Bullock v Salvation Army Victoria
[2013] VCC 205
•14 March 2013
| 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-11-01296
| IAN KEITH BULLOCK | Plaintiff |
| v | |
| SALVATION ARMY VICTORIA | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2013 | |
DATE OF JUDGMENT: | 14 March 2013 | |
CASE MAY BE CITED AS: | Bullock v Salvation Army Victoria & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 205 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Injury to the right knee – whether pain and suffering consequences were “serious”
LEGISLATION CITED: Accident Compensation Act 1985, s134AB(16)(b) and (38)(c)
CASES CITED: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26
JUDGMENT: Leave to the plaintiff to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering arising out of his employment with the first defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick | Slater & Gordon |
| For the Defendants | Miss A Ryan | Thomsons |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 6 June 2012 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering.
3 Mr J Fitzpatrick of Counsel appeared for the plaintiff and Ms A Ryan of Counsel appeared for the defendants.
4 The injury suffered by the plaintiff for which leave is sought is an injury to the right knee.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”), pages 29-78: Exhibit A;
· The defendants tendered their Court Book (“DCB”), pages 10-87: Exhibit 1.
6 The application is brought under the definition of “serious injury” contained ss (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has a suffered a compensable injury, that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999.
(b) The impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future.
(c)The injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future.
(c) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and as being as least “very considerable”.
(d) Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e) In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[1] I must be satisfied that the impairment the consequences of the impairment satisfy the “very considerable” test. I have applied the principles set forth therein in reaching my conclusions in this application.
[1](2005) 14 VR 622, at paragraph 11
The Plaintiff's Background
8 The plaintiff was born in 1954. He is now fifty-eight years of age. He is a single man. He last attended the Tottenham Technical School completing Form 1 at the age of fourteen years.
9 The plaintiff suffered significant misfortune during his working life. In 1972 he suffered an injury to his lower left leg of such gravity that it resulted in the amputation of his left lower leg below the knee. He has a prosthesis fitted which permits him to have a reasonable level of mobility. However, he has been left with some deficits. He suffers sweating during hot weather which causes a rubbing of his left leg. He experiences problems engaging in heavy lifting, standing for long periods of time, climbing ladders and traversing uneven ground. He suffered a secondary depression in the early 1980s which he put down to the difficulty in finding employment. He was treated for depression. The treatment involved an inpatient treatment. He eventually made a full recovery.
10 The plaintiff obtained employment as a cleaner. In September 1995 and again in May 1996 he suffered needlestick injuries. After the second needlestick injury he suffered depression and anxiety. He was off work for some months. He was treated by a psychologist. He made a full recovery.
The Compensable Injury
11 The plaintiff commenced employment with the first defendant as a cleaner in 2005. He was employed full-time working a 38-hour week.
12 On 18 January 2006 the plaintiff was in the storeroom at the first defendant’s premises intending to obtain some cleaning products. He noticed a stack of toilet paper leaning on its side. He went to straighten the stack. It toppled over causing him to fall onto a nearby chair and then onto the ground. The plaintiff was met with immediate pain in his lower back and right knee.
13 The plaintiff first saw Dr Baresic, general practitioner, on the day of the occurrence of the incident. On examination of the plaintiff's right knee, Dr Baresic found some mild effusion, but a normal range of motion. The plaintiff told him that he felt pain when he walked and experienced a sensation of instability without the right knee giving way. Dr Baresic diagnosed a ligamentous strain of the right knee.
14 Dr Baresic reviewed the plaintiff. The plaintiff told him that he was able to stand on his right leg for 30 minutes at a time, but felt uncomfortable using stairs. He thought that the plaintiff would make a full recovery.
15 Dr Baresic’s optimism was not borne out. The plaintiff experienced persisting symptoms which saw Dr Baresic refer him to Mr Bonomo, orthopaedic surgeon. The plaintiff first saw him on 20 March 2006. The plaintiff told Mr Bonomo that he had difficulty bending his right knee and going up and down stairs.
16 Mr Bonomo examined the plaintiff finding pain reproduced on full flexion of his right knee. He also found patello femoral crepitus. He referred the plaintiff to have an MRI scan which he interpreted as showing articular surface damage to the underside of the patella.
17 Mr Bonomo advised the plaintiff that he could undergo an arthroscope. The plaintiff elected to have the arthroscope which was performed on 19 April 2006. During the procedure Mr Bonomo found a significant articular cartilage lesion on the under surface of the patella, mild articular surface damage to the medial femoral condyle, and synovitis in the right knee.
18 Mr Bonomo reviewed the plaintiff on two subsequent occasions. The plaintiff had regained a good range of movement, although he was experiencing persisting soreness in the right knee. Mr Bonomo recommended that he continue with a rehabilitation program. In answer to some questions put to him by the plaintiff’s solicitors he was of the opinion that the plaintiff had evidence of advanced chondral degeneration involving the patella and the medial femoral condyle which he considered represented early osteoarthritis, and synovitic changes. Mr Bonomo did not expressly state that the pathological changes were consistent with the incident, but the opinion he expressed regarding those pathological changes was provided in the context of the incident and the history given by the plaintiff of difficulty bending, going up and down stairs and the reproduction of pain on full flexion of the right knee. The inference, therefore, is that the pathological change was caused or contributed to by the incident.
19 Mr Bonomo was also of the opinion that the plaintiff had a degree of permanent impairment of the function of his right knee of a mild to moderate severity. He equivocated as to whether the plaintiff could work part time or full time, but by inference it would appear that he considered that the plaintiff had some impairment of his earning capacity. He considered that it was possible that the plaintiff's right knee might become more arthritic in the future, but he also considered that the plaintiff was too young to have joint replacement surgery.
20 Ms Hall, physiotherapist, treated the plaintiff both before and after the surgery performed by Mr Bonomo. She last treated him on 16 November 2007. She considered that the right knee injury was having an effect on the plaintiff's ability to work, but there was a potential for his right knee to flare up. She considered that he should have further physiotherapy treatment.
21 Ms Ryan cross examined the plaintiff by reference to the clinical notes of a clinic known as "Doctors of Northcote" which is the clinic where Dr Baresic worked.[2] The clinical notes reveal that the plaintiff attended the clinic complaining of problems with his right knee which seemed to improve towards the end of 2006. At a consultation on 10 August 2006 Dr Baresic noted that the plaintiff was suffering from intermittent aching in his knee which settled with rest. The plaintiff was still having physiotherapy. He avoided using Panadeine Forte.
[2]PCB 67-87
22 At a consultation on 28 August 2006 Dr Baresic noted that the plaintiff had minimal knee pain and was to see Ms Hall for physiotherapy. Dr Baresic also noted that the plaintiff was doing well at work, and that the modifications in his work were working well.
23 The consultation of 28 August 2006 was the last occasion that the plaintiff had treatment for his right knee at that clinic. The last consultation in the notes is 16 January 2009. At the consultation of 29 November 2006 the plaintiff saw Dr Wilson, general practitioner, for treatment for an entirely different condition. He complained of work stress due to bullying. On the next consultation of 17 April 2007 he saw Dr Hammond, general practitioner, complaining of a needlestick injury which led to the plaintiff developing a serious level of concern that he might have become infected with a blood borne disease. The balance of the clinical notes from that consultation to the end of the clinical notes demonstrate that the plaintiff suffered a major psychiatric disorder. I will return to what Ms Ryan said I was to make of the psychiatric disorder later in these reasons.
24 It would appear that the plaintiff had little treatment if any from 28 August 2006. The plaintiff agreed with a proposition put to him by Ms Ryan that through 2007, 2008 and 2009 he did not receive any treatment for his right knee. The plaintiff later said, however, that he was using Panadeine Forte for pain relief when he needed it. He said that one of his general practitioners at the clinic was providing prescriptions to him,[3] but on my examination of the clinical notes I have not been able to uncover any reference to such a prescription. The plaintiff's recollection was that he last obtained a prescription for Panadeine Forte roughly two years ago.[4]
[3]Transcript 17-18
[4]Transcript 21
25 The plaintiff moved to Minyip in north-west Victoria in 2011. He purchased a house on a quarter acre block of land. He sees a general practitioner in Warracknabeal for medical treatment. That general practitioner is treating the plaintiff for his ongoing psychiatric condition. He has referred the plaintiff to see Dr Deva, psychiatrist, who the plaintiff will next see in April 2013. The plaintiff was referred to Dr Deva by Dr Hammond.[5] It would appear that Dr Deva commenced treating the plaintiff on 22 October 2008. The defendants tendered a number of reports of Dr Deva in which Dr Deva diagnosed the plaintiff as suffering from a major depressive disorder or dysthymic disorder.[6]
[5]DCB 33-36
[6]DCB 19-32
26 The plaintiff presently uses Panadeine Osteo for pain relief. He estimated that he takes two Panadeine Osteo per day three or four times a week.
The Medico-Legal Opinions
27 The plaintiff saw Mr Deacon, orthopaedic surgeon, on 5 May 2008.[7] The plaintiff told Mr Deacon that he had pain in his right knee which was 5 or 6 out of 10 in degree, and occasionally increased to 7 and occasionally went down to 4. He avoided suffering pressure on the front of his right knee. He could not sit with his legs crossed. He had no real problem in bed, which I assume to mean the pain he experienced was not a significant problem in terms of interference with his sleep. He said he was using Panadeine Forte for knee pain, and was unable to use any anti-inflammatory medication because of gastric side-effects. On examination Mr Deacon found marked patella crepitus increasing under loading on the right knee, and roughness on moving the patella across the trochlear groove. Otherwise, in so far as I can interpret his examination results, there were no other abnormalities detected.
[7]PCB 62-70
28 Mr Deacon was of the opinion that the plaintiff had chondromalacia involving the back surface of the patella and the trochlear groove laterally of his right knee, and probably some earlier osteoarthritis involving the medial tibia femoral joint. The balance of Mr Deacon's attention was directed to undertaking an impairment assessment which is not relevant to the test which must be applied in this proceeding.
29 The plaintiff saw Mr Fogarty, orthopaedic surgeon, on 20 September 2010, 1 February 2012 and 6 February 2012.[8] On the first occasion the plaintiff saw Mr Fogarty he told him that he experienced an aching pain from time to time, and sometimes a sharp pain in the front and just inside his right knee. He suffered occasional swelling. He had difficulty with steps or stairs or walking up inclines. He was occasionally woken by pain in the front of his right knee. He was not taking any medication at that time. On examination Mr Fogarty found slight patellofemoral crepitus. The right knee joint was basically stable.
[8]PCB 50-60
30 Mr Fogarty was of the opinion that the plaintiff had persistent right knee pain resulting from an aggravation of degenerative articular cartilage loss with associated osteoarthritis in the patello femoral joint of the right knee. He considered that it would preclude or restrict him in employment which required lifting, twisting, pushing, pulling, prolonged standing or sitting, bending, kneeling, squatting, running and driving. He added that he considered that the plaintiff had a significant condition within his right knee which was incapacitating and would continue to incapacitate the plaintiff into the foreseeable future. He considered that it was likely that the osteoarthritis in the plaintiff's right knee would progress over the following 10 years when a knee replacement was likely to be required. Mr Fogarty repeated very much the same opinion after examining the plaintiff on 1 February 2012 and 6 February 2012.
31 The plaintiff saw Mr Shannon, orthopaedic surgeon, on 14 February 2011 and 26 June 2012.[9] On the first occasion Mr Shannon examined the plaintiff, the plaintiff told him that his knee was sore. He had not had any treatment for some years and was not taking any medication. He could walk up to 20 minutes. He could drive a car for up to an hour. He thought he could still perform modified duties. On examination he found patello femoral crepitus, but no instability or effusion. He was of the opinion that the plaintiff was suffering from traumatic chondromalacia of the patella. He considered that the plaintiff would experience ongoing discomfort and possibly some deterioration with the development of degenerative changes. He considered that the plaintiff had a current work capacity for modified pre-injury duties. He considered the plaintiff had a capacity for suitable employment.
[9]PCB 71-78
32 On the second occasion Mr Shannon examined the plaintiff, the plaintiff told him that he was still experiencing intermittent sharp pain is in his right knee. The right knee had given way on occasions causing him to fall. He was using Panadol Osteo for pain relief. He was able to walk for a maximum of 10 minutes to the local shops, although this could vary. He could drive a car for a maximum of an hour before he needed a break. On examination, Mr Shannon noted the plaintiff was wearing a small knee brace on his right knee. He was of the opinion that the plaintiff had suffered damage to the articular surface of the patella causing or aggravating degenerative change in the articular cartilage of the patellofemoral joint. He considered that the plaintiff could perform light cleaning work which did not involve kneeling, squatting, climbing or heavy lifting. He considered that the plaintiff was at risk of the development of degenerative change in the patellofemoral joint. He considered that it was unlikely that the plaintiff would require a knee replacement in the short to medium term.
Pain and Suffering
33 I will now turn to the pain and suffering consequences contended for by the plaintiff arising from the impairment of function of his right knee. Essentially, the plaintiff described the following consequences:
· Daily pain which varies in severity. On a good day it is 5 out of 10 in severity, and otherwise it fluctuates to the extent described to Mr Deacon.[10]
[10]PCB 31
· The pain is worse on kneeling, squatting, crouching and walking upstairs, on uneven ground, when he has his knee flexed for more than 10 or 15 minutes, and if he stands for more than 10 or 15 minutes.[11]
[11]PCB 32
· The plaintiff was more reliant on his right leg as a result of the amputation of his left leg below the knee. It is now less reliable because he has less strength and flexibility in his right knee.[12]
[12]PCB 32
· He is able to drive a car. He can drive between Minyip and Warracknabeal without difficulty except when his right knee is playing up.[13]
[13]Transcript 23
· He suffers interference with his sleep when he suffers aching in his right knee. He is able to distinguish between the interference with his sleep caused by his psychiatric condition and by aching in his right knee.[14]
[14]Transcript 23-24
· He uses a walking stick and a knee brace for support. He has suffered an instability in his right knee which has resulted in locking, giving way and weakness in his right knee. He uses a brace which is strapped around his right knee with Velcro straps. He wears the brace on and off.[15]
[15]PCB 37, and Transcript 27-28 and 34-you may 35
· He has not obtained any medical attention for quite some time. Probably not since August 2006. He uses Panadol Osteo for pain relief 3 to 4 times a week using 2 tablets each day.
· The plaintiff is able to do some gardening on his quarter acre block. He is able to undertake food preparation, and do his shopping. The impression I obtained from his evidence is that he has some difficulty with those aspects of his domestic life. He struggles lifting heavier objects. [16]
· The plaintiff said that he could not go back to his pre-injury job even with modifications because of the time that has gone by since he last worked, and the standing that would be involved.[17]
[16]Transcript 22
[17]Transcript 35
34 I have set out the plaintiff's evidence, the histories taken by the medical practitioners and the opinions principally because of what Tate JA said in Hawkins v DHL Express (Australia) Pty Ltd[18] that in determining the pain and suffering consequences of an injury it is necessary to consider not only 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 as 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.
[18][2013] VSCA 26 at paragraph 63
35 The observations of Tate JA are not a statutory formula to be followed slavishly. It cannot be the case that the absence, for example, of medical treatment or medication, means that the plaintiff fails. Furthermore, the considerations which Her Honour considered were relevant are not to be weighed against each other, but where there is evidence relevant to each of those considerations the evidence is to be synthesised for the purpose of asking the ultimate question whether the impairment of the body function is serious or not.
36 The plaintiff gave his evidence in a reasonably straightforward manner. I accept his evidence, but I do harbour some doubts about whether he obtained medication subsequent to August 2006. He seemed to be rather vague about whether he did or he did not, and what medication he was prescribed, and if it was prescribed when he took it and in what volume. The doubts I have about that part of his evidence do not affect my acceptance of the balance of his evidence.
37 The real starting point in the analysis of the plaintiff's claim is the initial diagnosis made by Mr Bonomo which I have summarised in paragraphs 17 - 19 above. Mr Deacon, Mr Fogarty and Mr Shannon found significant pathology in the plaintiff's right knee. Their findings are not entirely the same as those of Mr Bonomo, but bear a similarity to such a degree that I am comfortable in concluding that the injury they considered the plaintiff had suffered was a compensable injury which has impaired the function of his right knee to a significant degree.
38 The plaintiff had surgery, and after he left the care of Mr Bonomo was, according to Mr Bonomo, left with a level of permanent impairment of the function of his right knee of a mild to moderate severity which was likely to increase. Whilst be excluded surgery in the form of a knee replacement because of the age of the plaintiff, it would appear that surgery was within his range of thinking should the degree of severity of the arthritic changes in the plaintiff’s right knee increase. Mr Fogarty was of the opinion that the plaintiff would face knee replacement surgery. Mr Shannon considered that it was unlikely in the short to medium term, and by inference he did not exclude the likelihood of it becoming a treatment option.
39 On the basis of my summary of the medical evidence I have concluded that the plaintiff suffered a significant injury which led to surgery and which has impaired the function of his right knee to the extent that it has resulted in pain and suffering consequences for the plaintiff which I have summarised in paragraph 33 above.
40 The fact that the plaintiff has not sought medical treatment, and was unlikely to have been using painkilling or anti-inflammatory medication much, if at all, after August 2006 does not weigh too heavily against the plaintiff. I considered whether the reason why the plaintiff had not sought medical treatment and was not taking medication was because the pain and suffering consequences were tolerable. He is, however, now using Panadol Osteo. I am convinced that is not the case because of the opinions of Mr Bonomo, Mr Deacon, Mr Fogarty and Mr Shannon that the plaintiff has significant and troubling pathological changes in his knee.
41 Furthermore, all of the medical practitioners to whom I have just referred seem to have accepted the plaintiff's complaints of pain and suffering consequences, and are of the opinion that the impairment of function of the places right knee would interfere with his mobility and his capacity to have the full, free and unrestricted use of his right knee, and to be able return to suitable employment.
42 My synthesis of the evidence, having regard to what was said in Hawkins, is that the plaintiff suffered a compensable injury to his right knee. There is no doubt that it has impaired the function of his right knee, and that he has pain and suffering consequences of the kind which I have summarised in paragraph 33 above. I consider that the pain and suffering consequences are at least very considerable and amount to a serious injury.
43 Ms Ryan informed me at the commencement of the hearing that the defendants would rely upon the dramatic and severe psychiatric injury which the plaintiff suffered after the last needlestick injury. However, in her final address it was not something which she pressed. In any event I propose to deal with it. It seems to me that the pain and suffering consequences of the plaintiff's right knee injury are clear and easily understood and comprehended. There is nothing in the evidence which suggests that in some manner the psychiatric injury has caused an amplification of the plaintiff's pain and suffering consequences relevant to the impairment of function of his right knee or that the psychiatric injury is blurring what those consequences are.
Orders
44 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Act to recover damages for bodily injuries for pain and suffering arising out of his employment with the first defendant.
45 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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