Cone v Swisslog Australia Pty Ltd

[2011] VCC 1492

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT GEELONG
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-10-02284

CHRISTOPHER CONE	Plaintiff
v
SWISSLOG AUSTRALIA PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Geelong
DATE OF HEARING:	28 and 29 September 2011
DATE OF JUDGMENT:	31 October 2011
CASE MAY BE CITED AS:	Cone v Swisslog Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VCC 1492

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Left knee injury – whether the left knee injury is “serious” – application of Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J H Mighell SC with	Maurice Blackburn
Mr D J N Purcell
For the Defendant	Mr R K Meldrum QC with	Minter Ellison
Ms A M Magee
HIS HONOUR:

1 By way of Originating Motion dated 26 May 2010, Mr Christopher Cone (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings to recover damages for injury to his left knee (“the injury”) suffered during the course of his employment with Swisslog Australia Pty Ltd (“the defendant”) on or about 5 February 2004.

2          The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s.134AB(37) of the Act.

3          The application was heard over two days and the plaintiff gave evidence and was cross-examined. Both parties tendered various documents.[1]

[1]             See Annexure A

Relevant Legal Principles

4          The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[2]

[2]             See s.134AB(19)(a) of the Act

5          The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act which reads:

“Permanent serious impairment or loss of a body function … .”

6          The part of the body said to be impaired for the purposes of paragraph (a) is the left knee and/or the left leg.[3]

[3]             See Transcript (“T”) 1, L23-24

7          In order to succeed, the plaintiff must prove on the balance of probabilities

that:

(a)	“the injury” suffered by him arose out of or in the course of or due to the nature of his employment with the defendant on or after 20 October 1999;[4]
(b)	“the injury” with its resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[5]
(c)	“the consequences” to the plaintiff of the left knee injury in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by a comparison with other cases in the range of possible impairments … be fairly described as more than significant or marked, and as being at least very considerable”.[6]

[4]             See s.134AB(1) of the Act and Barwon Spinners & Ors v Podolak (2005) 14 VR 622 at paragraph [11]

[5]             See Barwon Spinners (op cit) at paragraph [33]

[6]             See s.134AB(38)(b) and (c) of the Act

The test for “serious” is sometimes referred to as the “narrative test”.

8          In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[7] to establish:

[7]             See s.134AB(19)(b) and (38)(e) of the Act

[8]             See s.134AB(38)(e)(i) of the Act

[9]             See s.134AB(38)(e)(ii) of the Act

(a)	that as at the date of hearing he has a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act;[8] and
(b)	that after the date of hearing he will continue permanently to have a loss of earning capacity that will be productive of a financial loss of 40 per cent or more.[9]

9          In determining the application, the Court:

(a)	must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken or counted for the purposes of paragraph (c) of the definition of “serious injury”;[10]
(b)	must make the assessment of “serious injury” at the time the application is heard;[11]
(c)	must give reasons which are extensive and complete as the Court will give on the trial of an action, and in so doing disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[12]
(d)	notes that s.134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately;

[10]           See s.134AB(38)(h) of the Act

[11]           See s.134AB(38)(j) of the Act

[12]           See s.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566 at paragraphs [89]-[92]

In the event that a worker satisfies sub-paragraph (i) but not sub- paragraph (ii) of s.134AB(38)(b) of the Act, a worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s.134AB of the Act is entitled, as a “manner of statutory construction” to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”;[13]

(e) notes that it has been observed that the question of whether any injury satisfies that narrative test is largely a question of impression or value judgment;[14] [13]           See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSC 170, delivered on 28 July 2009 and in particular, paragraphs [60] – [64] [14]           See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]

The Issues

10        Senior Counsel for the defendant informed the Court that the issues related to “capacity” and “credit”.[15]

[15]           See T 6, L17-19

The Background of the Plaintiff, his Injury and Medical Treatment

11        The plaintiff gave viva voce evidence that he is a single man who is forty years of age, having been born on 30 July 1971. He is presently submitting certificates for total incapacity from his general practitioner and receives weekly payment of compensation.

12        The plaintiff takes Mobic about once a fortnight for a couple of days – two or three days – depending on the condition of his knee. He has pain in the knee under the kneecap at the top, and down the medial side of the knee.

13        The plaintiff described his ability to stand, sit and walk in the following terms:

Q:	“How does that … [the pain in the knee] affect your ability, firstly to stand; does it have any effect on your ability to stand in the one position?---
A:	It does. I get sore on the top of the knee and the medial side, after probably 45 minutes to an hour of continuous standing.
Q:	What about sitting?---
A:	Sitting is probably a little bit longer but I get similar pain from the top of the knee.
Q:	You have had some back pain. Is that right?----
A:	That’s correct.
Q:	When did that start?---
A:	Probably a bit over twelve months ago.
Q:	What caused that to start do you know?----
A:	I think it’s the way I walk because I walk with a bit of a limp.”[16]

[16]           See T 7, L18-28

14        With a friend named Tony he started a business called Tow-Rite nearly two years ago. The business has premises in Hoppers Crossing and the plaintiff attends those premises two to three days a week and sometimes on the weekend. When queried about those premises, the following evidence was given:

Q:	“What sort of thing would you do at those premises?---
A:	Just depends on what’s required. Sometimes I might sit on the computer and do some work there for myself, the occasional welding job.
Q:	Is that business making money?---
A:	No.
Q:	What happens with the rent; tell us about the rent. Does that come out of income from the business or elsewhere?---
A:	No, myself and my partner, Tony, both pay $200 per week towards the rent and electricity bills.
Q:	You make trailers do you?----
A:	Yes.
Q:	Is your partner Tony, is he a welder is he?---
A:	He’s a boilermaker by trade.
Q:	Who is actually involved in making the trailers?---
A:	Primarily Tony at the moment.
Q:	How many of those have you made this year, or the business made this year?---
Q:	Be five or six at this stage.”[17]

[17]           See T 8, L7-22

15        The plaintiff gave evidence that he holds a CAMS licence and that he last raced a car in December 2007, although the car had been driven by another person in November 2008. In particular, the plaintiff gave evidence that he has not driven the car since December 2007 because of difficulties with his knee being able to push the clutch.

16        In July 2011, the plaintiff underwent an AutoCAD course for about nine weeks and for about four hours a day once a week. Such a course helps you to be able to draw objects onto a computer screen rather than on paper.

17        The plaintiff gave evidence that he had been working as a fitter and turner since approximately the age of seventeen and had done that work essentially ever since up to the time of his injury. When asked whether he could work as a maintenance worker/drafter,[18] which includes work assembling and installing new and modified mechanical assemblies, components, machine tools and hydraulic power systems, the following evidence was given:

[18]           See Exhibit 7 at page 7 of the DCB

Q:	“We are lawyers, we are not sure what that is. But as a maintenance worker, a bloke who has been doing maintenance and fitting for over twenty years, what is assembling and installing new and modified mechanical assemblies, components, machine tools, what is that?---
A:	That would be going out and building the machine or installing it, so bolting it to the floor, getting power connected up with the electricians.
Q:	What sort of activities would that involve with your body?---
A:	Just standard fitting stuff, bolting things together, climbing to the top of the machine, climbing in the machines to assemble them.
Q:	Any kneeling, squatting?---
A:	Quite possibly, yes.
Q:	Could you do that?---
A:	No.
Q:	Did you enjoy your work as a fitter and turner?----
A:	Yes.
Q:	It was your trade wasn’t it?---
A:	It is, yes.”[19]

[19]           See T 11, L5-20

18        The plaintiff gave evidence that he had a read of his affidavits sworn on 25 December 2009[20] and on 28 July 2011[21] shortly before entering the witness box.

[20]           See Exhibit A at page 12 of the PCB

[21]           See Exhibit A at page 20 of the PCB

19        By way of his first affidavit, the plaintiff gave the following evidence:

•  As at February 2004, he was employed by the defendant as a fitter and turner, and for the year ending 30 June 2003, he had earned approximately $90,000 gross in that employment. Such work involved work as a maintenance fitter at the Woolworths Distribution Centre in Campbellfield.

•  The plaintiff described the circumstances of his injury in the following terms:

“On the 5th February, 2004, I was at work. There was a robot that was used to pick orders. The machine had malfunctioned and I believe a box of laundry liquid had spilled onto the floor. The box had been taken away but laundry liquid was still on the floor. I stepped from a platform onto the laundry liquid, which I did not see, causing me to slip and injure my left knee.”[22]

[22]           See Exhibit A at pages 13-14 of the PCB

• The plaintiff attended Dr Crawford and was on light duties for a while although he was having ongoing problems with the knee.

• In April 2004, he commenced to have physiotherapy on the left knee at the Corio Bay Sports Clinic and on 10 May 2004, he consulted his normal general practitioner, Dr Lester, who referred him off to an orthopaedic surgeon.

• On 23 September 2004, the plaintiff consulted the orthopaedic surgeon, Mr Simon Williams, who arranged for the plaintiff to undergo an MRI scan and who initially recommended ongoing conservative treatment.

• The plaintiff had ongoing physiotherapy which did not improve his left knee and after discussions with Mr Williams on 25 February 2005, the plaintiff underwent a left knee arthroscopy on 22 March 2005, after which he had further physiotherapy at the Corio Bay Sports Medicine Centre.

• The plaintiff asserts that the arthroscopy did not cure his left knee problems and that he had ongoing fluctuating left knee pain which was aggravated from time to time by fairly simple activity or through him doing his work.

• In or about October 2005, he returned to Mr Williams, who arranged a further MRI scan.

• The plaintiff attempted to continue at work and deal with the pain through conservative treatment but he continued to suffer flare-ups of pain from time to time and in particular, in March 2006 after stepping onto a platform at work.

• In November 2006, the plaintiff returned to see Dr Lester. At that time he ceased employment with the defendant and commenced with a company called “Mrs Crockett” as a fitter, which did not have the requirement that he had to walk over a number of levels and climb a lot of stairs and ladders.

• He was referred to Mr Williams again in December 2006 and arrangements were made for him to undergo a CT scan. During 2007 to 2008, he continued with regular physiotherapy, approximately once per fortnight.

• In November 2007, he obtained employment with Cryovac Australia Pty Ltd (sealed air corporation) as a maintenance fitter at its factory in Tullamarine.

• In November 2008, his physiotherapist referred the plaintiff back to Mr Williams because of ongoing left knee pain and a further MRI was undertaken and also a second opinion was obtained from the orthopaedic surgeon, Mr Brown.

• On 30 April 2009, the plaintiff underwent a left knee arthroscopy performed by Mr Brown. For about three months after such surgery his knee pain improved.

• Because of ongoing knee pain, Mr Brown referred the plaintiff to the Geelong Pain Management Clinic under the care of a Dr Vagg.

• The plaintiff was attending Dr Lester, who was prescribing Mobic, and the plaintiff was having ongoing difficulty with any activity that required him to kneel, squat, bend or walk for long periods.

• He continued to work for Cryovac Australia Pty Ltd and although he was able to cope with the work, he had an increased pain after doing such work.

• Before his left knee injury, he was a fit man who went running most nights, and was a very keen snow skier, which activity has been given up because of the left knee injury.

• He has given up the car racing and finds driving an ordinary car at times can be difficult, especially so in stop/start traffic. He has difficulties performing work such as gardening and heavier housework but as he lives on his own, he has “no choice” but to do these activities.

• From time to time his left knee swells, moreso if he puts any stress on the knee.

• As at December 2008, he was earning approximately $55,000 gross per annum.

20        By way of his second affidavit, the plaintiff gave the following evidence:

•  The plaintiff deposes that he continues to have symptoms in his left knee and that he continues to have restrictions on his activities and, if anything, “my condition has deteriorated”.

•  He continues to regularly attend his general practitioner, Dr Lester, who provides a WorkCover certificate and prescribes Mobic. He continues to have physiotherapy with Mr Luke Johnson, who he sees approximately every three weeks.

•  He saw the pain management specialist, Dr Vagg, in May 2010, who encouraged him to continue cycling, and he has also seen an exercise physiologist.

•  In or about February 2011, he obtained a letter from Cryovac Australia Pty Ltd that because he was unfit for all the requirements of his job, his employment was being terminated.[23] Since then he has been getting certificates for total incapacity from Dr Lester and has been in receipt of WorkCover weekly payments.

•  The plaintiff describes the cessation of his employment with the defendant as follows:

[23]           See Exhibit E

“In respect of my employment with the defendant and the cessation of my employment with the defendant, I ceased that employment in approximately July 2006. At that time, I had been taken off all the shift work at the Woolworths Distribution Centre and I had been given a less physical job overseeing a program to upgrade a fire sprinkler system at the distribution centre. At that stage, I was struggling with the job and I was unable to cope with shift work. I was effectively in a short-term position overseeing the upgrading of the sprinkler system. It was obvious to me that the writing was on the wall in respect of ongoing employment. However, the actual reason for my termination of employment was that I was sacked for using offensive language, when I swore whilst in discussion with another worker. I didn’t direct the language at anyone nearby and I believe it was really an excuse to get rid of me. In any event, at that stage I was on modified duties and off shift work and I doubt that I could have kept going with Swisslog Australia.”[24]

[24]           See Exhibit A at pages 22-23 of the PCB

• The plaintiff believes that he could not do a job which requires prolonged standing, squatting, kneeling, bending or lifting and on some days his left knee pain is so bad that he could not be relied on to complete a full day’s work. As at 28 July 2011, the plaintiff asserted that:

“Given the level of symptoms in my left knee, I cannot see

[25]           See Exhibit A at page 23 of the PCB

myself doing any work at all.”[25]

21        The plaintiff relies on the medical reports from his treating general practitioner, Dr Elizabeth Lester, dated 10 January 2007, 4 March 2011 and 8 April 2011.[26]

[26]           See Exhibit B at pages 24-27 of the PCB

22        The plaintiff consulted Dr J Crawford at the Highton Clinic (where Dr Lester is situated) on 25 March 2004, who initially diagnosed a strained medial ligament, quadriceps tendon and patellar tendon, and prescribed Mobic. The plaintiff was initially seen by Dr Lester on 10 May 2004, who in turn referred him to the orthopaedic surgeon, Mr Simon Williams. Dr Lester has continued to treat the plaintiff, and in her last report states:

“In summary: Chris’s left knee has had the following diagnoses as found by MRI and at his arthroscopies – strained left medial ligament, strained quadriceps tendon, chondromalacia patellae, subpatellar cartilege (sic) lesion. He has also had subsequent lower back pain, plantar fasciitis and weight gain. It has been recommended to him to lose weight by myself, his surgeon – see letter and physio. He was prescribed reductil when it was available and referred to a dietician for this reason.

His current knee issues are directly related to his WorkCover injury.

Chris has been assessed by a vocational assessment and has been found to be unable to perform the duties of his previous job as he is unable to climb ladders, squat or kneel for extended periods or walk on uneven ground.

His knee injury is stable. He may require further surgery in the future.

His knee is continually painful and unstable.

Chris would benefit from assistance with finding appropriate employment, weight loss, rehabilitation program/physio/gym program to maintain flexibility and strength in his knee.

Chris’s knee injury and aggravations are consistent with the stated cause and reaggravation occurs with minor injury. At all times Chris has been compliant with treatment and has attended to his rehabilitation diligently. He has always worked to his maximum ability.

He continues to have recurrent re-injuries with minor stresses and has had to cease his hobby of snow skiing. I expect that he will continue to have trouble with this knee and continued flare-ups especially working as a fitter and turner. He will probably require days off here and there when he has a flare-up of his injury.”[27]

[27]           See Exhibit B at pages 26-27 of the PCB

23        The plaintiff was initially seen by the orthopaedic surgeon, Mr Simon Williams, on 23 September 2004 (on referral from Dr Lester). At that time, the plaintiff was complaining of ongoing medial pain and swelling but gave no history of the knee giving way or locking. In particular, he found it difficult to manage stairs.

24        Examination at that time revealed the plaintiff to walk with a normal gait with no effusion present. The left knee had a full range of movement and was stable although it was tender around the medial joint line.

25        Mr Williams was of the opinion that the plaintiff may have torn his medial meniscus, and ordered an MRI scan which did not show any meniscal or significant chondral damage.

26        On review on 13 October 2004, Mr Williams recommended that he continue with conservative treatment in relation to his left knee, considering that surgery was not indicated. The plaintiff returned to Mr Williams on 23 February 2005 complaining of ongoing pain around the inner side of the patella.

27        Examination at that time revealed no effusion in the joint and again the knee had a full range of movement but there was tenderness over the medial side of the patella.

28        Although Mr Williams considered there was a low probability of any benefit of undergoing an arthroscopy of the knee joint given his normal MRI scan he (the plaintiff) “decided to proceed” with an arthroscopy on 22 March 2005. Mr Williams notes that the only abnormality noted at the arthroscopy was that of some minor chondral damage to the medial facet of the patella and there was a medial patello-femoral plica which Mr Williams considered not related to the traumatic episode.

29        On review on 6 April 2005, Mr Williams advised the plaintiff that he did have some articular cartilage damage to the back of his patella and although this may continue to give him some ongoing pain, the best way to manage this was with exercises to strengthen the muscles around the knee.

30        Mr Williams discharged the plaintiff from his care at that time and the plaintiff did not consult Mr Williams again until 20 October 2005 complaining that he had “re-injured his left knee” when he had a further slip on a wet floor at work some eight weeks prior to the consultation. At that time, the plaintiff seemingly informed Mr Williams that the knee had recovered to at least “ninety per cent of normal” following his previous surgery and that he had been “progressing quite well”. The “new injury” had set him back significantly, developing both medial joint line pain and suprapatellar pain which was particularly bad with stair climbing.

31        Examination at that time revealed no effusion, the knee to be stable with a full range of movement but there was mild tenderness over the medial joint line.

32        Mr Williams did not think there was any “significant pathology” and arranged a new MRI scan which again revealed minor patello-femoral problems only.

33        The plaintiff again consulted Mr Williams on 18 December 2006 complaining of “trouble” with the left knee, particularly with squatting and kneeling, and an occasional “popping” sensation when he stood up after he had been sitting for a while.

34        Examination revealed no effusion in the joint, no ligament laxity, a full range of movement in the knee and no significant tenderness or patello-femoral irritability.

35        Mr Williams considered the plaintiff may have been having patellar subluxation and arranged for him to undergo a CT scan which revealed some minor lateral tracking, and he considered this as best managed non- operatively with exercises, and the plaintiff was referred to physiotherapy.

36        In a report dated 15 February 2007,[28] Mr Williams states, in part:

“In my opinion, Mr Cone has been suffering from patello-femoral pain related to mild maltracking of his patella associated with some patello- femoral chondral damage. It is possible that this condition was aggravated by the 2 falls he had at work.

In my opinion Mr. Cone is able to undertake his normal duties at work and I do not believe his knee problem is bad enough to curtail any work activities in the future.

Mr. Cone’s prognosis is excellent as really, there is ‘o major underlying structural problem with this knee. He does have some mild patello- femoral pathology but I do not believe at this stage it requires any further investigation or treatment.

The best treatment for Mr. Cone’s knee problem at the moment is exercise which I believe he is currently undertaking both independently and with the aid of a physiotherapist.”[29]

[28]           See Exhibit B at page 28 of the PCB

[29]           See Exhibit B at pages 30-31 of the PCB

37        Subsequently, Mr Williams consulted with the plaintiff on 24 July 2007, at which time the plaintiff complained of a “recent exacerbation in his left knee pain and swelling” which he felt was related to an examination by a WorkCover doctor. Mr Williams did not consider the plaintiff needed any surgical intervention and it was best to try and manage his pain with regular exercises and appropriate analgesia.

38        On 26 November 2008, the plaintiff was referred back to Mr Williams by his local doctor. At that time, the plaintiff complained of continuing left knee pain, especially with squatting and kneeling.

39        Examination at that time revealed only some irritability around the patello- femoral joint. Mr Williams arranged for a new MRI scan of the left knee which revealed a patellar chondral lesion but no other significant abnormality.

40        Mr Williams last reviewed the plaintiff on 22 December 2008 and because of his ongoing complaints, recommended that he obtain a second opinion, and the plaintiff was referred to the orthopaedic surgeon Mr Graham Brown.

41        When last seen by Mr Williams, the diagnosis continued to be chondral damage to the patellar articular surface which, according to Mr Williams, should not affect the plaintiff’s work capacity although it may cause him some pain.

42        The defendant relies on reports from the orthopaedic surgeon, Mr Graham Brown dated 22 October 2009 and 11 November 2009.[30]

[30]           See Exhibit 6 at pages 14-17 of the DCB

43        Mr Brown initially consulted with the plaintiff on 17 February 2009 and examination at that time revealed no effusion of the joint with a full range of movement although there was tenderness over the medial facet of his patella. He considered that an MRI at that stage revealed a focal articular cartilage defect of the left patella.

44        On 30 April 2009, Mr Brown performed a left knee arthroscopy and found a small (10 x 15 millimetre) area of Grade II (that is partial thickness) chondrosis of the patella. The rest of the knee arthroscopic examination was normal and he had no particular problems after the surgery and was referred by Mr Brown for further physiotherapy, rehabilitation and the loss of weight.

45        In the report dated 22 October 2009, Mr Brown is of the opinion that the plaintiff had a current capacity for his pre-injury duties as well as any other duties and he did not require any work restrictions.

46        In his later report, Mr Brown comments that because of the chronic nature of the pain, the plaintiff should be referred to a pain and rehabilitation specialist as there was nothing surgically that could be done.

Medico-Legal Examinations

47        The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the following doctors:

[31]           See report of same date in Exhibit 37, PCB

[32]           See report dated 4 August 2011 in Exhibit B at page 44 of the PCB

(a)	The occupational physician, Dr Robyn Horsley, on 11 January 2011;[31]
(b)	The orthopaedic specialist, Mr Michael Fogarty, on 16 May 2011;[32]

48        Dr Horsley described the plaintiff as “straightforward” on examination. The measurement of the circumference of the right thigh was 51.5 centimetres and that of the left, 49.5 centimetres whereas the circumference of the right calf was 35 centimetres compared to 36 centimetres on the left. Dr Horsley commented that there seemingly was a reduction in muscle bulk of the left quadriceps mechanism secondary to the pathology of the left knee, but was unable to explain the reduction in muscle bulk at the right calf. Furthermore, examination revealed no effusion in the left knee and there was a normal range of motion in flexion and extension and all ligaments were intact. Dr Horsley noted there was some mild tenderness on patella grinding.

49        Dr Horsley diagnosed chondromalacia patellae of the left knee and because of altered biomechanics, the plaintiff also suffers some left plantar fasciitis and intermittent mechanical back pain.

50        Given the diagnosis of chondromalacia patellae of the left knee, Dr Horsley was of the opinion that the plaintiff was no longer fit to perform work as a fitter and turner on a full-time basis unless he can move into a supervisory role with reduced physical capacity. Although she was of the opinion that the plaintiff had a capacity for employment, he would have to avoid repetitive squatting, repetitive kneeling, repetitive stair and hill climbing and repetitive ladder climbing and descending.

51        When examined by Mr Fogarty, there was no wasting in the left thigh. However, Mr Fogarty noted that squatting was difficult for his left knee and although he could stand with good posture, the plaintiff did not quite fully extend the left knee. The range of motion in the knee was measured 5 to 120 degrees and there was no effusion in the left knee.

52        Mr Fogarty diagnosed chondral damage on the medial aspect of the patella with associated intermittent synovitis in the patello-femoral region of the left knee.

53        In relation to capacity for employment, Mr Fogarty states, in part:

“4	The restrictions ‘which this injury imposes on your client are:
Limitation on walking on rough ground or a lot of steps and stairs plus squatting or crawling under machinery
5	These restrictions would affect your client’s ability to work although I note that he has been able to work full-time in work not involving climbing of stairs. I think he is probably capable of working full-time with these restrictions.
6	The prognosis is only fair as Chris Cone is likely to continue having symptoms from the patello-femoral compartment of his left knee. It is possible that he may develop significant osteoarthritis in this patello-femoral compartment and this may require further medical treatment but there did not appear to be a clear indication for any operative treatment at present, rather an indication for continuing conservative treatment, including active exercises, walking and cycling.”[33]

[33]           See Exhibit B at page 47 of the PCB

54        It is also convenient to refer to the medico-legal reports relied on by the defendant. The solicitor for the defendant arranged for the plaintiff to be medico-legally examined by the following doctors:

[34]           See report of same date in Exhibit 6 at page 1 of the DCB

[35]           See report of same date in Exhibit 6 at page 5 of the DCB

[36]           See report of same date in Exhibit 6 at page 8 of the DCB

[37]           See report of same date in Exhibit 6 at page 10 of the DCB

[38]           See report of same date in Exhibit 6 at page 18 of the DCB

(a)	The orthopaedic surgeon, Mr Bruce Love, on 30 January 2007,[34] 13 November 2007,[35] 15 June 2010[36] and on 17 May 2011;[37] and
(b)	The orthopaedic surgeon, Mr Garry Grossbard, on 18 March 2011.[38]

55        When initially seen by Mr Love, examination revealed tenderness over the medial joint line, but there was a full range of movement and Mr Love could not detect any irritability of the patellar. At that time, Mr Love considered a diagnosis remained “obscure”. He did note that the plaintiff had changed employment and he can now work in a capacity that allows him to cope with the situation wherein he does not have to kneel.

56        When seen on 13 November 2007, examination of the left knee revealed a full range of movement of the knee and the only physical finding was tenderness over the medial joint line. At that time, Mr Love considered that the diagnosis was non-specific but the left knee pain prevented the plaintiff engaging in certain activities. Mr Love did not at that examination that the plaintiff was working as a maintenance fitter and had had no time away from work because of his knee condition in the last twelve months.

57        When seen by Mr Love on 15 June 2010, he had available the results of the arthroscopic procedure undertaken by Mr Brown which revealed a Grade II chondrosis of the patella. Mr Love noted that the plaintiff was working full- time as maintenance fitter but found certain activities such as climbing ladders, using stairs or crawling into machinery difficult because of his knee.

58        Examination of the left knee at that time revealed some irritability of the patello-femoral joint but these findings were subtle. At that time, Mr Love noted that abnormalities on the posterior surface of the patella in the patello- femoral joint frequently caused unremitting discomfort and that such a condition is unresponsive to surgery. He considered that that was probably the case with the plaintiff and it was improbable that any other treatment can be offered to him.

59        When last seen on 17 May 2011, the plaintiff complained of pain over the medial aspect of the knee in a generalised manner without it being well located and that the symptoms have remained with him since the original injury seven years ago.

60        Examination revealed some non-specific medium-sized tenderness without any obvious abnormality. In his report dated 17 May 2011, Mr Love states, in part:

“1	His present condition is that of persistent medial knee pain.
2	I am of the opinion that this pain is still related to his original injury which I understand occurred when he was working for Swisslog Australia P/L.
3	I am not of the opinion that operative treatment has anything to offer him and I am further not of the opinion that there are other medial treatments that are likely to make any meaningful difference to him.
4	He is unable to undertake his pre injury duties.
5	He is not working at this time.
6	I have gained the impression that abnormal illness behaviour or functional overlay may exist and I would recommend seeking an opinion from an appropriate trained psychologist.
… .”[39]

[39]           See Exhibit 6 at pages 10-11 of the DCB

61        Examination by Mr Grossbard on 8 March 2011 revealed no knee joint effusion but there was 1 centimetre of quadriceps wasting on the left side, together with mild medial ligament laxity, especially in flexion. The plaintiff was also tender to palpation along the medial joint line and patello-femoral joint.

62        Mr Grossbard was of the opinion that the plaintiff has a current work capacity for activities not requiring squatting, kneeling and bending, and certainly would have the capability of undertaking activities in sales inspection or teaching. Because of his difficulty kneeling, squatting and bending, Mr Grossbard was of the opinion that the plaintiff should probably not return to his pre-injury duties. In particular, Mr Grossbard states:

“This man has had an injury to his left knee as a result of the fall in 2004. He has injured the retropatellar surface of his knee and strained his medial ligament. He has ongoing episodes of pain and instability, each requiring intermittent periods of treatment with physiotherapy. In the interim periods he continues with an exercise programme.

This man does have a work capacity for any activities not including climbing, squatting and kneeling. He has trade qualifications which should make his ability to find appropriate work easier.

… .”[40]

[40]           See Exhibit 6 at page 23 of the DCB

Vocational Assessments

63        The plaintiff relies on reports from Ms Kaye Angel of Flexi Personnel dated 10 February 2011, 19 September 2011 and 23 September 2011.[41]

[41]           See Exhibit C at pages 48-58A of the PCB

64        Ms Angel interviewed the plaintiff on 1 February 2011. At that time, the plaintiff had recently received (the week before) the letter from Cryovac advising him that he was required to return to work in fourteen days to work full-time normal duties as a maintenance fitter or his position would be terminated. The thrust of the opinion of Ms Angel was that although the plaintiff may theoretically have some capacity to work, from a recruitment perspective, it may not be at a level that would make him an attractive option for an employer to hire him for full-time or even part-time work.

65        In her later report, Ms Angel asserted that if the plaintiff was employed utilising his Auto Cad training, he would be earning about $707.94 gross per week. If he was employed as an assembler/process worker performing light bench factory work he would be earning approximately $606.48 gross per week.

66        The defendant relies on an NEC Vocational Assessment Report from Work Able Consulting dated 27 January 2011.[42] The author of that report, Ms Sarah Andrews, identified the following suitable employment options:

[42]           See Exhibit 7 at page 25 of the DCB

(a)	Spare parts interpreter, earning $950 gross per week;
(b)	Sales representative, earning $1,000 gross per week;
(c)	Machinery and equipment hire co-ordinator, earning $810 gross per week;
(d)	Service technician, earning $1,000 gross per week; and
(e)	Maintenance worker/drafter, earning $1,600 per week.

Cross-Examination of the Plaintiff

67        The plaintiff was extensively cross-examined in relation to credit and reliability. I refer to several areas of the cross-examination:

(a) The failure of the plaintiff to mention the business of Towrite Trailers.

The plaintiff accepted that he did not say anything about the business, Towrite Trailers to the agent of the defendant, the defendant’s doctors, in his certificates[43] or make any mention in his affidavit material. The plaintiff believed that he had informed Dr Lester and his physiotherapist.[44] The plaintiff also gave evidence that such partnership business commenced in December 2009.[45] He was shown a certificate[46] and asked why he ticked the box that he has not “been engaged in any form of paid employment, self employment or voluntary work since the last continuing certificate of capacity was issued and declare that the details I have given on this certificate are true and correct, knowing that false declarations are punishable by law”.

[43]           See T 66, L13-20

[44]           See T 11, L30-31

[45]           See T 17, L16-18

[46]           See Exhibit 2

It was put to the plaintiff that he deliberately did not tick the Certificate of Capacity because he did not wish the defendant to make any enquiry as to what he was undertaking in the business or capable of doing.[47]

[47]           See T 61, L25 – T 62, L2

In essence, the plaintiff gave evidence that he was never asked about the work with his partner by any of the doctors, and believed the material about self-employment on the certificate was to do with whether he was earning an income rather than being actually employed.

(b) His independent work as a trailer maker and his partnership work.

The plaintiff gave evidence that in early 2000, he commenced a business trading under his own name, performing welding jobs, largely undertaken at his residential address. He had an ABN for such business and ran it for about six or seven years. In particular, he gave evidence that he not only repaired goods but commenced to make trailers – what he referred to as “standard garden trailers”.[48] This business was continuing at the time of the injury. Over the last six months or so of 2003, the plaintiff would work a couple of hours a day “at the most”. In the early days, the plaintiff was manufacturing “maybe two or three a year” (that is trailers) and earning “probably a couple of thousand dollars a year; $3,000 a year maybe” for taxation purposes.[49]

[48]           See generally T 13, L15 – T 14, L14

[49]           See T 16, L26-27

After the partnership business started, he attended at the rented premises three to four nights during the week after work and a Saturday, depending on whether or not he was working at Cryovac on the Saturday. He would remain at the premises for a couple of hours at night and several hours on the weekend. Sometimes he and his partner would attend to trailer building, sometimes he would work on the computer and other times he and his friend would watch television there. The plaintiff gave evidence that it would take approximately eleven hours to build a trailer if working by yourself and if working with a partner, in the order of six hours.

The plaintiff was taken through his taxation returns for the years ending 30 June 2003, 30 June 2004 and 30 June 2005 where no monies were declared for business activities beyond his earnings from his paid employment. For the years ending 30 June 2006, 30 June 2007 and 30 June 2008, there were earnings declared for the value of approximately one trailer per year.

In particular, this evidence was given:

HIS HONOUR:

Q:  “It’s right to say, is it, Mr Cone, that if these are correct, and I
think we’re up to ’09 now, we started at about ’03 or ‘04.

MR MEDLRUM:

We started in ’03, your Honour.

HIS HONOUR:

Q:	In any one year you’ve made no more than one trailer per year?---
A:	Yes.
Q:	Is that right?---
A:	I would say that’s right, yes. I haven’t done a lot of work at home.

MR MELDRUM:

Q:	Why, if that’s right, did you tell us you were building two or three a year?---
A:	I was trying to recall what I was doing.
Q:	And I suggest your recall was accurate and your tax returns are inaccurate?---.”[50]

[50]           See T 105, L15-27

(c) The extent of the plaintiff’s skiing before the injury.

The plaintiff gave evidence that he had travelled to Canada in 1999 for three weeks to ski, after which he had attended Mt Buller or Falls Creek in 2002 or thereabouts for one or two days skiing.[51]

[51]           See generally T 107, L25 – T 108, L9

(d) The circumstances of the plaintiff leaving the defendant.

The plaintiff was taken to paragraph 17 of his first affidavit wherein he stated inferentially because of his ongoing problems he “left” the employment of the defendant.

The plaintiff admitted that he was sacked; however, he accepted that the wording in the first affidavit was not correct but maintained that effectively he could not cope with the job. In particular, the following evidence was given:

Q:	“… As I understand your evidence, you got sacked from the employer because of the swearing incident. If the swearing incident had not occurred, what do you say as to whether or not you would have stayed on at Swisslog?---
A:	That’s hard to answer. I’m not sure that position that I was doing at that time as to how long that would run for.
Q:	That was a position which there was alternative …?-

A: There was alternative work to oversee that system

upgrade.”[52]

[52]           See T 120, L7-16

68        Under cross-examination, the plaintiff accepted that although he does not have his “formal ticket” in welding, he is a skilled welder and believes that he could work on the open market as a welder depending on the work being at bench height.[53]

[53]           See T 36, L10-20

69        The plaintiff also gave evidence that he has always enjoyed go-karts, from the age of seventeen, and driving fast vehicles, all of which had to be given away because of difficulty operating a clutch with his left leg.

70        In re-examination, the plaintiff confirmed that his employment with Cryovac had been terminated, and he produced the letter giving rise to the termination.[54] He gave evidence that prior to the sending of this letter he had time off work for about three months in 2009 following the last bout of surgery and in 2010, he had periods of one, two and three weeks at a time due to knee flare-ups.[55]

[54]           See Exhibit D

[55]           See T 117, L5-8

71        The plaintiff described, when working at Cryovac, that he was “struggling” because of the requirements to climb over, inside or under large machines and the need to climb ladders into machines.

72        The plaintiff gave evidence that he believed he could not work full-time as a maintenance fitter and turner because of the restrictions brought about by his left knee.

Analysis of the Evidence

73        I am satisfied that the plaintiff suffered a left knee injury arising out of or in the course of his employment with the defendant on or about 5 February 2004. The nature of such injury is chondromalacia patellae of the left knee and in particular, the medial aspect of the patella.

74        Various radiological studies indicate that the menisci, the posterior cruciate ligament, the medial and lateral collateral ligaments and the quadriceps femoris and patellar tendons are all intact.[56]

[56]           See in particular, MRI examination 3 December 2008 in Exhibit B at page 34 of the PCB

75        Although the pathology in the left knee is relatively modest, the consensus of medical opinion is that such condition was caused or contributed to by the incident on or about 5 February 2004. I note that all medical treatment, including the arthroscopies undertaken on 22 March 2005 (by Mr Williams) and 30 April 2009 (performed by Mr Brown) were all paid for by the agent of the defendant and indeed, the plaintiff is presently receiving weekly payments of compensation for no work capacity.

76        The defendant accepts that there was a compensable injury but queries how significant such injury was, particularly so given the reports from the treating surgeons, Mr Williams and Mr Brown, who opine that the plaintiff has an ongoing capacity to perform his pre-injury employment. Furthermore, given the paucity of the pathology and indeed, such opinions from the treating specialists, the defendant understandably submits that much store must be put on the credit of the plaintiff when he complains of knee pain and limitations involving left knee movement. To this end, the defendant submits that the plaintiff’s credit is such that little or no store can be placed in his allegations of pain and restriction.

77        I find, as a matter of fact, that work as a maintenance fitter does involve climbing under, over and sometimes inside machines to perform work and also would require, on occasion to climb stepladders and stairs. The current medical opinion from the occupational physician, Dr Horsley (examination on 11 January 2011); the orthopaedic surgeon, Mr Michael Fogarty (examination on 16 May 2011); the orthopaedic surgeon, Mr Garry Grossbard (examination on 8 March 2011) and the final opinion of the orthopaedic surgeon, Mr Bruce Love (the last examination on 17 May 2011) is that the plaintiff is unfit to perform his pre-injury duties as a maintenance fitter. Although appreciating such opinions are in contrast to those of the treating surgeons, it is to be stressed that such opinions are relatively current and consistent. Furthermore, such opinions, particularly that of the occupational physician, are more directed to whether the plaintiff has a capacity to perform all of the components of a maintenance fitter.

78        Exhibit E sets out the gross income for the financial years ending 30 June 2002 to the year ending 30 June 2010. The gross income is recorded as follows:

(a)	For financial year ending 30 June 2002, $84,898.00;
(b)	For financial year ending 30 June 2003, $65,953.00;
(c)	For financial year ending 30 June 2004, $82,893.00;
(d)	For financial year ending 30 June 2005, $90,392.00;
(e)	For financial year ending 30 June 2006, $99,258.00;
(f)	For financial year ending 30 June 2007, $71,540.00;
(g)	For financial year ending 30 June 2008, $75,321.00;
(h)	For financial year ending 30 June 2009, $63,095.00;
(i)	For financial year ending 30 June 2010, $64,053.00.

79        Bearing in mind that the compensable injury occurred on 5 February 2004, the highest grossing years were for the financial years ending 30 June 2005 and 30 June 2006. It is to be remembered that the plaintiff continued working with the defendant until his termination in late 2006, after which he commenced employment as a fitter with “Mrs Crockett” and later working for Cryovac for approximately three years as a maintenance fitter.

80        However, it is to be noted that when he was terminated from the defendant he was performing alternative duties restricted to one site, the work at Mrs Crockett did not involve much walking and indeed, his employment with Cryovac was brought to an end by him taking too much time off work because of his knee. In this respect, I accept his evidence that from the date of the initial injury, and perhaps moreso after the surgery in 2008, he was taking regular time off work and thus prompting the letter from management. In this sense, although notionally working as a maintenance fitter throughout this period of time, the evidence would suggest that he was not coping with such work.

81        I do have some concerns about the evidence of the plaintiff in relation to his trailer building activities, both as a sole contractor and later in partnership up to recent times. Although the bank statements and the taxation returns showed no marked discrepancy, there was a marked discrepancy between his initial viva voce evidence as to the extent of activities carried on by him alone and later in partnership and what was borne out by business income in the taxation returns over the years. Over the financial years from 30 June 2003 up to 30 June 2008, only a handful of trailers were made which, according to counsel for the defendant, was unlikely and that accordingly, more trailers were made which generated income which was not declared for taxation purposes and for which the plaintiff set out to deliberately obscure to avoid inquiry about his capacity for work.

82        Given the outlays in the partnership business and the time said to be spent at the partnership premises (some of which was for social purposes), I tend to the view that more activity was undertaken than the plaintiff gave evidence about.

83        Notwithstanding the foregoing, no one suggested that the plaintiff was not experiencing the symptoms that he complained of and indeed, as I have already pointed out, all recent doctors accept that he is incapable of performing work as a maintenance fitter. Perhaps it should be stated as a caveat to such proposition that I formed the view that the plaintiff was clearly capable of many aspects of his pre-injury employment but in particular, would be incapable to perform work on a regular basis of climbing on and around and in machines and work involving walking up and down stairs or climbing up and down ladders. As I raised with counsel, I query somewhat rhetorically, why would a man cease performing work generating approximately $100,000 gross per annum if not in reality he is unable to cope with such work. Even in accepting that more activity may well have been undertaken in the partnership business, I neither find nor infer from such material that the plaintiff can work as a maintenance fitter in all respects, or is capable of earning similar remuneration as that of a maintenance fitter in such business.

84        It is convenient to consider whether the plaintiff satisfies the requisite test for establishing a serious injury entitling him to claim “pecuniary loss damages”. Section 134AB(38)(e)(i) of the Act requires the plaintiff to establish that as at the date of the hearing of the application he “has a loss of earning capacity … of 40 per cent or more” measured “as set out in (f)”. The measurement of the claimed loss of earning capacity as prescribed by paragraph (f) necessitates a comparison of two matters:

(a)	what the plaintiff is earning, whether in suitable employment or not or capable of earning in suitable employment at the date of hearing (“after injury earnings”); and
(b)	the income that the plaintiff was earning or was capable of earning “during that part of the period within three years before and three after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred” (“without injury earnings”).

85        In both cases, the income is limited to gross income from personal exertion and is to be annualised.

97        Section 134AB(38)(e)(ii) requires the plaintiff that he will, after the date of hearing, “continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more”.

86        I determine that the “without injury” earnings is $99,258.00 as that was the amount the plaintiff earned for the year ending 30 June 2006. Such year is within three years after the injury and is clear evidence of what a maintenance fitter was earning, as demonstrated by the plaintiff, albeit under difficult circumstances.

87        Accordingly, sixty per cent of such figure is $59,553.00.

88        After a consideration of all of the evidence, I am of the clear view that the plaintiff has a capacity for suitable employment and indeed, is capable of performing all the jobs listed in the NES Vocational Assessment Report from Work Able Consulting[57] save that of maintenance worker/drafter. In this respect, the plaintiff gave evidence as to the difficulties he would have in performing such work, which again would involve climbing onto, in and around machines. I accept such evidence.

[57]           See Exhibit 7 at pages 25-32 of the DCB

89        The annualised amount for a spare parts interpreter is approximately $49,400; the annualised amount for a sales representative is approximately $52,000; the annualised amount for a machine and equipment hire co-ordinator is $42,120 and the annualised amount for a service technician is approximately $52,000.

90        These amounts are less than $59,553.00 and I am satisfied that the plaintiff has discharged his onus in establishing that he is incapable of earning more than 60 per cent of his pre-injury earnings and furthermore, he is likely to continue to have permanently a loss of earning capacity which would be productive of a loss of 40 per cent or more.

Conclusion

91        Accordingly, applying Advanced Wire & Cable Pty Ltd v Abdulle,[58] I grant leave to the plaintiff to bring common law proceedings for both pain and suffering damages and pecuniary loss damages.

[58] [2009] VSC 170

92        I will hear the parties on other ancillary matters.

- - -
Annexure A

1          The plaintiff tendered the following material:

(a)	Exhibit A - Affidavits of the plaintiff sworn on 25 December 2009 and 28 July 2011 found at pages 12-23 of the Plaintiff’s Court Book (“PCB”).
(b)	Exhibit B – The plaintiff’s medical reports from Dr Elizabeth Lester dated 10 January 2007, 4 March 2011 and 8 April 2011; report from the orthopaedic surgeon, Mr Simon Williams, dated 15 February 2007 and 22 January 2010; MRI reports dated 15 November 2005 and 3 December 2008; report from the occupational physician, Dr Robyn Horsley, dated 11 January 2011; and from the orthopaedic surgeon, Mr Michael Fogarty, dated 4 August 2011. All such reports are at pages 24- 47of the PCB.
(c)	Exhibit C – Consisting of reports from Ms Kaye Angel from Flexi Personnel dated 10 February 2011, 19 September 2011 and 23 September 2011; reports from Mr Luke Johnson, physiotherapist, dated 27 December 2007 and 20 August 2011; and a report from Ms Eliza Jenkins, exercise physiologist, dated 15 August 2011. All such reports are at pages 48-67 of the PCB.
(d)	Exhibit D – Document headed “Taxation Summary” of the plaintiff’s taxation returns from the year ending 30 June 2002 to 30 June 2010, at page 68 of the PCB.
(e)	Exhibit E – Letter from Cryovac Australia Pty Ltd to the plaintiff dated 9 September 2010.

2          The defendant tendered the following material:

(a)	Exhibit 1 – consisting of Bendigo Bank statements from 23 January 2010 to 22 July 2011.
(b)	Exhibit 2 – Certificate of Capacity issued on 18 January 2011 in respect of an examination on 14 January 2011.
(c)	Exhibit 3 – Bundle of documents in relation to CANS, the racing car material.
(d)	Exhibit 4 – Two Business Activity Statements for the periods from 1 January 2010 to 31 March 2010 and from 1 January 2011 to 31 March 2011.
(e)	Exhibit 5 – Taxation returns of the plaintiff from 30 June 2003 to 30 June 2009.
(f)	Exhibit 6 – Medical reports, including those from the orthopaedic surgeon, Mr Bruce Love, dated 30 January 2007, 13 November 2007, 15 June 2010 and 17 May 2011; report from the orthopaedic surgeon, Mr Simon Williams, dated 18 September 2009; medical reports from the orthopaedic surgeon, Mr Graeme Brown, dated 22 October 2009 and 11 November 2009; medical report from the orthopaedic surgeon, Mr Garry Grossbard, dated 18 March 2011. All such material is at pages 1-24 of the Defendant’s Court Book (“DCB”).
(g)	Exhibit 7 – Work Able Consulting vocational assessment report dated 27 January 2011, found at pages 25-32 of the DCB.