Burton v Transport Accident Commission
[2017] VCC 1895
•15 December 2017
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-01304
| CHERYLE MAREE BURTON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 11 and 12 October 2017 | |
DATE OF JUDGMENT: | 15 December 2017 | |
CASE MAY BE CITED AS: | Burton v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1895 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the right knee – two transport accidents – disentangling – range case
Legislation Cited: Transport Accident Act 1986, s93(4)(d), s93(6), s93(17)(a)
Cases Cited: Humphries & Anor v Poljak [1992] 2 VR 129; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Barlow v Hollis [2000] VSCA 26; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave granted to the plaintiff to bring proceedings for damages in relation to injuries sustained to the right knee in the transport accident on 4 June 2012.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr G Wicks | Maurice Blackburn |
| For the Defendant | Mr P D Elliott QC with Mr A Saunders | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 4 June 2012 (“the first transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraph (a) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“serious injury means—
(a) serious long-term impairment or loss of a body function.”
4 The loss of body function relied upon in this application is the right knee.
5 This application is complicated by the fact that there were two accidents: one on the 4 June 2012 and a further transport accident in the course of the plaintiff’s employment on 17 December 2013 (“the second transport accident”). The second transport accident influenced the injuries in relation to the first transport accident, but the plaintiff’s case is that the right knee which was injured in the first transport accident, was largely unaffected by the second transport accident.
6 Initially, the plaintiff sought a serious injury certificate in relation to her right knee, cervical and thoracic spine, and her right shoulder. The right shoulder was injured in the first transport accident but was affected to a substantial degree in the second transport accident. At the time of hearing of this application, the plaintiff abandoned her claim in respect of the cervical and thoracic spine and right shoulder.
7 The plaintiff seeks leave to issue proceedings at common law in respect of the right knee.
8 The plaintiff relied upon two affidavits sworn by her on 14 April 2016 and 27 August 2017. I have not summarised the plaintiff’s affidavits or evidence; however, I will refer to the relevant evidence in my reasoning.
9 The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
10 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a)that the injury suffered by the plaintiff was as a result of the transport accident;
(b)that the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
11 The enquiry under sub-paragraph (a) of the definition of “serious injury”[1] focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term. The requirements of the test are set out in the decision of Humphries & Anor v Poljak[2] where the majority of the Court of Appeal said:
“We think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s.(4)(d) when reliance is placed upon sub-s(17)(a) may be stated in the following terms: he is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[3]
[1]Section 93(17) of the Act
[2][1992] 2 VR 129
[3] Humphries & Anor v Poljak (supra) at 140
12 In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard.[4]
[4] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
13 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[5]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[5][1998] 1 VR 702
14 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[6]
[6](supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph [29]
The issues
15 Counsel for the defendant informed the Court that the following issues were relevant to the plaintiff’s case:
(i)Initially, the plaintiff claimed a serious injury in respect to an aggravation of pre-existing degenerative changes in the cervical and thoracic spine, an injury to the right shoulder and right knee arising out of two transport accidents on 14 June 2012 and 17 December 2013. At the hearing of this application, the plaintiff proceeded with the injury to the right knee only, abandoning the application in respect to the cervical and thoracic spine, and the right shoulder. Accordingly, the plaintiff must disentangle the consequences of those abandoned injuries, being the right shoulder and spine, from the consequences of the right knee in accordance with the principles as set out in Peak Engineering & Anor v McKenzie;[7] and
(ii)This is a range case, namely whether the plaintiff satisfies the statutory test for serious injury in respect to the right knee alone.
[7][2014] VSCA 67
Credit of the Plaintiff
16 The plaintiff answered questions directly, made concessions, gave her evidence without embellishment and was straightforward in her presentation. There was no suggestion in the medical evidence that the plaintiff’s credibility was in issue. The plaintiff was frank in her affidavits and her viva voce evidence as to the pain and restrictions she suffered as a result of her right arm injury. Counsel for the defendant did not make any submissions that the plaintiff was not a witness of truth or that she was not candid in cross-examination. The plaintiff conveyed to the Court her keenness to retain her contracts with Australia Post. She impressed me as a hardworking person, who on occasions had difficulty in expressing herself, and the extent of her limitations. She could be described as stoical. Overall, the plaintiff impressed me as a believable and credible witness.
Analysis of the evidence
17 It was not in dispute that the plaintiff was involved in two accidents. The current proceeding relates to the first transport accident which was a transport accident on 14 June 2012. All medical witnesses accepted that as a result of the first transport accident, the plaintiff suffered an injury to the right knee, which resulted in an arthroscopy on 27 May 2013. The injury was variously described as:
·Knee pain, probably from the patellofemoral joint (Mr Peter Rehfisch, orthopaedic surgeon).[8]
·The plaintiff experienced right patellofemoral pain[9] and a Chronic Regional Pain Syndrome in July 2017[10] (Ms Kaye McNeill, physiotherapist).
·Patellofemoral joint irritability with a laterally tilting patella, resulting in post-traumatic patellofemoral joint pain, with evidence of mild synovitis of the knee which had deteriorated in spite of conservative treatment. (Mr Khan, orthopaedic surgeon).[11]
·Pain issues in the right knee (Mr Thomas Kossmann, orthopaedic surgeon).[12]
·Impact injury to her knees, in particular, the right knee, that may have involved some damage to the superficial articular surfaces of the patella, prima facie, the patellofemoral joint (Mr Michael Dooley, orthopaedic surgeon).[13]
[8]Plaintiff’s Court Book (“PCB”) 23
[9]PCB 24
[10]PCB 26
[11]PCB 58
[12]PCB 75
[13]Defendant’s Court Book (“DCB”) 26
18 The plaintiff underwent an MRI scan of her right knee ordered by Mr Ashley Carr, orthopaedic surgeon, which did not explain what was causing the pain. Counsel for the plaintiff submitted that there was no suggestion made by Mr Carr that there was nothing wrong.[14]
[14]Transcript (“T”) 124, Line (“L”) 23-27
19 I accept that the orthopaedic surgeons accepted the plaintiff suffered a physical injury to the right knee. This was despite the fact that the plain x-rays of the right knee showed no unusual features.
20 The current orthopaedic view was expressed by Mr Kossman and Mr Dooley. They accepted that the plaintiff had an organic injury to her right knee. While not as current as the abovementioned orthopaedic opinions, in August 2015, Mr Khan reported that the plaintiff’s pain in her right knee persisted. He addressed questions raised in relation to the shoulder injury. He said that his opinion in respect of the plaintiff’s knee injury expressed in his report of October 2014 remained unchanged.
21 Ms McNeill, physiotherapist, was the only medical witness to suggest the plaintiff’s condition may amount to a Chronic Regional Pain Syndrome. I do not accept the submission of the defendant’s counsel that Ms McNeill is saying the plaintiff’s condition is psychological. What she is saying is unclear. In her most recent report, she accepts the plaintiff has continuing pain which is intractable to treatment. Further, Ms McNeill does not say that the right knee injury is overwhelmed by the right shoulder injury.
22 Counsel for the plaintiff submitted that none of the medical witnesses suggest that the plaintiff’s condition is psychological and the only thing in doubt is the precise ideological cause of the pain.[15]
[15]T124, 14-18
23 Orthopaedic surgeons, based on medical training and experience, are more qualified to express such an opinion than a physiotherapist. Accordingly, I accept the evidence of the orthopaedic surgeons is that the right knee condition has an organic basis.
Peak Engineering & Anor v McKenzie[16]
[16][2014] VSCA 67
24 This particular plaintiff was involved in a second transport accident in which she suffered an aggravation to her right shoulder injury and spine injury which is not part of this claim. Counsel for the defendant submitted that the plaintiff must disentangle the consequences of the abandoned injuries from the right knee injury.
25 Accordingly, I am required to undertake an analysis as set out in Peak Engineering & Anor v McKenzie.[17] In that case, the Court of Appeal said that in anything other than a clear case, a court confronted with a plaintiff who has two or more injuries to different body parts should start by identifying all the pain and suffering or loss of earning capacity consequences the plaintiff has sustained. The court can then disaggregate the consequences to identify which are attributable to which impairment or body part.[18] Further, where the consequences of the original injury are so clearly separate and distinct from the consequences of the subject injury, no disentanglement is necessary.
[17]Supra
[18](Supra) [24]-[25]
26 In this case, the plaintiff gave evidence that some of the restrictions on her activities were attributable to both injuries. For example she gave evidence that the knee and shoulder injury affected her work, albeit in different ways. It is necessary for me to consider whether the pain and suffering consequences of the right knee injury are more than significant and at least very considerable.[19] For that purpose, it is necessary – so far as the evidence permits – to identify the consequences properly referable to that injury, being the right knee injury, and to exclude the consequences referable to the abandoned injuries. It follows that I must adopt what was said by the Court of Appeal in Peak Engineering & Anor v McKenzie.[20] The Court of Appeal said:
“… In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury. The matters identified in the previous paragraph were all directly relevant to the enquiry in the present case, and needed to be addressed squarely.
It is possible to imagine a case where the consequences of the original injury are so clearly separate and distinct from the consequences of the subsequent injury that no ‘disentangling’ is necessary.”
[19]Accident Compensation Act 1985 (Vic), s134AB(38)(c)
[20](Supra) at paragraphs [24]-[25]
27 It is necessary for me to consider the evidence as to the consequences to the plaintiff of the first transport accident.
Pain
28 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[21]
[21](2010) 31 VR1 at paragraph [11]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (e.g. medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.”
29 The plaintiff reported constant pain in her right knee. In her second affidavit,[22] she said:
“I continue with constant pain in my right knee. Usually it is a throbbing pain, but sometimes it is sharp. I have a sensation of numbness underneath the kneecap, especially after I have walked on stairs. The pain can be made worse by activities, even walking, but particularly on steps or uneven ground. Driving also worsens the pain after some time. The pain radiates down my leg to my shin and that too is constantly present. Medicine doesn’t affect the pain much.”
[22]PCB 19
30 The plaintiff reported right knee pain to the medical witnesses. Ms McNeill, physiotherapist, reported that the plaintiff’s right knee pain has remained at the same level since the first transport accident. The right knee pain is substantially worse with driving the road delivery vehicle; however, the plaintiff puts up with the pain due to the need to work. Ms McNeill described the pain in the right knee as ongoing and substantial pain.[23] On 6 June 2017, the plaintiff reported to Ms McNiell, “very bad” pain due to driving. On 20 June 2017, the plaintiff further reported to Ms McNiell “Knee pain and shoulder pain unbearable at times”. Counsel for the plaintiff submitted that the pain was bad in both the knee and the shoulder.[24]
[23]PCB 26 and 27
[24]T135, L11
31 The plaintiff reported to Mr Kossmann that she has pain in her right knee, particularly when she is going down stairs. She cannot walk for more than ten minutes.[25] Mr Kossmann said the plaintiff’s prognosis regarding her right knee condition is guarded.[26] He said time will tell if the plaintiff is developing osteoarthritic changes in her right knee for which she may require further treatment. He recommended further investigations, in particular, an MRI scan of her right knee and a gait analysis. He noted that she continued working despite her restricted mobility affecting her right knee.[27]
[25]PCB 70
[26]PCB 74
[27]PCB 74
32 The plaintiff reported to Mr Dooley that her right knee pain is ongoing and that she has a tendency for the knee to give way. Activities such as water exercise and bike riding have aggravated her pain.[28] Mr Dooley accepted that the plaintiff had impact injuries to her knees which may have involved some damage to the superficial artificial surfaces of the patellofemoral joint. Such an injury can result in intermittent anterior knee pain which can worry a patient with activity and with kneeling and squatting. He accepted that she will continue to experience some intermittent right knee pain. He accepted she would have difficulty with work that involved kneeling and squatting.[29]
[28]DCB 26
[29]DCB 26
33 All medical witnesses accepted the plaintiff’s complaints of pain in respect to the right knee alone. I accept that the plaintiff suffers constant right knee pain which she has reported to all medical witnesses.
Medication
34 The plaintiff’s evidence was that prior to the first transport accident, she rarely consulted her doctor. She suffered from ulcers many years ago and tries not to take medication.
35 Currently, she takes Voltaren and Panadol, but does not take the Voltaren on the weekends. She said she takes the Voltaren for her right knee and her shoulder pain. She said if she did not have the shoulder injury she would require Voltaren for her knee.[30]
[30]T79, L18-23
36 Counsel for the plaintiff submitted that the plaintiff’s knee and shoulder pain are both bad, the plaintiff has been frank about her shoulder and has not been shy about taking medication for her shoulder pain. Counsel further submitted that the fact that the plaintiff cannot establish that she is taking medication solely for her knee does not detract from the fact that the pain in her knee is very considerable.[31]
[31]T135, L19-21
37 The plaintiff made constant complaints of pain to her treating physicians and various medical specialists. I accept the plaintiff requires medication for her right knee pain.
Treatment
38 The plaintiff’s evidence was that she had an arthroscopy on her right knee and a steroid injection. She has been provided with all forms of physiotherapy treatment, but none have given her relief, other than taping, which relief was temporary. She has undergone exercises, gym, swimming and walking programs, knee taping and ultrasounds. She reported that exercise only increases the pain. The medical advice is that surgery is not an option. She is practising pain management.
39 The plaintiff agreed that she had physiotherapy treatment which has been reduced to one consultation a month. She said that is not sufficient. Currently, the physiotherapist manipulates her neck. The physiotherapist is not working on her right knee. She looks at it and checks it, but does not have sufficient time to work on the right knee. She has taught the plaintiff how to tape the knee, which gives her more support. The plaintiff said she has not taped the knee for a little while because she stopped swimming. It was mainly when she was trying to strengthen the knee that she would tape it for extra support. She ceased swimming and attending the gym because those activities worsened her knee pain.[32]
[32]T79, 26-29
40 Ms McNeill said the outcome of the reduction of treatment frequency on the plaintiff’s pain levels will be measured over the next few months. Further, the plaintiff had reported her pain levels had escalated over the last three weeks, and a request for resuming treatment is likely.
41 Mr Kossman said that time will tell as to whether the plaintiff is developing osteoarthritic changes in the right knee.
42 Mr Khan said the possibility of the plaintiff developing secondary degenerative changes in the right knee cannot be ruled out. He thought the plaintiff may require pain management assistance.
43 Mr Dooley said he did not think the plaintiff’s injury is associated with increased risk of osteoarthritis. He did not think that surgery would assist the plaintiff in respect to the right knee pain.
44 The plaintiff’s evidence was that she had pain in her right shoulder following the first transport accident, which increased after the second transport accident.[33]
[33]PCB 19
45 The plaintiff says she has pain all the time in her right shoulder. Medication does not relieve the pain. She has a restricted range of movement in the right shoulder. Her symptoms are made worse if she uses her dominant right arm. She has difficulty with basic daily tasks such as showering, toileting, putting on a bra or getting dressed.[34]
[34]PCB 19
46 The plaintiff says she has pain between her shoulder blades, which is a stabbing, hot pain. It is not assisted by medication, but for a limited period, is assisted by physiotherapy.[35] The plaintiff agreed that she had had treatment for her shoulder but that it had not assisted.
[35]PCB 20
47 I accept that the plaintiff suffers constant right knee pain for which she requires medication. She is limited in the medication that she can take because she suffers from ulcers. She is having limited treatment, as the medical evidence is that there is nothing further that can be offered to her for the right knee pain. She is currently practising pain management. I accept that these are consequences of the right knee alone.
Mobility
48 The plaintiff’s evidence is that her mobility is affected by her right knee. She is unable to walk far. She said that she cannot walk any distance, she walks slowly and is unable to keep up with her eighty-seven-year-old mother when they go for a walk.[36] She cannot run at all. She has difficulty going up and down stairs which she has reported to medical witnesses. Standing causes right knee pain which affects her mobility.
[36]T69, L4-6
49 Mr Dooley accepted that kneeling and squatting would cause pain, and be difficult for the plaintiff. He accepted that she continues to work with the assistance of her sister and her partner in performing her work. Her driving continues to be painful because of her right knee, and she is limited in her driving. As a result of restrictions in her mobility, her work, social and recreational activities are affected.
50 In cross-examination, the plaintiff was asked which of her problems was the most troublesome or whether they are equally troublesome. The plaintiff said:
“If someone said to me, ‘I can get rid of one of your problems’, it’d be my knee, because my knee stops [me] from doing – it stops you from doing nearly everything. You can’t – your (sic) walking, running. I used to run everywhere but I can’t run now.”[37]
[37]T76, L20-24
51 I accept that the plaintiff’s mobility is affected by her right knee injury alone. I accept that this is a consequence at the high end which I can take into account.
Sleep
52 The plaintiff’s evidence is that her sleep is disturbed; she sleeps fitfully and is often awake. The pain from her right knee, shoulder and neck can keep her awake.[38] The plaintiff’s evidence was that if she rolls onto her shoulder or her knee, it hurts, and the pain can keep her awake.[39]
[38]PCB 20
[39]PCB 20
53 Whilst the plaintiff complains of pain in her right shoulder and neck, I accept that the plaintiff’s sleep is affected by pain in her right knee.
Physical activities
54 The plaintiff’s evidence is that she was physically active prior to her knee injury. She would cut firewood, garden, undertake housework and played sport with friends and her grandchildren.
Gardening
55 The plaintiff’s evidence is that gardening is an activity that she enjoyed. When she moved to her present house, there was no garden and she and her partner landscaped and created the existing garden including creating garden beds. As a result of her right knee injury, she has done limited gardening. Her right knee injury limits the kneeling and squatting that she can perform. She said she cannot push anything because of the force required from her legs. She said pushing a wheelbarrow is very difficult. If she works in the garden, she works on a Saturday, so that she can recover on Sunday. She said that she has not been able to maintain the garden as she had prior to the right knee injury.
56 The plaintiff said she has been reliant upon her partner undertaking most of the gardening. The plaintiff’s evidence was that her knee frustrates her more than anything else because it is there, it is sore, it aggravates her. She said the knee, “it just – it stops [me] from doing nearly everything. It’s ruined my life.”[40]
[40]T73, L11-12
57 The plaintiff agreed that her shoulder injury affected the work she could perform in the garden. The plaintiff’s evidence was that if she had her mobility, that is the use of her right knee, then there were some gardening activities that she could perform using her left arm. Whilst I accept that she cannot perform heavy lifting tasks in the garden because of her right shoulder, I accept that the injury to her right knee affects her ability to enjoy and participate in gardening, which is a consequence that I can take into account.
Domestic activities
58 The plaintiff’s evidence is that she had difficulty performing domestic activities. Washing floors, vacuuming, doing the dishes, washing clothes, dusting and cleaning toilets are all limited. Her right knee becomes sore after standing on it for any period of time. This limits her performance of any domestic activities that involve being on her feet. She tends to spread out chores throughout the week as a result. She has difficulty when she goes grocery shopping as her knee becomes painful due to the prolonged walking involved. She conceded that some of the activities are affected by her right shoulder.
59 Mr Khan accepted that the plaintiff required assistance to carry out her domestic activities. He said the possibility of her developing secondary degenerative changes in the right knee cannot be ruled out, with the result that it is likely to have a deteriorative effect on her social, domestic, recreational and working life.[41] He accepted that the plaintiff would also be restricted if she developed changes in her right should and cervical spine.
[41]PCB 59
60 Whilst I accept that the plaintiff would have difficulty performing certain domestic activities because of her shoulder and neck injury, I accept that certain domestic activities which require her to stand would affect her capacity for domestic chores such as doing the dishes, dusting, and washing clothes.
Sport
61 The plaintiff’s evidence was that she has always been good at, and enjoyed sport. She has not been able to play sport since the right knee injury. She enjoyed playing tennis, golf, swimming and fishing. The plaintiff said that her inability to walk and run affects her sporting interests.
62 The plaintiff agreed at the present time, she could play mini golf with difficulty due to her right knee condition.[42] She said that she enjoyed bike riding in the past but that the right knee injury restricts her ability to ride. Recently, she tried to ride her bike but could not get to the driveway.[43]
[42]T65, L1-4
[43]T66, L3-4
63 She played tennis regularly, cricket, golf and football. She enjoyed fishing, bike riding, swimming, bushwalking and woodwork. She has not returned to most of these activities following the first transport accident. Many of these activities require too much standing, which aggravates the right knee pain. Other activities require walking on uneven ground which causes pain. Other activities require her to run or use her right leg, which she cannot do. The plaintiff’s evidence was that the abovementioned sporting activities aggravate the right knee pain. She continues to strap the knee to reduce the pain, but it swells up after use.
64 The plaintiff agreed that her right shoulder pain also prevents her from playing table tennis, tennis, and swimming due to the repetitive overhead movement involved. She said she is restricted in her woodwork activities because of the right shoulder.[44]
[44]PCB 14
65 Counsel for the plaintiff submitted that prior to the first transport accident the plaintiff was a very sporting person who enjoyed sporting activities socially, however it is clear that the knee injury particularly given the things that she cannot do such as difficulty walking, having to walk slowly significantly affect all of the sporting activities the plaintiff engaged in. Counsel conceded that the right shoulder injury does affect many of the sporting activities too, but, that is not to diminish the fact that the right knee has a significant effect on them.
66 I accept that her sporting activities are affected by her right knee injury, and, accordingly, take this consequence into account.
Bushwalking
67 The plaintiff’s evidence is that she liked to bushwalk; however, the right knee is aggravated by walking on uneven ground. I accept that this is a consequence that I can take into account.
Swimming
68 The plaintiff’s evidence was that prior to the first transport accident, she loved swimming. She says that she can no longer swim. She is restricted in kicking with her right leg when swimming. She now has difficulty snorkelling. She wears a life jacket so she does not drown. She can do a little bit of snorkelling. She cannot go into the surf, the knee becomes too painful and it gets worse when she uses her knee.[45] I accept that the right knee makes a significant contribution in relation to snorkelling and swimming.
[45]T74, L13-17
Fishing
69 The plaintiff’s evidence is that she loved fishing. Prior to her injury, she would fish along the Tambo River and at Eastern Beach in Lakes Entrance. The plaintiff’s evidence is that she can still cast her line sideways. If she fishes at the Tambo River, she is required to walk down a steep incline to get to a fishing spot. She said it is just too hard, now, with her right knee. She said walking down is difficult, but walking up is even worse. She has stopped fishing along the Tambo River.[46] She agreed that she would have difficulty casting a line because of her right shoulder.
[46]T74, L18-27
70 The plaintiff also enjoyed fishing at the beach along the surf beach. She said she could cast her line sideways. Now, her right knee restricts her ability to walk through the sand. She has not been able to fish in the surf since the first transport accident.[47] I accept the plaintiff would have some difficulty casting a line because of her shoulder, but the plaintiff’s evidence is that she could cast a line sideways, which she could manage with her right shoulder injury. I accept that the right knee is a significant problem with access to fishing in the river and fishing in the surf.
[47]T75, L4-5
Football
71 The plaintiff said football was a backyard activity, a social activity which she enjoyed. She would kick a football in the backyard or on the road with her partner, Linda, and with her grandchildren when they came to stay. She said it is really hard to kick a football with a painful right knee.[48] I accept that the plaintiff is affected by her right shoulder injury in playing football. I accept that in playing football, one can catch the ball using part of your right hand and body, and on occasions one might be able to catch the football with one’s left hand, but kicking the football requires the use of your legs, and for this plaintiff the right leg. I accept that this is a consequence that I can take into account.
[48]T75, L8
Cricket
72 The plaintiff’s evidence is that she would play cricket in the backyard with her grandchildren and friends. She agreed that she used her right arm as well, but her right knee affects her ability to run.[49] I accept that the plaintiff’s ability to play cricket is affected by her shoulder injury and knee injury.
[49]PCB 20
Work
73 The plaintiff’s evidence is that she has two contracts with Australia Post to deliver mail in the area north of Bairnsdale. She is required to sort the mail at the post office, then to deliver the mail, and is required to travel approximately 200 kilometres per day delivering mail to roadside boxes in the country.
74 The plaintiff’s evidence is that the sorting of the mail at the post office requires her to walk distances and be on her feet. She is required to place the mail into slots/boxes which can be above shoulder height. She commences work at about 4.45am at the mail centre. Her partner, Linda, assists her with the sorting, because of the right knee pain, and also because of the right shoulder pain. The plaintiff’s evidence was that some days, the work was physically more demanding on her right knee than on other days. The plaintiff, in her evidence, said “Mondays is always busier; there is more mail to sort and more work to be done”.[50] After she has sorted the mail into slots/boxes, she packs the mail up, puts it in the car, which she drives, and then delivers the mail. She travels approximately 200 kilometres per day. She said the hours she finishes work varies for each day of the week; she can work until 2.00pm, but sometimes finishes at 11.00am. She is not required to get out of her car when delivering the mail but, on occasions, has to.
[50]T26, L24-29
75 The plaintiff’s evidence is that her right knee becomes painful when driving, as she is using her foot on the brake and accelerator and is constantly stopping and starting as she delivers the mail into roadside mail boxes. She said at the end of the day, when she has finished her driving, she has difficulty walking and has to rest, placing a bag of frozen peas on her knee to relieve the constant aching. The plaintiff’s evidence is that by the end of the week, the right knee pain is worse. Her knee swells as a result of the prolonged driving. The plaintiff reported this pain to the medical witnesses.
76 The plaintiff’s evidence is that once a week, her sister was assisting with the driving. There have been occasions when she has employed drivers whom she pays. The plaintiff’s evidence is that she has two contracts with Australia Post. If her knee continues to be painful, she will have to terminate one of the contracts, which will reduce her income. The medical witnesses accepted that the plaintiff would incur pain with driving.
77 The plaintiff’s evidence is that she requires assistance from Linda in the sorting of the mail at the post office, both because of the walking involved and the sorting of mail into slots/boxes above shoulder height. The plaintiff’s evidence is that she also suffers pain in her right knee while driving. The plaintiff’s evidence is that standing on her right leg for prolonged periods is painful and together with the pain in the right knee, this would restrict her hours of work, regardless of her right shoulder injury.[51]
[51]T78, L28-29
78 I accept that the plaintiff’s work commitments are affected by the right knee injury and, to a lesser extent, her right shoulder injury.
79 Counsel for the defendant relied upon the fact that the plaintiff completed the WorkCover Claim Form and stated that at the time of the second transport accident, she had returned to work, working 45 hours. The plaintiff said that was incorrect. She had returned to work, but engaged other people to drive as she was not able to drive full time because of the pain in her right knee. The plaintiff’s evidence was that she paid another driver to drive her vehicle. I accept the plaintiff’s evidence on this point. She explained that unless she had someone to drive, she would not be paid for the contract by Australia Post.
80 Accordingly, I accept that the plaintiff’s ability to continue her work has been affected by her right knee injury. I accept work is a consequence which I can take into account.
The future
81 The plaintiff’s evidence is that she is concerned that she will not be able to continue driving and working at the current rate as a result of her right knee injury. Because of the right knee injury, she cannot assist her partner in maintaining the garden as required. She and her partner have purchased a house on a smaller allotment without a garden. The purchase has the result that she will be debt free.
82 The sale and purchase place her in a position that if she reduces her workload, she will be able to afford to live in the new property.[52] I accept this is a consequence which I can take into account.
[52]T72, L28-31 and T73, L1
83 Having identified and excluded the continuing consequences for the plaintiff of the right shoulder and spine, I am satisfied that, based on the medical evidence, that the plaintiff suffered a compensable injury, being an injury to the right knee arising out of the first transport accident.
84 The plaintiff has consistently reported the pain she suffers to all the medical witnesses she has seen. I can take into account the treatment that she has undertaken as a measure of the plaintiff’s pain.[53]
[53]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [11]
85 I accept the plaintiff has suffered the abovementioned consequences. Those consequences are supported by the evidence of the plaintiff and the medical evidence. I also accept that she suffers the consequences outlined above. I accept that for a woman aged sixty-one years, the consequences are significant.
86 I am persuaded on the balance of probabilities and in the light of the evidence as a whole, that the consequences the plaintiff suffers satisfy the test. I accept the pain and suffering consequences to this particular plaintiff are “serious”. I accept that when judged by comparison with other cases in the range of possible impairments, the consequences of the impairment can be fairly described as being “at least very considerable” and certainly “more than significant or marked”.
87 As the plaintiff’s consequences have persisted for almost five years and there is no evidence to suggest improvement in the future, in my view, her impairment is long term.
88 Taking all the evidence into account, I am satisfied that the plaintiff has a long-term serious impairment of the right knee injury.
89 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to injuries sustained in the first transport accident.
90 I will hear the parties on costs.
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