Daniel v Holroyd City Council

[2016] NSWDC 239

District Court

New South Wales

Medium Neutral Citation:	Daniel v Holroyd City Council [2016] NSWDC 239
Hearing dates:	30 September 2016
Date of orders:	12 October 2016
Decision date:	12 October 2016
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	The plaintiff’s application be dismissed
Catchwords:	Torts – negligence – work injury claim – leave sought to revoke election under Section 151A of the Workers Compensation Act 1987 (NSW)
Legislation Cited:	Workers Compensation Act 1987 (NSW)
Cases Cited:	New South Wales v Taylor (2001) 204 CLR 461; [2001] HCA 15 Corcoran v Tyre Marketers Australia [2001] NSWCA 300 Saad v J Robins & Sons Pty Ltd [2003] NSWCA 87
Category:	Procedural and other rulings
Parties:	David Aaron Daniel (Plaintiff) Holroyd City Council (Defendant)
Representation:	Counsel: B Hughes SC and T Meakes (Plaintiff) C Tanner (Defendant)   Solicitors: Gorman Jones Lawyers (Plaintiff) Bartier Perry (Defendant)
File Number(s):	2016/00155621

Judgment

1. The plaintiff by way of Summons filed 20 May 2016 seeks orders in the following terms:

“1. Pursuant to Schedule 6, Part 18C, Clause 9(3) of the Workers Compensation Act 1987 and also pursuant to 151A of the Workers Compensation Act 1987 (as at 13 June 2000) that the election made by virtue of his acceptance of payment pursuant to s67 of the Workers Compensation Act 1987 thereby preclude him from claiming common law damaged [sic] from his employer, Holroyd City Council, be revoked and

2. Pursuant to S151D of the Workers Compensation Act 1987, leave of the Court be granted to commence proceedings in this matter.”

2. At the beginning of the hearing of the Summons the parties indicated that the application would initially only be made in relation to obtaining the leave of the Court to revoke the election under Section 151A of the Workers Compensation Act 1987 (NSW) (“WCA”) as it stood at the relevant time and that the application under Section 151D(2) of the WCA would await the outcome of the leave to revoke application. The hearing proceeded on that basis.

3. The election in the present case was made by the plaintiff on 17 November 1994 (Exhibit 1, page 29) when the plaintiff elected to claim permanent loss compensation under Sections 66 and 67 of the WCA by accepting payment in relation to that election from the defendant.

Relevant legislation

4. Section 151A of the WCA relevantly provided as at 1994 as follows:

"(2) A person to whom compensation is payable under this Act in respect of an injury is not entitled to both:

(a) permanent loss compensation in respect of the injury, and

(b) damages in respect of the injury from the employer liable to pay that compensation,

but is required to elect whether to claim that permanent loss compensation or those damages.

...

(5) If:

(a) a person elects to claim permanent loss compensation in respect of an injury, and

(b) after the election is made, the injury causes a further material deterioration in the person's medical condition that, had it existed at the time of the election, would have entitled the person to additional permanent loss compensation, and

(c) at the time of the election, there was no reasonable cause to believe that the further deterioration would occur,

the person may, with the leave of the court and on such terms (if any) as the court thinks fit, revoke the election and commence proceedings in the court for the recovery of damages in respect of the injury."

5. Section 151A(1) stated that “permanent loss compensation means compensation under Division 4 of Part 3 (Compensation for non-economic loss)”.

6. Section 151A was relevantly amended in 2001. Under Schedule 6, Part 18C, Clause 9(3) of the WCA, the rights of a person in the position of the plaintiff are in effect preserved thus enabling an election to be revoked if leave is granted by the Court in the circumstances provided by Section 151A as it stood at the time the election was made. In an appropriate case, common law damages may be recovered following leave being granted on the basis of the law as in force at the time of the original election.

Evidence relied on

7. In support of the application, the plaintiff relied on the following material:

1. Affidavit of the plaintiff dated 18 March 2016;

2. Affidavit of the plaintiff’s solicitor Michael Dean Jones dated 23 May 2016; and

3. Various medical reports primarily from the plaintiff’s treating orthopaedic surgeon Dr Peter Giblin.

8. The defendant relied in the application on a bundle of documents which became Exhibit 1. These documents included documents relating to the various claims which the plaintiff made for benefits under the WCA between 1994 and 2008 and a large number of medical reports from 1993 to 2016. The defendant, in particular, relied on the medico-legal reports of Dr Chris Harrington, orthopaedic surgeon, dated 15 August 2016 and 30 August 2016.

The background facts

9. The background facts are relevantly as follows:

1. In 1993 when he was 26 years of age the plaintiff was employed as a concreter by the defendant;

2. On 8 October 1993 the plaintiff intended to prepare formwork. He alleges in his affidavit that on that day at about 3.30pm in Merrylands in Sydney, and whilst carrying a sledgehammer in his left hand and two pieces of timber on his right shoulder, his right foot slipped into an excavated area causing injury. The plaintiff says that the accident resulted in a swollen and painful right knee;

3. On 26 October 1993, the plaintiff had a medial arthroscopic meniscectomy performed on his right knee by Dr Peter Giblin followed by physiotherapy;

4. On 7 December 1993 the plaintiff had a lateral arthroscopic meniscectomy performed on his right knee by Dr Peter Giblin;

5. The plaintiff returned to work on selected duties on 29 December 1993 and was asymptomatic for about a year;

6. The pain then returned to his right knee and the knee became unstable;

7. The plaintiff saw Dr Giblin on several further occasions in 1994;

8. On 12 July 1996 the plaintiff injured his left leg;

9. In July 1996 the plaintiff was terminated from his employment by the defendant due to his absences from work;

10. From 1996 the plaintiff worked in the less demanding role of a concrete finisher;

11. The plaintiff had arthroscopic surgery performed to his left leg by Dr Giblin on 30 July 1996;

12. Despite a deterioration in the condition of the plaintiff’s right knee, Dr Giblin advised conservative treatment;

13. The plaintiff consulted further orthopaedic surgeons including doctors Burneikis and Chen.

14. Due to constant pain in his right knee the plaintiff undertook a lateral unicompartmental right knee replacement in 2009;

15. Due to ongoing problems with his right knee the plaintiff had a total right knee replacement performed in October 2011 by Dr Chen;

16. The plaintiff ceased his employment in 2009 due to ongoing pain in his right knee;

17. The plaintiff claimed and was paid lump sum workers compensation in relation to his right knee in November 1994, 1998 and 2008;

18. The plaintiff remains unfit for any employment in the construction/concreting industry due to his right knee problems.

The legal principles applicable

10. In New South Wales v Taylor (2001) 204 CLR 461; [2001] HCA 15 the High Court considered the proper interpretation of Section 151A of the WCA in the form that is relevant to these proceedings. The question before the Court was whether Section 151A(5)(c) of the WCA was satisfied if, at the time of the election by the injured worker, a reasonable person in the position of the injured person would have had no cause to believe that further deterioration of the medical condition would probably occur. The majority of the High Court answered this question in the negative. The High Court majority held:

1. The text of Section 151A(5)(c) does not support the view that the belief of the injured person or a person in his or her position is relevant in determining whether leave to revoke should be granted: paragraph [10];

2. The belief of the injured person, reasonable or otherwise, is not the criterion on which leave to revoke depends. For the same reason, the belief of a reasonable person in the position of the injured person is irrelevant: paragraph [11];

3. It is for a court to determine whether “there was no reasonable cause to believe that the further deterioration would occur”. The court must examine all relevant evidence concerning the medical condition at the time of the election and all relevant evidence that throws light on the prognosis of the condition at that time. If the court holds that the applicant has failed to prove that there was “no reasonable cause to believe that the further deterioration would occur”, it must refuse the application.

11. The majority of the High Court stated the following in the course of their judgment:

“[12] The form of the subordinate clause in s151A(5)(c) is explained by the fact that it is for a court to determine whether "there was no reasonable cause to believe that the further deterioration would occur". That fact, together with the omission of any reference to the injured person's belief, suggests that the court examines all relevant evidence concerning the medical condition at the time of the election and all relevant evidence that throws light on the prognosis of the condition at that time. If the court holds that the applicant has failed to prove that there was "no reasonable cause to believe that the further deterioration would occur", it must refuse the application. If it holds that the applicant has proved that there was no reasonable cause for such a belief, it may, but not must, give the applicant leave to revoke the election.

[13] Hence it is the court's view of all the evidence and not the injured person's belief, reasonable or otherwise, that is decisive. On this view, the test for the court is: given the medical condition of the applicant at the time of the election and the expert opinions as to its prognosis at that time, would it be unreasonable for a person to believe that the condition would further deteriorate as it had? The applicant for leave must prove a negative. He or she must show that it would be unreasonable for a person to hold that belief. The applicant will prima facie discharge that onus by tendering evidence indicating that such a belief could not be reasonably held. If a prima facie case is established, the employer has the evidentiary burden of showing that there exists another body of evidence that indicates a contrary conclusion. Ultimately, it is for the court to determine whether "there was no reasonable cause to believe that the further deterioration would occur" in accordance with the test that we have formulated.” (emphasis added).

12. The defendant in these proceedings relies on paragraph [14] of the judgment of the majority of the High Court. It says that the evidence shows that two opposite beliefs were reasonably open as at 1994 as to whether the further deterioration which the plaintiff suffered would occur. Therefore, where the evidence admits of two reasonable, but opposing, conclusions, the applicant has failed to show that there was no reasonable cause to believe that the further deterioration would occur. The defendant says that the plaintiff’s own specialist Dr Giblin contemplated the further deterioration but in any case Dr Harrington in his reports clearly gives evidence to the effect that there was a reasonable belief in 1994 that the further deterioration of the plaintiff would occur.

13. In Corcoran v Tyre Marketers Australia [2001] NSWCA 300, Mason P and Grove J (with Davies AJA dissenting) stated as follows at paragraphs [69]-[71]:

“[69] None of the treating doctors suggested the probability of further material deterioration in the appellant's medical condition.

[70] The respondent submitted that the silences of the medical reports of 1995 are pregnant. It submitted that the doctors were unwilling to express any prognoses at this period, because it was too soon after the February surgery. We do not agree that their reports should be construed as if they bore a cloud of pessimism or reserve. Sometimes they were silent or neutral, but in a context where one would have expected them to have expressed opinions as to probable or likely deterioration if they actually held them. At other times they were positive in outlook. The doctors were aware of the medico-legal context in which they were treating the appellant at this time.

[71] The objective test adopted by the High Court in Taylor does not direct attention away from identifying clearly how the "medical condition" stood at the time of the election. Nor does the availability of later medico-legal opinion detract from the vital relevance of the informed opinions of the patient's treating doctors at the time.”

14. Thus, in the view of the majority, the informed opinions of the patient’s treating doctors at the time are of “vital relevance”.

15. In Saad v J Robins & Sons Pty Ltd [2003] NSWCA 87, Santow JA (with whom Mason P and Hodgson JA agreed) held at [17]-[27] that in essence a worker will only be prevented from seeking leave to revoke his or her election if there be reasonable cause to believe, at the time the original election was made, that the worker’s medical condition would deteriorate in the way it actually had; that is, that the nature and extent of that deterioration must be predictable. The Court stated the following at paragraph [19]

“[19] The emphasis that I have placed on the word "the", as a definite article before the words "further deterioration" in subpara (c), is to show how the further deterioration refers to the actual manner of deterioration derived from, but not limited to, the original injury or its site. This supports a wider construction than that adopted by the Trial Judge. He focused upon the immediate effect of the injury, in this case a damaged wrist. He excluded further later material deterioration to the person's wider medical condition though caused by the original injury to the wrist. Thus taking the facts in State of New South Wales v Taylor, Callinan J, though in the minority, uncontroversially describes the back injury suffered by the plaintiff in that case. He does so not merely in terms of a particular prolapse of a degenerative disc in the back (at 485 [77]) but as including pain and discomfort in the worker's back more generally and not only in its immediate effect on his right leg but also later in his left leg. There is nothing in the majority judgment which would take any narrower view of the worker's condition than that uncontroversially adopted by Callinan J and derived in turn from the original trial findings. While the majority judgment concluded that in light of the evidence, including the evidence concerning the worker's further deterioration, the worker failed to prove that at the time he made his election "there was no reasonable cause to believe that the further deterioration would occur", that conclusion in no way depended upon a narrow definition of the worker's medical condition. In particular it did not require exclusion of any deterioration that was not at the site of the original injury but ramified from it as the Trial Judge in the present case sought to do.”

16. At [22] Santow JA stated that the hurdle facing a plaintiff was in having to prove a negative, namely that there was no reasonable cause to believe that the condition would further deteriorate as it had.

17. At [27] the Court concluded that having regard to the nature of the deterioration of the plaintiff there in question and its extensive ramifications, it was “evident that there could have been no reasonable cause for a belief that the further deterioration which did occur, would occur”.

18. It should be noted that the test was whether the plaintiff had discharged the onus of establishing that at the time of election there was no reasonable cause to believe that the further deterioration which had occurred would (not could) occur.

The medical evidence

19. The parties tendered on the hearing of the Summons a vast amount of medical evidence spanning 23 years.

20. I will not refer to all of the medical evidence as it is unnecessary for the purposes of determining the application. The significant medical evidence relevant to the application is set out below.

Report of Dr Peter Giblin dated 12 October 1993

21. Dr Peter Giblin was the plaintiff’s treating orthopaedic surgeon. In his report dated 12 October 1993 Dr Giblin stated the following:

“Today, his knee is not too bad so I have asked him to go back to work tomorrow and I have suggested that he have an arthroscopic procedure to fix his knee once the Insurance Company gives its okay.”

Report of Dr Peter Giblin dated 5 November 1993

22. In this report Dr Giblin refers to the arthroscopic medial meniscectomy performed on the plaintiff on 26 October 1993. Dr Giblin stated the following:

“He will make a reasonable recovery slowly over the next month or two.”

Report of Dr Peter Giblin dated 18 November 1993

23. In this report Dr Giblin states:

“I reviewed this gentleman today. His progress is slow with physiotherapy but he is fit to remain at work on selected light duties ... The knee seems to be coming along well enough.”

Report of Dr Peter Giblin dated 1 December 1993

24. Dr Giblin refers to the plaintiff presenting with his right knee clicking and being very painful. Dr Giblin states:

“I have suggested that he have the issue settled with a repeat arthroscopy. In the meantime he is fit to stay at work.”

Report of Dr Peter Giblin dated 21 December 1993

25. In this report Dr Giblin states:

“This gentleman had resection of a tag of lateral meniscus. It was reasonably large and could have been contributing to his symptoms.

His knee feels better and he is going to go back to work on 29/12/93.”

Report of Dr Peter Giblin dated 20 January 1994

26. This report provides a history in relation to the plaintiff’s presentation to Dr Giblin to that date. In this report Dr Giblin states:

“Based on his history, this gentleman has a provisional diagnosis of soft tissue injury to his knee reasonably causally related to the alleged accident at work. His knee will be more susceptible to soft tissue injury in the future and more susceptible to post traumatic arthritis.”

Report of Dr Peter Giblin dated 14 September 1994

27. This report was prepared following the plaintiff presenting to Dr Giblin with a history of swelling in his right knee and clicking. In the report Dr Giblin states the following:

“This gentlemans condition has stabilised. He remains fot [sic fit] for his current level of employment. His prognosis needs to be guarded because he is going to get ongoing arthritic symptoms in his right knee which is going to also, be more susceptible to further soft tissue injury in the future. His present disability is attributal [sic] to his work injury of the 8 October 1993.

I suspect that this gentleman will require repeat surgery on his knee as the years go by. Initially, he will probably need a repeat arthroscopy and it is not beyond the realms of possibility, that he will eventually, in old age require a knee replacement operation because of his arthritis.” (emphasis added).

Report of Dr Peter Giblin dated 20 September 1994

28. The plaintiff presented to Dr Giblin complaining of a constant ache in his right knee. Dr Giblin stated in his report as follows:

“There is a crunching and grinding sensation and if he keeps it flexed for prolonged periods, it tends to stiffen and lock.

His knee is still not right. He is going to try and continue at work as best he can manage and be reviewed again in 3 months time.”

Report of Dr Peter Giblin dated 26 March 1997

29. In this report Dr Giblin primarily considers the plaintiff’s left knee. However, he said the following in relation to the right knee:

“He has some minor degenerative symptoms in his right knee on which he has previously had a compensation claim based. His right leg symptoms are not related to his left leg at this point.”

Report of Dr Peter Giblin dated 31 August 2005

30. In this report Dr Giblin referred to earlier treatment in the following terms:

“In [sic] 26th October 1993 he had a lateral menisectomy by myself through an arthroscope.

I told him his knee would come back and give him troubles and I guess it has.” (emphasis added).

Report of Dr Peter Giblin dated 24 January 2007

31. In this report Dr Giblin refers to a lateral meniscectomy performed arthroscopically by himself in relation to the plaintiff on 26 October 1993.

Report of Dr Peter Giblin dated 13 November 2007

32. In this report Dr Giblin states as follows:

“Clinically and radiologically, his knee is developing progressive arthritis primarily on the lateral side but it is also starting on the medial side.”

Report of Dr Peter Giblin dated 4 February 2008

33. In this report Dr Giblin states:

“This gentleman will continue to experience post traumatic arthritis in his right knee due to his original work related accident as assessed in 1994 as having 25% loss of use of the right leg above the knee.

I have advised him that he will eventually require a total knee replacement operation.” (emphasis added).

Report of Dr Peter Giblin dated 22 February 2010

34. Dr Giblin notes that at the age of 42 in September 2009 the plaintiff had a right knee hemi arthroplasty procedure. He also noted that further surgery would be undertaken in the future.

35. The plaintiff had a complete knee replacement in October 2011 performed by Dr Chen.

Report of Dr Peter Giblin dated 22 April 2014

36. Dr Giblin stated in this report that the plaintiff would require revision of his total knee replacement sometime in the next 10 years.

Report of Dr Peter Giblin dated 17 February 2016

37. Dr Giblin stated in this report as follows:

“It is likely that he will end up with revision surgery on at least one occasion. It would be a reasonable clinical expectation that there will be a surgery either in the form of an amputation or an arthrodesis of the knee.

In essence, there will be a prospective requirement for recurrent medical and surgical management of his right lower extremity for the remainder of his life.”

Report of Dr V Kirychenko dated 29 March 1994

38. Dr Kirychenko appears to have been a general practitioner. In this report (which was given prior to the election) Dr Kirychenko states as follows:

“At present he still feels that the knee is unstable and has given way on him making him fall. He also experienced intermittent swelling and pain and this required him to take some time off in February 1994. At that time he had no new injuries.

…

This gentleman does have some objective signs of a persisting knee injury. He would experience some exacerbations from time to time particularly if he stresses his knee and this could flare up in more severe symptoms such as swelling and pain.” (emphasis added).

Report of Dr James Bodel dated 7 April 1997

39. Dr Bodel is an orthopaedic surgeon. In his report he states the following:

“This patient has suffered injuries to both knees at work, the right on 8.10.1993 and the left on 12.7.1996. The patient has had appropriate treatment for these injuries and over time he has improved.

The patient is left with symptoms in both knees and his complaints are quite genuine. He should take care to minimise kneeling and squatting in order to minimise his symptoms.

…

I do not anticipate the need for further surgery in the foreseeable future but it is possible that he may require a further arthroscopy in either knee at some stage in the future. There is no definite evidence that he will require any more major surgery at this stage.” (emphasis added).

Report of Dr Anthony Burneikis dated 2 September 2009

40. Dr Burneikis is an orthopaedic surgeon. In his report Dr Burneikis refers to an x-ray and MRI scan from 2009 showing marked degenerative change in the lateral compartment of the plaintiff’s right knee. There was also a reference to osteoarthritic change in the right knee probably in the lateral compartment. Dr Burneikis states in his report:

“I have had a long discussion regarding the risks and benefits of knee replacement surgery and assured Mr Daniel he will need at least 1 if not 2 or more revision knee replacements during his lifetime given his relatively young age of having this surgery.”

Report of Dr Chen dated 1 September 2011

41. Dr Chen is an orthopaedic surgeon. He refers in this report to the plaintiff requesting him to proceed to a total knee replacement. This was undertaken on 24 October 2011.

Report of Dr Peter Giblin dated 17 February 2016

42. This report of Dr Giblin is a medico-legal report. The plaintiff’s history is set out by Dr Giblin.

43. In the course of his report Dr Giblin states the following:

“I increased this assessment [of permanent loss of efficient use of the plaintiff’s right leg at or above the knee] to 25% in my report of 4 February 2008 in order to reflect the ongoing arthritic deterioration.

At the time of making those assessments, I did not foresee that the deterioration would occur to the extent where joint replacement surgery would have been performed at a relatively young age.

The reasons pertaining to this consideration were the unknown factors in terms of personal, environment and genetic variabilities.” (emphasis added).

Report of Dr Chris Harrington dated 15 August 2016

44. Dr Harrington provided a medico-legal report to the defendant in relation to the plaintiff. It appears that the first time Dr Harrington examined the plaintiff was on 12 August 2016, some 23 years after the accident.

45. In the course of his report Dr Harrington states as follows:

“This man twisted his right knee at work on 8 October 1993. His treatment has consisted of 2 arthroscopic meniscectomies, uni-compartmental knee replacement and total knee replacement.

The deterioration of his knee was always going to be accelerated by the injury and subsequent surgeries. We know that lateral meniscectomies are not as successful as medial meniscectomies and Dr Giblin identified chondral changes that pre-date the injury (probably attributed to his work environment).

Mr Daniel led an active lifestyle, having continued to work in the concreting industry for many years. If deterioration is going to take hold, it usually becomes problematic within the first 10 years. This is the case with Mr Daniel’s knee, that is, his symptoms did not settle down and led to definitive surgery.

The scenario presented is not unexpected given the injury and sequence of treatments …

Based on the history provided, starting with the injury and 2 meniscectomies (medial then lateral), there was a high chance of the treatment plan leading to a total knee replacement. In my opinion a later meniscectomy with chondral changes in the knee tends to point to a poor prognosis down the track, wherein deterioration following a medial meniscectomy is often a far better outcome.

Mr Daniel suffered rapid deterioration of his knee, borne out by the injury and surgeries. It is easy to identify this in retrospect, nonetheless not entirely unusual given the 2x meniscectomies. Mr Daniel’s articular surface resulted in bone on bone within 10 years, negating a fulfilling option for further employment.

…

It is my opinion that Mr Daniel’s knee has significantly deteriorated since 1994, having required a uni-compartmental replacement in September 2009 followed by a total knee replacement in October 2011. I consider further treatment to be directly associated with the original twisting injury which required 2x arthroscopic meniscectomies by Dr Giblin. In my opinion such deterioration was always going to occur, given the combination of chondral changes identified by Dr Giblin and the low success rate of lateral meniscus pathology.

Therefore, there was reasonable cause to believe further deterioration would occur.” (emphasis added).

Report of Dr Peter Giblin dated 24 August 2016

46. In this report Dr Giblin responds to the report of Dr Harrington dated 15 August 2016. The report includes the following:

“I view Dr Harrington’s report as being based upon his considerable and well respected expertise and experience in these matters.

The prediction of deterioration of a minor injury to the knee has always been a vexed clinical question for orthopaedic surgeons.

…

Given the history of minor injury in the early 90’s, and the subsequent work environment, a prudent orthopaedic surgeon would err on the side of conservatism and view the original injury as being one of a domino type. That is to say, it had the propensity to set off a series of structural abnormalities within the biomechanics of the knee and thereby let loose whatever vulnerabilities may have existed within the chemical structure and composition of the articular cartilage.

However, this process was always assumptive in character, and dogmatism did have its drawbacks.

…

My initial prognostic comment had the interests of the patient front and center.

In summary, in this case, the unforseeability was present by virtue of a lack of clear science, and I made a prognosis to catch a worst case scenario.” (emphasis added).

Report of Dr Chris Harrington dated 30 August 2016

47. In this report Dr Harrington comments on Dr Giblin’s report dated 24 August 2016. In his report Dr Harrington states as follows:

“We know that people lose articular cartilage and collagen elasticity, which does not reverse or restore, for multi-factorial reasons.

There may well be a genetic component for Mr Daniel's loss of articular cartilage and eventual total knee replacement but I believe most clinical Surgeons would opine that a lateral meniscectomy with damage/changes to the chondral surface leads to a poor prognosis for that knee. This is borne out by my report, indicating that a lateral meniscectomy showing chondral changes tends to produce a poor prognosis over that of a medial meniscal injury in any knee. We often see patients with artificial knees (whether partial or total knee replacement) secondary to a lateral meniscectomy. Past experience shows excision of the medial meniscus is a greater success rate with some patients lasting indefinitely or more than 2 decades.

Due to the natural valgus alignment of a knee (worse in females), the lateral meniscus and articular cartilage is a strong determination factor for prognosis.

In summary, we cannot dispute the possibility of a genetic component for the presentation but the reason for his cartilage deterioration includes the lateral meniscectomy secondary to the injury in 1993.” (emphasis added).

Report of Dr Peter Giblin dated 22 September 2016

48. In this report Dr Giblin comments on Dr Harrington’s second report of 30 August 2016. Dr Giblin states as follows:

“In reply to your letter 20 September 2016, I am in agreement with Dr Harrington that there may be a possibility of a genetic component.

In essence, this refers to a pre-existing vulnerability which may or may not be present.

In our current state of medical knowledge, there is an increasing awareness of the wholesale impact of genetic information in relation to the diagnosis of clinical issues and their sequelae.

…

It is my view, that the lateral meniscectomy, secondary to the injury of 1993, is a major structural event, and is the substantive and main reason for the subsequent cartilage deterioration.” (emphasis added).

Oral evidence of Dr Harrington

49. Dr Harrington was required for cross-examination by the plaintiff.

50. In his evidence in chief Dr Harrington indicated that he had been in practice as an orthopaedic surgeon since 1981 and was a general orthopaedic surgeon who undertook many hip and knee replacements. He stated that he had retired from operating in July 2016.

51. Dr Harrington referred to the fact that the plaintiff had had two arthroscopies by 1994 and that he had a relatively minor injury with damage to the lateral side of the meniscus. He stated that a lateral meniscectomy posed a greater risk of rapid deterioration in condition than a medial meniscectomy.

52. Dr Harrington said that in his opinion as at 1994 there was a high likelihood of the plaintiff facing surgery in the future. That could either arise from rapid deterioration or deterioration in the longer term. Dr Harrington gave evidence in chief that as at 1994 there was a range of possible deterioration in the plaintiff’s future condition in his right knee. This range included a total knee replacement. However, Dr Harrington said that the real issue in 1994 was at what age a total knee replacement was required. He gave evidence in chief that as at 1994 a partial knee replacement in 2009 was reasonably contemplated and a total knee replacement was the logical next step after that.

53. Dr Harrington was then subject to cross-examination. He agreed the best person to judge the plaintiff’s future prognosis was the medical practitioner who carried out the arthroscopies to the plaintiff who was Dr Giblin. He was able to form a better view of the plaintiff’s prognosis in 1994 as the treating surgeon than could be viewed now over 20 years later.

54. Dr Harrington agreed that Dr Giblin was a highly competent orthopaedic surgeon with a good reputation. He was taken to Dr Giblin’s report dated 17 February 2016 when Dr Giblin stated:

“At the time of making those assessments, I did not foresee that the deterioration would occur to the extent where joint replacement surgery would have been performed at a relatively young age.”

55. Dr Harrington was asked whether he agreed with this assessment by Dr Giblin that in 1994 one could not foresee the extent of deterioration of the plaintiff’s right knee at his age and Dr Harrington said he agreed with Dr Giblin’s assessment.

56. In re-examination Dr Harrington agreed that in 1994 in relation to the plaintiff’s right knee there was a range of views which could have been taken as to the future prognosis for the right knee. He agreed that the range of probable interventions as at 1994 extended from an arthroscopy to a total knee replacement and that doctors could have different views within that range as to the likely prognosis.

The parties’ submissions

Introduction

57. In the course of the hearing the issue between the parties narrowed to whether the plaintiff had negated the test set out in paragraph [14] in New South Wales v Taylor above, that is whether on the evidence, two opposing medical beliefs may have been reasonably open as at November 1994 as to whether the further deterioration which occurred to the plaintiff, would occur.

The plaintiff’s submissions

58. Mr Hughes SC and Mr Meakes, who appeared on behalf of the plaintiff, submitted as follows:

1. The plaintiff’s treating doctor in 1994, Dr Giblin, did not contemplate the serious type of surgery, first a partial knee replacement and then a total knee replacement, as occurred to this plaintiff when it did occur. The plaintiff’s injury in 1993 was a fairly minor injury and after the second arthroscopic procedure, the plaintiff was allowed to return to work on selected duties on 29 December 1993: paragraph 11 of the plaintiff’s 18 March 2016 affidavit (“the plaintiff’s affidavit”). The plaintiff gives evidence that for about a year after December 1993 he remained asymptomatic and then pain returned and the knee became unstable: paragraph 13 of the plaintiff’s affidavit. On the evidence, with this minor injury and the relatively minor surgery which had occurred in 1993, Dr Giblin could not foresee that the deterioration which had occurred, would occur;

2. Therefore the plaintiff has discharged the onus on him set out in paragraph [14] of New South Wales v Taylor;

3. Mr Hughes SC asked rhetorically, how could the plaintiff have a different view as at November 1994? The 14 September 1994 report of Dr Giblin (Exhibit 1, page 70) merely predicted repeat surgery on the plaintiff’s knee as the years went by. That repeat surgery was a repeat arthroscopy and Dr Giblin only predicted the possibility of a knee replacement operation because of arthritis in the plaintiff’s old age;

4. Mr Hughes said that Dr Harrington’s views, some 22 years after the event, was a reinterpretation of history given in retrospect. It was inconsistent with the treating doctor’s view which is paramount;

5. The importance here was not that a deterioration leading to a knee replacement may occur at some time in the future, the issue was whether the deterioration which had occurred, would occur, at the crucial time when it did in the centre of the plaintiff’s working life. His career as a blue collar worker was crucial in this respect. There was only a possibility of the deterioration which occurred when the plaintiff was reviewed in 1994 shortly prior to accepting the lump sum payment;

6. The cross-examination of Dr Harrington was important because in the end Dr Harrington conceded that he agreed with the view set out by Dr Giblin in his 2016 reports, particularly the 17 February 2016 report (Exhibit A, page 147) that at the time of making the assessments in relation to the plaintiff, Dr Giblin did not foresee that the deterioration would occur to the extent where joint replacement surgery would have been performed at a relatively young age to the plaintiff;

7. For these reasons the plaintiff had established within paragraph [14] of New South Wales v Taylor, that an opposite medical belief was not reasonably open in 1994 that the further deterioration which had occurred, would occur.

The defendant’s submissions

59. Mr Tanner, who appeared for the defendant, provided detailed written submissions and expanded these in his oral submissions.

60. Mr Tanner submitted as follows, in summary:

1. Paragraph [14] in New South Wales v Taylor was clearly established. There was no doubt, on the evidence, that at the time the plaintiff accepted the payment for lump sum workers compensation for his injuries in November 1994 that the deterioration which ultimately occurred, would occur;

2. Mr Tanner submitted that the only issue between the parties was whether the extent of the deterioration which actually occurred would occur at the age which it did, that is, the plaintiff had argued that it was unreasonable in 1994 to expect the plaintiff to require a knee replacement at an early age;

3. Mr Tanner submitted that the medical evidence as at November 1994 established:

1. That the plaintiff would require repeat surgery on his knee as the years went by;

2. The plaintiff would probably need an arthroscopy;

3. The plaintiff would develop arthritis as he continued particularly in his line of employment; and

4. That it was not beyond the realms of possibility that in his old age the plaintiff would require a knee replacement.

5. These matters, put together, showed that Dr Giblin was of the view, as at November 1994, that a substantial deterioration in the plaintiff’s condition would occur. Mr Tanner said that the further deterioration that would occur was post-traumatic arthritis of such a degree calling for the interventions of a partial and then total knee replacement;

4. Mr Tanner accepted that weight must be given to the opinions of the treating doctor, Dr Giblin. However, the weight which should be given was not irrebuttable weight and Dr Giblin’s views were not decisive. However, Dr Giblin had given a highly guarded prognosis as to the plaintiff in 1994;

5. Mr Tanner submitted that a proper examination of Dr Harrington’s reports showed that his view was that the deterioration in the plaintiff which actually occurred was inevitable. He submitted that the last answer given by Dr Harrington in cross-examination should not be taken in isolation but should be viewed in the light of the whole of the opinions expressed in cross-examination and in his reports. Dr Harrington’s view was a considered and detailed view and on a proper analysis made it clear that as at 1994 there were two views available as to whether the deterioration which had occurred in the end, would occur;

6. Further, Mr Tanner pointed to the fact that nowhere in Dr Giblin’s 2016 reports which were in evidence, did Dr Giblin say that he disagreed with the views expressed by Dr Harrington in his reports. This was highly significant as Dr Harrington’s reports were placed before Dr Giblin and he was given a full opportunity to express a different view to Dr Harrington and he chose not to;

4. It was clear that both Dr Giblin and Dr Harrington from their reports and from Dr Harrington’s cross-examination were friends and had a high opinion and respect for each other’s professional views. In the end Dr Harrington’s view was a view which was reasonably open as at 1994 and therefore the test in Taylor was satisfied, the onus always being on the plaintiff. Mr Tanner in particular relied on Dr Giblin’s reports dated 24 August 2016 and 22 September 2016. In the former report Dr Giblin stated as follows:

“Given the history of minor injury in the early 90's, and the subsequent work environment, a prudent orthopaedic surgeon would err on the side of conservatism and view the original injury as being one of a domino type. That is to say, it had the propensity to set off a series of structural abnormalities within the biomechanics of the knee and thereby let loose whatever vulnerabilities may have existed within the chemical structure and composition of the articular cartilage.”;

8. Further, it was submitted by Mr Tanner, that having regard to the plaintiff’s different descriptions of what occurred in the accident in 1993 that the Court should exercise its discretion against the plaintiff in granting leave because of the difficulties which the plaintiff on that evidence would have in establishing liability.

Determination

61. It is clear that the onus rests on the plaintiff to establish the basis for the Court’s exercise of the discretion to give leave to revoke the election made by the plaintiff in November 1994.

62. The issue was whether at the time of the election made by the plaintiff, there was no reasonable cause to believe that the further deterioration which ultimately occurred would occur. The further deterioration in the present case was the continued deterioration of the plaintiff’s right knee to such an extent that partial and then total knee replacements were placed before the plaintiff as realistic medical options which were available to be performed on the plaintiff in an attempt to relieve the symptoms from which he was suffering.

63. All the evidence, and not the injured plaintiff’s belief, reasonable or otherwise, must be considered by the Court. The Court will consider the expert medical opinion at the time and subsequent expert medical opinion given in relation to the plaintiff’s condition as at the time the election was made. The applicant for leave being the plaintiff in the present case must prove a negative. He must show that it would be unreasonable for a person to hold the belief that, given the medical condition of the plaintiff at the time of the election and the expert opinions as to his prognosis at that time, the condition would further deteriorate as it had.

64. In my opinion the plaintiff has not satisfied the test in New South Wales v Taylor and accordingly leave should not be given to the plaintiff to revoke the election.

65. In my view, looking at the evidence as a whole, and giving due regard to the opinions of the treating surgeon, Dr Giblin, there were two opposite medical beliefs reasonably open as at 1994 as to whether the further deterioration would occur as it did occur. I found the opinions expressed by Dr Harrington in his two reports dated 15 August 2016 and 30 August 2016 to be persuasive. In particular, there was the important distinction made by Dr Harrington between a medial meniscectomy and a lateral meniscectomy with chondral changes as involving a high chance of the treatment leading to a total knee replacement.

66. I also take into account that Dr Giblin when offered the opportunity on two occasions to disagree with Dr Harrington’s opinions chose not to do so. The opinion of Dr Harrington was clearly stated in his 15 August 2016 report to the following effect:

“In my opinion such deterioration was always going to occur, given the combination of chondral changes identified by Dr Giblin and the low success rate of lateral meniscus pathology.”

67. In coming to this conclusion I have taken into account the concession obtained from Dr Harrington in cross-examination. However, I agree with counsel for the defendant that one needs to look at the evidence in its entirety and not one answer given in cross-examination. In particular, Dr Harrington was not asked after making the concession whether in the light of the concession he wished to change his opinions in his two reports.

68. For these reasons, I find that on the expert medical evidence, two opposite medical beliefs were reasonably open as at 1994 as to whether the further deterioration which occurred to the plaintiff, would occur. Therefore, in exercising my discretion under Section 151A(5) of the WCA, the plaintiff’s application for leave to revoke should be refused.

69. In arriving at that conclusion, I have not taken into account as a significant factor the defendant’s argument that leave should be refused because of the plaintiff’s earlier inconsistent accounts as to the circumstances of the accident. The evidence shows that the plaintiff gave various versions in the decade after his injury as to the circumstances of the accident. The precise circumstances of any accident would need to be determined after hearing all of the evidence and any witnesses which were there at the time.

70. I order that the plaintiff’s application be dismissed.

71. I will hear the parties as to costs.

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Decision last updated: 13 October 2016