Connelly v Transport Accident Commission
[2023] VCC 836
•1 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-02929
| XAVIER CONNELLY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 May 2023 | |
DATE OF JUDGMENT: | 1 June 2023 | |
CASE MAY BE CITED AS: | Connelly v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 836 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Transport accident – serious injury application – limitation of actions application – injury to right knee after falling from bicycle in 2012 – ACL tear – whether injury new or aggravation of existing injury – what pain and restriction consequences arise from right knee injury as opposed to other injuries – whether those consequences meet the threshold test of a “serious injury” – whether extension of time should be granted.
Legislation Cited: Transport Accident Act 1986; Limitation of Actions Act 1958
Cases Cited:Abbas v Transport Accident Commission [2015] VSCA 217
Humphries and Anor v Poljak [1992] 2 VR 129
Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
Petkovski v Galletti [1994] 1 VR 436
Judgment:The plaintiff’s applications are dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis SC with Ms K Karadimas | Slater and Gordon |
| For the Defendant | Ms R Kaye SC with Ms E Golshtein | Solicitor for the Transport Accident Commission |
HER HONOUR:
Background
1The plaintiff, Xavier Connelly, injured his right knee when he fell off his bike after swerving to avoid a vehicle on 15 November 2012.
2MRI investigations showed he had torn the graft from a previous repair of an anterior cruciate ligament (“ACL”) injury in 2004. He had surgery to repair the ACL.
3He did not pursue any legal action until he saw an advertisement for Slater and Gordon about transport accidents on Instagram in about June 2020. He contacted the law firm and subsequently applied for a serious injury certificate from the defendant, the Transport Accident Commission (“TAC”). The TAC rejected the application, and he filed this application for leave to pursue a common law claim on 16 July 2021.
4He seeks leave, pursuant to s93(4)(d) of the Transport Accident Act 1986 to bring a common law claim on the basis of an impairment to his right knee.
5The period of time in which to bring a common law claim expired on 15 November 2018. As a result, if he is successful in obtaining a serious injury certificate, he will need an extension of time in which to pursue his common law rights.
6He therefore also makes an application for leave pursuant to s23A of the Limitation of Actions Act 1958.
7There is no dispute about the legal principles that apply to this case, nor is there any dispute that Mr Connelly suffered a rupture of the ACL graft in his right knee, which required surgical repair. Mr Connelly had suffered an earlier injury to the same knee, also requiring an ACL repair. The matter in dispute is whether the consequences for Mr Connelly meet the relevant test of a serious injury, and if so, whether he ought to be granted an extension of time in which to pursue a common law claim.
Issues
8The issues that need to be determined in this case are:
(a) whether Mr Connelly’s right knee injury is a new injury or an aggravation of an existing injury;
(b) what pain and restriction consequences that Mr Connelly currently experiences arise from the right knee injury, as opposed to other injuries he has suffered;
(c) whether those consequences meet the threshold test of a “serious injury”;
(d) if so, whether Mr Connelly should be granted an extension of time pursuant to s23A of the Limitations of Action Act.
9For the reasons set out below, I am not satisfied that Mr Connelly has suffered a serious injury. Accordingly, there is no available cause of action and the provisions of s23A are not called into operation.
Is Mr Connelly’s right knee injury a new injury?
10Mr Connelly had a right knee reconstruction in 2004 after an ACL injury while playing football. Mr Russell Miller performed the reconstruction using a hamstring graft and described the result as “excellent”.[1]
[1]Plaintiff’s Amended Court Book (“PACB”), 165
11Mr Connelly did not return to playing competition football after the first knee reconstruction, but he continued to play sports, like soccer, socially after that point.[2] He described, in his evidence, a particular area of his knee that was very painful if knocked, that had been there since the first reconstruction.[3] He also said that he would get pain in the knee “from time to time” after the first reconstruction.[4] However, generally, he felt he recovered well from the first reconstruction and other than avoiding contact sports, resumed his usual activities.
[2]Transcript (“T”) 42, lines (“L”) 6-7
[3]T42, L23-24
[4]T42, L12
12There is no dispute that Mr Connelly injured his right knee in a transport accident on 15 November 2012. He was riding his bicycle in Rathdowne Street in Carlton, and a vehicle swerved suddenly, causing him to swerve his bicycle and hit a turning car. He felt immediate pain in his right knee.
13He underwent an MRI scan on 16 November 2012, which showed a full-thickness tear of the ACL graft and features consistent with previous lateral meniscectomy, with extensive cleavage tear within the lateral femoral condyle, and a smaller cleavage within the posterior lateral tibial plateau. He was referred to Mr Miller.
14On 10 January 2013, Mr Miller performed a right knee revision ACL reconstruction. At operation, he was noted to have some tearing in the mid and posterior portions of the medial meniscus and mid-substance rupture of the ACL graft.[5]
[5]PACB 214
15He had physiotherapy, which continued until mid to late 2013. He also undertook a self-guided program of strengthening exercises at the gym.
16The TAC submits that Mr Connelly suffered an aggravation of a pre-existing injury, being a rupture of the graft of an already constructed knee. Mr Connelly says that this is a new and distinct injury.
17Mr Miller notes, in his report of June 2022, that Mr Connelly has quadriceps wasting, moderate effusion and clicking during movement. He has a Grade 1 anterior drawer and Grade 2 pivot shift. An X-ray of the right knee on 27 January 2022 showed mild degenerative changes involving the femorotibial joints and spurring of the patella-femoral joint. He opines that the “relationship between the motor vehicle accident and the current right knee is complex and multifactorial”.[6] He says Mr Connelly clearly had pre-existing disease, but enjoyed a good result until the motor vehicle accident led to a rupture of the graft and chondropathology.
[6]PACB 153
18Associate Professor Marinis Pirpiris, a medico-legal orthopaedic surgeon who examined Mr Connelly in February 2021, noted thigh wasting with the right thigh diameter 47 centimetres and the left thigh diameter 49 centimetres. He noted crepitus, anterior knee pain and patellofemoral joint arthritis. Associate Professor Pirpiris noted he was “very much at risk” for post-traumatic degenerative chondropathology and eventual arthritis, requiring further surgery. He considered the chondropathology “most likely” related to the motor vehicle accident and the 2004 ACL reconstruction “can be ignored from the point of view of apportionment of injury.”[7] Associate Professor Pirpiris also diagnoses an injury to the infrapatellar branch of the saphenous nerve. This finding is not reported by anyone else, including Mr Miller, the treating surgeon.
[7]PACB 163
19Dr Iain McLean, medico-legal orthopaedic surgeon, examined Mr Connelly on 17 October 2022. He noted quadriceps/VMO wasting of the right thigh, mild AP and collateral laxity with pivot test, mild joint crepitus and mild lateral tracking. The left knee also had mild crepitus and lateral tracking. He considered Mr Connelly’s ongoing pain and instability were suggestive of progressive meniscochondral degenerative change and ligament insufficiency. He considered the earlier ACL repair left Mr Connelly with a degree of vulnerability relative to the articular surface and the ACL, but without clinical sequelae. I understand this to mean that his knee was vulnerable to other injury, but that other injury or disease had not eventuated prior to the 2012 accident.
20Mr Michael Dooley, a medico-legal orthopaedic surgeon, examined Mr Connelly on 24 January 2023. He noted some crepitus, but considered the knee was stable “from a ligamentous point of view”,[8] but that Mr Connelly has some laxity in general. There was right thigh wasting of about 1 centimetre. There was about 15 degrees less range of movement in the right, as opposed to left, knee. He opined that both the first and second injury to the right knee predisposes Mr Connelly to the potential development of osteoarthritis in time.
[8]PACB 201
21There is no significant dispute in the medical opinion. Mr Connelly had a distinct injury on 15 November 2012 which is separate from an aggravation of an existing injury. An aggravation might encompass, for example, increased pain and inflammation at a site, or in a joint, previously injured. However, in Mr Connelly’s case, there was a new rupture of the ACL graft and a tear in the meniscus. While the site itself may have been vulnerable because of previous repair, this does not mean that the injury is not a new injury caused by the accident.
22At the time of the transport accident, Mr Connelly did not have any significant pain in his right knee and was not experiencing any restrictions as a result of his previous injury.
23I consider this to be a new injury and not an aggravation of an existing injury. The previous injury was not causing Mr Connelly any significant consequences as at the date of the transport accident. There is no need to disentangle the consequences of the previous injury from this injury.[9] However, on the evidence of Dr McLean and Mr Dooley, the previous injury did increase his risk of developing future problems, including arthritis.
[9]Petkovski v Galletti [1994] 1 VR 436
What are the consequences of the injury for Mr Connelly?
Credit
24There was no serious attack on Mr Connelly’s credit. He made appropriate concessions against his own interests, particularly in relation to his participation in sport and other activities. In general, I accept Mr Connelly’s evidence.
Other injuries
25The consequences of this injury have to be identified and separated from any consequences of the previous reconstruction, and any consequences arising from subsequent events.
26In 2017, Mr Connelly injured his left knee while dancing. He attended Mr Miller and was diagnosed with a bucket handle tear of the medial meniscus, Grade 2 sprain of the medial collateral ligament and Grade 1 sprain of the lateral collateral ligament, with moderate knee effusion and mild bursitis. He underwent left knee arthroscopy and medial meniscectomy on 1 November 2017.
27In 2018, while travelling in Portugal, he was “king hit” from behind and developed what he describes as a “concussive condition and a psychological reaction”.[10] He had pain in his neck and shoulders, for which he sought chiropractic and osteopathic treatment for a period.
[10]PACB 9
28Mr Miller says the left knee prognosis is good. Mr Connelly says he has minor symptoms in the left knee which are infrequent aches and “that’s about it.” Mr Connelly says he is no longer troubled by symptoms in his neck, or by brain fog, or any symptoms arising from the incident in Portugal.
29I find that Mr Connelly’s injury to his left knee, neck and shoulder, have had a significant impact on him in the past, including causing pain that required physiotherapy and chiropractic treatment. I accept his evidence that the symptoms from these injuries have largely resolved, with the exception that he gets occasional aches in his left knee.
30He continues to experience hip symptoms.
Right knee symptoms
31Mr Connelly says that, after about 12 months of physiotherapy following the ACL repair in 2013, his “right knee never felt quite right”.[11] Although the surgery was successful, he said he continued to experience “flare ups” and the right knee did not feel as strong or stable as prior to the injury.
[11]PACB 10
32He says he continued to do gym work and exercises at home, but that his knee has “progressively deteriorated” and he has required medical treatment for referred pain in his hips. I note, here, that there is no medical opinion that the knee has caused any of the hip pain he experienced. Mr Miller says he is uncertain if the right hip is related to the accident. In any event, Mr Miller noted, in June 2022, that Mr Connelly had minor hip symptoms likely due to a soft-tissue injury and that prognosis for the hip was good. Therefore, I do not consider the hip pain is a consequence I can consider for the purpose of this application.
Sporting activities
33Mr Connelly says his knee feels weak and unstable and that, as a result, he has not been able to play squash and basketball since the accident. On cross-examination, he said that both these sports were activities he undertook from time to time on a social basis prior to the accident. He estimated he would have played squash about ten times in his life and, since the accident, he had probably played it a handful of times, perhaps two or three times. He said he played basketball casually or socially, but not competitively, and last played it about eight years ago. He said:
“… I played a variety of sports prior to the right knee surgery that, like, would just be social sports that my group of friends would every week, and we’d kind of play something, whether it’s just playing soccer or playing basketball or anything.”[12]
[12]T54, L26-30
34He conceded he continued to play sports with his friends but “not really like it was before”.[13] He conceded he went bouldering and had played tennis, netball, golf and squash since the accident, but not in the same fashion. He said he would accept invitations from friends, and sometimes organise activities himself with friends or his partner involving recreational sport and other activities, including bouldering. He said he last went bouldering about four months ago.
[13]T55, L5
35He said, before the accident, he used to run and really enjoyed it. It was a “great way” to clear his mind and also provided a social experience, as he would run with others.
36Records from his physiotherapist in April 2018, after his left knee surgery, record he had had three to four runs on the medial knee (this is a reference to the left knee medial repair). On 10 May 2018, his physiotherapist noted he had run 4 kilometres and felt pain where the meniscus was, also a reference to the left knee. On 18 May 2018, he was noted to have had two 8-kilometre runs which were reported as “good, improved, better, stronger, pain more in gluts than knee”.[14] His knee integrity was noted to be good, but it is clear that this is a reference to the left knee, not the right knee. On 31 May 2018, he was noted to have been for a run and felt good. On 24 May 2018, he reported feeling sore in general and had decreased training as a result. There is no reference in the 2018 notes to any difficulty with the right knee when running.
[14]DCB 80
37Mr Connelly said he had not run 8 kilometres in a long time. He says, since the accident, he cannot run very often, so it is difficult to get his running fitness up, and he has to concentrate on his knee, which is painful when he runs. He says he now runs around Princess Park “and that’s about it”, and that his runs are generally 3 to 5 kilometres in length, and less frequent than before the injury. Prior to the accident, he said he would run for twenty or thirty minutes, or about 6 kilometres on a frequent basis.[15]
[15]T72, L4
38Mr Connelly says his main exercise now is swimming and rowing on a rowing machine. He tries to swim two or three times a week and to row about once or twice a week. He says the most he would swim at a time is forty minutes, swimming about a kilometre; and the most he would row at a time is twenty minutes. He tries to row 5 kilometres. He continues to ride his bike, though less frequently, particularly as he now largely works from home. He rides his bike if he has to go into the office. While he continues to participate in sport, he used to feel free to play any sport, but now is hypervigilant about his knee. He has to be careful and does not have the same degree of agility as before.
39He says he has turned down invitations to go skiing, though he conceded in cross-examination that, prior to the accident, he had never been skiing.
Pain
40He says his right knee swells if he is too active and it throbs, and he takes Panadol or other anti-inflammatory medication if he has a lot of pain. If he dances for more than about thirty minutes, he has to have a rest.
41In his affidavit, he said he had to be careful when walking down stairs and if he walked for too long, he would experience pain. He has difficulty squatting, although he said his gym program includes squatting exercises. He avoids kneeling. Being in confined spaces or positions can aggravate his right knee and it becomes stiff and sore. He sometimes experiences numbness on long car drives or on planes. Prolonged sitting also causes hip and lower back pain.
42In his affidavit, he said he had had physiotherapy when he experienced a “flare up”. However, the physiotherapy records indicate that physiotherapy for the right knee ceased in 2013. In 2018, he attended Kinematics, a physiotherapy clinic, in April and May, but there is no mention in any of those attendances of the right knee. In 2021, he attended chiropractor Dr Maria Liosis. There is no evidence in her records of any attendance for his right knee. The focus of her treatment was the cervical spine, shoulders and hips. In his patient intake form, he noted his reason for consulting Dr Liosis was “chronic pain in neck/shoulders/hips”. On one occasion there is a note of “[r]ight lateral hip pain … referring to right-knee … /right glut and right lumbar pain”,[16] which does not demonstrate treatment for the right knee. It seems to suggest the hip as a source of referred pain to the knee, rather than the other way around. Mr Connelly says he has “good days and bad days”, with weakness and instability in his knee. He says it takes him a long time to get to sleep because of the pain in his hips. There is evidence that his right knee disturbing his sleep.
[16]DCB 113
43His hip pain also requires occasional attendances for physiotherapy and chiropractic treatment. He has cupping and acupuncture every couple of months.
Prognosis
44In January 2022, Mr Miller opined that it is likely that Mr Connelly would ultimately develop arthritic disease. In June 2022, Mr Miller says Mr Connelly has “recurrent problems” and, in his opinion, requires a right knee arthroscopy, but that it is too early to offer a long-term prognosis at this stage. An x-ray in January 2022 showed mild degenerative change and spurring suggestive of small knee joint effusion. He does not further opine in relation to the risk of developing arthritis, and it appears further investigations have not been undertaken. In his June 2022 report, he considers it “possible” that Mr Connelly may require further reconstructive surgery.
45Associate Professor Pirpiris opines that Mr Connelly will continue to have instability in the short-to-medium term and may require further surgery. He may develop degenerative joint disease and, if this occurs, he would require a total knee replacement. If he is symptomatic, he may require high tibial osteotomy. This opinion is of little assistance. There is nothing in the report to indicate how likely any of these prospects are. The use of the word “may” does little to illuminate the prognosis for Mr Connelly, as opposed to cataloguing the potential consequences of a person who has an ACL reconstruction. Consequently, I give little weight to this opinion.
46Dr McLean says the determination of further surgical interventions is multifactorial and difficult to determine. He says Mr Connelly has a symptomatic and problematic knee that requires review, possible further intervention and further support with radiological studies and exercise. I take this opinion to be, essentially, that Mr Connelly has an increased risk of developing further problems, that risk is difficult to quantify and, at this stage, he should continue to exercise and keep an eye on things with further radiology.
47Mr Dooley concurs with the other experts that the ACL graft rupture will have been associated with some damage to the articular surfaces of the knee joint, which will predispose Mr Connelly to the potential development of post-traumatic osteoarthritis of his right knee joint in time. He notes that the earlier ACL injury also predisposed Mr Connelly to this risk. I accept this evidence, as the first ACL rupture was a traumatic event and must logically also have been associated with damage to the articular surfaces. The fact that Mr Connelly was asymptomatic in relation to the right knee at the time of the 2012 injury does not, on my understanding of the medical opinion, mean he was not at risk of developing post-traumatic arthritis. On Mr Dooley’s evidence, post-traumatic osteoarthritis would develop over a 20 to 30-year period.
48I accept Mr Miller’s findings as to Mr Connelly’s injury and limitations. Mr Miller is Mr Connelly’s treating doctor and has operated on him three times. Mr Dooley has seen Mr Connelly most recently, and I accept his findings in relation to his thigh wasting, laxity and current condition.
49The point of difference between Mr Dooley and Mr Miller is largely whether arthroscopy is currently indicated. As Mr Connelly does not intend to currently undertake arthroscopy, I put it no more highly than a risk that Mr Connelly will require medical intervention in the future.
50I am required to evaluate Mr Connelly as at the date of this application. He does not presently have arthritis or any pathology in the right knee visible on x-ray, but is at increased risk of developing arthritis in the future, some of which risk is attributable to the injury. There is a risk that further degenerative changes, such as arthritis, will necessitate further surgery.
Work
51At the time of his injury, Mr Connelly was working full time in his own printing business. This involved him doing both the physical printing, as well as some of the design, and running the administrative business side of things. He continued in this work after the injury, and at some point, started a two-year User Experience (“UX”) course, which he did while also working full time.
52In 2018, due to a downturn in the printing industry, he wound up his business and moved to Portugal, where he hoped to put his UX course into practice. He was able to get some casual UX work in exchange for rent, but did not secure paid employment. While in Portugal, he also travelled to London, Italy and Tunisia.
53After about six months, his money was running low. He was involved in the incident where he was king hit and knocked unconscious, which contributed to his decision to return home. In the aftermath of that incident, he describes having “brain fog” and a concussive condition, which made him feel mentally incapable of working in UX, or the type of work he had previously undertaken. As a result, he worked as a building-site labourer, working full time for about two years. He ceased labouring work in about early 2021. In his affidavit, he says this was because the physical activity was affecting his knee pain, and referred pain in his hip and back. In cross-examination, he agreed that the labouring work dropped off because of COVID restrictions.
54When his labouring job ended, he did some freelance web development, before getting employment with an agency doing UX work. He moved to another agency and then found full-time employment with Service Victoria in the UX team, where he presently works.
55He does not allege any pecuniary loss, although submits that his knee injury would preclude him from certain types of employment, and this would be a pecuniary disadvantage. The medical experts agree that he should avoid work which would require prolonged standing, prolonged squatting, twisting, jumping, turning abruptly, abrupt stopping or carrying heavy weights. I accept that he is precluded from work involving these activities.
Findings on consequences
56I find Mr Connelly has experienced the following pain and suffering consequences:
(a) he generally runs a shorter distance than before the accident;
(b) he runs less frequently;
(c) there is a degree of laxity in the knee and it feels unstable;
(d) he has some muscle wasting in the quadriceps;
(e) he has some pain on exercise, for example walking long distances, dancing, or undertaking other vigorous activity for more than thirty minutes;
(f) he continues to participate in multiple physical activities, but at a lower degree of agility, and is more vigilant about his knee;
(g) the focus of his physical activity has shifted from group sports to solo pursuits, such as swimming, rowing and cycling;
(h) he keeps his leg particularly still, or in a confined position, such as during a long drive or plane trip, causes aching and numbness;
(i) he has numbness around the scar and knee area. Kneeling on a particular spot on the scar can cause a sharp shooting pain. He can experience swelling in the knee;
(j) when he has pain, he uses simple analgesia;
(k) he is at increased risk of developing osteoarthritis in the knee in the future;
(l) he may require further surgical intervention in the form or arthroscopy or other surgery, but this is difficult to determine, and multifactorial;
(m) he has physical limitations that preclude him from some work, as set out above.
57I am not satisfied, on the medical material, that there is a saphenous nerve injury, as this was only diagnosed by Associate Professor Pirpiris and none of the other experts, including his treater, Mr Miller, have identified this injury.
Do the consequences for Mr Connelly meet the test?
58Mr Connelly must prove that the pain and suffering and loss of enjoyment of life consequences, including any pecuniary disadvantage consequences, can be “fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”, [17] when compared with other cases in the range of other possible impairments or losses.
[17]Humphries and Anor v Poljak [1992] 2 VR 129
59Having considered all of the evidence, I conclude that the consequences for Mr Connelly are “significant”, but not “very considerable”.
60First, I accept that Mr Connelly suffered a new injury to his right knee.
61Second, in the years since the injury, Mr Connelly has undergone surgery for the right knee and a period of physiotherapy. He did exercises in the gym and at home to strengthen his leg muscles. I accept that he cannot run in the way he used to, and this is a significant loss to him. He cannot play sport in the sort of casual, carefree way he used to, and this is a significant loss to him. There is a risk that he will develop arthritis in the knee. There is a risk that he will require further surgery if he develops arthritis or the knee otherwise deteriorates. These are significant consequences for Mr Connelly. I accept Mr Miller’s opinion that the right knee injury will have a significant impact on his mobility in general and his capacity for physical, leisure and recreational activities. These impacts are largely as described by Mr Connelly, and as set out in my findings on the consequences.
62Third, Mr Connelly is a relatively young man and has lived with the consequences of his injury for more than ten years. He has lived with those consequences during a period in his life where he could otherwise expect to be relatively pain free and able to engage in physical activities without hesitation. Because of his relative youth, he will also live with the consequences of his injury for a long time. There is also a longer period in which he could potentially develop arthritis or some other deterioration in the knee. His exposure to this risk for a long time is also one of the consequences I considered in assessing his application. These consequences for Mr Connelly are more serious than for a person who has to put up with the same consequences for a much shorter period of time.
63Fourth, the analysis of Mr Connelly’s consequences must be informed by both what has been lost and what has been retained.[18] In looking at what has been retained, I note the following:
(a) Mr Connelly has always retained full capacity to work. Periods when he did not work in his chosen field of employment were because of other circumstances, not the knee injury;
(b) He was able to work full time in construction work several years after the injury. This work must have been physically taxing, particularly on his knee. Although the medical experts recommend against this type of work due to the risk to his knee, it is apparent on the evidence that he was able to perform the work. Had this work been causing him significant knee-related difficulty or pain, it is likely he would have sought treatment, as he did for other complaints;
(c) He continues to engage in social sporting activities on a very regular basis. He exercises multiple times each week. He still goes dancing. He is able to run, albeit not as frequently or as far. His average runs have reduced in frequency and reduced from about 6 kilometres to more like 3 to 5 kilometres in length. He is able to ride his bicycle. He is able to walk without difficulty;
(d) He is unimpeded in activities of daily living, such as housework, shopping, and dressing;
(e) He has travelled extensively since the injury, including hiking and motorbiking through Northern India, to the USA twice, to Europe twice and to Bali twice;
(f) His knee pain is not constant but provoked by exercise or overuse;
(g) He has difficulty getting to sleep because of hip pain, but I do not find that the hip pain is causally related to the knee injury. There is no evidence of sleep disturbance caused by the right knee;
(h) He takes no medication, other than the occasional Panadol or anti-inflammatory for pain;
[18]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
64Fifth, in assessing the consequences for Mr Connelly, it is relevant that, aside from physiotherapy in the six to twelve months after his surgery in 2013, he has had no treatment for his right knee post-surgery:
(a) He attended his general practitioner on a number of occasions after the injury, but aside from the immediate post-injury period, there is no mention in his medical records of the right knee;
(b) He describes concern that his knee will collapse, but the knee does not collapse;
He has sought treatment, including physiotherapy and chiropractic treatment for other symptoms, including his left knee following surgery and his neck, hips and shoulders. I do not accept his evidence that he sought treatment from time to time when he had ‘flare ups’. I do not consider he was being intentionally misleading, or that his credibility is impugned - rather the records disclose that he actually sought treatment for other issues, including his left knee and his neck and shoulder. He may have considered his hip and lower back problems related to his right knee and therefore, in his mind, attributed the treatment for those issues to ‘flare ups’ of his right knee. However, there is no medical support for this, and I do not find that his hip and lower back issues relate to the right knee injury.
65I consider it likely that, if his right knee was causing him a significant degree of pain or a worrying degree of instability, he would have raised this with his treating practitioners. The fact that he did not seek any treatment, nor raise the right knee when seeking treatment about other matters, strongly suggests to me that the knee was not a significant concern.
66Sixth, Mr Connelly is precluded from engaging in some types of employment including work involving twisting, squatting and heavy lifting. He engaged in labouring work in 2019 and 2020 due to his circumstances at that time, however there is no evidence that this is an area of work to which he would aspire to return:
(a) Mr Connelly conceded, in cross-examination, that the labouring work finished because of COVID restrictions, rather than because he left the job;
(b) Despite the medical evidence about his physical limitations, his own evidence does not support a finding that he is unable to undertake labouring work. He said, in his affidavit, he developed increased knee pain and other pain, however, on the medical evidence, it was not severe enough to warrant any treatment or consultation. This is in contrast to his neck and hip pain, which was severe enough to prompt chiropractic and osteopathic treatment.
67Seventh, there is no evidence that the loss of some employment opportunity represents a loss of flexibility which represents a significant consequence to him, such that it would be considered a pecuniary disadvantage.[19] The far greater likelihood is that Mr Connelly will pursue opportunities suited to his qualifications, rather than opportunities which would require the sorts of physical actions his doctors recommend against.
[19]See for example, Abbas v Transport Accident Commission [2015] VSCA 217, where the loss of the plaintiff’s ability to pursue a commercial cookery career was a matter of much significance to him, and the fact that he had not suffered a pecuniary disadvantage did not preclude proper consideration of the loss of flexibility which would relevantly satisfy the description of “pecuniary disadvantage”.
68Eighth, there is no evidence that the loss of some employment opportunity represents a pain and suffering or loss of enjoyment of life consequence. I note that Mr Connelly is engaged in work for which he is qualified, which is largely desk-based work, and which he can do from home or an office. Because he works from home, he can manage his own restrictions by getting up to stretch his legs as needed. He has not had to investigate obtaining a sit/stand desk or other workplace modifications. This is not a case where Mr Connelly has had his chosen field of employment permanently limited from a very young age. I am not satisfied his preclusion from certain jobs is a pain and suffering or loss of enjoyment of life consequence.
69When assessing the consequences for Mr Connelly, I am satisfied that the injury has had consequences that are significant to Mr Connelly, particularly the limitations it has imposed on his social sporting endeavours. The injury has increased his risk of developing future problems, including arthritis and this is a significant risk, especially given his relatively young age.
70However looking at what he has retained, as well as what he has lost, and comparing the consequences for him against the range of possible consequences, I am not satisfied that they amount to the level of very considerable.
71Accordingly, Mr Connelly’s application for leave to issue proceedings for recovery of damages pursuant to s93(4)(d) of the Transport Accident Act is dismissed.
Application for an extension of time
72Section 23A of the Limitation of Actions Act applies to any action for damages for negligence, nuisance or breach of duty, where the damages claimed consist of, or include, damages in respect of personal injuries to any person.
73The Transport Accident Act provides that a person shall not recover any damages in any proceedings in respect of an injury as a result of a transport accident, except in accordance with the Act. The Transport Accident Act restricts those who can recover damages for personal injury to persons who have a serious injury. Serious injury is defined as a “serious long-term impairment or loss of body function”.[20]
[20]Section 93
74Mr Connelly does not have an action for damages unless he is granted leave by this Court to bring proceedings.
75Pursuant to the Limitation of Actions Act, he has no entitlement to bring a common law claim to recover damages in the absence of that leave.
76Section 23A only applies to an action for damages. As I have not granted Mr Connelly leave to pursue a common law claim, he does not have an action for damages. The provisions of s23A are consequently not enlivened, which precludes any consideration of whether he should be granted an extension of time under s23A of the Limitation of Actions Act.
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