Dal Tio v Victorian WorkCover Authority
[2024] VCC 1884
•3 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-04822
| REMO DAL TIO | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May 2024 | |
DATE OF JUDGMENT: | 3 December 2024 | |
CASE MAY BE CITED AS: | Dal Tio v Victorian Workcover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1884 | |
REASONS FOR JUDGMENT
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Subject:Accident Compensation
Catchwords: Serious Injury – pain and suffering – right leg injury – pre-existing right knee condition – aggravation – acceleration – extent of aggravation – total knee replacement.
Legislation Cited: Accident Compensation Act 1985 (Vic), Workplace Injury Rehabilitation and Compensation Act2013 (Vic).
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz (2012) 34 VR 309; RJ Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; Bezzina v Phi [2012] VSCA 161; Pullicino v Burden’s Plumbing (Vic) Pty Ltd [2019] VSCA 88; Rowe v TAC [2017] VSCA 377; Ansett Australia Ltd v Taylor [2006] VSCA 171; Johns v Oaktech Pty Ltd [2020] VSCA 10; Roberts-Smith v Fairfax & Ors(No.41) [2023] FCA 555.
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick | Slater and Gordon |
| For the Defendant | Ms S Manova with Ms S De Guio | Lander and Rogers |
HER HONOUR:
Introduction
1The plaintiff, Remo Dal Tio, seeks leave to bring common law proceedings for pain and suffering damages as a result of an injury to his right knee (“claimed injury”) which occurred on 27 June 2011 (“the incident”) in the course of his employment with Ceva Logistics (“the employer”).
2At the hearing, Mr James Fitzpatrick of Counsel appeared on behalf of Mr Dal Tio and Ms Sasha Manova and Ms Stephanie De Guio of Counsel appeared on behalf of the Victorian Workcover Authority (“VWA”), the defendant.
The acceleration cases
3In opening address, Mr Fitzpatrick took the Court to the opinions of Associate Professor Martin Richardson (treating Orthopaedic Surgeon) and the medico-legal opinion of Dr Iain McLean (Orthopaedic Surgeon) to support an alternative claim – i.e. that there had been an acceleration of a pre-existing condition.
4It was ultimately conceded by Mr Fitzpatrick that neither surgeon supported the contention Mr Dal Tio’s total knee replacement (“TKR”) was brought on earlier as a result of the claimed injury.
5The issue of acceleration was not revisited in closing submissions.
6This is not an acceleration case.
Relevant legal principles in aggravation cases
7The claimed injury is an aggravation of a pre-existing condition. Accordingly, Mr Dal Tio must:
· identify the relevant injury;
· identify and separate the impairment consequences of that injury; and
· identify whether the additional impairment caused by the aggravation injury satisfies the statutory test.[1]
[1]Petkovski v Galletti [1994] 1 VR 436 at [44] ; as adopted in AG Staff Pty Ltd v Filipowicz (2012) 34 VR 309 at [31]-[33]; RJ Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386, at [40]; Bezzina v Phi [2012] VSCA 161 at [23]; Pullicino v Burden’s Plumbing (Vic) Pty Ltd [2019] VSCA 88 at [90].
8A plaintiff cannot succeed merely by showing that he has suffered a serious injury through the combination of the compensable event and a later event. The Court must determine whether the consequence of the claimed injury meets the test for serious injury.[2]
[2]Rowe v TAC [2017] VSCA 377 at [82]–[86]
What are the issues in dispute?
9The VWA did not dispute that Mr Dal Tio sustained a compensable injury on 27 June 2011.
10The VWA identified three areas of dispute:
· Causation - it was said the claimed injury resulted in a temporary aggravation of Mr Dal Tio’s pre-existing right knee condition and that any temporary aggravation had ceased;[3]
· Disentanglement - it was said that if the aggravation persisted, Mr Dal Tio had failed to disentangle the consequences of that injury from the earlier injury sustained by him, the natural progression of his knee condition, the effect of subsequent work and of any subsequent aggravations; and
· Range - it was said that Mr Dal Tio’s condition had substantially improved after the TKR surgery which was performed in May 2021 and that his current impairment consequences did not meet the statutory threshold.
[3]Transcript (“T”) 22 Line (“L”) 24
The hearing
11The application proceeded in the usual way.
12Mr Dal Tio tendered affidavits, medical reports, medico-legal reports, and extracts of clinical records and provided a detailed chronology.[4]
[4]Marked MFI 1
13The VWA tendered medico-legal reports and two sets of written submissions. The first set of submissions addressed the claim generally,[5] the second set was titled “The Defendant’s Outline of Written Submissions on the Ansett v Taylor Issue.”[6]
[5]Marked MFI 2
[6]Marked MFI 3
14Mr Dal Tio gave oral evidence and was cross-examined. He was the only witness called.
15I have considered all the tendered evidence, the chronology, Mr Dal Tio’s oral evidence and the submissions of Counsel, but I shall only refer to the materials to the extent necessary in these reasons.
Background
16Mr Dal Tio is a 67 year old single man. He was born in Melbourne. He attended secondary school to Year 10 level. He completed an apprenticeship as a carpenter. He worked as a carpenter until approximately 1984.
17In 1984, he started work for Qantas, initially cleaning aircraft and then loading and unloading planes.[7] Between 1993 and 1998 he worked in training for Qantas. In 1998 he accepted a redundancy package and left Qantas.
[7] T36, L28-30
18After leaving Qantas he returned to carpentry work and also worked in garden maintenance.
19In July 2006, he commenced work as a stock picker/forklift driver for TNT Logistics working initially at Brooklyn and then later at the Dunlop Tyres site in Somerton.
20In about 2009, TNT Logistics were bought out by the employer. Mr Dal Tio continued to work as a stock picker/forklift driver.
21Mr Dal Tio has had problems with his right knee, which began in the early 1980s after a football injury.
22Mr Dal Tio has had eight operations on his right knee – three of which were performed before the claimed injury. He had a TKR in May 2021.
23The records show he was a patient of the East Keilor Clinic from 23 July 2003 to October 2018.[8] After October 2018, he became a patient of the Lincolnville Medical Centre and started attending Dr Shojae.[9]
[8]Plaintiff Exhibit P20, Plaintiff’s Court Book (“PCB”) 285 -321
[9]Plaintiff Exhibit P14, PCB 149-152
Pre-existing knee condition
24In 1983, Mr John Grant, Orthopaedic Surgeon, operated on Mr Dal Tio’s right knee. No material was produced from Mr Grant, but it appears likely that the operation was an ACL reconstruction (the “first operation”).
25In November 2001 Mr Bernard Lynch, Orthopaedic Surgeon, performed a right knee arthroscopy which showed advanced osteoarthritis in the patella femoral joint (the “second operation”).[10]
[10]Defendant Exhibit D9
26On 5 August 2009, Mr Dal Tio twisted his right knee at work when he was replacing a tyre into a silage and stood on a spreader bar. He submitted a Worker’s Injury Claim Form.[11] He was off work for 3-4 weeks and used crutches for an unspecified period.[12] He was referred for an MRI scan of his right knee.[13]
[11]Defendant Exhibit D2
[12]T42, L7-19
[13]Plaintiff Exhibit P4, PCB 58
27On 22 September 2009, Mr Dal Tio attended his General Practitioner (“GP”) Dr Tsi Kang at the East Keilor Clinic who recorded:
“Jumped off back of forklift, approx 1m off ground
Right knee gave way
Felt sudden pain …”[14]
[14]Plaintiff Exhibit P20, PCB 317
28When initially asked about this incident in cross-examination, Mr Dal Tio could not recall it. He eventually agreed that the GP record of the incident sounded right.[15]
[15]T45, L5-6
29On 29 September 2009, he had further surgery to his right knee performed by Mr Paul Burns which was an arthroscopic debridement, a chondroplasty, and a partial lateral meniscectomy (the “third operation”). Mr Dal Tio said he was off work for a few weeks after this surgery.
30Mr Dal Tio then injured his knee again at work on April 28 2010, when he lost his footing on a step of a scissor lift and jarred his right knee. He saw his GP and was referred to Physiotherapist, Mr John Keller. He submitted a Worker’s Injury Claim Form dated 6 May 2010.[16] On 14 May 2010, he had an MRI scan of his right knee.[17] He was referred back to Mr Burns for further treatment.
[16]Defendant Exhibit D3
[17]Plaintiff Exhibit P4, MRI 14/5/10, PCB 60-61
31On 15 June 2010, Mr Burns reported to the GP that Mr Dal Tio had an unstable arthritic knee. Mr Burns was very reluctant to perform revision ACL reconstruction because of the underlying arthritis which was:
“no doubt going to necessitate a knee replacement at some time in the future at which time the anterior cruciate ligament would be sacrificed anyway.”[18]
[18]Defendant Exhibit D4, Defendant’s Court Book (“DCB”) 20
32On 17 September 2010, Mr Dal Tio attended his GP who recorded:
“Aggravated pain right knee.
Was busy yesterday up and down a reach fork. Overnite (sic) right knee sore and swollen. Hurts to walk
Examination:
Limping. Slightly swollen right knee with effusion
Good flexion and extension. Joint stable….” [19]
[19]Plaintiff Exhibit P20, PCB 313
33In his oral evidence, Mr Dal Tio said he remembered this aggravation but could not recall details.[20]
[20]T57
34On 7 October 2010, Mr Dal Tio was examined by Mr Robin Williams, Orthopaedic Surgeon for medicolegal purposes. Mr Williams noted that Mr Dal Tio presented with symptoms consistent with ligamentous instability in the right knee and early degenerative arthritis. He said that sometime in the future Mr Dal Tio would probably require a TKR.[21]
[21]Plaintiff Exhibit P16, PCB 227-237 at 232
The incident and claimed injury
35On 27 June 2011, Mr Dal Tio was operating a pump truck which had a small trailer attached to it. Mr Dal Tio said he lost control of the pump truck while rounding a corner and came off it, injuring his knee.
36Mr Dal Tio attended his GP and was referred for physiotherapy. He submitted a Worker’s Injury Claim Form dated 27 June 2011[22] and was off work for a number of weeks before returning to work.
[22]Plaintiff Exhibit P2
Post injury employment
37According to his first Affidavit, Mr Dal Tio said he accepted a position with the employer based at the Honda premises in Tullamarine. The reader of the Affidavit is left with the impression that Mr Dal Tio commenced working at Honda in 2012. In contrast, he told his GP in September 2018 that he had been transferred to Honda two years earlier (i.e. 2016) and the job at Honda involved a lot of walking.[23] In oral evidence, he agreed that he started at Honda in 2016 and did not explain why he gave a different year in his Affidavit.
[23]Plaintiff Exhibit P20
38This discrepancy is relevant as Mr Dal Tio deposed in his first Affidavit that the job at Honda involved a fair degree of walking which aggravated his right knee condition.[24]
[24]Plaintiff Exhibit P1, PCB 20 [21]
39Apart from taking some time off work in 2012, when he had further surgery (see below), Mr Dal Tio worked until May 2021. Mr Dal Tio deposed that sometime after his surgery he returned to work for a few months on lighter work but could not recall the precise date.[25]
[25] Plaintiff Exhibit P1, PCB 22 [39]
40Mr Dal Tio formally retired from the workforce in November 2022 and has been in receipt of an aged care pension since January 2023.
Other post injury events
41In January 2012, Mr Dal Tio was hit by a wave when swimming in the ocean and twisted his knee. He attended his GP, Dr Kang.
42By early May 2012, Mr Dal Tio was working full time hours. It is not clear whether he was performing normal duties or light duties. Physiotherapy ceased around mid-2012 - the precise date is unclear.
43On 28 May 2012, Mr Dal Tio attempted suicide. He attended Dr Kang the following day. Dr Kang arranged for Mr Dal Tio to be taken straight to the Western Hospital in Sunshine where he was admitted as a psychiatric inpatient. It is not clear how long Mr Dal Tio spent in hospital. [26] Dr Kang also referred Mr Dal Tio to Mr Bernard Healey (psychologist).[27]
[26]Plaintiff Exhibit P20, PCB 304
[27]Plaintiff Exhibit P20, PCB 305
44On 21 September 2012, Associate Professor Richardson performed an arthroscopy on Mr Dal Tio’s right knee (the “fourth operation”).
45By January 2013, Mr Dal Tio was working full time and was coping with his normal duties and hours.
46On 12 May 2014, Mr Dal Tio had a Synvisc injection in his right knee.
47On 11 June 2019, Mr Dal Tio had a further Synvisc injection in his right knee.
48On 22 May 2021, Associate Professor Richardson performed a TKR operation (the “fifth operation”).
49On 30 July 2021, Associate Professor Richardson performed a manipulation under anaesthetic (the “sixth operation”).
50On 9 September 2021, Associate Professor Richardson performed a further manipulation under anaesthetic (the “seventh operation”).
51On 22 July 2022, Mr Greg Self, Vascular Surgeon performed long saphenous vein surgery as Mr Dal Tio had developed a DVT and vein issues (the “eighth operation”).
Mr Dal Tio’s evidence
52The following is a summary of relevant parts of Mr Dal Tio’s affidavit evidence and his oral evidence.
Pain and Restrictions
53In his first Affidavit Mr Dal Tio said:
“I continue to have right knee pain. The pain is all over the knee. It is dull pain. It does vary in intensity but is always present. My knee feels stiff. I cannot bend it properly I avoid kneeling crouching or squatting. I struggle to walk on uneven ground. Using stairs is a problem. If I walk upstairs I have to put my hand on my right knee and push on the knee. I walk downstairs sideways.”[28]
[28]Plaintiff Exhibit P1, PCB 23 [43]
54In his second Affidavit Mr Dal Tio said:
“I still have constant aching in my knee.
It is steady in its level. It can reach 6-7 out of 10 if I have pushed a little too hard. I have a very high pain threshold.
If I walk a kilometre I start feeling extra aching. I then need to stop and rest it. I am never free of knee ache. Before 27 June 2011 I accept that I had after Mr Burn’s surgery in 2009 aches at times. I was still very active. My knee deteriorated after that incident in 2011 and never recovered - right up until I needed my knee replacement in 2021.”[29]
“When walking down steps I go like a crab - sideways”[30]
[29]Plaintiff Exhibit P2, PCB 26 [4] – [6]
[30]Plaintiff Exhibit P1, PCB 26 [8]
Sleep
55In his first Affidavit Mr Dal Tio said:
“My sleep is affected. I put a pillow at night between my knees. If I turn over in my sleep I can get pain in the right knee and it wakes me” [31]
[31]Plaintiff Exhibit P1, PCB 23 [44]
56In his second Affidavit Mr Dal Tio said:
“I sleep with a pillow between my knees.” [32]
[32]Plaintiff Exhibit P1, PCB 26 [8]
Activities of daily living
57In his first Affidavit Mr Dal Tio said:
“I live on (sic) normal sized house block. There is lawn both at the back and front. There are also garden beds around the perimeter of the lawn. Pushing the mower to cut the grass aggravated my right knee pain. I ended up buying a self-propelled mower to make it easier to push the mower without it causing the pain. If I need to do any weeding I sit on my backside next to the garden bed and take my time.
I struggle with some domestic chores. Whilst I can use the vacuum and mop I avoid any task that requires me to crouch or squat such as cleaning the shower base or the toilet. I have a housemate who takes care of these chores.”[33]
[33]Plaintiff Exhibit P1, PCB 23 [45] and [46]
Sport
58In his first Affidavit Mr Dal Tio said:
“Over the years I have always been very active. My knee injury affected my ability to engage in sports. In the past I enjoyed surfing. I had a permanent onsite caravan in Jan Juc. I would use it all the time and surf at nearby beaches. Due to my knee injury, I stopped surfing about 5 years ago and about 12 months later I sold the van. I also played social tennis. I had to stop this some time ago as well.
I still try and play golf. I can only play 9 holes now and even then my knee is sore afterwards. I have always loved walking my dog. At some point [viz prior] to my knee replacement I stopped taking the dog on long walks and now just go to (sic) local park and throw the ball around.”[34]
[34]Plaintiff Exhibit P1, PCB 23 [47]-[48]
59In his second Affidavit, Mr Dal Tio said:
“I am always worried about my knee buckling now. It doesn’t feel as stable as my left leg. I haven’t fallen yet but I have had a couple of stumbles because of the right knee. At these times I seem not to lift my right foot enough to clear the ground or step. Hence why going bushwalking, fishing and such activities are out for me. I don’t trust myself to out (sic) the bush or on the Murray somewhere and then take a fall due to my knee. I can stand for about 20–30 minutes before it gets to needing a break. I use an elastic knee brace every day”[35]
“I have played the odd game of golf, but I don’t walk the course. I have used a cart. Nine holes is enough. If I didn’t have my knee so bad I would be doing lots of activities … I would still be enjoying activities like golf, bushwalking, surfing, and fishing if it was not for my knee.”[36]
[35]Plaintiff Exhibit P1, PCB 26-27 [10]
[36]Plaintiff Exhibit P1, PCB 27 [13] and [15]
Total Knee Reconstruction
60Mr Dal Tio said he was told by Associate Professor Richardson in about September 2018 that he would need a TKR.[37]
[37] Plaintiff Exhibit P1, PCB 5 [28]
Treatment
61In his second Affidavit Mr Dal Tio said:
“I see A/Professor Richardson for follow [viz up] each year. There has been no further treatment since my total knee replacement, just ongoing self-physio. I attend the ‘Move’ aquatic centre at Keilor East about three times a week, where I spend 30 minutes in the recovery pool doing my exercises. I try and swim for around 30-40 minutes - swimming about 500-600 metres.
I avoid taking any medication as I don’t like to take medications.”[38]
[38]Plaintiff Exhibit P2, PCB 25-26 [2] and [3]
Mr Dal Tio’s medical evidence
Radiology and operation notes
62Mr Dal Tio tendered 19 pieces of radiology and operation notes documents[39] (four of which predated the claimed injury).
[39]Plaintiff Exhibit P4
63The operation report relating to the TKR on 22 May 2021 was not tendered and its absence was not explained.
Mr Dal Tio’s treating team
64Mr Dal Tio tendered reports from Dr Lewi GP and Dr Shojae GP, Mr Burns, Orthopaedic Surgeon, Associate Professor Richardson, Orthopaedic Surgeon, Mr Keller, Physiotherapist, and Mr Webb, Physiotherapist, and a questionnaire completed by Dr Kang, GP, as well as medical records from the Epworth Hospital, and extracts of clinical notes from the East Keilor Clinic.
65The defendant also tendered material from Mr Burns and Associate Professor Richardson. For ease of reference, a summary of the additional material is included in this part of the judgement.
Dr Leon Lewi, General Practitioner
66Mr Dal Tio tendered one report from Dr Lewi[40] from the East Keilor Clinic, dated 24 June 2013, addressed to Slater and Gordon, solicitors.
[40] Plaintiff Exhibit P8, PCB 93-94
67Dr Lewi noted that Mr Dal Tio originally injured his knee playing Australian rules football and had a reconstruction of the anterior cruciate ligament in 1983 after sustaining a “major injury to his knee”. Dr Lewi also referred to the work injury on 28 April 2010 and what he described as “the aggravation injury” of June 2011.
68Dr Lewi’s diagnosis was that the anterior cruciate ligament had healed, but an arthroscopy of the right knee undertaken in 2012 showed advanced degenerative changes in the lateral compartment of the knee.
69Dr Lewi noted that Mr Dal Tio had been advised that he would need a TKR. It was Dr Lewi’s opinion that Mr Dal Tio had ongoing degenerative arthritis of the right knee. Mr Dal Tio was undertaking his preinjury duties with some difficulty and discomfort. He considered that Mr Dal Tio was a “year by year proposition” and that his long-term prognosis was uncertain. Mr Dal Tio lived alone and had to be self-reliant.
70Dr Lewi said on close inspection Mr Dal Tio’s right knee was slightly swollen at times.
Dr Tsi Kang, General Practitioner
71Mr Dal Tio tendered a Medical Practitioner Questionnaire completed by Dr Kang from the East Keilor Clinic dated 19 June 2012.[41]
[41]Plaintiff Exhibit P7, PCB 89-92
72Dr Kang diagnosed a painful right knee with instability due to lateral compartment degenerative changes. He noted that Mr Dal Tio was working full-time with some modifications which included no kneeling, squatting, or climbing and he continued to wear a brace.
73Dr Kang confirmed that Mr Dal Tio had been discharged from physiotherapy.
Clinical Notes of the East Keilor Clinic
74Mr Dal Tio tendered records from the East Keilor Clinic covering the period 23 July 2007 – 31 October 2018.[42]
[42]Plaintiff Exhibit P20, PCB 285-321
75The following is a summary of relevant entries only.
76The entry for 27 June 2011 recorded the following:
“1 hour ago while on a pump truck - stopped suddendly (sic) - -operated dead man switch
( like a brake - injured right knee again
knee - movement 0 -105 deg - no effusion -”[43]
[43] Plaintiff Exhibit P20 PCB 311
77Mr Dal Tio was referred to Keilor Road physiotherapy.
78The entry of 5 July 2011 reads as follows:
“knee swelling is subsiding - pain down to 7/10 continue with physiotherapy”[44]
[44] Plaintiff Exhibit P20 PCB 311
79The entry of 12 July 2011 recorded:
“to resume office work net work (sic)
knee- movement 5 -85 deg - mild effusion”[45]
[45] Plaintiff Exhibit P20 PCB 310
80By 16 August 2011, it was noted that there was no effusion and Mr Dal Tio had returned to light duties. His joint line was not tender and his patella was not tender.
81On 24 August 2011, Mr Dal Tio attended his GP and said that his knee had given way the previous day.
82On 30 August 2011, Mr Dal Tio reported that his right knee was much better. His pain was not constant, and his knee hurt only when standing or walking.
83In January 2012, Mr Dal Tio attended his GP and informed the doctor that he had been swimming the previous week and was hit by a wave and twisted his knee. On examination there was bruising noted behind the right knee, no effusion in the knee and there was crepitus on flexion
84By May 2012, Mr Dal Tio reported that he was working normal hours full-time, and his knee would be sore if he had to drive a pump truck which he did twice a week.
85On 12 April 2013, Mr Dal Tio attended his GP who recorded that he was keeping himself very busy, exercising daily, including swimming twice a week and bike riding. He was involved in a project around his house and was trying to get back into surfing.
86On 27 June 2013, Mr Dal Tio attended his GP, and it was recorded that he blamed work for a faulty pump truck injury in 2011.
87Mr Dal Tio attended his GP regularly during the period June 2013 to 2019. There were no recorded complaints relating to his right knee during the period 27 June 2013 until 10 September 2018.
88On 10 September 2018, Mr Dal Tio attended his GP and informed him that he had been transferred to Honda two years earlier as a storeman and that his work involved a lot of walking and picking up parts. He had noticed a progressive worsening of the pain in his right knee and his knee was sore and swollen at the end of the day. It was recorded that he had to walk sideways downstairs and that he had aching at night.
89The next relevant attendance was on 25 September 2018 when it was recorded that Mr Dal Tio had seen Mr Richardson who had recommended a TKR. Mr Dal Tio was not keen to proceed with the TKR. His pain was bearable and okay once he was asleep and he reported walking 15 km a day at work which aggravated his knee.
Dr Mohsen Shojae, General Practitioner
90Mr Dal Tio tendered one report from Dr Shojae from the Lincolnville Medical Centre dated 20 February 2024 addressed to UHG.[46]
[46]Plaintiff Exhibit P14, PCB 149-152
91Dr Shojae referred only to the claimed injury. He noted that Mr Dal Tio worked on light duties from July 2022 to November 2022 when he retired due to severe right knee pain and leg pain.
92He said that although Mr Dal Tio had ceased attending physiotherapy, he was swimming twice a week and doing exercises provided by his previous physiotherapist.
93Dr Shojae diagnosed osteoarthritis of the right knee which he opined may or may not be due to trauma. He noted that Mr Dal Tio had been restricted in activities that had improved after surgery and physiotherapy. He noted that Mr Dal Tio was “feeling much better”.[47]
[47]Plaintiff Exhibit P14, PCB 151
94Dr Shojae opined that the prognosis was good, and Mr Dal Tio might be at risk of osteoarthritis and deterioration in the future but Dr Shojae could not estimate the risk or timeframe.
95Dr Shojae considered that Mr Dal Tio did not need further surgery.
Mr Paul Burns, Orthopaedic Surgeon
96Mr Dal Tio tendered two medical reports from Mr Burns dated 14 September 2009 and 17 July 2013, as well as a letter from Mr Burns addressed to Dr Lewi dated 27 October 2009.[48]
[48] Plaintiff Exhibit P5, PCB 81-86
97The defendant tendered Mr Burns’ operation note dated 29 September 2009[49] and letters from Mr Burns to Dr Lewi dated 14 September 2009[50] and 15 June 2010.[51]
[49]Defendant Exhibit D10, DCB 119 (this document also formed part of Plaintiff’s Exhibit P4)
[50]Defendant Exhibit D11 DCB 121
[51]Defendant Exhibit D4, DCB 25
98Mr Dal Tio first attended Mr Burns in September 2009 after the work incident of 5 August 2009. Mr Burns informed Dr Lewi that Mr Dal Tio was complaining about instability of his right knee and of lateral, and to a lesser extent, posterior pain.
99In September 2009, Mr Burns reported that Mr Dal Tio complained of swelling and grating in the right knee and difficulty squatting. He was unable to carry out his normal work duties which involved the use of forklifts and carrying heavy weights. Mr Burns said that Mr Dal Tio clearly had a problem with an ACL insufficiency, with secondary degenerative changes along with meniscal tears. Mr Burns considered it reasonable to assume that the work incident had been a significant incident. Mr Burns said that he would perform an arthroscopy and noted the following:
“He [Mr Dal Tio] is aware that the degenerative changes will progress with time and more major intervention may well be required.”[52]
[52]Defendant Exhibit D11, DCB 121
100On 29 September 2009, Mr Burns performed an arthroscopic debridement, chondroplasty and partial lateral meniscectomy.
101Mr Dal Tio next consulted Mr Burns in June 2010. Mr Dal Tio was referred back to Mr Burns by Dr Lewi after the April 2010 incident. Mr Burns gave Mr Dal Tio an anterior cruciate ligament knee brace to wear at work.
102In a letter dated 15 June 2010[53] Mr Burns informed Dr Lewi that the April 2010 incident probably involved an episode of the knee giving way which was related to his chronic ACL insufficiency. Mr Burns noted that there had been significant swelling of the knee and some lateral and anterior pain. Mr Burns noted that with physiotherapy and time, the knee had steadily improved to the stage where Mr Dal Tio had very intermittent pain and was coping reasonably well at work. Mr Dal Tio was aware of a feeling of weakness of his knee.
[53]Defendant Exhibit D4, DCB 20
103In that letter, Mr Burns noted that the “new MRI scan” (which was presumably the MRI scan dated 14 May 2010)[54] confirmed significant lateral osteoarthritis, ACL insufficiency and moderate changes in the medial and lateral compartments. Mr Burns said Mr Dal Tio’s menisci were “by no means normal with degenerative splitting”.[55]
[54]Plaintiff Exhibit P6, PCB 60-61
[55] Defendant Exhibit D4, DCB 20
104Mr Burns opined that Mr Dal Tio had a difficult problem with an unstable arthritic knee. Mr Byrnes was very reluctant to perform a revision ACL reconstruction because of the underlying arthritis which he said:
“is no doubt going to necessitate a knee replacement at some stage in the future at which time the anterior cruciate ligament would be sacrificed anyway.” [56]
[56]Defendant Exhibit D4, DCB 20
105In his report dated 17 July 2013, Mr Burns said that Mr Dal Tio was fit for modified duties at the date of his last examination, which was in June 2010. He expressed the following cautious opinion:
“The overall prognosis for this knee is poor and it is very likely that the degenerative changes will steadily progress. If sufficient pain and disability develops because of this then further surgery in the form of a knee replacement may become necessary. In the meantime treatment should consist of simple pool and bike related exercises and modification of activities so as to avoid any squatting, twisting or jumping in the course of his work or leisure activities.”[57]
[57] Plaintiff Exhibit P5, PCB 85
Associate Professor Martin Richardson, Orthopaedic Surgeon
106Mr Dal Tio tendered three medical reports from Associate Professor Richardson dated 18 June 2013, 21 February 2024 and 15 March 2024 addressed to Slater and Gordon as well as a post-surgery questionnaire dated 18 August 2021.[58]
[58]Plaintiff Exhibit P9, PCB 95-107
107The defendant tendered a letter from Associate Professor Richardson addressed to Dr Kang at the East Keilor Clinic dated 24 September 2018.[59]
[59]Defendant Exhibit D5, DCB 25
108Associate Professor Richardson commenced treating Mr Dal Tio in September 2011 on referral from Dr Lewi. He was provided with a history of the anterior cruciate ligament reconstruction in May 1983 and subsequent arthroscopic surgery with Mr Lynch in November 2001. He was also told that Mr Dal Tio had attended Mr Burns.
109Associate Professor Richardson reviewed Mr Dal Tio on 5 December 2011, at which time Mr Dal Tio was using an ulnar loader brace which he had tested out on a surfboard, but his knee was not stable enough to do that sort of activity. Associate Professor Richardson said he discussed a further arthroscopic debridement of the knee, but he felt that it would only provide temporary relief, and that the long-term surgical solution would be a TKR.
110Associate Professor Richardson reviewed Mr Dal Tio on 17 July 2012 at which time Mr Dal Tio was continuing to have trouble with his knee. He was wearing a knee brace when doing significant activities. Associate Professor Richardson said that at that time his symptoms did not warrant a TKR. He wrote:
“...we warned him that this was on the cards.”[60]
[60]Plaintiff Exhibit P9, PCB 101
111Associate Professor Richardson conducted right knee arthroscopic surgery on 21 September 2012. By 21 January 2013, Mr Dal Tio reported that he was delighted with the result of his right knee arthroscopy. At that time, he had returned to work undertaking normal hours and duties. In discussing the attendance of 21 January 2013, Associate Professor Richardson stated:
“…we will review him later in the year to assess his progress and discuss a possible knee replacement which may be required some stage in the future”[61]
[61]Plaintiff Exhibit P9, PCB 96
112On review on 28 January 2014 and 12 May 2014 the issue of a TKR was again discussed with Mr Dal Tio.
113Mr Dal Tio next attended Associate Professor Richardson, over four years later, on 24 September 2018 when he reported worsening of right knee pain. In a letter addressed to the GP dated 24 September 2018,[62] Associate Professor Richardson was told that Mr Dal Tio had been working as a storeman at Honda and that his job required a lot of walking.
[62]Defendant Exhibit D5, DCB 25
114Mr Dal Tio later told Associate Professor Richardson that he had been walking up to 10 kilometres per day at Honda.
115Associate Professor Richardson continued to treat Mr Dal Tio and performed the TKR on 22 May 2021. Due to post operative complications, two subsequent manipulations under anaesthetic were needed.
116Associate Professor Richardson last reviewed Mr Dal Tio on 28 September 2023, at which time Mr Dal Tio was “very happy” with the TKR.
117Associate Professor Richardson opined that Mr Dal Tio had an excellent functioning right knee replacement and that as at September 2023 the TKR allowed Mr Dal Tio to be:
“functional in all normal activities required for his right knee.”[63]
[63]Plaintiff Exhibit P9, PCB 104
118There is no mention of the claimed injury in any of his reports other than when specifically asked by Mr Dal Tio’s solicitors. Associate Professor Richardson said he was not aware of an injury sustained in June 2011. He did not diagnose the claimed injury. He opined that Mr Dal Tio’s degenerative injuries were consistent with the rigours of his work as a storeman.
119Mr Dal Tio’s solicitors asked Associate Professor Richardson to provide:
“Your opinion as to whether it is more likely than not that the workplace incident[64] materially contributed to or was a cause of my client’s right total knee replacement”[65]
In response, Associate Professor Richardson stated:
“The continued rigours of walking up to 10km a day around his workplace with the resultant wear and tear of his knees eventually required the right knee replacement after a long period of conservative treatment……”[66]
[64]A reference to the June 2011 incident.
[65]Plaintiff Exhibit P9, PCB 107
[66]Plaintiff Exhibit P9, PCB 107
Epworth Hospital Reports
120Mr Dal Tio attended Epworth rehabilitation following the TKR and the manipulations under anaesthetic.
121By 1 October 2021, Dr Di Rico, consultant physician in rehabilitation, expressed the view that Mr Dal Tio had improved significantly following the second manipulation under anaesthetic. Dr Di Rico was optimistic that Mr Dal Tio would continue to make great progress with his physiotherapy. Mr Dal Tio had returned to driving, was independent in personal and domestic tasks, and that he felt well supported in a graduated return to work program and was aiming to commence light duties in the following month.
122Mr Dal Tio was taking Panadol at night and occasional Endone for nocturnal pain. He was advised that he could use over-the-counter anti-inflammatories such as Voltaren or Nurofen, instead of Endone, as time progressed.
Mr John Keller, Physiotherapist
123Mr Dal Tio tendered two letters addressed to Dr Lewi from Mr Keller dated 3 May 2010 and 27 June 2011.[67]
[67]Plaintiff Exhibit P6, PCB 87-88
124In his first report Mr Keller confirmed that Mr Dal Tio first presented to him shortly after the April 2010 incident. He advised Dr Lewi that he considered the second orthopaedic assessment was necessary particularly to ascertain whether or not repairing the ruptured ACL graft was an option.
125In the second letter, he confirmed that Mr Dal Tio presented to him on the day of the claimed injury and reported that he was riding a pump truck which stopped suddenly and forced his right knee to hyperextend, causing a snapping sensation in the knee joint.
126On examination, Mr Keller noted no effusion of the right knee joint. There was pain at the end of the range of active flexion and extension, as well as tenderness on palpation to the medial border of the patella. There was slight swelling around the knee joint.
127Mr Keller instructed Mr Dal Tio to ice his knee and provided him with a set of crutches. Mr Keller said that he intended to review Mr Dal Tio in three days to allow inflammation to settle. He again expressed the view that an orthopaedic opinion was warranted, particularly to ascertain whether or not repairing the ruptured ACL graft was an option.
Mr Robbie Web, Physiotherapist
128Mr Dal Tio tendered a letter dated 5 November 2021 from Mr Robbie Webb, Physiotherapist, of Keilor Road Physiotherapy which was addressed to EML Mutual.[68]
[68]Plaintiff Exhibit P13, PCB 121
129Mr Dal Tio first presented to Keilor Road Physiotherapy in June 2021. He had been making positive progress and had regained a satisfactory range of movement in his right knee. He continued to walk with a limp, and it was recommended that he attend hydrotherapy.
Mr Dal Tio’s medicolegal reports
130Given the complicated history of this case, Mr Dal Tio was granted leave to rely on additional medicolegal reports beyond what is contemplated in the Court’s Practice Note.
131Mr Dal Tio tendered medicolegal reports of Dr McLean, Orthopaedic Surgeon, Mr Robin Williams, Orthopaedic Surgeon, Mr McInnis, General Surgeon, Associate Professor Goldwasser, Orthopaedic Surgeon, and Mr Dunin, Orthopaedic Surgeon.
Dr Iain McLean, Orthopaedic Surgeon
132Mr Dal Tio tendered two reports of Dr McLean dated 13 October 2023 and 23 May 2023.[69]
[69]Plaintiff Exhibit 15, PCB 194-210, 211-215
133In his first report, Dr McLean was told that Mr Dal Tio was relatively active until approximately two years prior to his knee replacement (mid 2019). Dr McLean was told that prior to the 2011 injury, Mr Dal Tio was very active with golf, caravanning and surfing. Dr McLean recorded that Mr Dal Tio attempted to continue with these activities over the years, but he had ongoing problems and had increased pain approximately two years before the knee replacement surgery. He was therefore unable to return to golfing, caravanning, surfing, cycling or bushwalking.
134Dr McLean considered that Mr Dal Tio had suffered a right knee internal derangement of meniscal and chondral origin, with significant aggravation of underlying constitutional degenerative change and ACL deficiency. It was his view that the stated work injury of June 2011 had significantly affected Mr Dal Tio’s pain and functional limitations. He specifically stated that he based his opinion on the honesty and recollection of Mr Dal Tio.
135Dr McLean opined that the 2011 injury constituted a significant aggravation of his underlying constitutional degenerative arthritis. He expressed the view that whilst there was a possibility of future revision surgery, the possibility was multifactorial and difficult to determine.
136Dr McLean said the prognosis was guarded. He described Mr Dal Tio as a relatively active male who faced the risk of future prosthetic wear, loosening, periprosthetic fractures or infection.
137In his supplementary report, he confirmed that his original opinion was based on the honesty and recollection of Mr Dal Tio. He did not alter any of his opinions.
Mr Robin Williams, Orthopaedic Surgeon
138Mr Dal Tio tendered a report of Mr Williams dated 7 October 2010[70] which was addressed to QBE Workers Compensation (Vic) Ltd. Mr Williams examined Mr Dal Tio in October 2010. At that time, Mr Dal Tio said his knee felt loose and unstable and that it puffed up from time to time after activity.
[70]Plaintiff Exhibit P16, PCB 227-237
139Mr Dal Tio told Mr Williams that he lived alone and did not play any sport but was a regular swimmer and rode a bicycle.
140On clinical examination Mr Williams did not detect any effusion or crepitus. He noted a restriction in the range of movement.
141Mr Williams said that he read the radiologist’s reports of the MRIs performed on 31 August 2009 and 14 May 2010. He noted the radiologist’s comments of a chronic tear of an anterior cruciate graft and tearing of both the medial and lateral meniscus, together with degenerative changes in the articular cartilage of the lateral and patellofemoral compartments of the right knee.
142Mr Williams opined that Mr Dal Tio presented with symptoms consistent with ligamentous instability in the knee and early degenerative arthritis. He expressed the view that Mr Dal Tio would probably require a knee arthroscopy sometime in the future.
Associate Professor Miron Goldwasser, Orthopaedic Surgeon
143Mr Dal Tio tendered a report of Associate Professor Goldwasser dated 28 March 2014.[71] This report was also addressed to QBE Workers Compensation and was prepared for the purposes of performing an AMA assessment.
[71]Plaintiff Exhibit P18, PCB 245-267
144At the time the report was prepared there was no plan for further surgery to Mr Dal Tio’s right knee. Associate Professor Goldwasser was told that Mr Dal Tio was hoping to put off the TKR for 10 to 15 years.
145Mr Dal Tio told Associate Professor Goldwasser that he considered that the 2011 injury was the most significant one as it had altered his lifestyle. He said he was no longer as active physically. He said he tried to surf but it was more difficult and less enjoyable. He reported that he had difficulty walking downstairs and would need to walk down sideways in a crab like way. He said he was no longer running, jogging or swimming, that squatting was difficult and that whilst he was able to do activities of normal living, he had difficulty putting on shoes and socks on the right foot.
146On clinical examination there was a 2 cm wasting in the right thigh and a 1 cm wasting in the right calf. There was a small effusion in the knee and marked patellar femoral crepitus. There was discomfort on applying patellofemoral pressure and mild medial and anterior laxity. There was restriction in the range of motion.
147Associate Professor opined that Mr Dal Tio’s right knee was currently significantly affected by the decreased range of motion together with patella-femoral crepitus in irritability.
148Associate Professor Goldwasser noted that Mr Dal Tio was fit for work duties. At the time of examination he was mainly undertaking forklift driving.
149Associate Professor Goldwasser conducted an AMA impairment evaluation but did not comment on the nature of the claimed injury.
Mr Anthony Dunin, Orthopaedic Surgeon
150Mr Dal Tio tendered a report of Mr Dunin dated 2 April 2024 addressed to the defendant’s solicitors together with a letter of instructions dated 21 March 2024.[72]
[72]Plaintiff Exhibit P19, PCB 282-284, 268-281
151Mr Dunin did not examine Mr Dal Tio. He provided a desktop review based on papers provided to him, including the pre-June 2011 radiology and treating doctors reports.
152It appears that Mr Dunin reviewed the radiology reports rather than the actual radiological images.
153Mr Dunin noted that an x-ray of the right knee conducted on 11 August 2011 (mistakenly referred to as 11 August 2001) demonstrated severe degenerative changes in the lateral compartment of the right knee.
154Mr Dunin opined that the incident of 2011 caused a temporary aggravation of the previous pathology in the knee. He said that there was no serious new injury to the knee and based this on the fact that there was no significant swelling following the specific incident. He also said that an MRI scan performed shortly after June 2011 did not demonstrate any significant knee effusion or bone oedema.[73]
[73]The reference to the MRI appears to be a mistake as there was no MRI conducted shortly after the incident – rather there was an x-ray which was undertaken on 31 August 2011.
155Mr Dunin opined that the aggravation to Mr Dal Tio’s pre-existing knee osteoarthritis as a result of the claimed injury was minimal and of a temporary nature. He specifically stated that it did not change the natural history of the right knee condition. He also noted that had the incident not occurred there was a strong likelihood that Mr Dal Tio would have needed a TKR in the future. He specifically stated:
“I consider that the incident on 27 June 2011 would not have seemingly brought forward the date for the subsequent knee replacement surgery.”[74]
[74] Plaintiff Exhibit P19, PCB 284
156Finally, Mr Dunin considered that Mr Dal Tio had made a very good recovery following the TKR surgery.
VWA’s medical evidence
157The VWA tendered further reports from Mr Paul Burns and further material from Associate Professor Richardson – which are discussed above. In addition, the VWA tendered a report of Dr Vidovich, Vascular Surgeon, and correspondence from Dr Minc (GP) of the East Keilor Clinic, correspondence from Mr Bernard Lynch, Orthopaedic Surgeon, to Dr Minc, correspondence from Mr Robert Dib, Mr Dal Tio’s Physiotherapist, and extracts from the clinical notes of the Lincolnville Medical Centre.
Treating practitioners material tendered by the VWA
Dr Belinda Minc, General Practitioner
158The VWA tendered the referral letter from Dr Minc to Mr Bernard Lynch, Orthopaedic Surgeon, dated 19 November 2001[75] in which it was noted that Mr Dal Tio complained of a three year history of right knee pain, instability and locking at times.
[75]Defendant Exhibit D7, DCB 60
Mr Bernard Lynch, Orthopaedic Surgeon
159The VWA tendered two letters from Mr Lynch addressed to Dr Minc dated 23 November 2001[76] and 10 December 2001.[77]
[76]Defendant Exhibit D8, DCB 61
[77]Defendant Exhibit D9, DCB 63
160In the November 2001 letter, Mr Lynch noted that Mr Dal Tio had a long history of right knee problems including medial joint line pain and swelling which was gradually deteriorating. On examination he noted a small effusion, medial joint line tenderness and significant crepitus in the medial compartment. Mr Lynch recommended a right knee arthroscopy.
161In the December 2001 letter, Mr Lynch noted that the right knee arthroscopy had been performed two weeks earlier. The arthroscopy showed advanced osteoarthritis of the patellofemoral joint with torn menisci in the medial and lateral compartments. He noted Grade 2B degenerative chondromalacia in the lateral tibial plateau. The anterior cruciate ligament was ruptured. Mr Dal Tio was recovering well from the surgery.
162Mr Lynch anticipated that Mr Dal Tio would continue to notice difficulties with anterior knee pain, particularly with kneeling, rising from a low position, stair climbing and descent.
Mr Robert Dib, Treating Physiotherapist
163The VWA tendered two letters from Mr Dib. The first was dated 10 November 2011 and was addressed to Associate Professor Richardson. The second letter was dated 1 December 2011 and was addressed to QBE Workers Compensation.[78]
[78]Defendant Exhibit D6, DCB 21-22.
164In the first letter, it was recorded that as at November 2011, Mr Dal Tio had reported that he had substantial improvement in discomfort and his strength had improved. In the letter to QBE, Mr Dib noted that Mr Dal Tio had reported that he injured himself on 5 August 2009 and also six months ago when working on a pump truck (presumably the subject incident).
165It was Mr Dib’s opinion that the two incidents led to Mr Dal Tio’s degenerative joint disease.
Clinical Notes of the Lincolnville Medical Clinic
166The VWA tendered clinical notes from the Lincolnville Medical Centre covering the period 21 January 2019 to 17 October 2023.[79]
[79]Defendant Exhibit D14 DCB 64-113
167The first recorded complaint of knee pain in the notes was on 8 December 2020, when it was recorded that Mr Dal Tio had jumped on his right knee at work, that he had his knee booked for surgery and that he had severe osteoarthritis. The notes record whilst there was no bruising observed, there was mild swelling.
168In early 2021, it was noted that Mr Dal Tio was waiting for a right TKR. There was an incidental finding of a Baker’s cyst.
169In an entry recorded on 9 April 2021 it was noted that a TKR had been scheduled to take place on 21 May 2021 and the following was recorded:
“…Leisure activities-
swim -– windy hill, down to the beach williamstown (sic)
walk dogs
beach - swim and chill out
walking and picking - 20km day
then walk dogs when gets home (sic)
variable - can be sore some days (but most)”[80]
VWA’s medico legal examiners
[80] Defendant Exhibit D14, DCB 82
Dr Vidovich, Vascular Surgeon
170The VWA tendered a report from Dr John Vidovich, Vascular Surgeon, dated 2 May 2024 which was addressed to Mr Dal Tio’s solicitors.[81]
[81]Defendant Exhibit D1, PCB 216-226
171Dr Vidovich was requested to assess Mr Dal Tio’s deep vein thrombosis (“DVT”) and varicose vein conditions. It was his opinion that the post-operative DVT had completely resolved. It was his opinion that there was an absence of deep venous incompetence, and Mr Dal Tio did not suffer from post-thrombotic syndrome and did not have a DVT related impairment of his right leg.
Acceptance of claim for impairment benefit in March 2014 - does this amount to an admission?
172The VWA accepted liability for an impairment benefit claim in relation to the claimed injury made by Mr Dal Tio in March 2014.
173Counsel for Mr Dal Tio submitted that the acceptance of Mr Dal Tio’s impairment claim in March 2014 was significant as it was an admission that as at March 2014 the injury (i.e. aggravation) was still present.[82]
[82]T186, L9
174I have had regard to the affidavits sworn by Shawn Kim, Senior Legal Specialist of EML, the authorised Workcover insurer of the employer affirmed on 24 May 2024[83] and on 27 May 2024[84].
[83]Defendant Exhibit D12
[84]Defendant Exhibit D13
175Mr Kim asserted that had additional medical material been available at the time when the VWA determined liability for Mr Dal Tio’s claim, then liability would have “most likely been rejected.”
176Mr Dal Tio did not seek to cross examine Mr Kim.
177The entitlement to an impairment benefit arose as a result of an impairment assessment which was conducted in accordance with the Fourth Edition of the AMA Guides. The definition of “permanent” under the AMA Guides is different from the definition of “permanent” under the Act.
178I find that the acceptance of the impairment claim is a factor to be considered as part of the whole of the evidence.[85]
[85]Ansett Australia Ltd v Taylor [2006] VSCA 171 [2] at paragraph [40]
179The decision to accept liability for the impairment benefit claim predated subsequent surgeries which included the TKR and predated other incidents of injury. Further medical opinions addressing causation have been obtained since the date of acceptance.
180The Court has to determine the question of “serious injury” at the date of hearing. The acceptance of the impairment benefit claim occurred over 10 years ago. That acceptance is of little assistance in my determination of the issues which arise in this case.
Mr Dal Tio as a witness
181In serious injury applications the credit and reliability of the plaintiff will often be critical to the resolution of the application.[86] A plaintiff’s credibility and reliability are directly relevant to whether their evidence should be accepted.
[86]See for example: Johns v Oaktech Pty Ltd [2020] VSCA 10
182In this case, Mr Dal Tio’s credit was not attacked. However, I still have to consider whether he was a reliable witness.
183My impression was that Mr Dal Tio was, for the purposes of this proceeding, overly focused on the June 2011 incident, and tended to overstate his pain and suffering consequences relating to that incident and understate anything which was not related to it.
184It is now over 13 years since he suffered the injuries the subject of this application. The passage of time, intervening events (including subsequent aggravations of knee condition), the TKR surgery and all its post operative complications have, in my view, interfered with the reliability of Mr Dal Tio’s recall of relevant details over the intervening period.
185I have taken into account the effect of the passage of time on human memory and am reminded by what was said by Besanko J recently,[87] that when doing so, the Court must also consider the process of memory being overlaid with perceptions of self-interest as well as the capacity for the human mind to rationalise events after they occur.
[87]Roberts-Smith v Fairfax & Ors (No.41) [2023] FCA 555 at [163]
186I have considerable doubts about the reliability of a number of aspects of Mr Dal Tio’s evidence. I find that there has been reconstruction in his thinking about the timing and extent of his symptoms and their impact on his life, particularly when his evidence was contrary to contemporaneous medical evidence.
187The contemporaneous evidence casts doubts on the accuracy of Mr Dal Tio’s current recollection. Examples of this were:
·His evidence that he was not told about the prospect of a TKR until September 2018. This was inconsistent with:
1)Associate Professor Richardson’s evidence, that the need for an eventual TKR was discussed as early as 5 December 2011 and on a number of occasions prior to September 2018;
2)Mr Burns’ advice to Dr Lewi (GP) in June 2010 that a knee replacement may be necessary in the future;[88]
3)Dr Lewi’s report dated 24 June 2013 which recorded that Mr Dal Tio had been advised that in due course he would need a TKR;[89]
4)Professor Goldwasser’s comment in March 2014 that Mr Dal Tio was hoping to put off the TKR for as long as possible, maybe up to a further 10-15 years.[90]
[88] Defendant Exhibit D4, DCB 20; Plaintiff Exhibit P5, PCB 85
[89] Plaintiff Exhibit P8, PCB 93
[90]Plaintiff Exhibit P18, PCB 253
· His evidence about his symptoms after June 2011 which appear to be contradicted by the contemporaneous medical records, particularly the entries in the clinical notes of 12 April 2013 and the absence of complaints between June 2013 and September 2018; and
·His evidence regarding his level of activities such as walking, cycling, swimming, surfing prior to June 2011 which appear to have been overstated given the contemporaneous histories provided to Mr Burns and Mr Williams in 2010.188I have formed the view that he was unreliable. I have therefore looked for other evidence to evaluate the extent of the 2011 aggravation and its impairment consequences.
Findings on aggravation
189There has been no explanation why the entry in the clinical notes of the East Keilor Clinic of 27 June 2011 recorded no effusion when compared to the entry of 5 July 2011 which said knee swelling was subsiding.
190There is very little support from his treating doctors for the proposition that the claimed injury continues to play a part in Mr Dal Tio’s presentation.
191Indeed, Associate Professor Richardson, his long-term Orthopaedic Surgeon, did not know about the claimed injury. He did not diagnose the claimed injury and, as mentioned earlier, despite being asked by Mr Dal Tio’s solicitors, did not say that the claimed injury played any role in Mr Dal Tio’s presentation or the surgeon’s treatment of Mr Dal Tio’s right knee.
192I find Associate Professor Richardson’s analysis particularly compelling – it was his view that the rigours of working as a storeman over many years, particularly with the amount of walking involved at Honda, had impacted on wear and tear of the knees which eventually required the TKR.
193The highest evidence in favour of Mr Dal Tio was found in the medicolegal opinion of Dr McLean. Dr McLean accepted Mr Dal Tio’s assertion that his symptoms were significantly different to the knee symptoms prior to June 2011. Therefore, Dr McLean opined that the 2011 incident rendered the knee to become more symptomatic and problematic which then lead to TKR surgery.
194As previously discussed, Dr McLean expressly stated that his opinions were largely based on the accuracy of what he was told by Mr Dal Tio – particularly in relation to the onset and severity of symptoms. Given this concession, in the light of my findings as to Mr Dal Tio’s reliability, the weight of Dr McLean’s opinion is diminished.
195I find Mr Dunin clearly sets out his paths of reasoning in his report when he opined that there was a strong likelihood that Mr Dal Tio would have needed a TKR absent the June 2011 injury and when he opined that the June 2011 injury caused a temporary aggravation.
196I find that Mr Dunin’s reference to a MRI scan taken shortly after June 2011 is a mistake as there was no MRI conducted shortly after the incident, rather there was an x-ray which was undertaken on 31 August 2011. This error is inconsequential.
197The opinions of Dr Lewi , Mr Burns, Mr Keller, Mr Williams and Associate Professor Goldwasser are all more than 10 years old and are of little assistance to the Court.
198Overall, I prefer the opinions of Associate Professor Richardson and Mr Dunin. I find that if there had been an aggravation of Mr Dal Tio’s pre-existing degenerative changes in the incident of June 2011, any such aggravation was temporary and the effects of any such aggravation have long ceased.
199Mr Dal Tio has not established the extent of any additional impairment caused by the claimed injury. Mr Dal Tio has not established that the TKR had to be performed earlier because of the claimed injury.
200Consequently, the application fails.
Disposition
201I will hear the parties on the issue of costs.
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