Conway v VWA
[2014] VCC 307
•28 March 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-12-05190
| GLENN CONWAY | Plaintiff |
| V | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 March 2014 | |
DATE OF JUDGMENT: | 28 March 2014 | |
CASE MAY BE CITED AS: | Conway v VWA | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 307 | |
REASONS FOR JUDGMENT
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Subject:Serious injury application
Catchwords: Application for leave to recover damages for pain and suffering – defendant conceded compensable injury to the plaintiff's knee – dispute as to whether the pain and suffering consequence was serious
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, Sutton v Laminex Group Pty Ltd [2011] VSCA 52, Aburrow v Network Personnel Pty Ltd [2013] VSCA 46, Stijepic v One Force Group Pty Ltd [2009] VSCA 181
Judgment: Plaintiff’s application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N. D. Horner | Maurice Blackburn Lawyers |
| For the Defendant | Mr P. Jens | Thomsons Lawyers |
HER HONOUR:
Introduction
1 The plaintiff is 26 years of age. He is in a de facto relationship. Between 22 September 2004 and November 2008 he completed a cabinetmaking apprenticeship with cabinet manufacturer, the defendant employer.
2 The plaintiff’s duties prior to 31 August 2006 involved manufacturing and on-site installation of cabinets.
3 In an affidavit sworn on 20 June 2012 the plaintiff deposed as follows:[1]
[1] Plaintiff's Court Book (PCB) 11
“4. On 31 August 2006 I was injured in the following circumstances. I was loading cabinets from the loading dock onto the tray there was not much room and the cabinets were stacked upright. The edge of the load was flush with the combing rail. I was manoeuvring a cabinet with only enough room to stand with my feet along the combing rail on the side of the tray. This meant I had to twist my trunk to the left to manoeuvre a tall cupboard, about 2 metres high.
5. Once the cupboard was in position, I had to return to the dock to continue loading. I had nothing to grab hold of and had to step back to try and get onto the dock from the side of the truck. There was a gap of about half a metre or so between the side of the truck in the dock. My only option was to try step backward from this awkward position. I couldn’t hold onto the cupboards because they had not been struck down yet and were very unstable. When I tried to execute this manoeuvre I missed the dock and fell to the ground in the gap between the train the dock.
6. I landed heavily on my right foot. I heard my right knee “pop”. I had instant pain in my right knee. I was helped to my car by workmates but had to drive home. By time I got home, about 40 minutes later, my knee was very swollen.”
4 The plaintiff attended the family doctor, Dr Conway, the same day. X-ray and right knee ultrasound also performed on 31 August 2006 reported a large joint effusion and patella bursitis.[2] The plaintiff was certified as unfit for work.
[2] PCB 12, 24 and 43
5 Suspecting anterior cruciate ligament rupture, on 8 September 2006 Dr Conway referred the plaintiff to orthopaedic surgeon, Mr Owen.
6 On 15 September 2006 the plaintiff reported “giving way” episodes to the general practitioner, who again certified him unfit for work.
7 The plaintiff was first seen by the specialist on 20 September 2006. MRI obtained on 22 September 2006[3] confirmed recent anterior cruciate tear as well as medial and lateral meniscal tears.
[3] PCB 44
8 On 17 November 2006, Mr Owen performed arthroscopic ACL reconstruction of the right knee. At that time, he did not consider the torn meniscii significantly unstable to warrant excision.[4]
[4] PCB 32
9 Following a period of convalescence, in February 2007 the plaintiff returned to work on restricted duties and, over a period of about four weeks increased his hours to full-time. However, the plaintiff deposed that, despite ongoing efforts to rehabilitate, he experienced periods of worsening pain and symptoms.
10 In October 2007, the plaintiff reported ongoing problems to Mr Owen, who ordered a repeat MRI. The results of this apparently indicated an intact reconstruction but there were still radiological features of tears in the meniscii.[5] The surgeon advised repeat surgery and removal of metal from the internal fixation of the ACL graft.
[5] PCB 33 and 45
11 The surgery was performed on 4 December 2007, at which time Mr Owen noted: “the patellofemoral joint looked reasonably normal. In the medial compartment there was a tear of the medial meniscus, which was unstable, and this part of the meniscus was removed. The ACL graft required minor trimming, but was otherwise satisfactory.”[6]
[6] PCB 33
12 The plaintiff deposed that pain, clicking and swelling persisted despite the further surgery.[7] He returned to work at the end of January 2008 but again reported that working increased both pain and right knee symptoms.
[7] PCB 14
13 In March 2008, due to ongoing problems with the plaintiff’s knee, Mr Owen recommended a change of vocation. As it turned out, the plaintiff chose to continue working in the cabinetmaking industry and, in about June 2008 he commenced employment in another cabinetmaking business, where he was not required to perform site work or load trucks. However, the plaintiff deposed that, he still had trouble performing his duties, which required him to stand all day at a bench.
14 When re-examined by Mr Owen in March 2008, the plaintiff again reported pain around the knee at the end of the day, aching in response to changes in weather and trouble going up and down stairs. Clinically, he presented with a grade 1 weakness of the anterior cruciate and tenderness over the lateral femoral condyle.
15 Mr Owen last examined the plaintiff in December 2008, at which time he reported pain when performing activities such as bending and walking and clicking and swelling of the knee. Clinically, the plaintiff presented with a small effusion in the knee, signs of quadriceps wasting and tenderness along the medial joint line.[8]
[8] PCB 34
16 It appears that Mr Owen sought authorisation to perform a further arthroscopy, which the plaintiff did not pursue because, as he deposed, he was not persuaded of the value of this further surgery : “too much time off work for no result”.[9]
[9] PCB 15
17 By 2009, the plaintiff found he could no longer cope with the “constant standing” required and, despite his qualifications and experience as a cabinetmaker, after discussions with the Claims Agent, he underwent retraining.[10]
[10] PCB 15-16
18 Having trained to operate earthmoving plant and cranes the plaintiff apparently had difficulty obtaining work in this area. He, nonetheless, eventually obtained employment and currently works full-time as a truck driver.
The application
19 The plaintiff seeks leave to commence common law proceedings pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to recover damages for injury to his right knee arising out of or in the course of, or due to the nature of his employment with the defendant.
20 Leave was sought under paragraph (a) of the definition of 'serious injury' to recover damages for pain and suffering only in relation to permanent serious impairment of the plaintiff's right knee.
21 'Permanent' refers to impairment of the right leg that is: "likely to last for the foreseeable future".[11]
[11]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 [33]
22 The determination of whether this injury is 'serious' is assessed by reference to the consequences to the plaintiff of impairment of his right leg, which would not meet the test unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments, 'fairly described as being more than significant or marked and as being at least very considerable'.[12]
[12] Section 134AB(38)(c)
The dispute
23 The defendant conceded compensable injury, namely a full thickness tear of the anterior cruciate ligament and medial and lateral meniscal tears. The dispute centred on whether after applying the narrative test, the pain and suffering consequence of the injury sustained was serious.
24 As to matters of credit, there was some suggestion by the defendant that the plaintiff had understated the extent of his physical activity on a day-to-day basis. However, I saw no evidence of exaggeration or embellishment or understatement of capacity on the part of the plaintiff, who impressed me as a straightforward and credible witness.
25 Both parties tendered extracts from their Court Books.[13] The plaintiff relied on his affidavits sworn on 20 June 2012 and 10 March 2014 respectively. He gave evidence and was cross-examined. The other material tendered by him consisted of a report from his general practitioner, Dr Conway dated 3 September 2010, the most recent of the reports submitted by the treating orthopaedic surgeon, Mr Owen dated 29 May 2008, 12 December 2008 and 19 November 2010 respectively, a report from medico-legal specialist, orthopaedic surgeon, Mr Russell dated 21 December 2013 and copies of the reports of radiological investigations undertaken between 31 August 2006 and 26 April 2008.
[13] Exhibits P1 and D1
26 The defendant’s tender comprised a current report from orthopaedic specialist, Professor Hart, dated 18 February 2014.
The plaintiff's medical treatment and employment from 2009 to date
27 The plaintiff is not currently undergoing active treatment, despite reporting persistent right knee symptoms. Under cross-examination, the plaintiff agreed that he had not consulted his family doctor, Dr Conway, since 2010.
28 The plaintiff agreed that he had and continues to cope with long working hours as a truck driver, without the assistance of any medical practitioner,[14] although, as explained during re-examination, when he last saw Dr Conway in 2010 the plaintiff was still undergoing physiotherapy and taking prescription painkilling medication.[15] However, as the plaintiff, whose occupation required mental alertness, also explained, notwithstanding pain, he had stopped taking prescription painkilling medication because it made him “a bit drowsy”. The plaintiff said that, when pain is “bad”, he continued to treat this with over-the-counter painkilling medication.
[14] Transcript (TN) 23-24
[15] TN 51
29 In his only report, dated 3 September 2010, the treating general practitioner, Dr Conway, among other things, indicated that, in 2009, during periods of retraining, he provided the plaintiff with certificates. The defendant, however, was correct in submitting that this report did not otherwise advance the plaintiff’s case that the pain and suffering consequence of impairment of his right knee was serious for the purposes of the Act.
30 Mr Owen provided the plaintiff’s solicitors with his final report dated 19 November 2010, nearly two years after he last assessed the plaintiff in December 2008. As to his opinion and prognosis, Mr Owen relevantly reported as follows:[16]
[16] PCB 31-35
· the plaintiff’s capacity for his work had been reduced by the knee injury, such that he would be limited in performing sustained heavy work or work that required repeated stooping, squatting or kneeling. This evidence suggested to me that, at the very least, the plaintiff’s condition limited his ability to return to the full range of duties involved in working as a cabinetmaker. The more recent specialist evidence tends to support this conclusion;
· the plaintiff was, however, fit for full-time work with some modifications of his work and only minor restrictions due to his knee injury. The plaintiff’s work since 2009 summarised below also tends to confirm the accuracy of this prediction;
· the prognosis would remain much the same. The plaintiff has an increased risk (probably 10%) of requiring further surgery (probably a repeat arthroscopy) in the future because of the development of degenerative arthritis, particularly in the medial compartment where a partial meniscectomy was performed and, in the long term, there was also a small risk of requiring knee replacement. The medico-legal specialists on both sides have also identified the risk of development of osteoarthritis in the long term;
· despite his recommendation in December 2008 that the plaintiff undergo further arthroscopy, in November 2010, Mr Owen did not envisage any major or medical intervention for some time. He understood from a report received by him in September 2009 that, during 2009, the plaintiff had continued to work with only minor inconvenience due to the condition of the knee. Not surprisingly, the defendant relied on this evidence because, in the three and a half years since this report was submitted the plaintiff had not required or sought any medical interventions for knee problems.
31 As mentioned, the plaintiff has continued working as a truck driver. He described an earlier position with a company, LMB Express, driving 8 to 10 hour shifts between the Shepparton and metropolitan areas.
32 However, lured by the better pay and conditions, the plaintiff spent from November 2012 until made redundant in May 2013, transporting palletised components on a 14 pallet (about 10 tonne) rigid truck to the gas pipeline near Roma, Queensland. This job, which involved working 10 to 12 hour shifts on a monthly roster for 27 days straight, with 9 days off, apparently paid $2700 net per week.
33 After returning to Victoria, the plaintiff obtained casual weekend work with an earlier employer. Under cross-examination he said he left this job around the middle of 2013 for his current position with Tymana Transport because the latter guaranteed him work as a full-time driver.[17] The plaintiff now drives B double trucks on 12 to 14 hour shifts, and on average, he spends four to five hours driving each shift.[18] When paid at an hourly rate the plaintiff said he earned at the rate of $23 per hour. Otherwise, he was paid 38 cents per kilometre, which the plaintiff agreed was considerably more than the hourly rate.[19] At hearing the plaintiff estimated his earnings at about $70,000 for the financial year ending 2013. Currently his net weekly payments were, he said, between $1,100 and $1,300.
[17]TN 16
[18]PCB 18a
[19]TN 20-21
34 As I understood the plaintiff’s evidence, in addition to long hours driving trucks for his employer, when not sleeping in his truck, during the week the plaintiff commutes by car or truck between the employer’s base in Donnybrook and his parent’s home in Diamond Creek and during the weekend between his partner’s home in Euroa and Donnybrook and/or his parent’s home.
35 In summary, to his credit, the plaintiff has re-established himself in an alternative career, in which he works long hours (if performing a 14 hour shift, he agreed he could be away from home some 16 hours per day) and he drives very long distances. Whilst, when he swore his first affidavit in June 2012 the plaintiff may have been earning less as a truck driver than when working as a fully qualified cabinetmaker, the plaintiff agreed he now earns substantially more as a truck driver.
36 The plaintiff clearly takes pride in his work as a truck driver, but laments the circumstance that he is now relegated, in his words, to sitting: “on (his) backside all day”[20] and the loss of opportunity to employ his training and skills in his chosen career as a cabinetmaker.
[20]PCB 18a
37 In my view, the loss of this opportunity, not to mention the plaintiff’s likely relegation to a sedentary occupation, were matters for which allowance was properly made in the global assessment of the pain and suffering consequences to which the injury materially contributed.
The medico-legal evidence
38 Two reports prepared by orthopaedic specialists were tendered. The first was submitted by Mr Miller at the request of the plaintiff’s solicitors. He assessed the plaintiff on 16 December 2013. The second was submitted by Professor Hart at the request of the defendant’s solicitors, following assessment of the plaintiff on 18 February 2014.
39 The salient features of Mr Miller’s report are summarised as follows:[21]
[21]PCB 38-42
· the plaintiff complained of fluctuating but not improving problems with his right knee involving, intermittent ache, discomfort, pain, a feeling of weakness and insecurity without any frank giving way and difficulty with kneeling, squatting and prolonged standing and climbing;
· without recording why this was so, the plaintiff tried to avoid using analgesics and anti-inflammatory medications;
· clinical examination revealed, among other things, grade 1 quadriceps wasting of 1.5 centimetres, a range of flexion from 0° to 130°, a grade 1 anterior drawer, pivot glide but no pivot shift, a reduced hop distance on the right side and some discomfort when attempting to kneel or squat on the right leg;
· in effect, Mr Miller found that the plaintiff was permanently disabled as a result of the injury (“This man has some ongoing problems with the right knee. He has a mild degree of cruciate ligament insufficiency and I believe the prognosis for the right knee is only fair”[22]);
[22]PCB 40
· in Mr Miller’s opinion the plaintiff will require ongoing conservative treatment with analgesics, anti-inflammatory medications and physiotherapy for flare-ups of symptoms. He may also require repeat arthroscopic debridement during his lifetime;
· Mr Miller also identified an increased risk of development of arthritic disease in the right knee but, unlike the treating surgeon, Mr Owen, he was not satisfied that there was also a risk of the plaintiff requiring joint replacement in the future;
· in effect, Mr Miller endorsed the plaintiff’s decision to move from working as a cabinetmaker to a more sedentary occupation as a truck driver (“This man has not been able to return to form normal pre-injury duties on an ongoing basis and I believe he would have difficulty with work that involves large amounts twisting, turning, kneeling, squatting, kneel agility and climbing. I therefore do not believe he could return to work as a cabinetmaker and I believe his decision to move into more sedentary work such as an interstate truck driver is appropriate and consistent with the right knee injury. Those restrictions are permanent and accident related”[23]).
[23]PCB 41
40 As to the impact of impaired functioning of the plaintiff’s right knee on his lifestyle Mr Miller’s evidence was to the following effect:
· there would be some reduction in the plaintiff’s mobility. The injury impacted on his ability to walk long distances, negotiate uneven ground and run;
· the plaintiff was able to contribute to domestic and gardening activities and the restrictions on these should only be very minor;
· the plaintiff would experience significant difficulties returning to the leisure activities previously enjoyed by him, such as tennis, water skiing, golf and other outdoor activities.
41 The salient features of Professor Hart’s lengthy report are summarised in the following points: [24]
[24]DCB 22-27
· the plaintiff complained of swelling in his right knee after standing, catching and clicking when he descended stairs and pain when walking or standing particularly at the site of the insertion of the graft. Notably, Professor Hart thought the screw in that area may be responsible for at least some of the pain of which the plaintiff complained;
· as to his current treatment the plaintiff reported he walked on weekends for exercise and took no medication;
· the plaintiff reported a standing tolerance of 30 minutes due to pain in his knee, a sitting tolerance of at least two hours which, as it turns out, is accommodated by the requirement that the plaintiff take a break every two hours when driving a double B truck, a walking tolerance of two kilometres before developing discomfort in the knee and difficulty when descending stairs foot-over-foot;
· as to the plaintiff’s ability to return to his pre-injury recreational activities, consistent with his affidavit and the oral evidence, the plaintiff reported now having to use a cart if he played more than nine holes of golf;
· clinical examination, among other things, revealed limited flexion on the right side (0-110 degrees compared with 0-130 degrees), tenderness at the site of the femoral fixation device and at the site of the tibial screw and atrophy of the right thigh (1 cm);
· Professor Hart diagnosed limited motion of the right knee following the anterior cruciate ligament knee reconstruction and a likely bone bruise to the lateral femoral condyle, the latter having since resolved. However, without access to operation reports Professor Hart was unable to determine the nature of the surgery carried out for the injury to the menisci;
· whilst he considered the condition of the plaintiff’s knee to be stabilised, Professor Hart also commented on the increased risk of the plaintiff developing osteoarthritis in the long term. Moreover, Professor Hart felt that the evidence of bone bruising had left open the question of whether this bruise was accompanied by damage to the articular cartilage in the lateral compartment;
· the only further treatment advocated by Professor Hart was a course of exercises designed to strengthen the plaintiff’s quadriceps and hamstrings and possibly increase his range of movement.
42 I accept, as submitted by the defendant, that Professor Hart did not directly tackle the issue of the permanence of the plaintiff’s condition in the report. I, nonetheless, think it clear from reading his report that, whilst he considered there may be some scope for improvement of the right lower limb through exercise, Professor Hart had accepted that the injury caused some level of permanent disability as well as the pain and limitations described by the plaintiff during the course of the examination conducted in February 2014. These matters, in turn, impacted on plaintiff’s work and recreational activities to the extent mentioned by him.
The pain and suffering consequence
43 Evaluation of the pain and suffering consequence required consideration of the plaintiff’s experience of pain and the disabling effect of pain on his physical capabilities (including his capacity for work) and enjoyment of life.[25]
[25] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 [9]-[17] and applied in Sutton v Laminex Group Pty Ltd [2011] VSCA 52 and more recently in Aburrow v Network Personnel Pty Ltd [2013] VSCA 46
44 Evidence of the intensity and frequency of pain (in this case given by the plaintiff and recorded by the doctors), the treatment received or recommended and any objective evidence as to the disabling effect of pain was important to any proper evaluation of the plaintiff’s experience of pain. The evaluation of the disabling effect of pain called for consideration of the extent to which pain continued to limit this plaintiff’s activities and interfere with his enjoyment of life.
45 The plaintiff was 19 years of age when he suffered the work-related injury to his right knee. The evidence indicated that, prior to this injury, in addition to his work as a cabinetmaker, the plaintiff enjoyed a range of outdoor pursuits. He had continued to play tennis and golf and he water skied and rode his push bike, notwithstanding some level of disability and pain resulting from a left ankle fracture in 2001 and surgery in 2003.[26]
[26] TN 27-29
46 It has long been understood that in the assessment of the pain and suffering consequence, the significance of what was lost may be informed to some extent by what the plaintiff has retained. In this regard, I note that the plaintiff has retained the capacity to undertake full-time, albeit sedentary employment. Whilst the plaintiff’s current working hours probably restrict the time available to pursue outdoor activities, as my discussion below shows, right knee pain and disability either prevent or restrict this young plaintiff’s ability to resume an active outdoor lifestyle. Moreover, the plaintiff was required, he said, to rest and avoid aggravating his knee condition at weekends so that he was “right” to work the next week.[27]
[27]TN 49
47 The doctors have not questioned the genuineness of the symptoms and limitations described. The most recent medical evidence has confirmed that the plaintiff is at risk of developing osteoarthritis in the future, although on balance I was not satisfied that the medical evidence as a whole established any measurable risk of the plaintiff requiring knee replacement in the future.
The experience of pain
48 In his first affidavit, the plaintiff deposed that he had stopped seeing doctors because he lost faith in their ability to treat his symptoms. He now treated swelling with ice packs and Voltaren cream and, in his words: “… put up with the pain most of the time because [he did] not want to take medication on a long-term basis.”[28]
[28]PCB 17
49 In his further affidavit sworn on 10 March 2014, among other things, the plaintiff described his experience of pain in the following terms:[29]
[29]PCB 18a-18b
“5. At the end of a 14-hour day after I drive home I find that my right knee really aches. It is not too bad during the day when I working but particularly when I get home and rest it really starts to ache and can stiffen up and it also clicks. I think it is because of all the driving and getting in and out of the truck during the day.
6. ...
7. I continue to suffer with constant pain in my right knee. The pain is mainly down the front of the knee. At its best the pain is two or three on a scale of zero to ten and at its worst it is five or six on the same scale. The pain increases with activity particularly standing and also going downstairs when I have to use a handrail and go one foot at a time very slowly.
8. The knee is also very sore in the mornings particularly during winter when it is cold. I worry about what the knee will be like as I get older.
9. I do not take prescription medication now for my knee. I generally try and manage the pain by taking over the counter pain medication on a fairly regular basis. I also now know how to avoid increasing my knee pain by avoiding activities that make it worse.”
50 Whilst Mr Miller and Professor Hart both appear to have understood that the plaintiff no longer treated his symptoms with medication, allowing for the affidavit evidence and the plaintiff’s evidence at hearing, I was satisfied, firstly that, despite suffering pain, the plaintiff now avoided taking prescription medication, principally because of its impact on his capacity to drive safely and, secondly, as claimed, when pain was bad this was treated with over-the-counter painkilling medication (probably, as he said, fairly regularly).
51 The plaintiff impressed me as a person who was more likely to understate, not overstate his experience of pain. Accordingly, I have accepted as accurate his complaint of constant pain and his subjective assessment of the level of this, as described in his further affidavit evidence. I was satisfied that the plaintiff was the sort of individual who was prepared to endure some degree of pain, rather than rely on medication, prescription or otherwise. The plaintiff’s young age was also relevant to my assessment of this aspect of the pain and suffering consequence.
The disabling effect of pain
52 As to the disabling effect of pain and the extent to which it interferes with the plaintiff’s ordinary activities and enjoyment of life, it is unnecessary to repeat the matters reported to particularly Mr Miller and Professor Hart.
53 In his first affidavit the plaintiff spoke of experiencing pain and difficulty in stepping down from a ladder or stairs (which is reflected in the complaints made to both Mr Miller and Professor Hart), difficulty getting into and out of low chairs or car seats and difficulty in squatting (“and I usually get the “shakes” if I try to”[30]). Again, difficulty in squatting was just one of a number of activities the doctors appear to have accepted were impacted by the plaintiff’s disability .
[30]PCB 17
54 Both in his evidence and reports to the doctors the plaintiff described the impact of pain and disability on a range of activities within the following categories:
· Pain and impairment. These factors restricted the plaintiff’s mobility in many ways. Examples include walking, descending stairs and getting into and out of his truck;
· Employment. As mentioned, pain and disability narrowed the plaintiff’s employment opportunities and probably precluded a return to unrestricted employment as a cabinetmaker. However, the plaintiff has a retained capacity to work very long hours driving double B trucks, albeit with breaks every two hours to walk around and stretch;
· Domestic activities. The plaintiff has retained his capacity to share domestic duties with his partner. As the plaintiff told the Court at hearing, he continued to mow his lawn in Euroa using a ride on mower and retained the capacity to use a push mower if he had to;
· Recreational activities. In both affidavits, the plaintiff indicated that the injury had impacted on his recreational activities.[31] Having previously water skied two or three times a month between November and Easter the plaintiff said he could no longer get on the skis, having ridden his pushbike regularly, the plaintiff said he could no longer do this, having been a keen golfer and played golf at least monthly and more often each fortnight, as earlier mentioned, the plaintiff said he required the use of a cart after nine holes and having played tennis on a weekly basis the plaintiff said that he had not returned to the sport because an attempt to play tennis in 2011 left him with a swollen knee, increased pain and difficulty in walking. When re-examined the plaintiff told the Court that on each of the occasions he had attempted to play 18 holes of golf without using a cart this had led to swelling around the outside of the knee to which he applied ice and his mobility had been affected (“I was a bit slow around on my feet”[32]);
· Family and social activities. The plaintiff has been in a relationship for approximately 7 years and hopes to marry and have children. In his further affidavit the plaintiff expressed his concern about being able to engage in certain activities with his children in the future, such as kicking a football. He also expressed frustration in not being able to go for walks with his partner, who apparently likes walking in the bush[33] and the frustration he felt in having to be seated at social functions, ostensibly because standing leads to pain;
[31]PCB 16
[32]TN 50
[33]TN 50-51
Conclusions
55 To summarise, I was satisfied that:
· the plaintiff suffered compensable injury, namely right knee anterior cruciate tear as well as medial and lateral meniscal tears; and
· the impairment consequences of the injury were as described above.
56 In assessing whether the pain and suffering consequence of the compensable right knee injury met the “very considerable” test, I was required to consider globally all of the pain and suffering experienced by the plaintiff to which this injury materially contributed.[34]
[34]Sutton op. cit. at [114]
57 The evidence relating to the impact of impairment of the plaintiff’s knee on his day-to-day activities and enjoyment of life has been summarised. I have also summarised the evidence which suggests that the plaintiff’s approach to likely daily pain combines both pragmatism (a need to avoid medication that affects his ability to work) and stoicism (an apparent readiness to endure a comparatively high level of pain/discomfort in order to work and get on with his life).
58 The test is whether the plaintiff has established that the pain and suffering consequence of the right knee injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function may be fairly described as being more than significant or marked and as being at least very considerable. As the Court of Appeal has explained in the past, applying this test involves a value judgment in which matters of fact and degree and of impression all play a role.[35]
[35]Stijepic v One Force Group Pty Ltd [2009] VSCA 181, [41]
59 Section 134AB(38)(c) requires the Court to consider where, on its facts, the present case sits when compared with other cases in the range of possible impairments or losses of body function.
60 I have found the plaintiff to be a well motivated and hard-working young man and a credible witness. My summary of the pain and suffering and loss of enjoyment of life consequence (in which the significance of what the plaintiff has lost was informed to some extent by what he had retained) was in my view consistent with a finding that the consequence in respect to the injury was at least very considerable. In these circumstances, the plaintiff has met the requirements of the narrative test.
61 I propose to make an order granting leave.
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