Coggan and Comcare (Compensation)

[2017] AATA 1905

Coggan and Comcare (Compensation) [2017] AATA 1905 (25 October 2017)

Division:GENERAL DIVISION

File Numbers:         2016/4153

Re:Lee Coggan  

APPLICANT

ComcareAnd  

RESPONDENT

DECISION

Tribunal:Senior Member J Sosso

Date:25 October 2017

Place:Canberra

The Tribunal affirms the decision under review.

........................................................................

Senior Member J Sosso

CATCHWORDS

COMPENSATION – workplace injury – aggravation of osteoarthritis in left knee – whether the applicant suffered a physical injury – whether the applicant suffered an aggravation of an injury during the course of employment – whether employment contributed to a significant degree to the aggravation of an ailment – Comcare not liable to pay compensation – decision under review affirmed.

LEGISLATION

Safety Rehabilitation and Compensation Act (Cth) ss 5A, 5B, 14.

CASES

Australian Postal Corporation v Bessey [2001] FCA 266; 32 AAR 508

Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468

REASONS FOR DECISION

Senior Member J Sosso

25 October 2017

INTRODUCTION

Application for review

1. Mr Lee Coggan (the Applicant) lodged an application for review dated 9 August 2016 in relation to a decision of Comcare (the Respondent) which denied liability to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of “aggravation of osteoarthritis – localised – knee (left)” – Exhibit 1 T1 pp. 1-2.

2. The Applicant provided the following reasons for his application – Exhibit 1 T1 p. 2:

   “1. The decision is wrong in fact and law.

   2. The decision does not adequately or at all take into account the totality of the evidence.”

3. The Applicant was born in 1963 and commenced employment with ACTION as a bus driver on or about 1986. During the course of his employment, the Applicant sustained an injury to his right knee which required surgery and resulted in a Comcare claim – Exhibit 2 paras 2-3.

4. The Applicant lodged a claim for workers’ compensation dated 22 March 2016 in respect of a claimed injury to his left knee. The Applicant claimed that he twisted his left knee while driving a bus at approximately 2:15pm on 9 February 2016 – Exhibit 1 T3 p. 6.

5. The Applicant provided a written statement which outlines his version of what transpired on 9 February 2016 and subsequently. The relevant parts are set out below – Exhibit 2 paras 4-6:

   “4. On or about 9 February 2016 I experienced left knee pain upon getting out of the bus I was required to drive by ACTION. I believe that this occurred around
   2:15 pm or 2:30 pm on 9 February 2016 towards the end of my shift. I had noticed left knee discomfort for a period of approximately two hours while driving the bus prior to 2:15 or 2:30 pm. I do not recall feeling any pain or discomfort in my left knee prior to 9 February 2016.

   5. On or about 13 February 2016, I fell at home when my left knee gave way. I was not hanging clothes at the time however; I cannot recall precisely what activity I was performing.

   6. On or about 16 February 2016 I was in the office of ‘Maree’. I reported my injury of 9 February 2016 on that occasion and on that occasion my left knee gave way in her office and she saw me fall. I reported the incident of 9 February 2016 on 16 February 2016.”

6. While there are a number of matters in dispute between the parties, the key differences lie in the state of the Applicant’s left knee prior to the incident of 9 February 2016, the nature of the 9 February incident and the significance of the clothes line incident of

   
   

   13 February 2016.

7. The Respondent relies on two medical reports (9 May 2016 and 15 March 2017) of

   
   

   Dr Ian Stokes, Consultant Orthopaedic Surgeon. Dr Stokes also gave oral evidence on

   
   

   5 September 2017. Having listened to the lengthy testimony of Dr Stokes, including, in particular, the answers given during cross-examination by Mr Opas of Counsel, the Tribunal formed the view that Dr Stokes was a credible witness.

8. The Applicant contends that the report of Dr Ian Stokes of 9 May 2016 is historically and factually incorrect – Applicant’s Statement of Facts, Issues and Contentions (ASFIC) para 10. The Respondent disagrees and contends that any inconsistency arises from the history provided by the Applicant to Dr Stokes – Respondent’s Statement of Issues, Facts and Contentions (RSIFC) para  4.3.

   Evidence of Mhari Mills

9. The person referred to as “Maree” in the Applicant’s statement is Ms Mhari Mills who was employed by ACTION as a Recruitment and Training Coordinator. Ms Mills provided an “Outline of Evidence” dated 29 August 2017 which was tendered as Exhibit 6. The relevant portions of this document are set out below – Exhibit 6 paras 3-5:

   “3. I first became involved with the Applicant on 16 February 2016 when the Applicant met with me to report pain in his left knee. At this time I was working as a Work Health and Safety Administration Report Officer.

   4. I recall that the Applicant informed me that his knee was in a lot of pain and that he was struggling to walk. He advised me that his knee had started hurting on 9 February 2016 at the end of his shift. When I asked him why he did not report it then, he told me that he didn’t think anything of it and that he would rest it over the weekend.

   5. I asked the Applicant whether he had done anything different since his pain had started but he could not think of anything. The Applicant did advise me that he had fallen over on the weekend when hanging out the washing and landed on the clothes basket. I suggested to the Applicant that he complete an Incident Report (RISKMAN) and to seek medical attention for his knee.”

10. This statement is consistent with an email Ms Mills sent to Ms Pamela Best on 12 April 2016. This email contains a chronology of meetings held and messages exchanged between Ms Mills and the Applicant in the 16 February 2016 to 11 April 2016 period. So far as the 16 February 2016 meeting, Ms Mills gave, inter alia, the following account – Exhibit 1 T7.6 p. 38:

    “Came to see me said he is in real pain with his left knee. He was really struggling to walk in a lot of pain. He said this has been happening since the end of last week. Rested his knee over the weekend sat, sun was better, (RICE) has been taking pain relief. He said he did fall over on Saturday when hanging out the washing and landed on the clothes basket. He said it was lucky some friends turned up to assist him…

    I offered assistance in getting him to his car and he said he would be ok. He had a knee spasm and nearly fell in starters. Union boys came and assisted and drove him home at 11.20am.”

    The Applicant’s evidence

11. The Applicant gave oral evidence and was cross-examined.

12. The Applicant testified that he injured his right knee in 2003 when he picked up a cricket ball and in March 2003 underwent an arthroscopy. Subsequently, in 2009 he injured his right knee when he was getting out of his bus seat and in October 2010 he had knee replacement surgery – Exhibit 4 p. 3.

13. The Applicant testified that prior to 2016 he had no pain or instability with his left knee. Further, in the 2013 – 2016 period his right knee was “good” and he was able to walk reasonably well, though he could not walk long distances, had problems walking up hills and sitting in the same place for a long time.

14. During cross-examination, the Applicant explained that the buses he drove had two peddles, and he operated the brake and accelerator pedals with his right foot.

15. The Applicant testified that on 9 February 2016 while driving a bus he went to stretch his left leg and got “an awful big pain”. He was sitting at the time and experienced severe pain in his left knee either side of the kneecap. Despite the pain he kept driving and did not pull over. The incident occurred at approximately 2:00pm and he continued driving for another 45 minutes until he reached the Depot. The Applicant’s left knee was very painful from this time forward.

16. After arriving at the Depot, the Applicant drove home without speaking to anyone about the incident. The Applicant treated the pain in his left knee with hot and cold packs.

17. The next morning (10 February 2016) the Applicant had a shower, but was not in pain at that time (4:30am). After driving to work he commenced duties at approximately 5:40am and his left knee began to ache when he started walking. The Applicant applied a frozen water bottle to relieve the pain which increased until it became nearly unbearable. Again, at the conclusion of the shift at 2:30pm, the Applicant told no one about the pain in his left knee. After driving himself home he self-medicated by the application of hot and cold packs, Voltaren cream and the ingestion of pain killing medication.

18. The Applicant testified that on 11 and 12 February 2016 he followed the same routine but did not inform anyone of his pain and continued self-medicating at home.

19. The Applicant did not have to work on the weekend of 13 and 14 February 2016. On Saturday 13 February, the Applicant testified that he was bringing clothes in from the clothes line when his left knee gave way and he fell onto the clothes basket. The Applicant explained that he was in the process of lifting up the clothes basket from the trolley when his knee gave way. The trolley had four wheels and the clothes basket sat inside it. The trolley was waist height.

20. The Applicant said that when his left knee gave way he felt no pain, rather a sensation of “numbness”. He claimed that he did not fall onto the ground, instead he grabbed the clothes basket so that he was bending over it, something akin to a squatting position, with his chest resting on the basket.

21. During cross-examination, the Applicant testified that he was twisting to get the basket out of the trolley when suddenly his knee gave way. He stated that he did not have enough time to steady himself when he fell on the trolley. The Applicant insisted that his left knee did not make contact with the ground. Mr Gollan of Counsel queried this version of events. He put to the Applicant that trolleys are small and relatively light and that the Applicant is a large man. Other material before the Tribunal suggests that in May 2016 the Applicant weighed 115 kg – Exhibit 1 T8 p. 56.

22. The Applicant testified that for the rest of that weekend he was in pain, but this increased when he got out of bed and walked. He dealt with his discomfort with the self-medication routine described above, but additionally took Endone as he was not driving.

23. On Monday 15 February 2016 the Applicant returned to work, as his left knee was not too painful, although stiff. After commencing work the Applicant said that his left knee “started to play up”, but he completed his full shift which concluded at approximately 2:30pm. Throughout the day he used his cold water bottle to help ease the pain which became more severe after lunch. The Applicant said the discomfort he felt meant that he couldn’t sit properly and he had to straighten out his left leg to minimise the pain. Again, at the conclusion of his shift, he did not report his pain to any of his work colleagues or management. When he arrived home, he said that he experienced the worst pain since the incident of 9 February and had a very bad night’s sleep.

24. The following morning his left knee was very painful. The Applicant said that the pain was at a level of 8 or 9 out of 10. He applied hot packs and Voltaren cream to his left knee, which provided some relief, but the pain persisted. Having arrived at work at approximately 5:40am, the Applicant said that his left knee was “very, very painful”, and he estimated the pain levels at double of the previous days. The pain became so bad that he could barely get out of the lunch room chair and he couldn’t bear to put any weight on his left knee.

25. It was at this time that the Applicant reported his left knee pain to Ms Mills. The Applicant testified that his left knee “gave way” while he was standing in Ms Mills’ office, and she and a man assisted him into a chair. Subsequently some of the “Union boys” drove the Applicant to his home as he was incapable of driving his car. On arrival at his home the Applicant again self-medicated by treating his left knee with ice packs and Voltaren cream. He did not seek medical intervention that day even though he stated that the pain was the worst he had experienced. The Applicant testified that the reason he didn’t seek medical intervention was his belief that if he kept treating the knee with hot and cold packs and Voltaren cream it would get better.

    Initial medical examination and radiology

26. It was not until 17 February 2016 that the Applicant sought medical assistance. Dr Ameer Alaraji of the Isabella Plains Medical Centre provided the Applicant with a Medical Certificate which stated – Exhibit 1 T3.1 p. 16,  T7.8 p. 44:

    “Lee has been seen here today and is unwell.

    He will be unable to attend work from Wednesday, 17 February 2016 to Friday 19 February 2016 inclusive.”

27. The Tribunal was provided with the contemporaneous notes made by Dr Alaraji on 17 February, which are set out below – Exhibit 15:

    “left knee is aching since last week and was sent home yest from work

    Had Rt knee replacement 5 years ago was a comcare wc.

    Left one is not WC yet.

    He is bus driver and sitting was causing pain in his left kenee. (sic)

    also wanst (sic) repeat prescreption (sic)

    Examination

    walking slowly limping bec of the left knee

    left knee not swollen tender over the back from the lateral side full range of movemnet (sic) with some occasional sharp pain during flexion and extension felt on the lateral aspect of teh (sic) back, nil bakers cyst felt

    Actions:

    Diagnostic imaging requested: XR of the left knee joint please send copy to
    Dr Rao.

    His left knee is painful for the last week or so.

    MOBIC TABLET 15mg ceased.

    Prescriptions printed:

    EFEXOR-XR SR CAPSULE 75mg 1 daily m.d.u

    Prescriptions printed:

    COVERSYL PLUS TABLET 5mg/1.25mg 1 daily m.d.u.”

28. The Applicant’s knees, shoulders and arms were X-rayed on 22 February 2016 by

    
    

    Dr Himanshu Diwakar. Dr Diwakar’s diagnosis of the Applicant’s knees is as follows – Exhibit 10:

    “X-RAY LEFT KNEE

    No intra-articular loose body is noted at the intercondylar notch. No aggressive bone lesion is identified. Slight compromise of the medial tibiofemoral joint space is noted on the frontal radiograph. The lateral joint space is normal. The patellofemoral joint appears normal…

    XR RIGHT KNEE

    There is a right total knee replacement insitu. No periprosthetic lucency, fracture or dislocation is seen. No joint effusion or radiopaque loose body is seen.”

29. The Applicant also underwent a MRI of his left knee on 15 March 2016, which procedure was performed by Dr Tew. In his report of 17 March 2016, Dr Tew made the following observations – Exhibit 1 T7.12 pp. 48-49:

    “History: New onset of mechanical pain. Discomfort and associated swelling. X-ray shows mild medial joint space loss.

    Comparison: MRI left knee dated 3/12/02: Medial compartment wear with thinning and ulceration of hyaline cartilage overlying medial femoral condyle. Possible ACL laxity with partial tear involving proximal aspect….

    Findings:

    Small knee joint effusion noted. Minimal unruptured Baker’s cyst.

    Minimal deep infrapatellar bursitis. Minor Hoffa’s fat pad oedema….

    Conclusion:

    Tear to peripheral third of medial meniscus anterior horn with adjacent parameniscal cyst.

    Background of OA with grades 3-4 chondromalacia.

    CT along with nuclear medicine bone scan are recommended with regards to new medial femoral condyle subarticular lesion. This may be degenerative related in terms of focal bone marrow oedema, given that recent x-ray did not demonstrate a defined intra-osseous abnormality.

    Minimal deep infrapatellar bursitis.

    There is suggestion of distal patellar tendinosis and old partial tear to anterior cruciate ligament.”

    Dr Creer

30. The Applicant was examined by Dr Rob Creer, Orthopaedic Surgeon, on 24 March 2016.  Dr Creer diagnosed the Applicant as having a tear of the medial meniscus with an associated meniscal cyst on a background of advanced chondromalacia throughout the joint. Dr Creer also noted an intense subarticular area of bone oedema in the mid medial femoral condyle measuring 10x10x14mm and a small effusion – Exhibit 1 T4 p. 17.

31. Based on what the Applicant informed him, Dr Creer made the following observations (p. 17):

    “The injury occurred to the left knee when he was at work on 6 February 2016, when he stood up from sitting in the bus he was driving and he got acute pain and developed a small effusion…He has no past history of injury to the knee but he has previously undergone a right total knee replacement in 2010.”

32. Following a “Spect CT scan” in conjunction with a MRI scan, the Applicant was again examined by Dr Creer. In his report of 12 April 2016 Dr Creer observed that the scans disclosed some degenerative changes in the medial tibiofemoral joint with some slight increase in the medial femoral condyle region. Dr Creer graded his degenerative changes as mild to just into moderate. The report also deals with the option of the Applicant undergoing a knee arthroscopy for treatment of the meniscus with Dr Creer noting that “this won’t change the degenerative changes present and that they will slowly worsen with time” – Exhibit 1 T5 p. 19.

33. On 3 August Dr Creer performed anarthroscopic partial medial meniscestomy and chondroplasty to the Applicant’s left knee. In his report of 12 August 2016, Dr Creer opined that in the medium to longer term the Applicant may need a total knee replacement – Exhibit 11.

    Dr Stokes – Report of 9 May 2016

34. At the Respondent’s request, the Applicant was examined by Dr Ian Stokes, Orthopaedic Surgeon, on 4 May 2016. Dr Stokes prepared a comprehensive report of his examination which is dated 9 May 2016.

35. The report is divided into a number of sections. In the part entitled “Mechanism of Alleged Injury/Sequence of Events”, Dr Stokes provides this account of the events of 9 February 2016 – Exhibit 1 T8 p. 53:

    “Mr Coggan told me that he was driving his bus on or about 6 or 8 February. He told me he was feeling OK in the morning but noticed as he continued into his shift into the afternoon that he started developing some discomfort within his left knee. He finished the shift but told me that a he stood to leave the bus the pain magnified as he tried to step off the bus. He told me he had difficulty walking. He however went home, rested and used ice.”

36. Dr Stokes then deals with any previous issues or problems with the Applicant’s left knee (p. 53):

    “Mr Coggan denied any previous problems with his left knee although he did tell me that the was told by a surgeon, who was assessing him for Comcare back in 2010 when he had a right knee replacement performed, that his left knee was heading in the same direction and would only last two to three years. Mr Coggan told me that he was pleased to have got at least six years out of the left knee.”

37. Dr Stokes states that he questioned the Applicant about the clothes line incident, and gives this account of his conversation (p. 54):

    “I asked Mr Coggan about this incident. Initially he denied having ever fallen over whilst doing his washing but he told me he deliberately only ever carries small bags of washing to the line. I prompted him further about this fall claim and he spontaneously said that he recollected a fall where he actually hit the clothes basket. According to Mr Coggan’s memory that occurred some three to four weeks after the lodgement of his claim, namely in early March. He told me that the incident certainly stirred up his left knee.”

38. The key aspects of Dr Stokes’ examination and diagnosis is set out below – pp. 56-57:

    “There was to me some obvious wasting of Mr Coggan’s left thigh and measurement of the thighs confirmed this wasting…

    The MRI scans done in 2002 and again 2016 have both shown degenerative processes within the left knee joint. The latest MRI scan shows deterioration in the degenerative condition and the presence of a degenerative medial meniscus with tear and parameniscal cyst.

    In my opinion these investigations confirm that Mr Coggan has suffered degenerative changes in his left knee for at least 13 – 14 years. It is expected that degenerative change will progress as time passes and this is confirmed by the differences between his MRI scans early in 2002 and the latest MRI scan in 2016.

    The meniscus tear has occurred in a degenerative meniscus. It has a parameniscal cyst and in my opinion this suggests that the tear is of long standing and more chronic in nature, occurring before the sentinel event on 9 February. The more acute lesion seen on his latest MRI scan on the medial femoral condyle where bone oedema has been described in the subarticular space, in my opinion fits with an impact on the knee rather than any twisting force applied to the knee when getting up from a seat.

    In my opinion the impact sustained by Mr Coggan when he fell, landing on the clothes basket as he was hanging out the washing is more likely to explain the bone bruised pattern seen on the MRI scan of Mr Coggan’s medial femoral condyle….

    In my opinion my examination of Mr Coggan’s lower left limb indicates that the has been favouring this limb for some time. There is some 3.5 cm difference in the bulk of his left thigh compared to the right thigh. In my opinion that degree of wasting has occurred over a much longer time frame than the last two months.

    Quite obviously Mr Coggan has had a flare in the symptoms of degenerative arthritis in his left knee. In my opinion that flare was probably caused by an impact on the left knee rather than any twisting manoeuvre when getting up from the driver’s seat in the bus.

    My diagnosis is an acute exacerbation of degenerative arthritis in the left knee.”

1. Dr Stokes prepared a supplementary report which is dated 15 March 2017 and which deals with the diagnosis of the Applicant provided by Dr Le Leu which is set out below.  Key aspects of Dr Stokes’ observations in the report of 15 March 2017 are discussed in the Consideration section of this decision.

   Dr Le Leu – Report of 14 January 2017

2. Dr Leon Le Leu, Occupational Physician, was asked by the Applicant’s legal representatives to examine him. Dr Le Leu had previously seen the Applicant in August 2013 about his right knee following knee replacement surgery. Dr Le Leu was briefed with a range of medical documents, including the report of Dr Stokes. Dr Le Leu’s report is dated 14 January 2017 – Exhibit 4.

3. The Applicant informed Dr Le Leu that prior to the 9 February 2016 he had no left knee symptoms – Exhibit 4 p. 3:

   “Before the onset of the left knee problem on 9 February 2016, he asserts that he had no left knee symptoms. However, he had been advised by a Comcare independent assessor in Deakin when he was assessed for his right knee, that he had only 4-5 years of future use from the left knee, possibly because he had been overusing it due to his right knee impairment.

   All he can remember on 9 February 2016 – the date of the incident – is that he twisted in the bus seat when he went to get out of it and developed a twinge over the inner aspect of the left knee. He had never had a twinge in the left knee before.”

4. Dr Le Leu made the following diagnosis of the Applicant’s left knee injury– p. 8:

   “He suffered a left medial meniscal tear against a background of mild to moderate left knee degeneration.”

5. Dr Le Leu made the following prognosis – p. 8

   “The prognosis is for near recovery of symptoms, noting the accident was only 12 months ago. Based on the reports of medical imaging, and my observation of the plain X-ray of the left knee on the NCDI website, there is mild to moderate pre-existing degeneration of the knee not requiring knee replacement…”

6. Finally, Dr Le Leu was asked whether the Applicant’s left knee injury substantially arose from the 9 February 2016 incident and/or substantially arose from overuse or compensation of the left knee arising from the previous right knee injury. He answered as follows – p. 8:

   “Firstly, there is no reason to believe that the knees were symmetrically degenerating before the first accident. The first injury in 2009 was specifically twisting of the right knee.

   It is more probable than not that the mild to moderate degeneration observed on medical imaging results from compensation by the left knee for the right knee.  However, he was asymptomatic in the left knee before the subject accident.

   The subject accident caused the medial meniscal tear from which he is now recovering. Hence, this was the principal cause of his injury, but there was mild-to-moderate background degeneration resulting from his previous work-related right knee injury.”

   Workers’ Compensation Claim – Initial Decision 9 May 2016 and reviewable decision 1 July 2016

7. On 9 May 2016 Ms Lisa Watt, delegate of the Respondent, disallowed the Applicant’s workers’ compensation claim. The following reasons were given – Exhibit 1 T9 pp. 71-72:

   “In assessing the causation of your claimed condition, we have considered the evidence provided and have had particular regard to the following:

   ·In your claim form you state you sustained your injury to your left knee when you twisted it.

   ·You have provided an incident report, dated 21 March 2016, that was completed by your colleague Mhairi Mills on your behalf. It states the incident occurred when you got out of the bus at the end of your shift and you experienced pain in your left knee. It also indicates you attribute this to the position you were sitting in on the bus.

   ·A chronology of events which was provided by your employer states you advised your date of injury was 9 February 2016 and you experienced pain in your left knee while exiting the bus at the end of your rostered shift. However, there is no indication you reported this to anyone at the time. The chronology states you fell over at home on Saturday 13 February 2016 while hanging out the washing and you landed on the clothes basket. It states you met Ms Mills during your lunch break on 16 February 2016 when you advised you were in a lot of pain and struggling to walk.  You advised you fell at home on Saturday while hanging out washing.  It is you noted you first sought medical treatment in relation to the claimed condition on 17 February 2016.

   ·The medical certificates provided by Dr Rao, state the cause of your ‘left knee injury probable meniscal tear’ is due to ’twisting while driving the bus at work’.

   ·The progress report from Dr Creer, dated 24 March 2016, states, ‘The injury occurred to the left knee when he was at work on 6 February 2016, when he stood up from sitting in the bus he was driving and he got acute pain and developed a small effusion’.

   ·The report from Dr Stokes, dated 9 May 2016, states you have had a flare in symptoms of degenerative arthritis in your left knee. In his opinion, ‘that flare was probably caused by an impact on [your] left knee rather than any twisting manoeuvre when getting up from [your] driver’s seat in the bus’. Dr Stokes states that the fall and landing on your clothes basket is more likely to explain the bone bruised pattern seen on the MRI scan of your medial femoral condyle. In relation to the meniscus tear, Dr Stokes states that this has occurred in a degenerate meniscus and is long standing and more chronic in nature previous to 9 February 2016.

   ·Dr Stokes states, ‘In my opinion, the condition suffered by Mr Coggan is not related to employment as a Bus Driver’.

   From this assessment, I am satisfied you have suffered an aggravation of the degenerative arthritis to your left knee. However, I am not satisfied on the balance of probabilities, this condition arose out of, or in the course of, your employment.  I have preferred the medical opinion of Dr Stokes and which supports your current condition it is more than likely a flare up due to the fall on your washing basket at home and the natural progression of degenerative arthritis.”

8. The Applicant requested a reconsideration of this decision, and on 1 July 2016, Ms Lynette Comber, the Review Officer, decided that the initial determination was correct and affirmed it – Exhibit 1 T15 pp. 92-96. In reaching this conclusion Ms Comber set out at length the available medical evidence from Dr Stokes and Dr Creer. Ms Comber preferred the diagnosis of Dr Stokes and was not satisfied, on the balance of probabilities that the Applicant’s aggravation of osteoarthritis of the left knee arose out of, or in the course of, the Applicant’s employment.

   The hearing

9. The application was heard in Canberra on 4 and 5 September 2017. The Applicant was represented by Mr A Opas of Counsel and the Respondent by Mr M Gollan of Counsel. The Applicant attended and gave evidence. Dr Leon Le Leu gave evidence on 4 September by teleconference as did Dr Ian Stokes on 5 September 2017.

   THE LAW

10. Subsection 14(1) of the Act provides that the Respondent is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

11. It is not contested that at the time of the 9 February 2016 incident the Applicant was an employee for the purposes of s 14(1).

12. “Injury” is defined by s 5A(1) of the Act to mean:

    (a)“a disease suffered by an employee; or

    (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

    (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment.”

13. “Disease” is defined by s 5B(1) of the Act to mean:

    (a)“an ailment suffered by an employee; or

    (b)an aggravation of such an ailment,

    that was contributed to, to a significant degree, by the employee’s employment….”

14. The High Court has recently given guidance on how to apply the relevant provisions of the Act. In Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 (May) French CJ, Kiefel, Nettle and Gordon JJ observed:

    “[42] The set of conditions answering the definition of ‘injury’ in the Act relevantly comprises two sub-sets, ‘disease’ and ’injury (other than a disease)’, the latter sometimes referred to, not necessarily helpfully, as injury simpliciter. They comprise separate but related bases of liability. Each has a different meaning in the statutory scheme.

    [43] As appears from the definition of ‘disease’, a ‘disease’ for the purposes of the Act must be an ailment or an aggravation of an ailment. That is not sufficient to establish the existence of a disease. The ailment or aggravation thereof has to have been contributed to in a material degree by the employee’s employment by the Commonwealth.

    [44] An ’injury (other than a disease)’ covers the other sub-set of ‘injury’. Various aspects of this limb of the definition of ‘injury’ should be observed.  First, the phrase ‘other than a disease’ means that if an employee establishes that they have a ‘disease’ within para (a) of the definition of ‘injury’, there is no need to consider para (b). Second, an ‘injury (other than a disease)’ suffered by an employee must be ‘a physical or mental injury arising out of, or in the course of, the employee’s employment.’ (emphasis added). That is to say, the physical or mental injury has to have a causal or temporal connection with the employee’s employment. Third, that need for a causal or temporal connection in respect of a ‘physical or mental injury’ in para (b) directly raises the question – what does ‘injury’ mean in that paragraph?

    [45] ‘Injury’ in para (b) is used in its ‘primary’ sense. As Gleeson CJ and Kirby J explained in Kennedy Cleaning Services Pty Ltd v Petkoska, if ‘something…can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an injury’ in the primary sense of that word’ (emphasis added).

    [46] That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee. It may be, for example, the breaking of a limb, the breaking of an artery, the detachment of apiece of the lining of an artery, the rupture of an arterial wall or a lesion to the brain. Each would be described as an ‘injury’ in the primary sense.

    [47] However, as the Full Court correctly held, ‘suddenness’ is not necessary for there to be an ‘injury’ in the primary sense. A physiological change might be ‘sudden and ascertainable’. A physiological change might be ‘dramatic’. The employee’s condition might be a ‘disturbance of the normal physiological state’. That an ‘injury’ in the primary sense can arise, and can be described, in a variety of ways does not mean that ‘suddenness’ is irrelevant. As the Full Court said, ‘suddenness’ is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease…But it is the physiological change – the nature and incidents of that change – that remains central…

    [49] It is against that background that the Act requires the tribunal of fact to give consideration to ‘the precise evidence on a fact by fact basis… accepted at trial’ and then to ask certain questions in order to determine whether an employee is suffering a ‘disease’ or an ‘injury (other than a disease)’.

    [50] First, does the evidence amount, relevantly, to something that can be described as an ‘ailment’, being a physical or mental ailment, disorder, defect or morbid condition? Second, if so, was that state contributed to in a material degree by the employee’s employment by the Commonwealth?

    [51] If the answer to both those questions is ‘Yes’, there is a ‘disease’ within para (a) of the definition of ‘injury’. Of course, in some cases, the answer to those questions may be admitted. That is, the employee may admit that the answer to the first question, or both the first and second questions, is ‘No’.

    [52] If there is not a ‘disease’ within para (a) of the definition of ‘injury’, the tribunal of fact next inquires whether there is an ‘injury (other than a disease)’ within para (b). The third question is – does the evidence demonstrate the existence of a physical or mental ‘injury’ (in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an ‘injury (other than a disease)’. The language of judgments should ‘be applied literally to facts without further consideration of what is conveyed by the reasoning’ in the cases from which it is derived, or without regard to the text and scheme of the Act.

    [53] If there be an ‘injury’ in the primary sense of the word, the next question is – did the injury arise out of, or in the course of, the employee’s employment by the Commonwealth? If that question is answered “Yes’, there is an ‘injury (other than a disease)’ within para (b) of the definition of ‘injury’ in s 4(1) of the Act. In some circumstances, if the answer is ‘No’, it may be necessary to ask whether the case is one involving aggravation of an injury…

    [57] The Full Court concluded that the inquiry demanded by the statutory definition of ‘injury’ was ‘whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind’ (emphasis added). To the extent that conclusion suggested subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to provide appositive answer to the first or third questions set out above, that conclusion should be rejected.”

    CONSIDERATION

15. The key issue to be determined is whether the Tribunal is satisfied, on the balance of probabilities, that the Applicant suffered an injury, or the aggravation of an injury, as defined by ss 5A and 5B on 9 February 2016.

16. The Applicant’s account of what occurred on 9 February 2016 is somewhat elastic. In the undated Incident Report (Exhibit 1 T7.4 p. 34), which was prepared by Ms Mills on the advice of the Applicant, the incident was described as:

    “Getting out of the bus at the end of your shift you experienced pain in the left knee.”

17. Dr Alaraji made the following notes of his consultation with the Applicant on 17 February 2016 – Exhibit 15:

    “He is bus driver and sitting was causing pain in his left kenee (sic).”

18. In his Workers’ Compensation Claim Form, the Applicant stated “twist left knee” – Exhibit 1 T3 p. 6.

19. Dr Creer, in his report of 24 March 2016, noted that the “injury” occurred when the Applicant “stood up from sitting in the bus he was driving and he got acute pain and developed a small effusion” – Exhibit 1 T4 p. 17.

20. Dr Stokes noted in his report of 9 May 2016 that the Applicant told him that he started feeling discomfort in his left knee during the afternoon of 9 February 2016 but at the end of the shift “as he stood to leave the bus the pain magnified as he tried to step off the bus” – Exhibit 1 T8 p. 53.

21. In his evidence to this Tribunal, the Applicant testified that he stretched his left leg whilst driving and experienced severe pain in the left knee.

22. It will be seen from the above accounts that there is a degree of uncertainty as to whether the Applicant “injured” his left knee while sitting and driving the bus, or when he stood up from a sitting position or when he was alighting the bus. In any event, all versions are similar in that none clearly identify a “sudden” or “dramatic” incident that would result in a disturbance of the Applicant’s normal physiological state. In short, the alleged “incident”, assuming that it occurred, was, on the basis of the various accounts of the Applicant, a seemingly innocuous and mild event. This is not to discount that it could constitute an “injury” when all the medical and other evidence is weighed, but the starting off point in this matter is the uncontested evidence of an apparently benign event.

23. Assuming that the Applicant did experience pain and discomfort on the afternoon of 9 February 2016, and for a number of days thereafter, it is important to recognise, as the High Court emphasised in May at para 57, that it is not sufficient for an employee to merely feel unwell. The inquiry identified by the Act is a physiological change or disturbance of the normal physiological state. Subjective symptoms, such as pain and discomfort, without accompanying physiological change, are insufficient to meet the statutory test of injury or aggravation of an ailment or injury.

24. It also uncontested that at no time between 9 February 2016 and 16 February 2016 did the Applicant report his pain and discomfort to any person in the workplace or seek any medical intervention. In short, apart from the Applicant’s ex post facto accounts of his pain levels and the nature of his self-medication, there is no contemporaneous evidence of the 9 February 2016 incident or what impact it had on the Applicant’s lifestyle or work capacity.

25. While the Tribunal does not disbelieve the Applicant’s testimony that he was in pain and thought that by self-medicating the pain would dissipate, this necessarily leads to drawing a common-sense conclusion that the Applicant’s pain levels were not so severe that he either needed medical intervention or he believed he should report the incident. In short, the fact that the Applicant remained silent and failed to seek any form of medical assistance is consistent with the conclusion that the incident of 9 February 2016 was relatively minor and the level of pain experienced was manageable.

26. It is uncontested that the Applicant suffered a fall at his home on 13 February 2016.  While the details of this incident are not entirely clear, the Applicant’s account is believable and relatively straightforward. The Tribunal accepts that whilst the Applicant was either hanging or removing clothes from the clothes line or lifting the clothes basket from the trolley, his left knee gave way and he fell.  Unlike the incident of 9 February 2016, the Applicant’s own account of the fall is more redolent of an event that would precipitate a sudden and ascertainable physiological change.

27. The Applicant’s testimony lends support to this conclusion, as he stated that the levels of pain he was experiencing increased significantly after this incident.

28. Of critical importance in this matter is the state of the Applicant’s left knee before 9 February 2016. The Applicant testified to the Tribunal that prior to that date he had no pain or instability to his left knee. Moreover, the Applicant was specifically questioned whether he had previously sought medical assistance or undergone any medical procedures to his left knee. The Applicant specifically denied he had previously seen a Doctor about his left knee or that his left knee had been “scanned” or X-rayed.

29. Mr Gollan drew the Applicant’s attention to the report of Dr Tew of 15 March 2016. This was a report prepared after a MRI was taken of the Applicant’s left knee. In the body of the report, Dr Tew compared the 2016 results to an MRI taken in 2002 – Exhibit 1 T7.12 p. 48:

    “Comparison: MRI left knee dated 3/12/02: Medial compartment wear with thinning and focal ulceration of hyaline cartilage overlying medial femoral condyle. Possible ACL laxity with partial wear involving proximal aspect.”

1. Mr Gollan asked the Applicant if he had a MRI of his left knee in 2002. The Applicant answered that prior to 9 February 2016 he had never had an MRI of his left knee and that there was a mistake in the report of Dr Tew and any documentation he relied on.

2. The Applicant also denied that he had undergone an operation to his left knee. He testified that only his right knee was subject to medical intervention.

3. Mr Gollan referred the Tribunal to subpoenaed records of the Isabella Plains Medical Centre which contain an entry of Monday 25 November 2002 by Dr Divya Sharma. Dr Sharma prescribed the Applicant Voltaren tablets and made the following note – Exhibit 5:

   “Diagnostic Imaging requested: X-ray- Knee (L)”

4. Mr Gollan drew the Applicant’s attention to an Operation Record of the John James Memorial Hospital prepared by Dr Paul Nathaniel Smith – Exhibit 3.

5. Dr Smith records performing, on 3 March 2003, a “Left knee arthroscopy” on a “Mr Lee Coggan”, whose date of birth is the same as the Applicant’s.

6. The Applicant’s response was that the operation was to his right knee and not his left knee.

7. The Applicant testified he couldn’t explain why the documentation disclosed that he had an MRI of, and an operation on, his left knee. When shown Exhibit 3, the Applicant said words to the effect that it was a significant mistake and that he wasn’t “making anything up”.

8. Having listened to, and observed, the Applicant giving evidence, the Tribunal was not satisfied that there was any logical basis for disbelieving or discounting the written evidence that he had surgical intervention to his left knee in 2003. The Operation Record of Dr Smith is consistent with the note of Dr Sharma of November 2002. Both indicate that the Applicant was experiencing problems with his left knee, that Dr Sharma referred the Applicant for an X-ray of left knee, and that on 3 December 2002 he had a MRI of his left knee.

9. It defies logic to accept the Applicant’s testimony when there are three independent medical records that illustrate a chronological sequence of events leading from initial diagnosis to surgical intervention in the period November 2002 to March 2003.

10. The Applicant’s denial of the documentary evidence was unconvincing, and, as a consequence, his credibility as a witness was not enhanced.

11. This leads to the conflicting medical evidence before the Tribunal. Even if the Applicant’s denial that he underwent medical intervention for his left knee in 2003 is not believed, this does not of itself dispose of the matter.

12. It will be noted at the outset that Dr Le Leu’s report was predicated on the Applicant having experienced no left knee symptoms prior to 9 February 2016. Dr Stokes was given a copy of Dr Le Leu’s report and provided a supplementary report dated 15 March 2017. In this report Dr Stokes dealt specifically with some of Dr Le Leu’s findings. Dr Stokes said – Exhibit 16 pp. 2-3:

    “I do disagree with Dr Leu’s opinion where he stated that it is more probable than not that the mild to moderate degeneration observed in medical imaging results from compensation by the left knee for the right knee.

    Review of the medical literature reveals no generally accepted studies that support such a causal relationship nor is there any reasonable scientific logic. The literature available…refutes the reported cause and effect relationship…

    Dr Leu however does not make mention of the more likely cause for Mr Coggan’s degenerative osteoarthritis of this left knee.

    The following is a list of established facts relating to osteoarthritis….

    ·Osteoarthritis (OA also known as degenerative joint disease or degenerative arthritis is the most common form of arthritis).

    ·More than 20 million Americans have arthritis.

    ·The prevalence of arthritis increases with age.

    ·Functional limitations may include difficulties with prolonged standing, walking, or stair climbing.

    ·Comorbidities such as depression, poor aerobic capacity and other chronic conditions confound the disability.

    ·Genetics may be the principal determinant of osteoarthritis.

    ·Mechanical factors may also play a role.

    ·Obesity is associated with osteoarthritis.

    ·Knee osteoarthritis in particular may be related to the inordinate mechanical stresses associated with excess body weight that accompanies obesity.

    ·Excess weight disposes a person to premature joint degeneration.

    Mr Coggan unfortunately does fit into the risk categories mentioned. In particular Mr Coggan’s BMI or body mass index which is identified by the ratio of an individual’s height to his or her weight. Normal BMI range is from 20 to 25 kg/m2. A patient is considered morbidly obese with BMI 40 kg/m2 or more. Mr Coggan’s BMI is 38 kg/m2…

13. Dr Stokes then turned to a further risk factor, namely previous injury to the left knee – pp. 3-4:

    “Although Mr Coggan has denied having any problems with his left knee prior to the incident in February 2016 I note in the attached file records an operation whereby Mr Coggan underwent a left knee arthroscopy and medial femoral condyle chondroplasty on 3 March 2003…That arthroscopy by Dr Nathaniel demonstrated a chondral lesion of grade 3 severity situated in the medial femoral condyle of the left knee. It also indicated that there was a stretched anterior cruciate ligament…

    Dr Leu states that the subject accident which occurred on 9 February as Mr Coggan got up from the driver seat of his bus induced a tear in the medial meniscus of  this left knee. What Dr Leu does not state is that the MRI scan taken in 2016 reported by Dr Peijin Tew stated that there was degenerative change in the medial meniscus with bulging of the medial meniscus body.  There were also parameniscal multilobulated cysts adjacent to a vertical tear involving the peripheral third of the medial meniscus.

    The following set of facts is known about meniscal tears….

    ·There are multiple risk factors in the development of Degenerative Meniscal Tears

    ·Overweight there is strong evidence for both men and women with an increasing BMI for degenerative meniscus tears.

    ·Age: With increasing age the knee meniscus, like other soft tissue structures changes in physiology.

    ·Increasing severity of osteoarthritis on radiographs is associated with increasing likelihood of meniscal tears

    ·Meniscus tears and extrusions are strongly associated with the progression of knee osteoarthritis as assessed by MRI.

    ·The findings of a meniscus tear on MRI does not necessarily mean that any injury has occurred, and meniscus tears can occur in absence of any memorable injury.

    ·Degenerative tears may occur with minimal trauma or they occur without any history of trauma.

    ·People with meniscus tears do not always have pain, and a person with knee pain and a meniscus tear on MRI does not necessarily have pain as a result of the tear.

    Degenerative Meniscal Tears are now recognised as part of the knee osteoarthritis process.”

14. Dr Stokes opined that the Applicant is suffering from the natural history of degenerative osteoarthritis within his left knee. Moreover, he considered a bone scan the Applicant underwent on 31 March 2016 suggested two things. Firstly, that the Applicant is suffering degenerative arthritis diffusely distributed throughout his body. Secondly, the scan implied only a low grade metabolic activity in the medial compartment of the left knee, suggesting it had only been slightly irritated by the two events of February 2016 – p.5.

15. This led Dr Stokes to opine that incident of 9 February “would have caused only minor irritation to a knee suffering with degenerative change” – p. 5. He was of the view that “a fall striking an object would more likely cause greater distress to a knee with degenerative arthritis” – p. 6. He concluded as follows:

    “Mr Coggan agreed when he told me that the incident with the clothes basket certainly ‘stirred’ up his left knee. The MRI scan taken of Mr Coggan’s left knee and reported by Dr Peijin Tew on 17 March 2016 showed an area of focal bone marrow oedema measuring 14mm x 10mm x 14mm on the medial femoral condyle.

    In my opinion this area of bone oedema is more in keeping with an impact injury than any twisting injury.”

16. Dr Stokes’ oral testimony was entirely consistent with the opinions outlined in both of his reports which have been set out at length above.

17. When weighing up different, and sometimes conflicting, medical evidence, the Tribunal has to consider a number of factors. In this matter the Tribunal has had the benefit of receiving both written and oral evidence from Dr Stokes and Dr Le Leu. Both gentlemen gave measured and thoughtful oral testimony. On the balance, however, the Tribunal prefers the diagnosis of Dr Stokes.

18. Dr Stokes is a very experienced Orthopaedic Surgeon. He is eminently qualified and has practised medicine since 1986. He has an orthopaedic practice and in more recent years has concentrated on reconstructive surgery of the lower limbs. He has had extensive experience in managing hospitals and examining medical professionals.

19. The reports and oral evidence of Dr Stokes were impressive, objective and thorough. His findings are entirely consistent with the evidence presented to the Tribunal. In short, his findings and analysis comport with a common-sense evaluation of the material presented. Moreover, Dr Le Leu’s diagnosis was based on a doubtful premise, namely that the Applicant exhibited no left knee symptoms prior to the 9 February 2016 incident. Further, Dr Le Leu does not deal at any length with the clothes line incident. It is referred to briefly at page 4 of his report, but it would appear that Dr Le Leu accepted the Applicant’s version of events.

20. During cross-examination, Dr Le Leu agreed that the movement of the Applicant stretching out his leg while sitting in the bus would be unlikely to cause a meniscal tear, and agreed than an unusual or forceful movement could have been the cause of the tear in the Applicant’s left knee.

    CONCLUSION

21. The Applicant’s case is dependent on the Tribunal accepting, on the balance of probabilities, that as a result of the 9 February 2016 incident he either suffered an injury simpliciter (s 5A(1)(b)), the aggravation of a physical injury (s 5A(1)(c)) or the aggravation of an ailment (s5B(1)(b)), namely degenerative osteoarthritis.

22. The Tribunal accepts that on 9 February 2016 whilst at work he experienced pain in his left knee. However, the Tribunal does not accept that the evidence presented provides any basis for concluding that the Applicant suffered an injury, the aggravation of an injury or the aggravation of an ailment on 9 February 2016.

23. The very persuasive evidence of Dr Stokes is that the Applicant has suffered degenerative changes in his left knee for up to 15 years. The meniscus tear in his left knee occurred in a degenerative meniscus. The presence of a Baker’s cyst also suggested, according to Dr Stokes, that the tear was not new, and occurred before 9 February 2016.

24. Dr Stokes also explained that the bone bruising which was highlighted by the MRI scan was much more likely to have been caused by the Applicant’s clothes line fall rather than any twisting or stretching action in the bus on 9 February 2016.

25. Dr Stokes characterised the reported incident of 9 February as “relatively minor”, and opined in his 15 March 2017 report that it “would have caused only minor irritation to a knee suffering with degenerative change.”

26. Applying the May methodology, it is not disputed that the Applicant suffers from a disease, namely osteoarthritis of the left knee. However, it is not contended that this ailment was contributed to, to a significant degree, by the Applicant’s employment.

27. Rather, Mr Opas relies on the second limb of the definition of “disease” is s 5B(1)(b) and contends that the evidence supports a finding that the 9 February 2016 incident resulted in an aggravation of the Applicant’s ailment.

28. Mr Gollan drew the Tribunal’s attention to the decision of Gyles J in Australian Postal Corporation v Bessey [2001] FCA 266; 32 AAR 508. His Honour made the following observation ([6]/509):

    “It has been well settled by a series of decisions starting from Jordan CJ’s judgment in Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157, including Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19, Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533 and Casarotto v Australian Postal Commission (1989) 10 AAR 191, that if an underlying condition is aggravated, in the sense of made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.”

29. The Tribunal accepts that the Applicant suffered pain as a result of either stretching or twisting his left knee on 9 February 2016, however the evidence does not support a finding that it worsened the Applicant’s underlying osteoarthritis of the left knee. The evidence does not support a finding of aggravation as explained by Gyles J, rather it suggests that the Applicant suffered pain but without accompanying physiological changes. The principle that it is not sufficient for an employee merely to feel unwell as explained in May (at para 57), is applicable to the evidence presented.

30. The next question is whether the evidence discloses that the Applicant suffered an injury (other than a disease), or the aggravation of an injury, arising out of, or in the course of, his employment – s 5A(1)(a) and (b).

31. The bone oedema disclosed in MRI scan of 17 March 2016 was, according to Dr Stokes, more in keeping with an impact rather than a twisting injury.

32. The Applicant, as previously noted, did not report the 9 February incident at the time or within the next six days. He only reported the incident following his fall at home on the weekend.

33. Perhaps of even more significance, he did not seek any medical assistance until after the weekend.

34. If one accepts the natural sequence of events as recounted by the Applicant, and then couple that factual matrix with his medical history of osteoarthritis of the left knee, one is left with the more probable conclusion that the pain being experienced by the Applicant flowed naturally and inexorably from his degenerative arthritic condition.

35. Further, even accepting the Applicant’s version of events of 9 February, and there is a degree of elasticity about what actually occurred, one is again presented with a relatively minor incident which, as Dr Stokes opines, would be unlikely to have resulted in either a meniscal tear or the bone bruising disclosed on the MRI of 17 March 2016.

36. The evidence therefore does not support, on the balance of probabilities, the proposition that the Applicant either sustained an “injury” or the aggravation of an “injury” as described by s 5A(1) on 9 February 2016.

37. If the Applicant suffered an “injury” or an “aggravation of an injury”, then the evidence, on the balance of probabilities, strongly suggests that it occurred as a result of the Applicant falling at home on or about 13 February 2016.

38. Accordingly, the Tribunal finds that the Respondent is not liable to pay compensation to the Applicant pursuant to s 14 of the Act.

    DECISION

39. The Tribunal affirms the decision under review.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy
of the reasons for the decision herein of
Senior Member J Sosso

..............................................................

Associate

Dated: 25 October 2017

Dates of hearing:	4 September 2017 5 September 2017
Counsel for the Applicant:	Mr Athol Opas
Solicitors for the Applicant:	Mr Angus Bucknell Rachel Bird & Co
Counsel for the Respondent:	Mr Matthew Gollan