Day v Mahle Engine Components Australia Pty Ltd and VWA
[2013] VCC 415
•15 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-06210
| DENISE DAY | Plaintiff |
| v | |
| MAHLE ENGINE COMPONENTS AUSTRALIA PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 March 2013 | |
DATE OF JUDGMENT: | 15 March 2013 | |
CASE MAY BE CITED AS: | Day v Mahle Engine Components Australia Pty Ltd & VWA | |
| MEDIUM NEUTRAL CITATION: | [2013] VCC 415 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left knee – impairment of function of the left leg
Legislation Cited: Accident Compensation Act 1985
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N J Dunstan | Slater & Gordon Ltd |
| For the Defendants | Mr A J Saunders | Minter Ellison |
HIS HONOUR:
1 In this proceeding, the plaintiff makes application for leave to commence a proceeding seeking pain and suffering damages for an injury sustained by her to her left knee in the course of employment with the first defendant.
2 In the application, the parties rely on an affidavit sworn by the plaintiff dated 11 August 2011, the plaintiff’s viva voce evidence, a number of medical and like reports tendered by the parties, and the viva voce evidence of the plaintiff’s treating orthopaedic surgeon, Mr Russell Miller.
3 The injury the subject of this application involves an injury to the left knee and the impairment of function relied upon is that of the left leg. It is put that the plaintiff’s injury developed over a period of time in the course of her employment with the first defendant commencing 20 October 1999 (the due date).
4 It is the plaintiff’s evidence that whilst she had some symptoms in her left knee prior to the due date, her symptoms progressed and increased, such that the escalation in her symptoms, and the consequences to her of that escalation in symptoms, gives rise to an impairment which is appropriately described as being serious when a comparison is made between her current condition and incapacity, and which was present prior to the due date.
5 It is put on behalf of the defendants that the pre-existing condition with which the plaintiff presented in her left knee had a deleterious impact upon her life and lifestyle, such that any incapacity associated with the injury the subject of this application could not give rise to consequences of a level which satisfied the definition of “serious injury” employed by the provisions of the Accident Compensation Act (1985) as amended (“the Act”).
The Medical Evidence
6 There is a controversy in the medical evidence as to whether the plaintiff’s current presentation is related to the persisting effect of an aggravation of her pre-existing osteochondritis dissecans (the plaintiff had developed this condition in her adolescence), or a traumatic rupture of her medial meniscus over a period of time.
7 Further, is put by the defendants that, absent the influence of any workplace injury, the plaintiff’s pre-existing osteochondritis dissecans would have developed such as to cause the plaintiff to suffer a level of symptoms similar to those which she presents today.
8 In my opinion, the plaintiff’s treating surgeon, Mr Russell Miller, who has a long relationship with the plaintiff, having managed the plaintiff’s:
· initial presentation to him in August 1996 in respect of her right knee; and
· a series of presentations between March 20001 and 26 July 2010;
in the course of which he undertook two arthroscopic examinations of the plaintiff’s left knee and a left knee unicompartmental knee replacement, is by far the best placed to opine as to the nature of her presentation and her prognosis.
9 Further, I had the opportunity of observing the testing of Mr Miller’s evidence in the course of cross-examination, at which time I formed the opinion that he was a reliable and persuasive witness.
10 For these reasons, I prefer the opinion of Mr Miller to those expressed by any other medical practitioner who has opined in this matter to the contrary, that the cause of the plaintiff’s current symptoms is unrelated in any significant way to her pre-existing condition.[1]
[1]Transcript (“T”) 49-52
11 Further, insofar as there is a difference of opinion between Mr Miller and the medico-legal experts who have examined the plaintiff in recent times (namely Dr Philip Mutton, consultant occupational physician, and Mr Anthony Dunin, orthopaedic surgeon), as to whether the plaintiff would have, but for the contribution to her disability by reason of the first defendant’s work process, developed symptoms of a similar nature and degree to those which manifested themselves after the due date and have persisted to date, I accept and prefer the opinion of Mr Miller, namely:
· that the plaintiff’s symptoms emanate from a meniscal tear (“the tear”) which, if present prior to the due date, was likely to have been small;
· that the tear progressed after the due date to the extent that it evoked symptoms which eventually required surgery; and
· that, in the absence of this condition, the plaintiff’s history of osteochondritis was not likely to have predisposed her to subsequent problems.
12 It follows that I am satisfied:
· that the condition which led to the plaintiff’s need to undergo a knee replacement commenced with a tear of the medial meniscus which progressed (most probably from a minor tear prior to the due date), to the extent that it required, after the due date, the removal of the medial meniscus in from the medial compartment of the knee; and
· the osteoarthritic changes in the left knee, which were responsible for the perpetuation and increase in the plaintiff’s symptoms, such that she was required to undergo a partial knee replacement, developed by reason of arthritic change sponsored by the medial meniscectomy,[2] which was undertaken after the due date.
Assessment of the escalation in symptoms and disability in the plaintiff’s left knee when compared with the condition of her left knee prior to the due date
[2]See the evidence of Mr Miller at T49
13 It is put on behalf of the defendants that, having regard to the plaintiff’s occasional presentation to her general practitioner prior to 20 October 1999, I should undertake an audit of the effect upon the plaintiff of any condition which existed in her left knee prior to 20 October 1999 for the purposes of comparing the effect of that condition upon her life with the effect of the compensable injury the subject of this application.
14 In this respect, the defendant points to:
(i) the plaintiff’s evidence that she was suffering from “chronic” symptoms in her left knee since February 1999;
(ii) the plaintiff’s presentation to her general practitioner with symptoms of knee pain in February 1999;
and asserts that there is little difference between the consequences to the plaintiff of the subject injury and impairment, when her level of symptoms and functional capacity prior to the due date is compared with her current capacity and symptoms.
15 Whilst I accept the defendants’ position that I must take the audit contended for by it, I am satisfied that such an audit demonstrates that for the plaintiff, the difference between her pre-compensable injury state and her post-compensable injury state is such that the escalation of the plaintiff’s symptoms and disability clearly satisfies the definition of “serious injury” for the following reasons:
(i) Capacity for work
16 In my opinion, the analysis of the severity of consequences associated with injury to the plaintiff's left knee prior to the due date should commence with a reference point based on the fact that, notwithstanding any symptoms associated with that condition, for a period which persisted for some years after the due date, the plaintiff possessed a capacity to carry out on a full-time basis the physical work which she undertook in the course of her employment with the first defendant, which work was relatively demanding in the pressure it exerted upon her knee, and that she managed that work to the satisfaction of her employer.
17 There is no issue that at the present time, the plaintiff is employed on a part-time basis in which she undertakes clerical duties at the Bacchus Marsh Hospital two days per week and in the last week of each month she does “a shift on the ward”.[3] It is the plaintiff’s unchallenged evidence that −
“I can just cope with this work sitting as it is not 5 days per week. I do not believe I could do this sort of work on a full-time basis.
The one day of ward work that I do I can cope with. This requires me to be on my feet. I do not believe I could do this on a full-time basis.
I believe that I am working to my maximum capacity given my knee injury.”[4]
[3]PCB 8
[4]PCB 9
18 This, in my opinion, represents a dramatic deterioration in the plaintiff’s capacity to function and represents, for a forty-four year old woman with a history of full-time employment, a consequence appropriately described as being very considerable.
(ii) The Plaintiff’s current medical prognosis
19 The plaintiff has undergone two arthroscopic procedures upon her left knee and a unicompartmental knee replacement which Mr Miller described as being an equivalent operation to a total knee replacement for practical purposes.[5] There is no issue that, given her relatively young age, the plaintiff will require further surgery, the timeframe for which was fixed by Mr Miller as being ten to fifteen years in the future. As to this issue, Mr Miller opined:
“… most surgeons would say 10 to 15 years and then they come loose and they need to be redone so that there is a window period of satisfactory function and almost inevitably there comes a period of loosening requiring revision surgery, etc etc.”
[5]T54
20 That the plaintiff faces this surgery in the future, in my opinion, at the present time, gives rise to a very considerable consequence for her.
21 Whilst the plaintiff’s recovery from her most recent surgery has been described by most surgeons as being “good”, I accept her evidence that she suffers from symptoms which −
(i) limit her ability to walk substantially, in that after 15 to 20 minutes, she experiences pain in her left knee and that her range of walking is limited by her symptoms to approximately 40 minutes;
(ii) cause pain which disturbs her sleep every night, such that she is awakened by her symptoms once or twice a night;[6]
[6]T9
(iii) have impacted upon the physical side of her relationship with her husband;[7] and
(iv) and are appropriately described by Dr Clayton Thomas, a specialist in rehabilitation, in his report which has been tendered on behalf of the plaintiff.
[7]T9
22 In this respect, I am satisfied that the plaintiff’s current pain and disability represents a very substantial alteration for the worse when compared with the symptoms with which the plaintiff was presenting prior to 20 October 1999.
23 In making that statement, I do so on the following grounds:
(a) The impact of the plaintiff’s symptoms on her capacity to work before and after the due date
24 Prior to the due date, the plaintiff was fit for full-time work which required her to be involved in activities such as squatting, twisting, bending and placing pressure on her knees. The plaintiff was able to carry out those activities on a full-time basis until her work duties were modified to some degree in 2003 and further, in 2004, when she could no longer cope with her duties as a picker/packer.
25 In my opinion, this puts into context the impact upon the plaintiff’s symptoms insofar as they affected her ability to walk, work and rely upon her left leg for support prior to the due date, and the escalation of her symptoms both in severity and in resultant incapacity after the due date.
(b) The impact of the plaintiff’s symptoms on her need for medical treatment before and after the due date
26 In my opinion, the severity of the escalation in the plaintiff’s symptoms after the due date, when compared with those present before, is well demonstrated by the history as to the plaintiff’s presentation to medical practitioners and treatment after the due date which bears such a stark contrast to that before.
27 The relevant history is as follows:
· Notwithstanding her presentation to her general practitioner on 23 February 1999, the plaintiff did not re-present to Dr Wu with any symptoms of knee pain until November 2000, at which time she presented with symptoms of a sore knee which had been present for three to four weeks and was improving with Noreen;
· Thereafter, the plaintiff attended upon Dr Wu with respect to knee pain on 28 February 2001, 8 June 2001, 25 August 2001, 20 September 2001 and 21 November 2001;
· In addition, the plaintiff presented to Mr Miller on 19 March 2001, who performed an arthroscopic debridement of the left knee on 11 May 2001. The plaintiff represented to Mr Miller in October 2001 complaining of symptoms which were described by him as involving “significant medial compartment symptoms”, such that he “discussed the possibility of further surgery in the form of chondrocyte grafting and possible osteotomy”;[8]
· As at August 2004, when assessing the plaintiff, Mr Miller noted that the symptoms in her knee were slowly deteriorating, Mr Miller expressed a similar opinion when he reviewed the plaintiff on 25 March 2009.
[8]PCB 49
28 This history of presentations which I have described (again seen in the context of the fact that the plaintiff was, when she presented to Dr Wu in November 2000, capable of performing the full-time duties for the first defendant which I have previously described, and the fact that on this occasion the plaintiff presented with symptoms of knee soreness which had been present for three to four weeks and was improving), bears testament, in my opinion, to a very significant escalation in the level of the plaintiff’s symptoms after the due date.
29 My finding in this regard is further supported by the statement made by Mr Miller when it was put to him that the plaintiff presented with a history of longstanding, albeit intermittent, knee problems:
“While I can only say that it hasn’t reached the magnitude to cause me to arthroscope the left knee until 2001 and at the risk of doing myself some damage it doesn’t take much in the description of symptoms to make me arthroscope her knee.”
30 This pattern of treatment and report of symptoms, given its stark contrast with the plaintiff’s presentation to medical practitioners prior to October 1999, provides, in my opinion, a reliable basis for a finding that the plaintiff’s symptoms:
· were having a significant impact upon her life following the due date; and
· were, prior to the due date, more appropriately categorised as being (even in November 2000) no more than of a nuisance level.
31 In making this statement, my reasoning process is fortified by the fact that the plaintiff’s general practitioner, Dr Wu, in a series of reports dated 20 March 2007, 13 November 2008, 15 March 2009 and 17 August 2010, makes no comment as to the significance of the plaintiff’s attendance upon him with respect to knee symptoms prior to 2001.
32 Finally, I accept that the plaintiff’s symptoms at the present time affect her in the manner opined by Dr Clayton Thomas, a specialist in rehabilitation and pain medicine, namely:
· that they will restrict her “from bending, lifting, twisting or stooping under load frequently or repetitively”;[9] from kneeling, squatting or crouching;
[9]PCB 75
· that she should avoid prolonged walking or standing, or keeping the knee in one position for extended periods of time;
· that she will have ongoing difficulties with sloping surfaces, particularly downhill more so than uphill; and
· that she should avoid repetitive use of stepladders.
33 When one compares the comments made by Dr Thomas as to the restrictions now visited upon the plaintiff on a daily basis by reason of the condition of her knee, with the plaintiff’s ability as at the due date to undertake work on a full-time basis, which involved a great deal of squatting, twisting and bending and the manoeuvring of a trolley containing loads of 100 to 150 kilograms,[10] the change in the plaintiff’s capacity for activity on a daily basis by reason of the impairment the subject of this application is clearly demonstrated.
[10]PCB 6
34 It follows that I am satisfied that the plaintiff’s employment with the first defendant after the due date materially contributed to her requirement to undergo a medial meniscectomy, her development of arthritic change in the medial compartment of her knee, her requirement to undergo a knee replacement and the ongoing symptoms from which she suffers.
35 For the reasons I have given, I am satisfied that the increase in the symptoms in the plaintiff’s left knee and the impairment of function with which the plaintiff presents in her left leg, when assessed independently of the symptoms and impairment with which the plaintiff presented prior to the due date, is appropriately described as being “more than significant or marked” and as being, at the very least, “very considerable”, as those terms are employed by the provisions of the Act and that the plaintiff is entitled to the leave sought by her in this application.
36 I will allow the parties to draft the appropriate order in respect of leave in this instance and will hear the plaintiff as to the issue of costs.
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