De Macedo v Downer EDI Works Pty Ltd (ABN 66 008 709 608)
[2017] VCC 585
•7 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-06201
| ANTONIO JOAQUIM PEREIRA DE MACEDO | Plaintiff |
| v | |
| DOWNER EDI WORKS PTY LTD (ABN 66 008 709 608) | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 May 2017 | |
DATE OF JUDGMENT: | 7 June 2017 | |
CASE MAY BE CITED AS: | De Macedo v Downer EDI Works Pty Ltd (ABN 66 008 709 608) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 585 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – left knee impairment – pain and suffering only – causation – unrelated condition – disentanglement
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and s(38)
Cases CitedBarwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Leave granted to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D J James | Hymans Solicitors |
| For the Defendant | Ms C Spitaleri | IDP Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant on 3 June 2005 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The relevant body function is the left lower limb, with the plaintiff having suffered an injury to his left knee.
5 By s134AB(38)I of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, “as being at least very considerable and more than significant or marked”.
6 Subsection 38(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
7 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
8 The plaintiff relied upon three affidavits and gave viva voce evidence. His wife, Zulmira, swore an affidavit on 14 November 2016. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
9 The plaintiff is an aged pensioner, presently aged seventy-three, having been born in Angola in October 1944. He came to Australia with his wife in 1984.
10 The plaintiff has worked as an electrician since 1973. He commenced employment with the defendant in August 2004, working at the Spencer Street Railway Station development project.[3]
[3]Transcript (“T”)12
11 The plaintiff’s working hours were spent moving heavy cables, preparing access to electrical machinery, and then making the necessary electrical connection. His duties involved a lot of time crouched, to work near the ground, with extended kneeling for up to three or four hours at a time.[4]
[4]T15, T44
12 At about 4.00pm on the said date, the plaintiff suffered an injury in the course of performing his work. Towards the end of his nightshift, he was connecting a point machine, lifting up a signalling arm which was connected to the railway sleepers. As he went to get up, he felt his legs give way due to a sharp pain in his left knee (“the incident”).
13 The plaintiff was initially treated with an ice pack and bandage at the site office. He completed an injury report, but continued working.
14 A couple of weeks later, as his knee pain continued, the plaintiff saw his regular doctor, Dr Hoegerl, at the Cove Family Medical Centre (“Cove”). Eventually, the plaintiff was sent for a left knee x-ray.
15 In due course, the plaintiff had some physiotherapy for his knee and was given exercises, but found them very difficult to perform because of the pain.
16 The plaintiff worked on modified duties in early 2006. Because his symptoms were continuing, he underwent arthroscopic surgery (“the surgery”) performed by Mr Gerard Bourke, orthopaedic surgeon.
17 Mr Bourke told the plaintiff that he needed to be careful with actions that require squatting, twisting or other high impact activities.
18 In about late 2006, the plaintiff was given a cortisone injection in his knee. By July 2007, he agreed he was only having occasional left knee pain and that was whilst bending, as Dr Hoegerl noted.[5]
[5]T14
19 The plaintiff agreed he did not complain of knee pain to Dr Hoegerl from July 2007 until September 2012. He had pain “here and there” and used to take Celebrex.[6]
[6]T33
20 The plaintiff agreed that in June 2014, he went back to Dr Hoegerl about his left knee because his solicitors told him to.[7] Dr Hoegerl then referred him to Mr Bourke. Mr Bourke told the plaintiff the only thing he could do for him after the surgery was a cortisone injection; however, he was too scared to undergo that procedure.[8]
[7]T38
[8]T39
21 Whilst the plaintiff deposed that Mr Bourke told him that in about five or ten years, he would need a knee replacement, he did not think Mr Bourke told him he needed this surgery.[9]
[9]T41
22 Mr Bourke told the plaintiff he should try heat packs and anti-inflammatories. The plaintiff agreed Mr Bourke also told him he should be able to do most activities of daily life.[10]
[10]T40
23 The plaintiff did not think he then told Mr Bourke that his walking was affected by his ankle. He saw Mr Bourke for his right knee only.[11]
[11]T39
24 As of November 2016, the plaintiff was taking four Nurofen tablets daily, two in the morning and two at night, to deal with left knee pain. He also took Celebrex nightly for this pain. He applied Deep Heat on his left knee nightly before bed, but he had recently started using Voltaren cream.
25 The plaintiff still takes Celebrex daily, Panadol, two tablets daily, together with Nurofen. He takes this medication mainly for his knee pain.[12] Dr Hoegerl said she could not do anything for him other than prescribe painkillers. He has recently changed general practitioners as it was too far to drive to Dr Hoegerl.[13]
[12]T29
[13]T42
26 The plaintiff still experiences continuous pain in the left knee, made worse when he stands and walks for long periods. He also finds that his left knee, down to his foot, is always warm due to continuous pins and needles.
Work post incident
27 Since early 2006, the plaintiff has been a qualified A Class electrician. His work with the defendant ceased on about 9 March 2006, after the completion of the Spencer Street project.
28 In about the second half of 2007, the plaintiff gained employment with Frigrite Pty Ltd (“Frigrite”) as an electrician. His role involved changing light bulbs on fridges. Customers included Coles, Woolworths and Aldi. In some instances, he used a small stepladder when doing his work. No job had an allocated time limit and he could take his time and pace himself. This job suited the plaintiff because it did not affect his right ankle or his left knee.
29 The plaintiff ceased this role when Frigrite declared bankruptcy.
30 In about the second half of 2010, the plaintiff found work with Hannafords Cleaning Supplies (“Hannafords”) fixing vacuum cleaners. He worked at a waist high bench and he also had a chair he could sit on when needed. Once again, he could work at his own pace, and that role suited him, as it did not aggravate his left knee or right ankle.
31 The plaintiff ceased employment in about December 2013 due to a disagreement with Hannafords about his wages, as well as work conditions. He was then aged sixty-nine.
32 The plaintiff saw Hymans, solicitors, in December 2013 about his wages problem.[14] He denied he went to see them because bullying allegations had been made against him.[15] He was sacked because of this issue.[16]
[14]T36
[15]T37
[16]T38
33 Working at Frigrite and Hannafords, the plaintiff was able to do most, or all, of his work in a standing position, so it did not impact greatly on his knee condition. He was unable to work as he used to before the incident, in a kneeling or crouching position. There is no way he could perform his previous work tasks, because it would cause him a great deal of pain and he believed it would cause his arthritis to deteriorate further.
34 The plaintiff obtained employment with Easy Being Green in June 2016, where he worked until August that year. That company had obtained a Federal Government contract to replace halogen light globes in houses with LED light globes.
35 Easy Being Green provided the plaintiff with a list of customers’ houses to attend to replace the globes. He found that work easy, and he could work at his own pace to stop his left knee pain developing. An average job required he replace twenty light globes, which took him about an hour.
36 The plaintiff had his own five-step ladder to help him change the light globes, but he only went as high as the second step. When he used the stepladder, he was careful to place most of his body weight on his right leg to prevent his left knee pain developing and keep his balance.
37The plaintiff could recall falling from a ladder at home in late November 2014, as Dr Horn noted. He did not injure his knee in that fall.[17]
[17]T41
38 The plaintiff ceased that job because the costs of working, mainly petrol, were greater than the amount he was being paid.[18]
[18]T42
The right ankle injury
39 The plaintiff suffered a bullet wound to his right foot, fracturing his ankle, while performing compulsory military service as a young man.[19]
[19]T8
40 On or about 9 March 2000, the plaintiff rolled his right ankle when he fell from a ladder. He could not recall having injured his ankle the previous year as described in his Claim Form relating to this incident.[20]
[20]T10
41 Thereafter, the plaintiff’s ankle was in a plaster for about eight weeks, followed by approximately six months of wearing a CAM boot.
42 Walking and standing brought on pain that was tolerable and could be described as a dull ache in the right ankle, but did not interfere with the plaintiff’s employment.
43 The plaintiff had “small problems” with his ankle thereafter but it never stopped him from working. It used to get very tired. Everything was alright with his ankle and he passed a very hard physical examination before he started work with the defendant.[21]
[21]T16
44 When the plaintiff saw Mr Bourke about his ankle in 2006, Mr Bourke did not discuss ankle surgery with him.[22]
[22]T17
45 If Dr Hoegerl noted in November 2010 that the plaintiff attended complaining of right ankle pain and limping, he agreed this would have occurred. She was the doctor who organised the referral to Moorabbin Hospital where he later underwent ankle surgery.[23]
[23]T17
46 The plaintiff agreed Dr Hoegerl sent him for an ankle x-ray in late 2010 and he was on the waiting list for surgery for some time thereafter. A further x-ray was undertaken in May 2012. At that time, the plaintiff’s work at Hannafords was not being affected by his ankle. He did not work very hard and was able to pace his duties.[24] The plaintiff agreed that as his ankle was getting worse and worse every year and he went back to Dr Hoegerl, as he wanted to have the operation.[25]
[24]T20
[25]T21
47 The plaintiff underwent an ankle fusion on 13 December 2013 to prevent further deterioration of his right ankle. The fusion was successful. After using crutches, he wore a moon boot for about seven months.
48 The plaintiff could recall attending the Medical Panel in May 2014 in relation to his right ankle claim.[26] He agreed he told the Panel he had trouble walking for more than 30 minutes because of right ankle pain. He was then wearing a boot and his ankle caused him problems walking up and down stairs.[27]
[26]T23
[27]T24
49 The plaintiff’s current problem is that he cannot bend his left knee too much and he has to put a bit of pressure on his right ankle. He believed he told the Panel his left knee was causing him problems.[28]
[28]T25
50 The plaintiff could recall attending the Panel in September 2014 in relation to his left knee claim. He agreed he told the Panel he had difficulty walking up and down steps and walking for more than 30 or 40 minutes because of his left knee pain.[29]
[29]T26
51 As of September 2014, the plaintiff took Celebrex for his left knee and right ankle pain.[30]
[30]T28
52 The plaintiff could not recall his right ankle being examined by Dr Elder in April 2014.[31]
[31]T29
53 As of November 2016, the plaintiff deposed he had no right ankle pain, nor did he experience any restrictions apart from a slight limp. He was not receiving any treatment for his right ankle and had not received any since the fusion surgery.
Consequences
54 In his first affidavit sworn in August 2015, the plaintiff described how he had to adjust his lifestyle after the incident in some respects, having previously been a very active person, taking frequent walks and playing a little bit of sport.
55 The plaintiff found he could not fully extend his left leg because doing so increased his knee pain. He then could not walk for more than ten or fifteen minutes or so without experiencing some pain. When he walked, he often felt a grating, grinding, or cracking sensation in his knee, and experienced some swelling.
The plaintiff used to dance frequently at the Italian Club in Springvale, often attending weekly to dance the meringue or the tango. Before the injury, he walked his dogs in the park, but could no longer do so, as he could not control them on the lead because of knee weakness.
56 The plaintiff found that if he did outdoor activities that involved even a bit of gentle walking, he tired easily because of the effort with balancing. This affected his activities, like gardening and mowing.
57 Before the injury, the plaintiff was able to play soccer at the beach socially with friends and others but had had to stop thereafter. He also had to stop swimming and was no longer able to have a spa bath because he could not extend his leg fully.
58 The plaintiff could no longer drive a manual car because of the need to use his left knee for the clutch and had to drive an automatic vehicle.
59 The plaintiff found steps or stairs really difficult because of the unevenness of the walking. He had some difficulty balancing and, therefore, always needed to stay close to a rail or a firm structure. If he had to climb a large number of stairs, he generally used a ramp or lift.
60 Since the injury, the plaintiff had to shower whilst sitting down, as it made it easier to keep his left knee from straightening or bending completely. His knee gave him a fair bit of pain and made him feel unstable. This was also the case, after the injury, when he had sex.
61 The plaintiff had to be careful when picking things up from the ground because of his knee.
62 Knee pain would worsen when the weather became colder, and the plaintiff occasionally felt a tickling sensation or pins and needles in his left foot.
63 In his second affidavit sworn at the end of 2016, the plaintiff described knee pain when bending his knee, and also daily swelling. His knee felt unstable, and he compensated by placing most of his body weight on the right leg, which he believed aggravated his right ankle injury.
64 The plaintiff often tripped when walking as he could not bend his left knee properly and he had to concentrate to make sure he did not bend it, causing him to lose balance. That had been the case for about the last four years.
65 The plaintiff’s left knee injury continued to affect the amount of time he could stand. It was then about ten minutes, and when he sat, he had to have his left leg extended to avoid pain. He avoided standing and walking when he could, to ensure he did not further injure his knee. His right ankle was fine and did not restrict his standing ability.
66 The plaintiff was no longer as active since the injury. He avoided walking when he could and he was largely housebound. When he went shopping, he drove, and tried to locate a park as close as possible.
67 When dressing, the plaintiff had to sit down to put on his shoes and socks, and pants. There was no way he could balance himself if standing to dress, as his left leg felt unstable and he would most likely fall over.
68 The plaintiff could only wear casual sneakers, as more formal shoes with a flat or hard sole increased left leg pain and caused him to limp.
69 The plaintiff’s personal grooming had been affected by his left knee injury. In the shower, he sat on a chair, as he thought it was dangerous to stand in the wet shower with his unstable left knee. He had had the chair since the surgery. It also came in handy after the right ankle fusion.
70 Prior to showering, the plaintiff telephoned his wife if she was not at home, to tell her he was going to have a shower in case he had a fall.
71 The plaintiff has removed a step from the bathroom floor to make it completely flat to accommodate his left knee injury. While on the toilet, he had to sit with his left leg extended to reduce his pain symptoms.
72 Prior to the right ankle fusion, the pain from the plaintiff’s knee and right ankle kept him awake during the night, but now it was only his left knee pain that affected his sleep.
73 Since the left knee injury, the plaintiff had become socially withdrawn due to his disability, and was now physically unable to enjoy the dancing at the Italian Club which he had previously engaged in.[32]
[32]T43
74 Shortly after the knee surgery, the plaintiff was able to walk his dog, but was unable to do so at the end of 2016 because of his left knee condition had deteriorated. The plaintiff’s daughter walked the dog, as he had difficulty with the dog pulling on the lead.[33]
[33]T42
75 The plaintiff had trouble keeping up with his younger grandchildren, and the best he could do was hold them while sitting down. They lived in Brisbane, and he visited them about twice a year. When travelling by plane, the plaintiff requested an emergency exit seat to allow him to extend his left leg.
76 It had come to the plaintiff’s attention that his general practitioner had made an entry in a clinical file on 5 September 2012 that he injured his left knee by tripping into a trolley. He did, in fact, trip, but he injured his teeth and right ankle, and not his left knee. In cross-examination, the plaintiff agreed he hurt his left knee in this incident.[34]
[34]T35
Lay evidence
77 The plaintiff’s wife, Zulmira, swore an affidavit on 14 November 2016. They have been married since September 1979.
78 Zulmira confirmed that, pre injury, the plaintiff was an active dancer, attending the Portuguese Club in Yarraville. He no longer enjoyed dancing because of his knee injury and he no longer wanted to go the pictures or out for dinner.
79 The plaintiff can no longer manage to play soccer or cricket with family and friends at the beach, and rarely goes to the beach. His ability to play with his grandchildren has been significantly affected. He has difficulty walking the dog. He now has to drive an automatic car.
80 Since the knee injury, the plaintiff trips quite regularly when walking, especially up stairs, and needs to hold onto the bench in the kitchen for balance. A step had been removed from the bathroom. The plaintiff calls her when he is about to have a shower.
81 Even after the plaintiff injured his right ankle, this did not really affect his ability to do things in the long term.
82 The plaintiff is now reluctant to do housework, which he previously helped with. He was a very active person before the knee injury, but now stays home and watches television all day, and sleeps a lot.
83 The plaintiff has been prescribed Zoloft for depression, which he has been taking for the last two years. She believes he is depressed because he is not able to enjoy life like he used to since the injury.
Treaters
84 By letter dated 28 April 2006, Mr Bourke advised Dr Hoegerl, following the surgery, that the major finding was the medial meniscus tear, and the rest of the knee looked in very good shape. He noted the plaintiff would mobilise to return to work on a graduated program. He anticipated a full return to activities and hoped the plaintiff could return to work by mid May 2006.
85 Mr Bourke wrote to Allianz in August 2014, having recently re-examined the plaintiff when he attended complaining of increased knee pain.
86 Mr Bourke thought it was worthwhile carrying out further investigations and arranged an MRI scan which had confirmed the plaintiff had the beginnings of degenerative change within the knee but, at that stage, certainly not severe enough to consider any major intervention.
87 Mr Bourke provided a more detailed report to the plaintiff’s solicitors on 4 June 2015.
88 Mr Bourke noted that he had advised the plaintiff his knee would almost certainly progressively degenerate, but thought it was impossible to predict a timeframe, and hopefully many years, if not decades, before he would require any major intervention.
89 Mr Bourke thought the plaintiff needed to be careful with certain activities, such as squatting, twisting and heavy impact activities, but otherwise he should be able to perform almost all activities of daily living. Mr Bourke thought it difficult to know whether the degenerative change was due to the meniscal injury or whether it was going to happen on its own.
90 Mr Bourke advised it is impossible to say that the degeneration was due to a work injury. However, there was no doubt the meniscal tear was. He thought the plaintiff then did not require any specific treatment, except for behaviour modification and the use of occasional non-steroidal anti-inflammatories if he could tolerate them. He also thought physiotherapy and the use of compression knee braces may be useful. Mr Bourke did not believe the plaintiff’s knee was going to improve significantly, but it may not deteriorate either.
91 Mr Bourke did not consider the knee placed a major impediment in the plaintiff’s social, domestic and recreational activities as he could still maintain reasonable function without significant pain.
92 Mr Bourke advised that if the plaintiff’s knee does degenerate, then he may require further intervention and ultimately, if it becomes severe enough, which is certainly not inevitable, he may require a total knee joint replacement.
93 Mr Bourke did not believe there were any pre-existing or age-related components to the plaintiff’s knee injury. He did not organise a review.
94 The plaintiff’s general practitioner, Dr Horn, reported in November 2016.
95 Dr Horn thought the meniscal tear in 2005 was a result of the knee injury. However, she was not able to confirm whether the degenerative effect on the left knee was a result of injury, or working as an electrician, or it may have happened on its own.
96 Dr Horn was unable to say if the plaintiff required ongoing treatment for his left knee, or whether his work as an electrician was still contributing to the injury, as he had not been reviewed in the clinic for over a year and his problem was previously managed with Mr Bourke.
97 Dr Horn recommended non-surgical treatments, which were likely to be ongoing.
Medico-legal examiners
98 Mr Jonathan Hooper, orthopaedic surgeon, examined the plaintiff on behalf of Allianz in 2006 and 2007.
99 On initial examination, Mr Hooper thought it was unlikely that the plaintiff would be able to return to pre-injury duties that involved squatting and bending. He considered the plaintiff was capable of doing a light job, if it could be found for him.
100 Mr Hooper confirmed that the plaintiff tore his medial meniscus in the incident. The surgery had helped his symptoms significantly, though he still had knee discomfort.
101 Following re-examination in June 2007, Mr Hooper noted the plaintiff had not returned to work and could not obtain a job, and that his knee was still irritable with activities.
102 On examination, the knee was still tender medially, and the plaintiff could not squat. Mr Hooper also noted there were issues with the plaintiff’s right ankle.
103 Mr Hooper concluded the plaintiff had a very limited work capacity, as far as an electrician was concerned, because of his knee and ankle injury. He had difficulty working in particular places, at heights, and using ladders, but he would, theoretically, be capable of doing bench-top work.
104 Mr Hooper thought the plaintiff’s knee problem would be continuous. It would not deteriorate rapidly, but it would not improve, and his ankle may require further treatment.
105 Mr Peter Battlay, orthopaedic surgeon, examined the plaintiff for the purpose of an AMA Assessment in April 2014 at the request of Allianz.
106 The plaintiff was then wearing a CAM boot following the right ankle fusion in December 2013. He was efficiently mobilising on elbow crutches.
107 On examination, the plaintiff advised that although he continued to take anti‑inflammatories and Panadol Osteo, he experienced knee pain. However, that had not interfered with him working as an electrician.
108 The plaintiff indicated that the pain was mainly at the back of the knee, but sometimes also behind the kneecap and anteromedially. Flexion put strain on the knee and it hurt at the back of the knee. He had not experienced any locking, but continued limping with the left knee.
109 Mr Battlay noted the plaintiff had an accepted claim for a left knee injury. That apparently resulted in a partial medial meniscectomy being performed. The plaintiff was subsequently able to return to his pre-injury duties.
110 Mr Battlay considered the right ankle fusion the plaintiff had since undergone had no bearing on his knee impairment.
111 Mr Battlay concluded the plaintiff had a stabilised permanent impairment of the left knee.
112 In September 2014, the Medical Panel assessed the plaintiff as having a 4 per cent whole person impairment resulting from the accepted left knee injury.
113 The plaintiff advised the Panel of the treatment for his knee injury leading up to arthroscopic surgery in April 2006. He largely participated in a post-operative rehabilitation program for about two or three months and subsequently, resumed full-time duties.
114 The plaintiff told the Panel that, following legal advice, he re-attended his treating practitioner, and on 4 August 2014, was referred for an MRI scan of the left knee. He said he had not been advised to attend the treating orthopaedic surgeon or to undergo additional medical treatment for his left knee condition.
115 The plaintiff told the Panel he currently continues to experience ongoing symptoms of left knee pain and swelling. The pain is located over the front and back of the knee. Movements generally, as well as walking up and down steps, prolonged walking for 30 to 40 minutes, prolonged standing for 10 minutes, prolonged sitting for 60 minutes, squatting and kneeling, all increase his symptoms of left knee pain.
116 The plaintiff described experiencing a constant grating sensation in the left knee and that he does not experience locking of the knee joint, but said the left knee felt unstable and he had lost confidence in his left leg.
117 The plaintiff advised he continued to be incapacitated by his right ankle condition. His sleep was regularly disturbed by left knee and right ankle pain, and he slept poorly because of pain.
118 The plaintiff told the Panel he used Celebrex to manage both his left knee and right ankle symptoms.
119 The Panel concluded the plaintiff was suffering from residual dysfunction and scarring of the left knee following an internal derangement of the left knee treated by arthroscopy and partial medial meniscal resection relevant to the accepted left knee injury on the said date.
120 The plaintiff was examined by Professor Kenneth Myers, vascular surgeon, on 4 July 2016.
121 The plaintiff told Professor Myers of the incident injury and also a right ankle problem leading to fusion surgery performed in December 2013.
122 The plaintiff complained of pain and stiffness in the left knee most of the time, worse if he attempted walking. That kept him awake at night. He had a hot feeling in the left foot, with itching in the bottom of the foot.
123 Professor Myers noted it was unclear whether the interference when playing social soccer with his children, which was no longer possible, was because of the plaintiff’s left knee or right ankle problem.
124 Professor Myers thought it was clear there were two separate conditions resulting in impairment. The first was a longstanding injury to the right ankle with progressive development of osteoarthritis, but it undoubtedly had been aggravated by work-related activities, leading to the eventual need for surgery. The second injury consisted of damage to the medial meniscus and aggravation of osteoarthritis at the left knee, again, relating to a work-related incident, presumably in 2005.
125 Professor Myers thought the plaintiff had suffered a tear of the medial meniscus and aggravation of previously apparently asymptomatic osteoarthritis of the left knee.
126 Professor Myers considered ongoing disability in the left knee resulted from the work-related injury.
127 In Professor Myers’ view, future treatment would be conservative, with physiotherapy as required, and ongoing management with appropriate medication. He thought the plaintiff will not be a candidate for any further arthroscopic surgery and eventually, he will require a total knee joint replacement, probably within the next five years.
128 Professor Myers thought there will be marked restrictions of social, domestic and recreational activities as a result of the knee injury. He noted the plaintiff has progressive degenerate osteoarthritis of the left knee, which will need eventual surgical knee joint replacement. In the meantime, it will markedly interfere with the plaintiff’s social, domestic and recreational activities.
129 Professor Myers noted the plaintiff was adamant an incident on 4 September 2012 resulted in aggravation of problems in relation to the right ankle and not the left knee.
130 Professor Myers thought the disability in relation to the injury to the left knee was at least very considerable. From the history provided, he considered the plaintiff’s major disability resulted from ongoing problems in relation to the osteoarthritis of the left knee, given that he had had a very satisfactory outcome from the right ankle fusion operation.
131 Professor Myers noted there was a pre-existing age-related component to the left knee injury. However, in the absence of work-related aggravation, this probably would not have been sufficient to necessitate eventual knee joint replacement surgery, so that the present worsened condition of the left knee could be attributed entirely to work-related activity.
132 Professor Myers provided a supplementary report in November 2016, having been asked whether bearing most of his bodyweight on his right leg, due to the instability of his left knee, the plaintiff had aggravated his right ankle injury to the point where surgery was required.
133 Professor Myers noted the plaintiff had sustained an injury to his right ankle in the past, and aggravated that as a result of a fall in September 2012, and then had surgery in December 2013. He noted the plaintiff had injured his knee on 3 June 2005.
134 Professor Myers thought it was very realistic to consider that ongoing disability in the left knee, from 2005 until the time of further aggravation of the injury to the right ankle, had resulted in considerable strain being placed upon it as a result of favouring the left leg by taking weight on the right leg, so that this would have caused progressive degenerative changes within the right ankle leading to the state where a further injury to the ankle would precipitate changes in the damaged joint sufficient to warrant the subsequent surgery to fuse the ankle a little over a year later.
135 Accordingly, Professor Myers agreed with the proposition that instability in the left knee from the incident was responsible for aggravation of the injury to the right ankle, leading to the need for fusion surgery.
136 Mr Kenneth Brearley, orthopaedic surgeon, examined the plaintiff on 16 March 2017.
137 The plaintiff described heavy work and kneeling during the course of his employment with the defendant, leading to knee problems and subsequent surgery.
138 The plaintiff reported pain in the knee most of the time, made worse by long standing and walking. Kneeling and crouching were difficult and there was some residual knee stiffness.
139 Mr Brearley noted the right ankle fusion in 2013.
140 On examination, there was a 15-degree fixed flexion deformity of the knee and some mild crepitus on movement. Mr Brearley thought the right ankle had been totally fused with a good result.
141 Mr Brearley noted the plaintiff had had an arthroscopy and medial meniscectomy with reasonable results. However, he still had ongoing symptoms. Mr Brearley thought the MRI had shown extensive articular loss over the knee joint, and in the foreseeable future, the plaintiff will require a total knee joint replacement. He considered the prognosis was of gradual worsening of the knee, continuing loss of articular cartilage, and increasing pain and disability.
142 In Mr Brearley’s view, employment remained a significant contributing factor to the plaintiff’s left knee injury.
143 Mr Brearley thought the plaintiff needed ongoing treatment and that this remains conservative, but as symptoms worsen, he will require further physiotherapy, hydrotherapy and pain management. Finally, he will require a total knee joint replacement, probably within the next three or four years.
144 Mr Brearley noted the plaintiff was limited in regard to all activities of a social, domestic and recreational nature. He had difficulty helping his wife with housework and he avoided social outings.
145 Mr Brearley thought there was no definite age-related component to the plaintiff’s left knee condition, and it appears to be all traumatic in nature. In his view, without the injuries, chronic in nature at work, the plaintiff would, in all likelihood, not be in his present condition with regard to his left knee. He thought the plaintiff’s long-term impairment and loss of body function were very marked indeed.
146 Mr Brearley considered the right ankle fusion was no longer impacting on these activities in any significant way, and it is the left knee which is interfering with all the activities.
147 Mr Brearley did not think the knee injury would aggravate the plaintiff’s right ankle injury to the point where he required a fusion.
148The plaintiff was examined at the request of Allianz by Mr Richard Pease, orthopaedic surgeon, in March 2017, in relation to his left knee.
149The plaintiff told Mr Pease that subsequent to knee surgery, his knee was never really better. He continued to walk with a limp because of pain. His knee tended to give way. He described a gradually deteriorating situation. He eventually obtained light work after being off work for a year.
150Mr Pease noted the plaintiff may have suffered a further knee injury on or about 5 September 2012. He obtained an easy job in a shopping complex, changing lights in the fridges and freezers. The plaintiff said he tripped on a trolley at work, suffering further pain in his knee. Once again, he went to his doctor, who in turn referred him back to Mr Bourke, who arranged an MRI scan.
151At the end of the process, Mr Bourke was not able to offer any surgical treatment. All he did was offer an injection of cortisone, which the plaintiff did not want.
152The plaintiff’s current complaints were constant knee pain on the lateral aspect, and pain radiating from there to the lateral aspect of the left calf and ankle. He also had some discomfort around the patella and in the posterior aspect of his knee joint.
153The plaintiff reported he could not sleep well because he tended to bend his knee, and that precipitated pain, which woke him. He had knee pain when kneeling or squatting. He experienced swelling and giving way and occasional clicking in the knee. His symptoms were generally worse when the weather was cold. He could not walk for more than 10 minutes without needing to sit and straighten out his foot.
154Mr Pease thought the plaintiff impressed as a very genuine individual and did not walk with a limp.
155Mr Pease diagnosed degenerative arthritis in the left knee, noting a meniscal tear for which the plaintiff underwent an arthroscopy. He thought there was no evidence of a functional overlay or subconscious exaggeration.
156Mr Pease did not believe the plaintiff’s right ankle problem was of any relevance to his knee problem.
157Mr Pease was subsequently provided with reports from Mr Bourke and Professor Myers.
158Mr Pease agreed with Professor Myers, noting it was perfectly feasible that a strain could have been placed upon the plaintiff’s injured right ankle as a consequence of favouring his left leg. This unequal weight bearing or gait could have caused progressive degenerative changes within the previously injured right ankle.
159Furthermore, Mr Pease thought the further injury to the ankle joint could have precipitated the necessity for an ankle joint fusion.
160Mr Pease mentioned that on 1 August 2014, Mr Bourke noted “when the plaintiff had a right ankle fusion, he feels that he is weight bearing more on the left side, which has caused the knee to flare”.
161In summary, Mr Pease believed it quite plausible that an altered gait by a left knee injury could have caused aggravation of a previous right ankle injury to the point where a fusion was performed.
The Defendant’s medical evidence
162Dr Chin organised an x‑ray of the plaintiff’s right ankle in October 1999. It was reported there was evidence of previous trauma in relation to the tip of the medial malleolus, with multiple small bony fragments. There was also medial subluxation of the ankle mortise.
163Mr Gerard Bourke wrote to Dr Hoegerl in August 2006. He noted he was already seeing the plaintiff for his left knee, and this referral related to the right ankle and foot pain which had developed progressively over many years.
164Mr Bourke noted the plaintiff’s ankle and hindfoot had become painful ten months ago, causing his walking to be severely limited and complicating his return to work.
165Mr Bourke noted, as far as the left knee was concerned, the plaintiff still had pain which was not responding to physiotherapy, so he injected the knee with cortisone and local anaesthetic in an attempt to reduce the plaintiff’s symptoms.
166Mr Bourke thought the plaintiff’s problems stemmed from post-traumatic degeneration of the ankle and subtalar region, with worsening alignment. He organised for a local anaesthetic and cortisone injection to determine which joint was providing the most significant pain. He thought the plaintiff would require reconstructive surgery to realign the joints and fuse the subtalar joint. As far as the ankle was concerned, they would need to discuss whether the plaintiff proceeded with a replacement or fusion, but, unfortunately, he had no insurance, and replacement costs were prohibitive.
167As far as the left knee was concerned, Mr Bourke noted that they would have to continue to follow up, but he suspected there was an element of functional overlay, since the plaintiff did not feel he was able to go back to work. Mr Bourke had provided a certificate for one more month, but advised that they needed to address the plaintiff’s long-term employment prospects with such a severe problem with his ankle and ongoing pain in his knee.
168The last mention of a knee complaint in the Cove notes before 2014 was an attendance on 19 July 2007 when a certificate for a return to full duties was provided by Dr Hoegerl.
169On that occasion, Dr Hoegerl also noted the plaintiff “feels well, says that start[ing] a new job that do[es] not involve bending in knees and wants to start to do it. Occ[asionally] some pain now in l[eft] knee on bending but good [range of movement]”.
170An x‑ray of the plaintiff’s right ankle organised by Dr Hoegerl in November 2010 showed advanced mechanical arthropathy of the ankle mortise. Moderate subtalar arthropathy was also demonstrated.
171A further x‑ray organised in May 2012 showed severe arthropathic changes in the right ankle with joint space narrowing, subchondral sclerosis and osteophyte formation. There was resultant mild lateral tilt of the talar dome, and mild degenerative arthropathy also noted at the talonavicular joint.
172Dr Hoegerl wrote to Monash Medical Centre on 15 May 2012 advising the plaintiff had had pain, swelling, and difficulties walking for a few years, getting worse, and had been on the waiting list for two years. Advice and further management was appreciated. It was noted the plaintiff still worked as an electrician full time but was finding it difficult to cope with his ankle pain.
173In a Southern Health Public Outpatients Clinic referral form, Dr Hoegerl noted the plaintiff had pain in the right ankle with poor mobility, interfering with his sleep and work.
174By letter dated 1 November 2013, Dr Hoegerl wrote to the Orthopaedic Surgery Clinic at Monash. She noted the plaintiff had been on the waiting list for over two years, and his condition had worsened to the point where he struggled to walk and was limping, which affected his work, and she felt he needed to be seen urgently. She noted the plaintiff still worked as an electrician full time, but was finding it difficult to cope with his ankle pain.
175On 18 June 2014, Dr Horn noted the plaintiff was “enquiring about MRI referral for public system, WorkCover injuries, and discussed going via WorkCover/ specialist review”.
176On 22 July 2014, Dr Horn noted a referral to Mr Bourke, “work-related injury to left knee, increasing pain in left knee, further imaging”.
177Mr Bourke wrote to Dr Horn on 1 August 2014.
178Mr Bourke advised that the plaintiff said he had very mild pain and the swelling was not severe, and it had been eight years since he had seen him regarding his left knee. It was not changing with time, but it had become more severe over the last year when he had a right ankle fusion, and he felt he was weightbearing more on the left, which had caused his knee to flare.
179Mr Bourke noted the plaintiff had pain in his knee if he walks for more than half an hour. It is exacerbated by cold weather, and is also worse with crouching, lifting and climbing stairs.
180Mr Bourke advised he suspected the plaintiff had some early degenerative disease that would account for his pain, and he organised further investigation.
181In a handwritten note attached to that report, Mr Bourke set out that the plaintiff’s walking in everyday life is hampered by his ankle.
182Following the MRI scan, Mr Bourke advised there was no intra-articular pathology that could be treated with arthroscopy. The plaintiff simply had degeneration of the articular cartilage, and until his symptoms were severe enough to warrant a total knee joint replacement, there was no surgery. He thought the plaintiff should use conservative measures, including behaviour modification, weightbearing aids, and anti-inflammatory modalities such as heat, ice, compression and anti-inflammatory medications or cortisone injections.
183On 26 November 2014, Dr Horn noted “fall from ladder when working, mechanical fall from 5 steps on left foot/rolled post and hit head, no [loss of consciousness]/headaches”. On examination, there was left foot bruising and tenderness over the left heel.
Medico-legal examiners
184In April 2014, Dr David Elder, occupational physician, examined the plaintiff’s right ankle at the request of XChanging for the purposes of an AMA assessment.
185The plaintiff then advised he had no pain, and the ankle was completely fused in the neutral position. He did not see his general practitioner for his ankle, but for other medical conditions, including diabetes, high blood pressure and cholesterol. The plaintiff was then awaiting specialist review at Monash Medical Centre.
186Dr Elder noted the plaintiff had suffered no other injury or accident. There was no mention of any left knee injury or knee complaint on that examination.
187On examination, the ankle was completely fused. There was no inversion or eversion abnormality. Sensation was normal, apart from in the distal sole of his foot.
188In July 2014, the Medical Panel found that the plaintiff had a 10 per cent whole person impairment resulting from the accepted right ankle injury.
189The plaintiff told the Panel that following a work-related knee injury for which he underwent surgery, he was incapacitated for approximately eighteen months. He subsequently resumed full-time alternate employment which involved electrical work which he performed in a seated position.
190The plaintiff told the Panel that for about four years, despite experiencing increasing symptoms of pain and stiffness of the right ankle, he continued full-time work. In about 2008, he consulted a medical practitioner, who referred him for a specialist orthopaedic assessment, and surgical fusion was advised, which the plaintiff declined to proceed with.
191The plaintiff told the Panel that despite ongoing symptoms of pain and stiffness in his right ankle, he continued full-time work, and towards the end of August 2013, he ceased work voluntarily.
192The plaintiff told the Panel that on 12 December 2013, he underwent ankle surgery and was in plaster for two months thereafter, and continued to use a moon boot. He advised he participated in a post-operative rehabilitation program which he said provided significant benefit.
193The plaintiff said he had not been advised of additional medical treatment and he had no further appointments or specialist review of his right ankle.
194The plaintiff told the Panel he continued to experience ongoing symptoms of pain located along the inner margin and mid area of the sole of the right foot. Thirty minutes’ standing, as well as walking up and down stairs, increased his symptoms of right ankle pain. He was no longer able to run. Squatting was limited by right ankle pain, and kneeling was limited by left knee pain. He reported symptoms of pins and needles and numbness on the top and sides of the right foot, and swelling of the right ankle and foot towards the end of the day. Sleep was not disturbed by right ankle pain. He continued to experience pain and stiffness of the left knee following the unrelated work-related injury of the left knee.
195The Panel concluded, based on the plaintiff’s history of injury, the report of medical imaging, and its own examination, the plaintiff was suffering from persistent and residual dysfunction of the right ankle and hindfoot following aggravation of pre-existing osteoarthritis relevant to the right ankle injury with a designated date of injury of 8 March 2000.
Overview
196 There is no dispute the plaintiff suffered a knee injury in the incident. His claim for weekly payments was accepted,[35] as was liability for the arthroscopic surgery of the knee.[36]
[35]Letter dated 18 October 2005
[36]Letter dated 9 December 2005
197 This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd & Anor v Taylor,[37] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[37][2006] VSCA 171 at paragraph [40]
198 However, counsel for the defendant submitted the plaintiff is no longer suffering from a left knee injury caused by work, his knee injury has resolved and he is now suffering from degeneration.[38]
[38]T47
199Counsel for the defendant relied on Mr Bourke’s August 2014 report in which he commented that the plaintiff simply has degeneration of the articular cartilage and that the MRI scans confirmed there was no intra-articular pathology.[39]
[39]T48
200In a further report, Mr Bourke said it was impossible to say the degeneration was due to work injury; however, there was no doubt the meniscal tear was due to it.[40]
[40]PCB 59
201Counsel for the defendant submitted the Court ought to prefer Mr Bourke’s opinion as to the cause of the plaintiff’s present knee complaint, as the treating orthopaedic surgeon, over medico-legal examiners, vascular surgeon, Professor Myers, Mr Pease and Mr Battlay, who had only seen the plaintiff once.[41]
[41]T50
202However, a close reading of Mr Bourke’s opinion does not, in my view, suggest he considers any work-related aggravation of the plaintiff’s degenerative knee condition has ceased. He simply attributes ongoing problems to degeneration.
203Mr Pease shared this view, diagnosing degenerative arthritis of the left knee.
204The three recent medico-legal examiners – Professor Myers, Mr Brearley all agree that the plaintiff continues to suffer from the effects of his work-related knee injury.[42]
[42]T59
205In these circumstances, I am satisfied the plaintiff’s work injury continues to materially contribute to his ongoing knee condition.
Credit
206 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[43]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[43](2010) 31 VR 1 at paragraph [12]
207Counsel for the defendant conceded the plaintiff presents as a genuine person who is doing his best; however, it was submitted his memory was unreliable, as the Medical Panel histories indicate. Further, he did not tell Dr Elder about any knee problem, and he gave conflicting versions as to whether he injured his knee in the 2012 trolley incident.[44]
[44]T56
208In my view, the plaintiff was generally a truthful witness who did not overstate his knee problems nor unreasonably minimise any issues with his right ankle. I accept that the latter condition has improved significantly since 2014, the year following fusion surgery, during which he wore a moon boot and he was more significantly restricted, as he then described.
209As Mr Pease commented, the plaintiff impressed as a very genuine individual and there was no evidence of a functional overlay or subconscious exaggeration. Further, whilst the defendant’s court book index indicates surveillance of the plaintiff was undertaken, no film was shown.
Pain
210 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[45]
[45](Supra) at paragraph [11]
“… the evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.”
211 The plaintiff still experiences continuous pain in the left knee, made worse when he stands and walks for long periods. He has difficulty bending his knee and often feels unstable when walking.
212As a result of his knee injury, the plaintiff experiences pins and needles in his left foot.[46] His knee continues to be swollen.[47]
[46]T62
[47]T63
213 Medical opinion varies to some degree as to the extent and intensity of the plaintiff’s knee pain and the resultant restrictions faced by him.
214 Having last seen the plaintiff three years ago, Mr Bourke did not consider the knee placed a major impediment in his social, domestic and recreational activities as he could still maintain reasonable function without significant pain. However, he thought the plaintiff needed to be careful with certain activities such as squatting, twisting and heavy impact activities.
215 Examiners in more recent times have described a greater level of disability, with Mr Brearley noting the plaintiff was limited in regard to all activities of a social, domestic and recreational nature and Professor Myers being of the view that there will be marked restrictions of social, domestic and recreational activities as a result of the knee injury.
216 In terms of treatment prior to undergoing arthroscopic surgery in early 2006, the plaintiff underwent physiotherapy with little benefit. Post surgery he had one cortisone injection. Further injections have been suggested but refused by the plaintiff as he is too frightened to undergo this procedure again.
217 The plaintiff continues to take painkilling medication for his left knee pain on a regular basis, taking Celebrex daily, Panadol, two tablets daily, together with Nurofen.
218 Ongoing conservative treatment has been recommended by all examiners.
219When Mr Bourke last saw the plaintiff in 2014, he suggested the plaintiff should use conservative measures, including behaviour modification, weightbearing aids, and anti-inflammatory modalities such as heat, ice, compression and anti-inflammatory medications or cortisone injections.
220 Medical opinion varies as to the need for knee replacement surgery. When Mr Bourke last saw the plaintiff three years ago, he did not think his symptoms were severe enough to warrant a total knee joint replacement. However, when he saw the plaintiff in July 2016, Professor Myers thought this surgery would be required, probably within the next five years and on most recent examination in March 2017, Mr Brearley thought the plaintiff will require a total knee joint replacement, probably within the next three or four years.
221 Whilst there is some support from Professor Myers for the view that the need for ankle surgery in late 2013 resulted from altered gait due to the plaintiff’s knee injury, Mr Pease thought there “could” be a link, and Mr Brearley did not think the left knee would have aggravated the right ankle to the point of surgery.
222 Taking into account this evidence and the medical evidence as to the progress of the plaintiff’s right ankle condition, I am not satisfied there is a link. Although it was not carried out until late 2013, ankle surgery was first suggested by Mr Bourke in 2006. The plaintiff agreed his ankle condition deteriorated from 2010, in particular, whilst he continued under Dr Hoegerl’s care. That practitioner has not suggested there was any link between the plaintiff’s longstanding ankle problems and the need for surgery in 2013.
Other consequences
223 Whilst counsel for the plaintiff submitted the consequences of the knee injury were serious, counsel for the defendant submitted that the plaintiff is unable to do a range of activities because of a combination of knee and right ankle pain.
224Counsel for the defendant submitted the plaintiff has had a significant ankle condition for years which continues, and results in a number of the consequences he attributes to his knee injury. In those circumstances, the onus was on the plaintiff to disentangle.[48]
[48]T53
225 Counsel for the defendant pointed out surgery was recommended in 2006 by Mr Bourke, and by 2010, the plaintiff was attending Dr Hoegerl complaining of significant right ankle pain and was referred to an orthopaedic clinic, where he was put on a public waiting list for surgery. It was submitted it was apparent from Dr Hoegerl’s correspondence from that time until December 2013, that the plaintiff’s ankle was causing him significant problems.[49]
[49]T54
226 In Peak Engineering & Anor v McKenzie,[50] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
[50][2014] VSCA 67
227 In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[51]
[51]At paragraph [1]
228 Thus, I am bound to identify, and exclude, the continuing consequences for the plaintiff of the ankle injury, and when the consequences properly referable to the knee injury are identified, identify them as “serious”.[52]
[52]At paragraph [2]
229 In my view however, the consequences referable to the knee injury alone are serious and the plaintiff’s right ankle does not cause him any significant ongoing problems save for loss of movement, in that it has been fused.
230The last time the plaintiff complained of significant ankle pain was in 2014 – to the Medical Panel and Mr Bourke – less than a year after the surgery when the plaintiff was still wearing the moon boot.[53]
[53]T61
231 However, he told Dr Elder in April that year, when examined for an AMA assessment, that there was no ankle pain.
232 I accept the plaintiff no longer experiences right ankle pain. Mr Brearley noted the right ankle had been totally fused with good result and Professor Myers thought he had had a very satisfactory outcome from the fusion surgery.
233 Further, Mr Brearley considered the right ankle fusion was no longer impacting on the plaintiff’s activities in any significant way and it was the left knee that was interfering with all activities. Professor Myers agreed that the left knee was his major disability.
234Whilst walking involves both the ankle and the knee, the medical evidence is that the plaintiff’s ankle condition has essentially resolved – a situation that is consistent with the plaintiff’s evidence.[54]
[54]T62
235 The plaintiff has ongoing problems with walking and prolonged standing. He is unable to walk for more than ten minutes or so because of increasing knee pain. His knee is weak and often feels as if it is going to give way. He often feels a grating or cracking sensation in his knee when walking. He has difficulty with balance and requires support at times to stop falling over, as his wife confirmed.
236 A major consequence of the plaintiff’s left knee injury is that he has not been able to return to unrestricted duties as an electrician because of the amount of bending, squatting, crouching and kneeling required in that role.
237 As Mr Hooper opined as early as July 2006, over seven years before the ankle fusion, it was unlikely the plaintiff will be able to return to his heavy pre-injury duties that involve squatting and bending. His work subsequent to the incident has been limited to bench work and other very light tasks such as changing light globes.[55]
[55]T63
238 The plaintiff requires assistance in personal care tasks such as dressing and showering because of his knee pain and restricted movement. He is limited in his ability to play with his grandchildren and participate in other physical activities he previously enjoyed such as dancing. He has become somewhat socially withdrawn.
239 The plaintiff’s sleep continues to be affected by his knee pain. He tends to bend his knee, which causes him pain and wakes him. He is unable to drive a manual car. He has problems holding onto the lead when walking his dogs.[56] He has difficulty with gardening and mowing.
[56]T63
240As counsel for the plaintiff conceded, although on one view these consequences of the plaintiff’s knee impairment are perhaps minor, cumulatively, they have had a serious effect on most aspects of his life.[57]
[57]T63-64
241Whilst this is somewhat of a borderline case, on balance, I accept that the consequences of the plaintiff’s left knee impairment are “serious” and will continue to affect most of his daily activities, particularly relating to his mobility, for the rest of his life.
242Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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