Coto v Corex Plastics (Australia) Pty Ltd and VWA

[2009] VCC 288

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-08-02431

LUIS COTO	Plaintiff
v
COREX PLASTICS (AUSTRALIA) PTY LTD	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2009
DATE OF JUDGMENT:	26 March 2009
CASE MAY BE CITED AS:	Coto v Corex Plastics (Australia) Pty Ltd & VWA
MEDIUM NEUTRAL CITATION:	[2009] VCC 0288

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the left lower limb – pain and suffering only – whether consequences to the plaintiff are serious.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G McGrath SC and	Ryan Carlisle Thomas
Mr C Nettlefold
For the Defendants	Mr R J Stanley QC and	Herbert Geer Lawyers
Ms M Britbart
HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant, in particular on 25 June 2004 (“the said date”).

2          The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.

3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:

“(a) permanent serious impairment or loss of a body function.”

4          The impairment of body function relied upon in this case is the left lower limb.

5          The plaintiff relied upon two affidavits and he was cross examined. In addition, both parties relied on medical reports and other medical material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s Evidence

6          The plaintiff is presently aged forty-four, having been born on 13 July 1964 in El Salvador. He came to Australia in June 1994 and he presently lives with his partner and two of his children, daughters aged fourteen and three months.

7          On his arrival in Australia, the plaintiff initially worked in a labouring capacity as a spot welder, before commencing employment with the first defendant in December 1994.

8          In June 2004 the plaintiff’s work with the first defendant was particularly busy. The plaintiff worked 12-hour shifts and he had to be constantly on his feet to pick up sheets of plastic material which came from an extrusion machine. Working on this machine, he had to repetitively twist in order to stack the sheets on pallets. He also had to repetitively bend his knees to put the plastic on the pallets and he used to pick up bundles of sheets at a time. The weight of these sheets placed extra strain on his knees. The plaintiff worked up to 72 hours per week.

9          The plaintiff started to experience sharp pain on the outside of his left kneecap in mid June 2004. On the said date the plaintiff reported to his supervisor that he was suffering knee pain. The plaintiff continued to work for the next three days before going on annual leave which had been previously arranged.

10        Whilst walking home from the park with his children on 8 July 2004, the plaintiff’s left knee suddenly became extremely painful when it locked when he stepped from the footpath.

11        That day the plaintiff attended Dandenong Hospital. He was advised to seek treatment from his general practitioner, whom he first saw on 13 July 2004. Dr Feben initially certified the plaintiff as being unfit for work and referred him to an orthopaedic surgeon, Mr Tange.

12        When the plaintiff initially made a claim for compensation it was denied by the first defendant on the basis that his injuries had not happened at work. However, after further investigation the plaintiff’s claim was accepted on 20 August 2004.

13        The plaintiff first saw Mr Tange on 23 August 2004 and an MRI scan was carried out later that month. When Mr Tange saw the plaintiff in early September 2004, he advised the plaintiff that he had torn his meniscus and needed to undergo surgery. Arthroscopic surgery was performed on 19 October 2004 (“the operation”).

14        After the operation the plaintiff was advised by Mr Tange that he might need a left knee reconstruction in the future but he thought at that stage the plaintiff should try and build up his knee strength by physiotherapy and exercise.

15        The plaintiff attended Dandenong Valley Physiotherapy where he was treated by Mr Kavanagh until May 2005. In cross examination, the plaintiff agreed that in April 2005 he told Mr Kavanagh that most of the pain had gone away but he had mild knee pain, and as of 13 May 2005, when he was leaving for Queensland, it might have been the case as recorded by Mr Kavanagh that he had no problem with his knee.

16        The plaintiff deposed that he continued to work for the first defendant until May 2005, by which date he was no longer able to cope with his full duties and he was advised by the defendant that it had no light duties for him to perform.

17        Before the said date, the plaintiff and his partner had decided to move to Queensland. They moved there in about May 2005. The plaintiff obtained work as a cheesemaker in a factory in Burleigh Heads where he worked for one year in lighter work. In cross examination he described that job as “not heavy at all.”

18        Whilst in Queensland the plaintiff did exercises himself but he still experienced pain, instability and locking of his left knee, and he noted there was wasting in his left upper leg.

19        After he returned to Melbourne, the plaintiff moved to Brunswick. He saw Dr Malcolm in Sydney Road on one occasion on 9 March 2007. Dr Malcolm arranged a further MRI scan which was carried out on 28 March 2007.

20        The plaintiff is presently under the care of Dr Wilmott whom he sees two to three times every month for both his knee and blood pressure conditions. In cross examination the plaintiff explained he saw Dr Wilmott for medication because his knee is very painful. He regularly used Voltaren and Panadol for pain relief. He has been advised by Dr Wilmott against taking stronger medication because of the blood pressure medication he is taking.

21        The plaintiff also attends Dr Wilmott to obtain certificates for time off work. The plaintiff agreed he had only had two or three days off work in the last year because of his knee pain.

22        In November 2008, the plaintiff was referred by Dr Wilmott to see orthopaedic surgeon, Professor Goldwasser, who he had seen previously in December 2007 for right foot pain. When he saw Professor Goldwasser on that earlier occasion the plaintiff also mentioned his left knee problem. The plaintiff thought the pain in his right foot may have resulted from favouring his injured left knee. In any event, the right foot problem settled down but the knee problem did not, so he returned to see Professor Goldwasser specifically for his knee problem in November 2008.

23        In December 2008, Professor Goldwasser arranged for the plaintiff to have a nuclear bone scan of his left knee. The results of the scan were normal. Professor Goldwasser discussed the possibility of further investigations with the plaintiff. In the end, however, Professor Goldwasser advised the plaintiff to continue with conservative treatment and try and rest his left knee as much as possible.

24        The plaintiff suffers from constant aching and pain in the left knee, varying in intensity, and aggravated by movement or strain which causes the pain to be of a severe stabbing nature. His knee is not improving.

25        Standing or walking for too long increases the pain. He can stand comfortably for half an hour. He has difficulty with activity requiring bending or squatting. If he sits with his knee bent for too long he usually suffers pain.

26        The plaintiff’s knee continues to be tender. It clicks and cracks on movement. It locks and gives way. It locks when he moves or turns suddenly and he has to move it further to loosen it. In cross examination the plaintiff agreed it was six months ago that his knee last gave way, having given evidence earlier that it had given way two to three times in the last six months. The plaintiff’s knee pain interferes with his sleep. He has pain most of the night and is woken by pain.

27        The plaintiff has trouble with day to day activities. He has difficulty doing things around the house such as cleaning the shower and engaging in handyman tasks, particularly those requiring bending and squatting. One of the biggest restrictions resulting from his left knee injury which upsets him is that he cannot do much with his children in the way of sporting activities. He is unable to walk more than two or three blocks. He used to enjoy bushwalking every Sunday but he is no longer able to go walking because of his knee pain. Prior to the incident he used to go dancing every weekend. Since that time he has been unable to go dancing because of his knee pain.

28        The plaintiff has worked for the Fresh Cheese Company in Victoria for the last two years. He now works at its Broadmeadows premises. He works 36 to 38 hours per week and is paid approximately $17 per hour – considerably less than he earned whilst working long hours for the first defendant. He is unable to work more hours.

29        The plaintiff has not told his employer about his knee injury. At work he tries to mask any problems that he is having. His work as a cheesemaker aggravates his knee pain but he has no choice but to continue working in the face of pain, given he has a total of four children as well as his partner to support.

30        The plaintiff deposed that his present job is much easier than his work with the defendant and involves no twisting or specific strain on the knee. However, he continues to experience increased aching in the knee, having to stand to perform his work, despite the fact he is working much fewer hours than previously.

31        At work he has to lift, bend and carry and walk around. These activities put pressure on his knee and increase his level of pain. His energy nowadays is spent trying to remain at work. By the time he gets home his left knee is usually sore and he needs to rest.

32        In cross examination the plaintiff agreed that he has to stand and move for about 8 hours a day. He agreed his work could be heavy and that sometimes he has to lift and move butter weighing between 40 and 50 kilograms.

33        The plaintiff deposed that he faced the prospect of another operation in the future and further interruption with his employment. He thought there was a prospect that he would have to retire permanently as a result of his injuries.

The Plaintiff’s Medical Evidence

34        There is no medical report from Dr Feben, the plaintiff’s original treating doctor at the time of the incident. Part of his notes were tendered by the defendants.

35        There is no medical report from the plaintiff’s present treating doctor, Dr Wilmott. His notes have not been subpoenaed. Counsel for the plaintiff suggested that there were means open to the defendants to challenge the plaintiff’s evidence if they wished.

36        There is no report from the plaintiff’s treating orthopaedic surgeon Mr Tange who last examined the plaintiff in May 2005. Mr Robert Steele, orthopaedic surgeon, provided a report detailing the plaintiff’s attendances with Mr Tange at the Valley Private Hospital. He noted that the plaintiff was first referred to Mr Tange by Dr Feben in August 2004 in relation to a work-related knee injury which was aggravated whilst walking with his children.

37        The plaintiff was seen by Mr Tange on 23 August 2004. Following an MRI scan on 26 August 2004, the plaintiff was reviewed by Mr Tange on 6 September 2004. An arthroscopy was suggested and undertaken on 19 October 2004.

38        On review on 1 November 2004, a physiotherapy program was organised. Mr Tange next saw the plaintiff on 10 January 2005, when he noted the plaintiff had made good progress since last seen and that he was happy for the plaintiff to return to light duties. Given that such duties were not available, Mr Tange recommended the plaintiff return to full duties on 24 January 2005.

39        Mr Tange last consulted the plaintiff on 2 May 2005 due to ongoing knee pain. An MRI scan had been arranged by his general practitioner on 27 April 2005. Mr Tange did not agree with the findings of a small oblique tear of the outer third of the posterior horn of the lateral meniscus and a small associated para-meniscal cyst. Mr Tange asked for those findings to be reviewed by Dr Richard O’Sullivan at Epworth Hospital, who is a specialist in musculoskeletal MRI radiology. There is no response from Dr O’Sullivan.

40        The plaintiff attended Dandenong Valley Physiotherapy where he saw Mr Kavanagh, physiotherapist, until May 2005.

41        Dr Malcolm saw the plaintiff at his Brunswick clinic on one occasion on 9 March 2007. At that time the plaintiff’s knee was still sore and he was referred for an MRI scan.

42        Professor Miran Goldwasser first saw the plaintiff on 4 December 2007 on referral from his general practitioner. The plaintiff’s primary reason for presentation at that time was his right foot, but the plaintiff also indicated to Professor Goldwasser that he had had some problems with his left knee.

43        The plaintiff next attended Professor Goldwasser on 20 June 2008, at which time the plaintiff told him his right foot was getting better. Professor Goldwasser did not mention any knee complaint in his report of that attendance. He noted the plaintiff told him he had not come for a review earlier because he had been working hard as cheesemaker and he had been working in Queensland for a few months.

44        On 12 November 2008, the plaintiff, on referral from his general practitioner, returned to Professor Goldwasser for an opinion regarding his left knee problem. At that time the plaintiff gave Professor Goldwasser a history of his knee injury and his subsequent surgery.

45        Professor Goldwasser noted that examination of the left knee indicated the knee was not swollen. There was flexion to 120 degrees and the knee was stable. There was mild discomfort on compressing the patella and there was also pain on the medial joint line when the plaintiff was doing a half squat and twisting his knee. The plaintiff complained of having a cracking sensation in the lateral side of the knee and also of constant pain in the knee anteriorly and medially.

46        On review on 26 November 2008, the plaintiff reported difficulty standing on his left knee. He noted pain on the medial side of the knee and also felt some clicking laterally which was not painful. The plaintiff said that he was unable to play with his children.

47        The plaintiff brought the operation note of 19 October 2004 with him to the appointment. Mr Goldwasser noted there was a torn posterior horn of the lateral meniscus and that examination under anaesthesia revealed Grade II to Grade III posterolateral corner instability. There was hyperextension of the knee. The plaintiff was considered to have a Grade II to Grade III posterior cruciate ligament rupture.

48        Professor Goldwasser explained the 2007 MRI findings to the plaintiff and the fact that he had not found a satisfactory explanation as to why the plaintiff continued to suffer troublesome pain in his knee.

49        Because of the plaintiff’s concerns, Professor Goldwasser organised a nuclear bone scan of the plaintiff’s left knee on 3 December 2008 which was normal.

50        The plaintiff last saw Professor Goldwasser on 10 December 2008. He discussed with the plaintiff further options of investigation which could include another arthroscopy, but he thought, as the MRI scan had not shown significant pathology, the chances of further abnormal findings on arthroscopy were very low, and he cautioned the plaintiff not to rush into surgery. If the plaintiff continued to be troubled and wished to have further investigation, that procedure could be carried out. Professor Goldwasser advised conservative treatment, allowing the plaintiff to remain active within the limits of comfort.

51        In Professor Goldwasser’s view, the plaintiff’s knee pain was consistent with his work and aggravated some pre-existing degenerative changes in his lateral meniscus which became severely painful following the walking incident.

52        As the plaintiff’s knee was continuing to trouble him, Professor Goldwasser thought it was likely his symptoms would continue into the foreseeable future. Although he could not explain the plaintiff’s pain, he thought his symptoms were most likely related to his knee and that he appeared to be co-operative and straightforward in giving his history in examination. He had no doubt that the plaintiff found his activities were limited, particularly with problems playing with his children and with prolonged standing.

53        Mr Richard O’Brien, rheumatologist, examined the plaintiff for medico-legal purposes on 1 December 2007.

54        The plaintiff told him there had been some gradual improvement in his left knee pain but there was ongoing aching and discomfort on the inside of the knee joint along with frequent clicking felt over the outer knee joint. Despite this improvement, the pain remained substantially aggravated if the plaintiff stood for more than 20 minutes, and he could only walk for 100 or 200 metres without the onset of much more severe pain. If he twisted or turned on the knee there would be clicking and a further aggravation. The plaintiff told Mr O’Brien of his difficulty with stairs, the fact that he was only able to walk slowly and not able to run. He told him the pain remained present for much of the time and could keep him awake at night.

55        The plaintiff told Mr O’Brien that he worked about 24 hours per week in the Queensland job which required limited standing and did not involve a lot of bending.

56        On examination, the circumference of the plaintiff’s left thigh, measured at 12 centimetres above the patella, was 44 centimetres, as against 48 centimetres on the right.

57        There was pain on patella compression and tenderness over the lower medial knee joint. There was some laxity of both the left anterior and posterior cruciate ligament, but movements of the knee joint were full. There was some retropatellar crepitus present. There was no swelling.

58        Mr O’Brien diagnosed a degree of chondromalacia patella with significant plica hypertrophy/abnormality. Clinically there were also features of anserine bursitis.

59        Although the MRI scan did not show any high-grade internal derangement, Mr O’Brien thought there could be a degree of ongoing chondral damage and there may also be underlying cruciate ligament problems. He noted the original arthroscopy in October 2004 showed there was a posterior cruciate ligament rupture.

60        Mr O’Brien thought the plaintiff would benefit from an intensive physiotherapy program and that a future arthroscopic treatment would be helpful after review by an orthopaedic surgeon.

61        Mr O’Brien considered it likely the plaintiff’s left knee dysfunction would persist and that there would be ongoing substantial impairment to his normal employment. He thought it would be preferable if the plaintiff’s work hours could be reduced to 30 hours per week with frequent time allowed for breaks. He considered the plaintiff would not be able to work in any job where there was a requirement for prolonged standing, bending, twisting or kneeling or lifting any significant weights. He thought the plaintiff would certainly not be able to return to production line work.

62        The plaintiff was examined for medico-legal purposes by orthopaedic surgeon, Mr Westh, first on 20 November 2007 and more recently on 20 February 2009.

63        In 2009, the plaintiff told Mr Westh that his main trouble was ongoing pain, particularly on the inner side of his knee, and that he had a lot of pain all the time. His knee cracked and it felt as if something was loose and his knee was getting gradually worse. There had been no locking, although there had been some giving way. The plaintiff told Mr Westh he had difficulty coping with his job because he had to stand for 8 hours and it was very painful after work.

64        On examination, there was a range of knee movement to 120 degrees and there was 2-centimetres wasting in the left thigh. There was no effusion. The plaintiff was tender over the joint line, particularly medially, and he complained of pain on attempting full knee extension with some slight patellofemoral crepitus. There was some slight A-P laxity present in both knees and there was no evidence of any posterolateral instability. The plaintiff was unable to squat comfortably, complaining of pain in his knee.

65        Mr Westh concluded that examination had revealed some restriction of movement with clinical evidence of evolving osteoarthritic change; however, recent x-rays revealed normal joint spaces.

66        Mr Westh considered the plaintiff to have significant and permanent impairment to his left knee function and that his condition was likely to gradually worsen with evolving articular cartilage wear.

67        Mr Westh considered the plaintiff would require ongoing review with a possibility of further surgery in the future. He thought the plaintiff’s physical impairment was permanent and that the plaintiff would continue to experience particularly activity related pain and would have difficulty standing for long periods.

68        In Mr Westh’s view, the plaintiff would be unable to do any work involving heavy lifting and it would be preferable for him to have a more flexible job with sitting and standing as required. He noted the plaintiff was currently coping with his job but that it might become more difficult in the future, particularly as he has to stand for 8 hours a day. He thought the plaintiff had a reduced capacity to engage in social, recreational and domestic activities.

69        The plaintiff has been examined on two occasions by Mr Stephen Doig, orthopaedic surgeon, first in February 2008 and more recently on 9 February 2009.

70        On examination on the latter date, Mr Doig found 2 centimetres of quadricep wasting and half a centimetre of calf wasting on the left when compared to the right. The plaintiff had left knee movement to 115 degrees. He had Grade I LCL when compared with the right and he had some minor posterior cruciate laxity. There was mild lateral joint line tenderness and also medial joint line tenderness.

71        In Mr Doig’s view, the torn lateral meniscus was a result of the twisting injury at work. He noted the plaintiff had some minor posterior cruciate and collateral ligament laxity, although that certainly was not marked. There was no significant posterior cruciate rupture.

72        In Mr Doig’s view, the plaintiff still suffers from a physical impairment as a result of the injury at work. He continues to have some knee ache and pain. He continues to have episodes where his knee tends to give way. He noted the plaintiff had not returned to the sporting activities which he had played with his children prior to the incident. Mr Doig considered the knee injury had restricted the plaintiff as far as his social and recreational activities were concerned and it was likely that that situation would last into the foreseeable future.

73        In terms of his work, Mr Doig considered that the gravity in the form of the plaintiff’s symptoms that he has, was moderate in its effect on the plaintiff. He considered it likely the plaintiff would continue to have some problems no matter what else was done.

Investigations

74        An MRI scan of the left knee taken on 26 August 2004 showed a probable tear involving the free edge of the posterior horn lateral meniscus and a prominent pes anserine bursa. There were no other signs of significant internal joint derangement.

75        An MRI scan of the left knee taken on 28 March 2007 showed no high-grade internal derangement. There was thickening of the patellar plicae.

76        A bone scan taken in December 2008 was normal.

The Defendants’ Medical Evidence

77        The defendants tendered a clinical note from the plaintiff’s general practitioner, Dr Feben, relating to an attendance on 13 July 2004. Dr Feben noted a history of three weeks’ left lateral knee ache prior to the acute pain which developed on 8 July 2004 when the plaintiff turned whilst walking with his children and heard a crack in his left knee. The note set out that the plaintiff told a workmate that his pain was not severe.

78        In Dr Feben’s file there was correspondence from Mr Tange. As of 12 January 2005, Mr Tange reported to Dr Feben that the plaintiff’s only residual problem was one of slight anterior knee pain when he did a lunge and that was the reason he was having two extra weeks off. Mr Tange envisaged a return to normal duties on 24 January 2005 and provided a certificate to that effect.

79        Mr Tange last saw the plaintiff on 2 May 2005, at which time the plaintiff complained of developing a little bit of pain in his knee a month ago that was gradually settling down.

80        Having seen the 2004 MRI scan, Mr Tange noted that he could find very little wrong with the medial lateral menisci and he could not see the subtler small oblique tears that were mentioned in the report. He thought, given the plaintiff’s symptoms were improving, it was reasonable to continue conservative treatment.

81        The defendants arranged for the plaintiff to be examined for medico-legal purposes by Mr Ian Jones, orthopaedic surgeon, on two occasions: initially in May 2008 and most recently in March 2009.

82        On the most recent examination, the plaintiff complained of constant left knee pain with clicking and cracking in the knee with any movements, especially when walking. The pain was worse in cold weather and occasionally woke the plaintiff at night. Specific questioning revealed no symptoms of swelling or locking of the knee.

83        The plaintiff described work in the cheese factory which involved him standing for virtually 8 hours a day apart from normal breaks. He confirmed he would have had two or three days off work over the last twelve months because of his knee pain.

84        On examination, the plaintiff described diffuse tenderness over the medial aspect of the knee, particularly above the medial femoral condyle and the medial aspect of his upper tibia. Subjectively there was some slight tenderness along the left medial joint line but there were no signs suggestive of meniscal tears, nor was there any evidence of swelling. The range of knee movement was to 130 degrees and there was 1.5 centimetres wasting of the left thigh muscle. The cruciate and collateral ligaments were clinically normal.

85        Mr Jones only had available to him plain x-rays and the 2004 MRI report. He did not have the operation notes. Mr Jones was therefore uncertain whether there was an established diagnosis and considered that there was no clear evidence of pathology affecting the plaintiff’s knee. Mr Jones thought there was a possibility of bursitis affecting the tendons on the inner side of the knee.

86        Mr Jones believed the prognosis for the plaintiff’s knee joint was good, and that it was likely, given the length of time the plaintiff had experienced his knee symptoms, that some degree of pain would be experienced in the long term. He thought the plaintiff was capable of his former job and that he was fit to continue his current job in spite of the standing required.

Lay Evidence

87        The defendants relied upon a statement from the first defendant’s payroll officer, Anna Farrell, who noted that the plaintiff had complained to her of having injured his knee at home.

Findings

88        Whilst the question of whether there was a compensable injury on the said date was raised initially, and there was cross examination of the plaintiff in this regard, this issue was conceded.

89        There was no real dispute that as a result of his work, the plaintiff has suffered an injury to his left knee.

90        Whilst it is the impairment not the injury that is the relevant issue, I accept that the plaintiff suffered a large tear of the lateral meniscus which was resected arthroscopically.

91        There was no argument that the plaintiff’s condition was not organically based.

92        The issue, therefore, was one of seriousness – namely, whether the consequences to the plaintiff of his left knee injury when judged by comparison with other cases in the range of possible impairments or losses of body function may be fairly described as being more than “significant” or “marked” and at least as being “very considerable” – s.134AB(38)(c).

93        The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against other possible impairments not necessarily in the same category: see Humphries v Poljak (1992) 2 VR 129, at 170, accepted by the Court of Appeal in Barlow v Hollis (2000) VSCA: see in particular Chernov JA at para 29.

94        The impairment must be permanent, in the sense that it is likely to last into the foreseeable future.

95        The plaintiff’s work history since the incident was relied upon by counsel for the defendants in arguing the plaintiff’s impairment is not serious.

96        As Chernov JA observed in Sumbul v Melbourne All Toya Wreckers [2006] VSCA 292, it would ordinarily be difficult to conclude that the pain and suffering consequences were serious in circumstances where it is accepted that a plaintiff is physically capable of alternative employment unless there was some other evidence that showed he experienced significant pain or he otherwise suffered significantly from the injury.

97        Whilst I accept that each case must be looked at on its facts and that the observations of Chernov JA in Sumbul should not be treated as a general proposition that the ability to engage in full time work precludes a finding of serious injury, such observations should be given due weight.

98        Having planned to move to Queensland before the incident, the plaintiff explained that he decided to move in May 2005 when the first defendant no longer had any light duties available for him.

99        The only reference in plaintiffs’ affidavits to the plaintiff’s job in Queensland was that it was lighter work. In cross examination he described the work as “not heavy at all.” Professor Goldwasser noted that he was told by the plaintiff he had been working hard in Queensland – a history denied by the plaintiff. The plaintiff told Mr O’Brien that the job in Queensland was lighter and that he worked 24 hours per week.

100       Upon his return to Melbourne in 2006 the plaintiff obtained work with the Fresh Cheese Company. He continues in that position.

101       Significantly, the plaintiff continues to work 8 hours a day in a relatively heavy job where he stands for extended periods of time. Sometimes he is required to lift and move butter weighing up to forty to fifty 50 kilograms. His employer is not aware that the plaintiff has any knee problems.

102       Despite medico-legal opinion in support of the plaintiff’s claim, I do not accept the plaintiff could work the hours and do the job he presently does and has in effect done since 2005 with pain he describes as constant and experienced on practically every movement he makes. The plaintiff could not do this work if he is only able to stand comfortably for half an hour as he has stated, particularly when his present employer is not aware of the plaintiff’s knee problem.

103       I am not persuaded that the reduction in the plaintiff’s present work hours to 38 hours per week from 72 hours per week prior to the incident is as a result of his knee condition.

104       There is no evidence of any medical certification restricting the plaintiff’s duties in any way. Whilst a claim has not been made for loss of earning capacity because the plaintiff is still working and he may not be able to satisfy the requisite level of loss of earning capacity, there is no medical evidence whatsoever from any treating doctor since January 2005 as to any incapacity for work, Mr Tange having certified the plaintiff fit for normal duties in January 2005.

105       As the plaintiff has continued to work in a relatively hard job as a cheesemaker without the need to take time off, save for a couple of days a year since the incident, and requiring very little in the way of medical treatment, I am not satisfied the consequences of his impairment are “serious” in relation to his work situation.

106       I do not accept that this is a case where the plaintiff has simply been stoic. I find that for the last four and a half years the plaintiff has not sought treatment beyond Mr Goldwasser, one attendance with Dr Malcolm and visits to Dr Wilmott- the number and nature of which is unclear in the absence of any evidence from that doctor- because his level of pain has not required he seek medical attention. There is no evidence from any treating doctors or health care providers supporting a contrary position.

107       Whilst it is not determinative of serious injury, lack of treatment is a matter to be taken into account when assessing the consequences of an injury to the plaintiff: see Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260, at paragraph 24.

108       It appears that in early 2005 the plaintiff’s condition had largely recovered. He ceased physiotherapy in early 2005 because his knee was improving. As his physiotherapist Mr Kavanagh noted, and the plaintiff did not disagree, on discharge in May 2005 there were “no problems in knee at present.”

109       Having been discharged from Mr Tange’s care in May 2005 when he also noted the plaintiff was improving and required only conservative treatment, the plaintiff next saw a doctor for his left knee in March 2007 when he attended Dr Malcolm on one occasion and an MRI, which was normal, was arranged.

110       Whilst he was in Queensland between 2005 and 2006 the plaintiff received no medical treatment and simply did exercises himself. It is unclear when the plaintiff first saw his current general practitioner Dr Wilmott. There is no evidence whatsoever from him.

111       Further, the plaintiff is not prescribed medication, taking only over the counter Panadol and Voltaren.

112       Whilst the plaintiff mentioned his knee to Professor Goldwasser in November 2007 the principal reason for that referral was the plaintiff’s problems with his right foot. Professor Goldwasser made no note of any mention by the plaintiff of the left knee on re examination in June 2008. It was not until 12 November 2008 that a specific referral was made for the plaintiff’s knee problem.

113       Examination on that date and a fortnight later did not really show much in the way of abnormality. Most recently the plaintiff’s only complaint was of pain in the medial side of his knee. Mr Doig’s recent examination findings were not dissimilar.

114       I am not satisfied that in relation to his domestic and social activities any impairment presently claimed by the plaintiff is “serious”.

115       Whilst I accept the plaintiff may have some restrictions playing with his fourteen year old daughter and he also experiences difficulty walking and dancing, problems not originally deposed to, I do not consider these to be consequences which can properly be described as serious when applying the statutory test.

116       Given the plaintiff’s present work activities, the limited interference with his other activities because of pain, and the minimal treatment he has required since successful surgery in 2004 and is having at present, I do not accept that his impairment is serious.

117       I do not accept that the consequences to this plaintiff of his left knee injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being more than significant or marked and at least being very considerable.

118       Accordingly, I dismiss the plaintiff’s application to bring proceedings for damages for pain and suffering.

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