed beneath him at home in May 2007 when he was taking out the rubbish.  When asked why he did not mention that in his affidavit, he explained his problems all went back to the 2005 knee injury and had continued.  His knee was never fixed. 

39      The plaintiff agreed he attended the doctor on 28 May 2007 and was prescribed Panadeine Forte for ongoing right knee problems.  His doctor was then considering a further arthroscopy. The plaintiff was also seeing a physiotherapist and suitable light duties were being discussed,

40      The plaintiff was asked about a visit to the doctor on 16 July 2007 when it was noted his knee was good.  He described it as just a follow up visit.  There was a prescription of Panadeine Forte at that stage.

The assault 

41      On the said date, when working for the defendant at the Cranbourne Golf Club, the plaintiff was carrying out patrol duties when he was assaulted by a couple of people.  He was punched in the face then fell to the ground, after which his right shoulder dislocated and his right knee was stomped on (“the assault”). 

42      In cross examination, the plaintiff described how a workmate put his shoulder back in and an ambulance attended the scene.

43      The plaintiff deposed that the following day, he attended Dr Chia at Select.   However, in cross examination, the plaintiff agreed the assault occurred on a Friday and it was not until the following Monday that he attended his doctor.  He could have gone to Emergency earlier if he absolutely had to.

44      The plaintiff was surprised that the Select notes of that attendance only referred to a shoulder injury (although there was a note that offenders stomped on the plaintiff’s right knee).  He made a similar comment as to the lack of mention of his knee on the next visit on 18 January 2008.

45      The plaintiff agreed that he did not require crutches after the assault.  Whilst he could not recall seeing Mr Steele in March 2008, he did not disagree with the examination findings reported by him of no swelling, locking, catching or feeling of instability at that time.

46      When it was put to the plaintiff that the assault was nothing more than a dislocation of the shoulder, fixed up by his mate, and his knee was not causing him much grief, not enough to even see a doctor for two days or even three days, Friday through to Monday, and when he did finally see the doctor he hardly said “boo” about his knee at the first two consultations, his response was, “According to what’s in the notes, yes”.

47      The plaintiff agreed with the general proposition that his principal problem was ongoing right shoulder instability, and the second problem was the knee.  He thought, at the time of earlier examinations, he had been putting more emphasis on his shoulder, because the simple fact was that was probably what was giving him more pain at that stage.

48      Dr Chia referred the plaintiff to Dr Patel, orthopaedic surgeon, who has operated on the plaintiff three times. 

49      Although the plaintiff complained to Dr Patel of knee pain, the plaintiff could not explain why the initial history of the assault given by him to Mr Patel did not mention injuring his knee in the assault and only detailed a dislocated shoulder.

50      The plaintiff was asked about the history recorded by the vocational assessor in October 2008 that in 2006, the plaintiff fell through a floor and then tore his cartilage and underwent surgery and then he sustained a dislocated shoulder in the assault.  The plaintiff agreed that was how the report read but he could recall telling the assessor he had also sustained an aggravation of his right knee in the assault.

51      The plaintiff agreed he obviously told Mr Shannon he did not have any history of knee or shoulder problems before the assault if that was what was recorded.  Later, in re examination, the plaintiff said he had no recollection of the examination with Mr Shannon.

52      When asked about the history to Mr Simm which did not specifically mention the plaintiff hurting his knee in the assault, the plaintiff said he did not actually injure his knee in the assault.  The assault involved a direct injury to his shoulder and “upset to the already recent injury to his right knee.” 

53      The plaintiff explained that the initial shoulder injury was back in 1996 when he was seventeen.  He did not know how many jobs he had had between then and now.  That had never stopped him from working, from living his life normally, until January 2008.  Basically all he was saying was, as far as him not putting enough emphasis on his knee in the assault, that injury originally occurred in 2005.  Now, forgetting the 2003 incident, 2005 was the first time he had ever done any major damage or injury to his right knee. 

54      Between 2005 and 2008, the plaintiff had a couple of weeks off work but was able to work normally.  He was doing mobile controls and crowd control work, and did not have any problem with his knee until the night when he was attacked.  After that, the pain in his right shoulder was worse than the knee, but since then, his knee had deteriorated.

55      On 23 May 2008, Dr Patel operated on the plaintiff’s right shoulder and knee. 

56      After that surgery, the plaintiff had ongoing problems with his right shoulder, including instability, and on 14 November 2008, he underwent a shoulder reconstruction, stabilisation and bone graft procedures.

57      Then, in rehabilitation after that shoulder surgery, the bone graft came away.  Thus, on 29 May 2009, the plaintiff underwent a third shoulder operation carried out by Dr Patel.

58      In cross examination, the plaintiff confirmed that after shoulder surgery there were a number of attendances with his doctor in early 2009 when he had been prescribed medication, including OxyContin. 

59      As of October 2010, the plaintiff deposed he often got an ache in his right knee and it became painful if he was on it for too long.  He had muscle wasting in his right leg, his knee swelled in colder weather and it sometimes gave way.  He had fallen over on a few occasions in those circumstances.  He often got a crackling in the right knee and because of knee pain, he struggled to walk far and he could not run properly.

60      The plaintiff’s right knee became quite sore if he drove too far.  Due to decreased activity, he had put on weight.

61      The plaintiff similarly got a lot of pain in his right shoulder and felt as though he had a decreased range of movement and had wasting in the muscles.  He could not lift as heavy weights with his right hand, and movements involving reaching out could be difficult.  Even shaving caused right shoulder pain.  The plaintiff often got that sort of pain when sleeping if he rolled on his shoulder.  He noted the effect of his right shoulder injury was greater because he was right hand dominant.

62      The plaintiff had become quite depressed as a result of the assault injuries.  He sometimes found it difficult to cope with his pain and limitation and the effect of his injuries on his life.  That caused him to become more moody and short tempered and caused his marriage to become very strained at times and indeed, he and his wife separated for a while late in 2009 and early 2010.

63      Because of injuries and physical limitations, as well as depression, sexual relations between the plaintiff and his wife had also bee significantly affected.

64      As of October 2010, the plaintiff was seeing Dr Chia, who was prescribing Mersyndol for pain relief. The plaintiff sometimes took Panadol and he was on the antidepressant, Effexor.  He was exercising at home for both injuries and often wore a knee brace for support. 

65      The plaintiff had undergone physiotherapy treatment, including with Mr Hall at Peninsula Sports Medicine Group, and was then having counselling with Ms Stinton, psychologist.

66      The plaintiff had been unable to work since the assault because of his injuries.  He had been involved with Work Able Consulting and had completed a basic computer course.  He had had approval for a training and assessment course in the security industry, but was unable to go ahead because it required him to be working in security. 

67      The plaintiff had applied for a number of jobs in sales and recruitment with various agencies without success.  He had only had one job interview and that was for a sales job at Total Tools in Cranbourne.

68      The plaintiff understood his general practitioner was then certifying him as being fit for twelve hours’ work a week.

69      In early 2009, the plaintiff had a chance to work in a warehouse.  However, that job was not suitable because of his injuries. 

70      Prior to the assault, the plaintiff and his wife had plans to save and buy a house, but that was now very uncertain because of his injuries. He then lived with his wife and six year old son.  His wife worked part time at Safeway. 

71      Because of his injuries, the plaintiff was not able to assist his wife as much as he would like with housework.  He found mowing the lawn difficult.  He was unable to play freely with his son, running about and playing ball games, and that was a source of great disappointment to him.

72      The plaintiff and his wife and son had recently spent a week on holidays in Surfers Paradise, during which time the plaintiff was limited because of his injuries.  He did not go on rides at theme parks because of problems climbing stairs and he would have suffered pain if thrown around during the rides.  Even slow swimming was more difficult as he could not freely move his right arm about.

73      The plaintiff had always been interested in cars and motorcycles.  Prior to the assault, he often worked on cars, servicing them, changing motors, or carrying out general repair work, but he could no longer do these activities properly.

74      In his most recent affidavit sworn in January 2012, the plaintiff deposed his right knee symptoms continued.  His knee was often sore and particularly so if he was on it for long.  He had muscle wasting in the right leg and the knee swelled in colder weather, as well as sometimes giving way.  He often got a crackling in the right knee because of pain and he struggled to walk far. 

75      In cross examination, the plaintiff agreed he might have said to Mr Jones in 2008, and Mr Simm in 2011, that his knee pain was intermittent, but he “can only sort of go on the knee pain that he was having since.” 

76      The plaintiff’s right shoulder symptoms were much the same, with a lot of pain and a decreased range of movement.  He remained restricted in heavy lifting weights, and movements involving reaching out with his right arm could be difficult. 

77      In cross examination, the plaintiff described his shoulder as stable.  He had been advised by his surgeons that it is as good as it is going to get.  The plaintiff denied he was now saying the real reason he was restricted was not because of his shoulder but because of his knee.

78      In re examination, the plaintiff confirmed his shoulder was stable, but it plays up every now and then if he sleeps on it.  But as far as day to day use goes, as long as he does not do anything really stupid, like trying to lift something really heavy, he is fine.  His knee causes him most pain when playing with his son.  He attributes most of the need for painkillers to his knee. 

79      The plaintiff often felt depressed, however, but he took no medication.  His two injuries and limitations, as well as depression, continued to affect sexual relations. 

80      In cross examination, the plaintiff denied drinking to excess.  He could not say why his psychologist had not provided a recent report.

81      In about mid 2011, the plaintiff started working in sales in a hardware store until the business went out of operation a few months later.  He coped with this work as it was not physically demanding and there was little heavy lifting. 

82      In about October 2011, the plaintiff began working as a garbage truck driver for Cleanaway.  When he swore his affidavit, he deposed he was coping with the job whilst he experienced right knee and shoulder pain and he was keen to continue working if he could. 

83      In examination in chief, the plaintiff described how he stopped work at Cleanaway in May 2012 because of pain in both his right knee and shoulder.  Operating the air brakes on the truck took a toll on his knee, as he had to apply a lot of pressure to operate them.  The requirement to pull on the steering wheel to turn the fourteen ton truck at the end of dead end streets, caused the plaintiff shoulder pain.  After the plaintiff was unable to continue full time duties because of his pain, there was no part time work available.

84      Four weeks prior to the hearing, the plaintiff started a new job as a commission salesman for a local hardware store selling excess stock.

85      The effects of the plaintiff’s injuries limiting his domestic and recreational life continue and he is constantly aware of the limitations he faces playing freely with his son.

86      In cross examination, the plaintiff disagreed his wife embellished his difficulties in her affidavit. He confirmed he has problems kicking the football around with his son, and if he tries to get down on the ground and play toys with him, the plaintiff cannot get back up again.

87      The plaintiff continues under the care of Dr Chia. 

88      The plaintiff has been on the anti-depressant, Pristiq, since he left his last job at Cleanaway.  He takes Mersyndol for pain, taking a couple of tablets three times a week. 

89      The plaintiff continues to do extensive exercises at home for both injuries and he wears a knee support. 

90      The plaintiff confirmed he had recently been back to Mr Tange for his knee.  The plaintiff disagreed the surgery suggested by him was minor, and explained that he was unable to go on a waiting list for it to be performed.  His knee continues to crack and grind on a daily basis.  He agreed there is probably not much to see if you looked at his knee.  He agreed there had not recently been any hands on treatment.

91      In re-examination, the plaintiff said he still wears a knee brace.  His knee sometimes gives way, not daily, but mainly when he overdoes things a bit. 

Lay Evidence

92      The plaintiff’s wife, Victoria, first swore an affidavit in June 2011 and swore a recent affidavit in January 2012. 

93      Mrs Bownds and the plaintiff have been married for about four years, having known each other for ten years.  Their son, Joshua, was currently seven.

94      The tenor of Mrs Bownds’ affidavit was the plaintiff had not been the same since the assault.  Before then, the plaintiff took Joshua to the park and played footy with him.  He was very close to Joshua and often took him to play at the local lake or to fly a kite and they enjoyed playing darts.

95      The plaintiff was very social and enjoyed having people around before the assault.  She could not have asked for a better husband or father.  He was caring and supportive.

96      After the plaintiff was injured at work, he totally changed, becoming withdrawn, and he did not want to talk about what he was going through.  He was not his normal self and constantly snapped at Joshua.  The plaintiff sat on the couch for days and did not do anything.  He refused to speak to visitors.

97      The change in the plaintiff was a big shock to her, because he was never like that before and he had lost all motivation to do anything.  Joshua would complain “Daddy is grumpy” because the plaintiff did not want to participate in any activities.  The plaintiff felt guilty about not being the man of the house and the provider he once was.

98      Socially the plaintiff had changed.  He could not be bothered going out because he was tired and sore.  He could not wait for visitors to leave their home.  After he was injured, the plaintiff stayed in bed for days and his eating habits were terrible.

99      After the assault, Mrs Bownds and the plaintiff did not have sex for months on end.  The plaintiff could not be bothered because he was too tired and sore, which made her feel horrible, and when the subject was raised, the plaintiff got angry.

100     After the assault, the plaintiff became very moody.  They separated in 2009 after a massive argument, the type of which had not occurred before.  They constantly talked during the six months’ separation and then reunited, and the plaintiff apologised for everything he had done. 

101     The plaintiff often told her that whatever he did, he was sore.  Activities such as walking to the park, mowing the lawn or even playing with Joshua caused pain.

102     In October 2010, Mrs Bownds was devastated when she suffered a miscarriage.  Even though he was going through his own pain, the plaintiff was very supportive and caring.

103     Mrs Bownds deposed in June 2011 that now the plaintiff was working he was doing a lot better but he was not still back to the man he was.  After the plaintiff was injured they did it tough.  The plaintiff had to go bankrupt and they were evicted from their house.

104     In her most recent affidavit, Mrs Bownds confirmed the plaintiff still has problems with mobility and walking to the park.  At times, he was close to tears because of his frustration that he cannot do work around the house and is not able to play with Joshua.  She confirmed the plaintiff’s continuing moodiness and problems with sleeping as a result of his right shoulder problem.

105     In cross examination, Mrs Bownds agreed the plaintiff was not tearful at the Court hearing.  She confirmed the plaintiff presently has problems lifting weights and he has difficulty sleeping because of his right shoulder.  He has not really been able to play squash, throw a basketball or ten pin bowl for a long time.

106     Mrs Bownds was aware the plaintiff had a right shoulder problem when she first met him in the early 2000s.  She agreed that the problems the plaintiff complained of in 2002 were the same as those he now had following the assault, but now he has problems with mobility in a really bad way.  He cannot do anything and she has to do everything for him.

107     Mrs Bownds described how the plaintiff had slight injuries dating back to 2002 but they did not compare to what had happened following the assault.  Before the assault, the plaintiff still lived a good quality of life.  Thereafter, everything changed, as she saw firsthand. 

108     In addition to his right shoulder problem sleeping, the plaintiff wakes in the night constantly sore, complaining of his knee and shoulder.  Of recent times, the plaintiff’s knee has been his main problem.  He cannot walk for long periods of time.  There have been times lately when his knee has collapsed on him and he has fallen.  She has witnessed that at least three or four times in the last few months when the plaintiff has been walking with Joshua or taking him for a bike ride. 

109     Since his last shoulder surgery, the plaintiff’s shoulder is not one hundred per cent but it is a lot better.

110     The plaintiff’s mother, Veronica Blundell, deposed in July 2011 that before the assault, the plaintiff was very social and generous but had become withdrawn  and moody thereafter.  She and the plaintiff had a very close relationship and his joking and amicable personality changed after the assault. 

111     The plaintiff had told her how painful his injuries were and she could see it in his face.  He was prevented from doing a lot of things he used to.  He seemed to be living on medication throughout the day, not having had any interest in taking tablets before. 

112     The plaintiff would not have a dance with her at an engagement party because his shoulder was too sore.

113     Since the assault, the plaintiff had told her he did not feel like the man he was before, because he could not support his family as he used to, and he felt a sense of guilt letting his family down.

114     Mrs Blundell knew that the plaintiff’s injuries had been particularly harsh on Joshua because the plaintiff was not able to play with him like he used to or bath him. 

115     Mrs Blundell confirmed the plaintiff’s marital separation.  He lived with her in that period, which was a very draining experience.  His personal hygiene went out the window at that stage, and he would often just lie around and do nothing

116     Since getting his new job in mid 2011, the plaintiff had become a bit better and his moods had improved. 

Treating Doctors

117     Dr Chia from Select first reported in February 2010.  She noted the plaintiff first mentioned right knee pain in May 2003.  He next presented with a knee complaint in May 2005 after carrying steel and also falling in a pothole a few days later.  She detailed the various attendances that were set out in the clinical notes. 

118     In August 2011, Dr Chia reported that since February 2010, the plaintiff had worn a knee brace which provided stability.  His shoulder injury had stabilised with physiotherapy in 2010.  The plaintiff needed occasional Voltaren and managing with exercise, and no treatment was planned. 

119     At that stage, the plaintiff was working with restrictions of no squatting, no running, no lifting more than twenty five kilograms and no work above shoulder height with his right arm.  It was noted he was very happy at his work and that had lifted his depressed mood. 

120     Dr Chia then thought the plaintiff would not be able to return to work as a security guard, noting he was working full time at a waste company delivering skips.  She thought daily activities such as heavy home maintenance, weeding and mowing were not possible for him, and he was not able to run around and kick a ball with his son.

121     Dr Chia reported on 11 May 2012 that the plaintiff consulted her as he gradually developed more pain in his right shoulder from turning the steering wheel and pain in the right knee from the truck pedal.  It got to the point where he had to resign.  She gave him a WorkCover certificate for no capacity and prescribed Diclofenac, 50 milligrams, BD and Mersyndol Forte for pain.

122     Because of the recurrence of his WorkCover injury, worsening pain and having to give up his job, the plaintiff's depression recurred.  He requested counselling, and Dr Chia started him on Pristiq.

123     On 17 May 2012, Dr Chia prepared a mental health plan and organised counselling through Medicare.  She noted there was some improvement of the plaintiff’s mood with Pristiq.  She referred him to another orthopaedic surgeon, Mr Tang, in relation to his knee.  Mr Tang reviewed the plaintiff on 3 July 2012 and recommended chondroplasty surgery due to persisting pain.

124     Dr Chia noted, presently, the plaintiff will be doing some part time  light work selling stock for one to two months, mostly from home.  She thought he was capable of work with quite strict restrictions, no work using his right arm above shoulder height, no lifting more than five kilograms and mainly seated duties.  She considered the plaintiff would not be able to return to his previous job and that his present state of capacity affected his interaction with his young son as he was not able to run around the park or play ball games with him.

125     In examination in chief, Dr Chia confirmed she is currently providing light duties certificates for twenty five hours per week because of the plaintiff’s knee condition.  She thought the physical restrictions at the moment would be mainly the plaintiff’s knee. 

126     Dr Chia thought the plaintiff had a quite limited capacity to carry out manual work in the future given his knee.  She agreed she also had previously provided certificates relating to the plaintiff’s shoulder condition. 

127     Dr Chia confirmed that the plaintiff had had to stop his cleaning and driving job in early 2012 because of both his knee and shoulder.  She is currently prescribing Mersyndol Forte and Diclofenac, an anti inflammatory.

128     Dr Chia agreed the plaintiff was tearful at times. 

129     Dr Chia confirmed there were no attendances at Select for the plaintiff’s knee between 16 July 2007 and 14 January 2008 and between those dates, there was no prescription of any medication, save for a vitamin energy booster.

130     In cross examination, Dr Chia agreed the first complaint of right knee pain was on 26 May 2003 and the plaintiff was prescribed medication. 

131     The plaintiff next attended for his right knee on 11 May 2005.  It was then reported the plaintiff had an abnormal antalgic gait and there was mild swelling and some limited movement. There was a further attendance on when kneecap locking and grabbing were recorded.

132     On 23 August 2005, ongoing knee problems and problems with prolonged walking were noted.

133     On 26 September 2005, there was also an ongoing complaint of knee locking up and instability.

134     Whilst Dr Chia described the plaintiff’s knee condition as “the injury” in her report she agreed the plaintiff had had a history of attendances between 2005 to 2007 requiring medication, non steroidal anti inflammatories, and symptoms involving giving way, instability, a locking type sensation leading to arthroscopic surgery in November 2005. The plaintiff walked with a limp at times and required time off work. 

135     Dr Chia did not have a problem with the proposition that the plaintiff’s condition was such in February 2006 that he had written to his employer advising he could not continue working. 

136     Dr Chia confirmed that in April 2007, she diagnosed chondromalacia patella, a degenerative disease, confirmed on MRI that month.  She explained the plaintiff had very advanced degenerative changes in one small area of the patella consistent with his complaints of limitation of movement. 

137     Dr Chia agreed that on numerous occasions between May 2005 and January 2008, the plaintiff attended the clinic in relation to this right knee.  She agreed the knee condition was chronic by the middle of 2007 and it had waxed and waned a bit between 2003 and 2007. 

138     Dr Chia agreed that the plaintiff’s principal or primary problem in the early days after the assault was his right shoulder.  She confirmed the plaintiff was noted to walk briskly on examination on 25 January 2008 after the assault. 

139     Dr Chia confirmed that when Dr Steele examined the plaintiff in March 2008, there were no significant findings in relation to the plaintiff’s knee but she noted knee surgery took place later in the year. 

140     Dr Chia was taken to current certificates which set out incapacity on the basis of depression, knee strain and the right shoulder.  There was also a restriction on the ability to lift with the right shoulder.  Twenty hours a week was the suggested working time.

141     Dr Chia confirmed the plaintiff’s shoulder is not one hundred per cent and it is not normal.  She was still certifying he has an unstable shoulder, which led her to specify no lifting in excess of fifteen kilograms.  She understood the plaintiff was taking tablets regularly but not daily.

142     In recent months, Dr Chia would accept that the plaintiff’s knee pain could be described as intermittent but it started recurring in 2012 with the injury at work driving a garbage truck, following which Mr Tang had suggested further surgery.

143     In re examination, Dr Chia confirmed that before that flare up, the plaintiff’s work capacity was restricted because of his knee.  He was fit for work which did not require him to stand for long periods or go up and down stairs or bend or squat and he was limited in what sort of job he could look for.

144     Dr Chia was taken to the examination findings in July 2007.  She thought it was significant that the plaintiff was able to squat at that time.  When she carries out a pre employment assessment, she asks workers to squat and that is a good sign that their knee is stable and normal if they have no difficulty. 

145     It did not surprise Dr Chia to see the plaintiff back in May 2012 with his history.  As far as she is concerned, the right knee injury is the biggest problem the plaintiff faces at the moment.  The assault continues to contribute to that condition. 

146     Dr Chia noted there was a full thickness ulcer in the articular cartilage of the patella shown on the MRI of 4 August 2008 which she thought could have been contributed to by the assault. 

147     Dr Chia explained the plaintiff had deficits in the cartilage and the surgery proposed by Mr Tang involved getting a bit of cartilage and plugging in the holes.  The cartilage had worn away, and what could have happened with the assault was that there was a friable cartilage that when injured, the edges could just break off and get more damaged. Dr Chia also confirmed the plaintiff’s problems with weight bearing.

148     Dr Patel, orthopaedic surgeon, wrote to Dr Chia in April 2008.  He diagnosed anterior shoulder instability with elements of multidirectional instability and recommended an arthroscopy. 

149     Dr Patel noted the plaintiff presented with a history of shoulder dislocation suffered in the assault.  Dr Patel organised an MRI scan to delineate the pathology better, as well as to look for any labral lesions, as well as to confirm the intactness of the rotator cuff.  He understood the plaintiff had a meniscal and medial ligament injury which was being treated by Dr Steele.  He noted that Dr Steele was of the view the shoulder pathology should be treated prior to any knee surgery.

150     In his report of 11 February 2010 to the plaintiff’s solicitors, Dr Patel noted the plaintiff was first referred by Dr Chia in 2008 with a right knee traumatic patellar chondral injury and interior instability of the right shoulder stemming from the assault when he sustained a right knee injury and dislocated his right shoulder.

151     Dr Patel reported the plaintiff had an arthroscopy to the right knee on 23 May 2008 which revealed a half centimetre by half centimetre lesion on the articular surface of the patella just medial to the median ridge, which was treated with shaving, curettage and multiple drill hole microfracture chondroplasty. 

152     At the same time, the plaintiff also had arthroscopic shoulder stabilisation and then had rehabilitation with the Sports Injury Clinic in Frankston.

153     Dr Patel reported that unfortunately, the plaintiff kept complaining of anterior and inferior instability in spite of the significant capsular shift performed in the shoulder surgery. That necessitated an open shoulder stabilisation at Epworth Hospital on 14 November 2008.

154     Dr Patel reported the plaintiff was making good progress at rehabilitation but there was avulsion of the bone graft and the plaintiff required a revision on 29 May 2009.  Since then, his condition had remained stable.

155     Dr Patel last saw the plaintiff on 22 July 2009.  He thought the plaintiff was likely to continue to have some laxity in his shoulder due to the capsular stretch; however, the symptomatic anterior instability should settle down as long as the repair remained intact.  That may, however, cost the plaintiff some terminal flexion abduction and external rotation.

156     Mr Hall, physiotherapist, in an undated report, noted the plaintiff first presented in December 2009 after the second shoulder surgery.  The plaintiff then also had ongoing knee pain and instability.  It was noted the shoulder injury was a direct result of the assault. 

157     Mr Hall advised that the plaintiff's patella had a deep chondral defect which caused pain severe enough for the leg to give way.  Physiotherapy focussed on improving neuromuscular control of the patella to avoid painful bone articulation. 

158     Mr Hall thought the plaintiff suffered two distinct injuries.  He had chronic instability of the glenohumeral joint due to the rupture of the stabilising ligament.  He also had a large chondral defect on the articular surface of the patella.  This was an area of exposed bone which contacted the femur. 

159     The articulation caused immediate and intense pain which Mr Hall believed triggered a reflex unloading of the leg, noting the plaintiff had had several falls as a result. 

160     Mr Hall thought the plaintiff was not able to continue working as a security guard.  In his view, the plaintiff was able to work but he should avoid heavy lifting and overhead activity due to the shoulder injury and would need a job that was relatively sedentary and only required walking short distances due to the knee injury. 

161     Physiotherapy had focussed on restoring strength and range of motion in the shoulder.  Mr Hall thought more gains could be made in that regard.  Further improving strength and control about the knee to avoid painful articulation had been the focus of physiotherapy. 

162     Mr Hall then thought that the biggest issue was ongoing knee instability, noting the plaintiff had occasional falls which were a significant risk to further injury.  He could not safely carry heavy or fragile objects and could not walk long distances. 

163     Mr Hall noted the shoulder injury limited overhead activity and heavy lifting.  He thought the plaintiff should be able to perform most normal household duties, although putting clothes on the line and reaching high shelves may continue to be difficult.

164     Linda Stinton, psychologist, reported in January 2010, having commenced treating the plaintiff in October 2008 .

165     In her view, the plaintiff was suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. 

166     The plaintiff then reported pain and stiffness in the areas of injury, feelings of being depressed and useless, agitated, short tempered and intolerant.  He reported disturbed and restless sleep.  He complained of lack of sexual intimacy for some five months.  He felt he would have to have a career change as promotion opportunities had been limited as a result of his permanent injuries.  He was currently receiving less than half his pay.  Concentration and memory difficulties impacted on him and he could no longer get down on the floor and play with his children. 

167     Ms Stinton reported that the plaintiff’s psychiatric state appeared to be related to the assault injuries and the compounding stresses he faced as a result of the injuries and inability to earn a living. 

168     She thought the plaintiff would benefit from psychological treatment to address his symptoms, particularly in light of his reported suicidal ideations.  She also felt he may benefit from having marriage counselling. 

169     Mr Tang, orthopaedic surgeon, wrote to Dr Chia in May 2012 thanking her for the recent referral to the plaintiff who he had last seen in 2005 when he had an arthroscopy for some chondromalacia and meniscal issues.

170     Mr Tang noted that after 2005, the plaintiff returned to work, but then was subsequently attacked in the assault, suffering a dislocated right shoulder and re injury to his right knee, for which he saw Dr Patel.

171     Mr Tang noted the plaintiff presented with a problem of ongoing right knee pain.  On examination, the plaintiff pointed to pain arising from the VMO in the anterior aspect of the knee joint laterally.  Mr Tang noted flexion extension confirmed the plaintiff had some lateral patellar maltracking.  There was no crepitus arising from his patellofemoral joint.  As such, clinically, there was not a severe amount of articular surface loss; however, Mr Tang thought the plaintiff’s problem may well be related to just asymmetric loading of the joint and the soft tissues around it. 

172     Mr Tang thought the plaintiff warranted further investigation.  In a letter of 3 July 2012, he advised he had organised an MRI scan which confirmed the presence of a full thickness chondral defect involving the apex of the median reach of the patellar articular surface.  He noted that was a focal defect and understood it was found at the arthroscopies performed by Mr Patel following the plaintiff’s injury. 

173     Mr Tang thought the defect was the source of the plaintiff's symptoms and would be amenable to treatment via a technique known as chondrocyte grafting.

174     Mr Tang reported that the plaintiff would have problems with kneeling, squatting, and ascending and descending stairs.  He noted that the lesion he saw in 2012 was the same one noted on the 2008 scan.

Medico Legal

175     Mr Hunt, orthopaedic and spinal surgeon, examined the plaintiff in October 2011.  The plaintiff told him he had a history of six previous knee injuries, all of which were work related and one involved a transport accident.

176     The plaintiff stated that on the said date, he was assaulted and sustained further injuries to his right shoulder and right knee while working for the defendant.  He indicated his right shoulder was dislocated and his right knee was stomped on.

177     On examination, the plaintiff stated he had difficulty with pain in his right shoulder over the anterior aspect.  He found he had instability symptoms should he reach forward.  He explained night pain was a particular problem.

178     With respect to his right knee, the plaintiff explained he experienced pain over the anterior aspect, mainly over the tibial tuberosity and infrapatellar region.  He had problems with squatting, kneeling and walking up and down stairs.  He could not sit on the floor cross legged.  He also described a clicking and cracking noise within the knee and some swelling in the suprapatellar pouch.  Giving way was not a major concern but he felt if his knee became unstable he would use a brace.

179     Mr Hunt noted the MRI scan of the right shoulder of 4 April 2008, the CT scan of 25 February 2008, and x-rays of 21 July 2009 and 19 October 2009. 

180     On examination, Mr Hunt noted the plaintiff was a well muscled man who had well healed surgical scars over the right shoulder and anterior aspect of his right knee.  There was no wasting around the right shoulder and no abnormal sensation on testing over the deltoid.  Range of motion testing of the right shoulder revealed restricted forward flexion to one hundred degrees, abduction to a similar level, external rotation to forty degrees and internal rotation to the lumbosacral junction.  Muscle testing was four plus out of five.  There was palpable clunking and crepitus in the right shoulder on movement and provocative tests for anterior instability of the right shoulder was positive.

181     Mr Hunt noted examination of the right knee revealed no effusion, normal alignment with normal patellar tracking on examination, mild patellar crepitus, patellofemoral irritability on the grind test and a good range of motion with no ligamentous instability.

182     Mr Hunt diagnosed right shoulder instability with three operations with ongoing symptoms of instability, probable glenohumeral arthritis: crepitus felt at the time of examination.  He also diagnosed right knee patellofemoral arthritis.

183     Mr Hunt believed the plaintiff sustained aggravation of his previous injuries to his shoulder and knee; however, the acute dislocation of the shoulder occurred with the assault. 

184     Mr Hunt thought the plaintiff's employment was a significant contributing factor both to the development of right shoulder instability and the development of symptomatic patellofemoral arthritis.

185     Mr Hunt noted the plaintiff was not able to work for three and a half years after the assault and required retraining and could no longer work as a security patrol officer due to the ongoing nature of both lots of symptoms.  He thought the plaintiff had a partial incapacity as he had not been able to return to his pre injury employment or any other physically active work role.  He thought the job as a garbage truck driver was appropriate as it was sedentary in nature.

186     Mr Hunt believed the plaintiff would require ongoing analgesics and activity modification to help manage his symptoms.  He thought it may be possible the plaintiff might require right shoulder surgery in the future in the form of an arthroscopic debridement or possibly even joint replacement if he developed symptomatic disabling arthritis.

187     With regard to the right knee, Mr Hunt would not rule out the possibility of the plaintiff requiring further arthroscopic debridement in the future and, if arthritis were to progress to a significant degree, he thought the plaintiff may require knee replacement surgery in the years to come, which would, of course, be a last resort.

188     Mr Hunt did not believe the plaintiff would be able to return to his pre injury employment as he had ongoing symptoms in his right shoulder and also ongoing anterior knee pain symptoms in his right knee which would preclude him from the type of work required as a security patrol officer.

189     Mr Hunt also noted the problems the plaintiff was having in relation to both domestic activities and lifestyle and leisure activities as a result of his injuries.  He thought the plaintiff had been economically disadvantaged to a significant degree as a result of the injuries as he had not worked for three and a half years.

Investigations

190     Dr Steele organised an MRI scan of the plaintiff’s right knee in April 2008.  It was reported there was small to moderate joint effusion.  There was a small centrally positioned full thickness ulcer in the articular cartilage of the patella with associated subchondral reactive changes.  There was no meniscal tear. 

191     Dr Patel organised an MRI scan of the right shoulder on 4 April 2008.  It was reported there was focal relatively extensive area of abnormal signal present with the mid and posterior supraspinatus tendon, extending to involve the anterior aspect of the infraspinatus tendon.  It was reported that was most likely a high grade contusion/tendinopathy.  It was noted the lesion measured 21 millimetres antero-posteriorly, 15 millimetres in length and extended from the bursal to the articular surface. 

192     Mr Tange organised an MRI scan of the plaintiff’s right knee on 20 June 2012.  It was reported there was focal osteochondral lesion involving the apex of the patellar facets.  There was almost full thickness cartilage loss with minor subchondral body change.

The Defendant’s Evidence

Compensation Documents

193     On 16 July 2002, the plaintiff signed a Claim for Compensation for permanent disability of his right arm whilst working for Dercon.  His solicitors were then Holding Redlich.

194     The plaintiff swore an affidavit on 30 July 2002 in support of that claim. He deposed he developed right shoulder problems as a consequence of repetitive use of his right arm in a job that required him to constantly use that arm to pull wire taut whilst working as a fencer.

195     The plaintiff first had treatment in 1996 and had three weeks off work at about that time.  He was not working at the time of swearing the affidavit, as he was certified unfit.

196     The plaintiff deposed he suffered from constant aching of the right shoulder.  He could raise his right arm above his head but had to do so carefully.  He could not lift weights of any significance above his head using his right arm, and if he attempted to move his right arm away from his body, it lacked strength.  He could not lift a two litre Coke bottle away from his body using his right arm if the arm was held straight.  He could not lie on his right shoulder without suffering increased pain.  He could not throw a basketball without suffering pain.  He used to play squash but did not any more because of that pain.  He used to do ten pin bowling but did not do that either for the same reason.

197     On 1 October 2003, the plaintiff signed a Claim Form setting out that whilst working for Inter Industrial lifting steel, he suffered a back injury on that date.

198     On 29 June 2005, the plaintiff signed a Claim Form setting out a right knee injury suffered on 7 May 2005 tearing his cartilage after he fell in a pothole after his car hit a fox.

199     On 13 March 2007, the plaintiff signed a Claim Form in which he set out he had suffered injury to his back, neck and shoulder when he hit a pole while driving on 12 March 2007.  There was and Employer Claim Form relating to that incident.

200     On 13 April 2007, the plaintiff signed a Claim Form relating to a right knee injury suffered on 11 April 2007 when he stepped on a sprinkler hose and fell over.  There was an Employer Claim Form in relation to the same incident.

201     On 14 January 2008, the plaintiff signed a Claim Form in relation to the assault, claiming he had dislocated his right shoulder and re injured his right knee whilst patrolling.  The WorkCover Employer’s Claim Report dated 19 January set out the plaintiff dislocated his right shoulder and re injured his right knee.

Medical Evidence

202     Mr Poon from Long Beach Medical Centre saw the plaintiff in August 2001 when he presented with longstanding right shoulder problems for four years, described as a constant ache.

203     The plaintiff was next reviewed on 11 October 2001, feeling Voltaren was no help and he was re referred to Mr Broughton, and was next seen at the clinic in July 2002.

204     Mr Broughton wrote to Dr Richards at Longreach in September 2002 thanking him for referral of the plaintiff, whom he noted presented with an unstable right shoulder of six years’ duration.

205     On examination, Mr Broughton found the plaintiff had a grossly loose right shoulder with instability inferior with a positive sulcus sign and also a positive anterior apprehension sign.  X ray and ultrasounds showed no abnormality.  Mr Broughton recommended stabilisation surgery and referred the plaintiff to a public hospital waiting list.

206     Mr Tang wrote to Dr Chia in July 2005 thanking him for referring the plaintiff, who had twisted his right knee after he walked into a pothole.  Mr Tang advised examination of the plaintiff’s knee confirmed he had pain and tenderness along the lateral aspect of the knee and he did not have full extension.  Mr Tang thought that these findings indicated the plaintiff may well have a torn lateral meniscus and he suggested an MRI scan.

207     Mr Steele wrote to Dr Chia in June 2007 thanking him for referring the plaintiff, who had tripped and fallen on a garden bed six weeks earlier.  Examination on 26 June 2007 showed that the plaintiff had a full range of motion in his knee, there was mild patellofemoral crepitus, no joint line tenderness and no swelling.  Mr Steele thought the plaintiff’s MRI was consistent with chondromalacia patella and there was no structural problem with the knee itself.  He explained that to the plaintiff, and recommended he undergo physiotherapy, and planned to review him in six weeks.

208     Mr Steele wrote to Dr Chia on 27 March 2008, having reviewed the plaintiff a couple of days earlier.

209     Since he last saw the plaintiff, the plaintiff had been involved in the assault in which his right shoulder was dislocated and his right knee stomped on.  Mr Steele noted the plaintiff had a previous surgery to his right knee by Mr Tang, about which Mr Steele had seen him in June 2007. 

210     Since Mr Steele last saw the plaintiff, the plaintiff advised his knee was doing well and, unfortunately, the assault occurred during which the lateral aspect of his knee was stomped on causing him pain. The plaintiff had not needed crutches.  There had been no swelling, locking, catching or feeling of instability.

211     Mr Steele reported examination showed the plaintiff had very mild lateral joint line tenderness and no effusion.  His range of motion was from zero to one hundred and thirty degrees and he had a ten degree quadriceps lag.  His cruciate and collateral ligament examination was normal.  Mr Steele advised he had organised an MRI scan to look at the lateral meniscus.  He thought it was unlikely the plaintiff had torn it and would come to surgery, even though they would have a look at the scans again.

212     In August 2007, Mr Barwood, shoulder and elbow orthopaedic surgeon, wrote to Dr Julien thanking him for referring the plaintiff regarding his right shoulder problems.  He noted the plaintiff reported recurrent right shoulder subluxations for many years and told him this originally was one of his party tricks.  He had had two shoulder dislocations which had been reduced by his father, who is a physiotherapist. The plaintiff continued to have anterior instability of the shoulder and he had been on Mr Broughton’s waiting list for two years.

213     The plaintiff presented requiring a quote for the cost of private care.  On examination, the plaintiff’s shoulder had evidence of anterior instability and no evidence of multidirectional laxity or ligamentous laxity. The plaintiff had ninety degrees of external rotation bilaterally which Mr Barwood was sure contributed to his condition.

214     Mr Barwood discussed surgery with the plaintiff and the risks and benefits of the procedure, including the fact that it would reduce some of the plaintiff’s external rotation.  Mr Barwood noted he agreed with Mr Broughton’s findings. Mr Barwood advised he would perform the surgery arthroscopically and discuss that with the plaintiff.

Investigations

215     Mr Tang organised an MRI scan of the plaintiff’s right knee in July 2005.  It was reported menisci cruciates and lateral collateral ligament were intact.  There was low grade non recent healed partial tear of the proximal medial collateral ligament.  There was a small effusion.  There was mild focal tendinosis of the biceps tendon insertion.  There was focal chondral softening without a frank chondral defect of the patellar apex and medial apex of the medial patellar facet.  There was small adjacent subchondral marrow stress response.

216     Dr Chia organised an MRI scan of the plaintiff's right knee in April 2007.  It was reported the major abnormality was chondromalacia involving the medial patellar facet at its junction with the lateral facet.  There was no full thickness cartilage loss nor separated bony fragments and no obvious meniscal tear. 

Medico Legal Examinations

217     Mr Khan, orthopaedic surgeon, examined the plaintiff in September 2002.  Following injury at work, the plaintiff told Mr Khan his shoulder had become quite loose and he could voluntarily subluxate the shoulder joint in and out by his own muscle movements.  Two years earlier he had left work, as he could no longer cope with it on account of the frequency of his right shoulder dislocating.  He had been referred to Mr Broughton, who advised him to have repair surgery to stabilise his shoulder.

218     Mr Khan thought the plaintiff had developed intermittent symptoms of bursitis or capsulitis of the shoulder and found there was global evidence of restricted movement on examination.  He thought the plaintiff required physiotherapy and may eventually require stabilisation of the right shoulder.  He thought the plaintiff could no longer perform pre injury duties.

219     Mr Clive Jones, orthopaedic surgeon, examined the plaintiff in August 2008.

220     The plaintiff gave a history to him of a current right shoulder injury which took place in the assault and a history of an earlier right knee injury, following which the plaintiff had an arthroscopy.  The plaintiff advised the outcome of that injury had been reasonably satisfactory and there were a few knee symptoms at the present time.

221     The plaintiff's right shoulder remained painful.  Mr Jones noted frank dislocation did not occur but the plaintiff had a sensation of the joint at least partially dislocating, which he was able to reduce himself. 

222     The plaintiff had been told there was little more he could do for his knee.  There was no locking or giving way symptoms.  The plaintiff did have some anterior knee pain, which made it difficult for him to kneel and gave him problems with stairs. 

223     There was a virtually full range of right shoulder movement but the apprehension test was positive and when the joint was put into the position of full abduction and external rotation, there was a suggestion of anterior translocation of the humeral head.  The sulcus sign appeared positive. 

224     There was a full range of right knee movement with non tender joint lines and some non specific discomfort on patellofemoral compression.  Mr Jones thought the plaintiff’s underlying condition had not resolved and his shoulder remained unstable.  He thought stabilisation surgery was reasonable.

225     Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff in February 2010.

226     The plaintiff told him of the assault when he dislocated his right shoulder and his knee was hit from the right side.

227     Mr Shannon noted the plaintiff had never had any previous trouble with either his right shoulder or right knee, and had never dislocated either shoulder. 

228     On examination, there was mild restriction of right shoulder movement with an anterior operation scar.  Clinically, there appeared to be mild residual anterior laxity but certainly the shoulder was not dislocatable.  The plaintiff was able to stand independently and half squat, but could not hop.  He had a full range of knee movement without significant crepitus instability nor effusion and there was no significant thigh wasting.

229     Mr Shannon had available shoulder x-rays.

230     Mr Shannon thought the plaintiff apparently sustained a traumatic dislocation of his right shoulder and traumatic chondromalacia of the right patella in the assault.  He thought the plaintiff had a reasonably stable shoulder following three operations, although the plaintiff felt his shoulder was loose.  Mr Shannon thought the chances of further dislocation were small. 

231     Mr Shannon noted the plaintiff had regained a useful range of shoulder movement but thought, having had three operations, the plaintiff would be ill advised to return to his former occupation as a security guard, where that involved possible confrontation with offenders.

232     Mr Shannon thought the plaintiff’s knee condition also limited his work capacity but doubted the plaintiff would gain from further surgery.  He considered the knee condition would limit the plaintiff in the performance of work involving kneeling, squatting, climbing and heavy lifting.  He thought that physiotherapy could be scaled down to once a month and replaced by self management exercise, possibly with a gym membership.  He thought the plaintiff required ongoing strengthening of both his knee and shoulder but only very occasional physiotherapy, say, once a month.

233     Mr Shannon concluded the plaintiff had a capacity for light work which avoided kneeling, squatting, climbing, heavy lifting and in particular, work above shoulder level and confrontation with offenders.

234     Mr Simm, orthopaedic surgeon, examined the plaintiff in October 2011.

235     The plaintiff told him of the previous incidents involving injury to his knee in 2003 and 2005.  Mr Simm was also given an extensive history of further incidents involving the plaintiff’s knee before the assault and also advised as to the plaintiff’s shoulder problem. 

236     Mr Simm noted the MRI of 28 July 2005 which showed a low-grade recent healed partial tear of the proximal medial collateral ligament and changes in the articular cartilage of the patella.  He noted after the first knee surgery there was an improvement, and the plaintiff returned to work.

237     There was a further MRI scan on 26 April 2007 which demonstrated articular cartilage changes behind the patella but no other pathology.

238     Mr Simm noted the August 2008 MRI of the right knee showed small to moderate joint effusion and a small centrally positioned full thickness ulcer in the articular cartilage of the patella.

239     On examination, the plaintiff was wearing a knee brace with a patella cut out which he used about twice a week. 

240     The plaintiff had right shoulder pain which occurred intermittently.  He had intermittent right knee pain that occurred inferior to the patella in the region of the patellar tendon and over the lower and lateral pole of the patella.  His knee clicked on flexion.  He was unable to kneel.  The plaintiff’s knee cracked when rising from the crouching position or when standing up from a chair. 

241     The plaintiff reported difficulty negotiating stairs and was not able to run.  His knee swelled in cold weather and did not collapse.  He was able to walk for about thirty five minutes and was still doing occasional quadriceps exercises. 

242     The plaintiff told Mr Simm that in his current condition he could not return to security work, which involved the requirement to run and at times and restrain people.  He could not go back to other physically based employment that involved heavy and repetitive lifting.

243     On examination, there was mild restriction of right shoulder movement.  There was quite marked restriction of external rotation, both with the right shoulder abducted and with the plaintiff’s arm by his side.  There was limited internal rotation, such that the plaintiff could not put his right hand on his lower back.  Movements were generally painful but there were no specific signs of subacromial impingement or instability.  The sulcus test was negative, as was the anterior apprehension sign.  Passive movements of the shoulder did not demonstrate laxity. 

244     The plaintiff had a two centimetre measured wasting of the right thigh.  There was visible wasting of the right quadriceps with some loss of bulk and tone.  He was able to straight leg raise.  Right knee flexion was from zero to 135 degrees.  There was a vacuum snap rather than crepitation from the right patellofemoral joint.  There was minimal patello irritability and no joint instability.

245     Together with shoulder investigations, Mr Simm had available the MRI scans of the right knee of July 2005, July 2007 and August 2008. 

246     Mr Simm noted right knee investigations confirmed the presence of chondral changes involving the articular surface of the patella and following the injury in 2005, there were changes suggestive of a partial tear of the medial collateral ligament.  He thought the changes involving the articular cartilage of the patella could be responsible for patellofemoral pain, but noted those findings were seen in asymptomatic knees. 

247     Mr Simm noted the investigations of the right shoulder did not show the stigma of recurrent dislocations.  There were some changes noted in the supraspinatus tendon of uncertain relevance and there were no glenoid labral changes to suggest labral detachment.

248     Mr Simm diagnosed chondromalacia patella and possible partial tear of the medial collateral ligament of the right knee as a result of the May 2005 incident.  He thought the chondromalacia patella was constitutional.  He noted symptoms from this chondral change, which were first evident in 2003.  He considered there was quite marked aggravation of this pathology as a result of the incident in May 2005 which led to an arthroscopic chondroplasty. 

249     Mr Simm noted, although knee symptoms settled to some extent, there were recurrent episodes of anterior knee pain.  He thought it was evident that the right knee was problematic during 2007 and the plaintiff claimed that as a result of direct trauma to the knee in the assault, his knee pain worsened.  There was an increase in symptoms and the plaintiff underwent another arthroscopic chondroplasty with microfracture.  There was some improvement but knee symptoms had persisted.

250     Mr Simm diagnosed constitutional right shoulder laxity with associated subluxation and recurrent dislocation of the right shoulder.  Mr Simm noted Mr Broughton’s history of the insidious onset of right shoulder symptoms leading up to 2002, where he recorded a grossly loose right shoulder. Further, Mr Barwood told the plaintiff in August 2007 of the need for shoulder stabilisation. 

251     On examination, Mr Simm noted there were no clinical signs of residual instability of the right shoulder.  He could not see how the further dislocation of the shoulder in the assault had influenced the clinical course and surgical management of that condition, all of which was pre-existing.

252     Mr Simm thought the plaintiff had some restriction of use of the right shoulder for strenuous activities and that would incapacitate him for work as a security person who was involved in physically restraining people.  He considered the plaintiff's right knee symptoms would limit his ability to run and that would also partially incapacitate him for security work.  He thought the plaintiff had a capacity for suitable employment, noting he was currently employed as a truck driver. Mr Simm considered the plaintiff would have the physical capacity to work as a control room operator, data entry operator and sales assistant. 

253     Mr Simm thought there was no evidence of functional overlay or exaggeration.  He thought the employment with the defendant was a significant contributing factor to the right knee injury but did not think it was to the shoulder, because that was pre-existing and established, and the plaintiff was awaiting surgery.  Mr Simm thought the plaintiff’s current right knee symptoms still significantly related to the surgically treated injury to the right knee of May 2005.  He noted the exacerbation of right knee pain after the assault was the indication for a repeat right knee arthroscopy and microfracture of the pre-existing chondromalacia patella.

Vocational Evidence

254     Anna McClaren from Work Able Consulting carried out an NES Vocational Assessment in October 2008.  The plaintiff reported to her the knee injury in 2006 when his leg went through the floor, and hurting his shoulder in the assault. 

255     Based on his previous work experience and transferrable skills and abilities, Ms McClaren believed the following employment options would be most suitable for the plaintiff – control room operator (training required), data entry operator (training required), sales assistant hardware store, spare parts interpreter and customer service advisor, and social security advisor Centrelink (training required).

Other Documents

256     There was a register of injury entry related to an incident on 12 May 2007 when the plaintiff’s car hit a pole.  An entry in the register of injuries set out that on 11 April 2007, the plaintiff twisted his right knee.  There was a further entry on 11 January 2008 that the right knee and right shoulder were injured in the assault.

257     On 7 February 2006, the plaintiff wrote to his employer advising his knee was swollen and very sore and he thought the time had come to come to terms with the fact he could not do the job any more.  He advised he was very sorry to do this to the employer as they had been very good to him.

258     On 13 February 2006, the plaintiff informed his employer of his resignation due to family commitments and that he intended to cease work on 20 February 2006.

259     An application for a security position with Quad Security Services was signed by the plaintiff on 2 March 2005.  He answered “no” to the question whether he had been on WorkCover at any time. 

260     There was a statement made by the plaintiff on 19 January 2008 about the assault, in which he set out he suffered a dislocation of his shoulder and the offender had stomped on his knee.

Overview

261     Whilst cross examination focussed to a large extent on whether or not the plaintiff’s knee was injured in the assault, I am satisfied that in addition to a dislocated shoulder, the plaintiff suffered an injury to his right knee when it was stomped on by the offender – as reported by the plaintiff in the incident report of 11 April 2008, the Claim Form signed by him on 14 April 2008 and his statement made on 19 April 2008.

262     Although in cross examination the plaintiff may have agreed in a limited sense to the suggestion that his knee injury was not significant enough for him to attend a doctor for three days and that he stressed his right shoulder injury in early examinations, that merely sums up the plaintiff’s perception of his situation in the very early days but certainly not in later times.

263     Whilst the plaintiff may have placed more emphasis on his shoulder problems in these early examinations, his knee problems relating to the assault were such that he ultimately underwent surgery in May 2008.

264     The knee injury has been diagnosed as a lesion of the articular surface of the right patella and aggravation of right chondromalacia patella – a degenerative condition found on MRI in April 2007, as Dr Chia explained. 

265     Whilst it is the impairment not the injury which caused the impairment to which the evaluative task is addressed – see Winneke P in Richards v Wylie (2000) 1 VR 79 at 86, the radiology subsequent to the assault revealed the additional finding of a lesion, not shown in 2007, which was operated upon by Mr Tang in 2008.

266     The latest MRI scan in 2012 was commented upon by only Mr Tang.  He thought it confirmed the presence of a full thickness chondral defect involving the apex of the median ridge of the patellar articular surface, a finding noted on the arthroscopy performed by Dr Patel and shown on the 2008 MRI scan.

267     I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses.  This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171, such admission should ordinarily be regarded as very significant:

“.  .  .  albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”

268     Counsel for the plaintiff submitted that the main consequence which met the statutory test of “serious” was the plaintiff’s inability to engage in manual work on his feet all day. 

269     Whilst counsel for the defendant conceded the plaintiff sustained a flare up in symptomatology consequent upon assault, it was submitted the plaintiff had significant ongoing knee problems prior thereto, dating back mainly to 2005  and the surgery at that time and thereafter, he regularly attended his general practitioner and was prescribed medication until the middle of 2007.

270     It was submitted the assault was just another event against a background of the many problems the plaintiff had had with his knee since 2005.  Following injury at that time, the plaintiff’s knee was never cured, as both Dr Caric and the plaintiff agreed, and it was easily aggravated.

271     Further, it was submitted by counsel for the defendant that the plaintiff's right shoulder problems were significant and had to be disentangled from those relating to his right knee when assessing the plaintiff’s present level of impairment.

272     In this case, where there is a pre existing right knee condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the assault is serious and permanent; Barwon Spinners Pty Ltd v Podolak (supra).

273     In Petkovski v Galletti (supra), the Full Court of the Victorian Supreme Court accepted the proposition that –

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused.  …”

274     This approach was recently adopted and followed by the Court of Appeal in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon v Filipowicz [2012] VSCA 60.

275     To reach the threshold of “serious injury”, the plaintiff is required to establish the aggravation from the assault is permanent at the time of the hearing in its effects on his right knee and the effects of the aggravation must be serious: 

276     Although the plaintiff resigned from work in February 2006 because of his right knee, he resumed mobile duties in September 2006 and was working full time in that capacity at the time of the assault, having dome so  from July 2007 with no problems with his mobility.  He could perform these duties with his ongoing shoulder problem, although awaiting shoulder surgery recommended by Mr Barlow two months earlier.

277     In cross examination, the plaintiff conceded that prior to the assault, his knee had been giving him considerable grief for many years.  He had required treatment from Dr Chia between 2005 and July 2007, and during that time, the plaintiff had complained of his knee being unstable, giving way, locking and popping.

278     The plaintiff may consider his knee was never fixed after 2005 and link his current problems to his injury at that time; however, I am required to consider his level of functioning before the assault and determine whether the consequences of the aggravation in the assault are serious and permanent.

279     Although the need for arthroscopic surgery was queried by Dr Julien in June 2007, the following month Dr Chia found the plaintiff’s knee was good and he was able to squat, a finding she described as significant.  The plaintiff was then certified fit for normal duties.  Following that date, the plaintiff was not prescribed further painkillers until after the assault.

280     Before the assault, I accept that save for a restriction in activities involving his right shoulder, the plaintiff could run and kick a ball with his young son and he was generally mobile.

281     Summing up his situation in cross examination, the plaintiff explained he had a shoulder problem from the age of seventeen and many jobs since then to the time of the assault.  His shoulder had never stopped him working and living his life normally until the assault.  2005 was the first time he had ever done any major damage or injury to his right knee. 

282     From that time until the assault, the plaintiff had a couple of weeks off and was able to work normally.  He was doing mobile controls and crowd control work, and did not have any problem with his knee until the assault.  After that, the pain in his right shoulder was worse than the knee, but since then his knee had deteriorated.

283     In such circumstances, with the ability to work full time, the lack of medical treatment and medication and the plaintiff’s general mobility, I accept he was managing quite well with his knee and had no significant ongoing problems with his knee at the time of the assault.

Credit

284     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph 12:

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

285     Whilst it was ultimately not suggested the plaintiff was a chronic liar or deceptive, counsel for the defendant submitted the plaintiff played down his earlier knee problems, misleading Mr Shannon in this regard.  Much of the cross examination was spent on the plaintiff’s prior injury claims and what he had subsequently deposed in relation thereto.

286     The plaintiff, however, did depose to a number of pre assault incidents in his affidavit.  Further, he did not receive WorkCover payments in relation to a number of previous claims so his answer “no” on the employment form was not particularly significant.

287     I found the plaintiff to be a generally truthful witness who was prepared to acknowledge problems in the past with both his knee and shoulder and made the appropriate concessions.

288     Further, there was no evidence challenging the genuineness of the plaintiff’s complaints by way of surveillance film or other evidence.  There was no finding by any medical examiner of any functional overlay or inconsistencies on examination.

289     Though the plaintiff’s wife’s affidavit somewhat played down the plaintiff’s pre assault condition and was rather dramatic in its description of his assault related problems, I found her viva voce evidence convincing and supportive of the deterioration in the plaintiff’s knee condition following the assault, particularly in terms of his mobility at home since that time.

Consequences

290     The plaintiff is still a relatively young man, aged only thirty three, with a young son.

291     In Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, Ashley JA and Beach AJA, at paragraph 43, discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.

292     The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced.  It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.

293     This is not a case where the plaintiff complains of a constant high level of pain.  He agreed he may have at times described his pain as intermittent.  His knee swells and at times he experiences a give way feeling, sometimes causing him to fall. 

294     The plaintiff’s main  problem with his knee since the assault is with his mobility in terms of extended walking, running, bending and squatting and getting up from the ground – expected problems from a knee condition, as confirmed by various medical practitioners in this case.

295     In terms of treatment, Mr Simm thought the exacerbation of the plaintiff’s knee condition in the assault was the indication for a repeat arthroscopy and microfracture of the pre-existing chondromalacia patella.

296     The plaintiff’s medication intake at present is not great, taking over the counter Mersyndol.  He attributes most of the need for this medication to knee pain, not his shoulder.  He also wears a knee brace for support.  Significantly, there has been the recent suggestion by Mr Tang of the need for further knee surgery. 

297     Since the assault, the plaintiff has been further restricted in his ability to play with his young son, not being able to run and kick a ball, as his wife confirmed.  Prior thereto, there was some restriction with throwing and lifting activities due to his shoulder condition.

298     As counsel for the plaintiff submitted, the main consequence of the plaintiff’s knee injury is its effect on his working capacity.

299     Although the plaintiff had problems with his knee up until July 2007, thereafter, he could engage in mobile security work, being on his feet all day.  His shoulder condition did not affect his ability to do this job at that time, although he was awaiting surgery.

300     Following the assault, the plaintiff was off work for three and a half years.

301     When the plaintiff swore his first affidavit in October 2010, he was certified fit for twelve hours’ light work a week.  He had applied for a number of jobs in sales and recruitment but was unsuccessful in obtaining work. 

302     In mid 2011, the plaintiff obtained light work in a hardware shop with which he coped for a couple of months until the shop closed.  In October 2011, the plaintiff then obtained work with Cleanaway as a full time garbage truck driver.  He coped with that job until May this year, when he had to stop working because of both his knee and shoulder pain, the former giving him pain when operating the air brakes on his truck.

303     In recent times, the plaintiff has been employed part time on a commission basis selling goods on consignment. 

304     The plaintiff is presently certified fit to work twenty hours per week on the basis of his knee, shoulder and psychiatric condition, with specific lifting restrictions.

305     Whilst providing certificates in these terms, in her viva voce evidence, Dr Chia explained that she thought the plaintiff’s knee was the major problem and whilst imposing lifting restrictions, she thought the plaintiff’s shoulder was relatively stable. 

306     The consensus of the other medical opinion is that the plaintiff does not have a capacity for unrestricted manual work involving either his knee or his shoulder. He has a capacity for seated work but even that has caused him difficulty with his knee as he experienced operating the truck brakes in his Cleanaway job.

307     In February 2010, Mr Shannon concluded the plaintiff had a capacity for light work which avoided kneeling, squatting, climbing, heavy lifting and in particular, work above shoulder level and confrontation with offenders.

308     In October 2011, Mr Hunt thought the plaintiff could no longer work as a security patrol officer due to the ongoing nature of both lots of symptoms.  He thought the plaintiff had a partial incapacity as he had not been able to return to his pre injury employment or any other physically active work role.  Mr Hunt  thought the job as a garbage truck driver was appropriate as it was sedentary in nature.

309     In October 2011, Mr Simm thought the plaintiff had some restriction of use of the right shoulder for strenuous activities and that would incapacitate him for work as a security person who was involved in physically restraining people.  He considered the plaintiff's right knee symptoms would limit his ability to run, and that would also partially incapacitate him for security work.  He thought the plaintiff had a capacity for suitable employment, noting he was currently employed as a truck driver.  He thought the plaintiff would have the physical capacity to work as a control room operator, data entry operator and sales assistant.

310     In 2012, Mr Tang, though not commenting specifically on the plaintiff’s work capacity, thought he would have problems with kneeling, squatting and ascending and descending stairs due to his knee condition.

311     Taking into account the knee injury alone, I am satisfied that the consequences thereof, particularly resulting from the plaintiff’s lack of mobility and his inability to work on his feet all day, are serious for a relatively young man, with very limited education, training or other work experience.

312     As the plaintiff’s right knee problems have persisted for in excess of four years despite surgery, I am satisfied the impairment is permanent.

313     Accordingly, I grant the plaintiff leave to being proceedings for damages for pain and suffering.

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