Domejanko v Toyota Motor Corporation Australia Ltd
[2013] VCC 1855
•25 June 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-09-03902
| PETER DOMEJANKO | Plaintiff |
| v | |
| TOYOTA MOTOR CORPORATION AUSTRALIA LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 19 March 2013 | |
DATE OF JUDGMENT: | 25 June 2013 | |
CASE MAY BE CITED AS: | Domejanko v Toyota Motor Corporation Australia Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1855 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – knee injury – aggravation of pre-existing injury – whether consequences of aggravation sufficient to constitute “serious injury” – pain and suffering damages
Legislation Cited: Accident Compensation Act 1985, s134AB; Transport Accident Act 1986
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Fehring | Ryan Carlisle Thomas |
| For the Defendant | Ms J Forbes | Minter Ellison |
HIS HONOUR:
1 The plaintiff in this action was born in December 1955 and is aged fifty-seven. In 1997, he commenced employment with the defendant at its Altona site. He was employed on the production line and became a team member and continued to be employed in that capacity until approximately 2009.
2 The plaintiff was involved in a motor vehicle accident in 1999 and underwent an arthroscopy to his left knee on 29 February 2000 as part of the treatment flowing from that accident (“the first knee injury”). That operation was carried out by surgeon, Mr Simon Wilson. The plaintiff was off work for a short period and went back to for Toyota Motor Corporation Australia Ltd (“Toyota”). He was able to continue with his employment and swore in his affidavit “the knee was not giving me any trouble or restricting me in my work during 2002”.[1]
[1]Exhibit A, Plaintiff’s Court Book (“PCB”) 10
3 Thereafter on 19 December 2002, he jarred his left knee, causing immediate pain, when he lost his footing stepping up onto a platform which was six to eight inches high and losing his footing. He had been preparing to apply plastic sheeting to a new vehicle which had come off an assembly line.[2] This occurred in the course of his employment with the defendant (“the second knee injury”).
[2]Exhibit A, paragraph 3, PCB 9
4 The plaintiff submits in this proceeding that the second knee injury is a “serious injury” as defined in s134AB(37) of the Accident Compensation Act 1985 (“the Act”), being a permanent serious impairment or loss of the left knee function. He asserts that the second knee injury on 19 December 2002 is an aggravation of a pre-existing condition, in the sense that it is a re-tearing or an aggravation of the tearing of the medial meniscus as shown by MRI scan conducted in May of 2009.[3]
[3]Exhibit 1, Transcript (“T”) 110, L24
5 Accordingly, he brings this application pursuant to s134AB(16)(b) of the Act for leave to commence proceedings for damages in respect of the second knee injury.
Statutory Regime
6 Section 134AB(37) of the Act relevantly defines “serious injury” as “permanent serious impairment or loss of body function”. The method for determining whether the impairment or loss of body function is serious is contained in a suite of paragraphs in s134AB(38). In the circumstances of the second knee injury, those paragraphs operate in the following way.
· The term “serious” is to be satisfied by reference to the consequences to the plaintiff of the impairment with respect to pain and suffering when judged by a comparison with other cases in the range of possible impairments.[4]
· The impairment shall not be held to be serious unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments fairly described as being “more than significant or marked, and as being at least very considerable”.[5]
[4]Section 134AB(38)(b)
[5]Section 134AB(38)(c)
7 In this case, the injury in question, being the second knee injury as an aggravation of the first knee injury. Counsel for the plaintiff correctly described the parameters within which the courts’ consideration of the second injury must take place. That injury, as an aggravation of the first injury, must itself qualify as a serious injury; that is, the additional impairment caused by the aggravation must bear consequences of significant magnitude (more than significant or marked and at least very considerable) for the second knee injury to qualify as a serious injury.
8 This is consistent with Petkovski v Galletti[6] in which the Appeal Division of the Supreme Court held, in relation to broadly equivalent provisions of the Transport Accident Act (1986), that where there was an aggravation of a pre-existing condition or injury, the applicant was required to establish that injury was caused by the accident. An analysis had to be made of the extent of impairment of a body function before and after the relevant injury and the additional impairment had to involve serious long-term impairment of body function.
[6][1994] 1 VR 436
9 Their Honours observed that the Transport Accident Act 1986 did not affect the long-established principle that a person injured could be compensated for but only for such disabilities as would prove to have resulted from the relevant accident.
10 These considerations have been further enlarged upon in the recent Court of Appeal case of AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz[7] and reference will be given at a later stage. In particular, it is necessary to identify the particular injury upon which relief is sought.
[7][2012] VSCA 60
The Facts
11 Apparently he attended work the next day but then broke up for the Christmas holidays. He was off work until 13 January 2003.
12 Thereafter he was referred to surgeon, Associate Professor John Hart, some time prior to 15 April 2003. He gave a history that over the summer break his knee had remained intermittently sore. On returning to work on 13 January 2003, the pain increased doing his normal work. It was particularly noticeable on twisting and associated with clicking but there had been no locking or giving way. Squatting and kneeling aggravated the pain.
13 He gave a further history of the first knee injury, but related that although the knee remained painful following arthroscopy (in February 2000), it eventually recovered after twelve months.
14 On examination, he was able to hop on the left knee. Squatting was slightly reduced but he was able to run adequately. The patella-femoral joint was unremarkable and there was no ligamentous instability. Positive findings were that he was tender over the medial joint line and the medial meniscus was prominent and McMurray’s test induced pain. An MRI scan had been performed which demonstrated a torn medial meniscus.[8] An arthroscopy was recommended by Professor Hart and in the meantime the plaintiff remained at work.
[8]Exhibit J, 23 January 2003
15 On 4 February 2004, Professor Hart carried out an arthroscopy of the left knee. Relevantly he noted:
“A horizontal cleavage tear of the posterior horn of the medial meniscus was trimmed back to a firm rim. There was evidence of an old indentation on the convexity of the lateral femoral condyle which may have been responsible for the two loose bodies that were present in the knee. This was a longstanding lesion and could have been related to his motor car accident in 1998. The left knee was otherwise normal.”[9]
[9]Exhibit D, PCB 40
16 Professor Hart reviewed the plaintiff on 13 February 2004 when his wounds looked well healed. He had regained a reasonable range of movement in the knee, and he was referred for a course of post-operative physiotherapy. He was seen again on 5 March 2004 when he still complained of medial pain and swelling in the knee.
17 Examination revealed no effusion and he had a full range of movement of nought to 140 degrees. He was still tender over the medial joint line and his quadriceps were wasted and it was considered he required continuation of his exercise program. He was certified as being unfit for work for two weeks on that occasion.
18 Thereafter he was reviewed again on 25 August 2004 when he was still complaining of anteromedial pain which was intermittent, but not related to activity. Stairs did not cause any problem. Squatting and kneeling both induced pain. He had not experienced any swelling. He said that he had returned to work and was working full hours in his normal job in production at Toyota.
19 Examination at that time revealed he was able to hop and run symmetrically and that squatting was only slightly reduced. There was no effusion and he had a full range of movement in the knee. The patellofemoral joint was unremarkable, there was no ligamentous instability and his joint lines were not tender. There was still evidence of wasting of his left thigh, and it was recommended he should continue a self-managed exercise program to build up his thigh musculature.
20 The plaintiff returned again on 11 February 2005. He related that the pain had improved for a few months but now the symptoms had recurred. He was experiencing pain on squatting and kneeling and on sharp twisting. He had not noticed any swelling, locking or catching. Examination of the knee on that occasion revealed he was able to hop, squat and run symmetrically without difficulty and that there was no effusion and the patellofemoral joint and ligaments were normal. There were no signs related to the lateral joint line but there was some tenderness over the medial joint line and McMurray’s test did induce pain.
21 On that occasion, Professor Hart considered a re-tear of the medial meniscus was possible and he sought permission for a repeat MRI scan. Significantly, while awaiting any further MRI scan, Professor Hart considered that the recent recurrence of symptoms were probably a direct result of the original injury on 19 December 2002, because his symptoms have never entirely resolved since that surgery. He also considered the plaintiff was able to carry out his pre-injury duties, although there was some discomfort but there were no work restrictions currently.[10]
[10]Exhibit D, PCB 42
22 Subsequently, on 10 June 2005, Professor Hart wrote to the general practitioner reporting that the requested MRI scan had shown in fact there had been a re-tear of his medial meniscus and in addition he had a torn lateral meniscus. The MRI scan had also suggested that there may be a mild pes bursitis.
23 Accordingly, Professor Hart thought the plaintiff needed a further arthroscopy, but that he himself was no longer operating and he recommended he should be treated closer to home. There was no opinion proffered as to the cause or causes of the re-tearing of the medial meniscus or of the other pathology referred to.
24 Thereafter, the plaintiff was referred to orthopaedic surgeon, Mr Harry Tsigaras.
25 In a report dated 14 September 2005, Mr Tsigaras confirmed that the recent MRI scan had highlighted further tearing in the medial meniscus. He felt that this was consistent with the plaintiff’s reports of medial-sided knee discomfort, intermittent swelling, and a poor ability to flex the left knee under load. He requested authorisation to perform a repeat arthroscopy.
26 Thereafter, Mr Tsigaras reported to the general practitioner on 18 April 2006. He recited the performance of a repeat left knee arthroscopy in mid-December 2005. This had confirmed Grade 2-3 degenerative changes of the medial femoral condyle, a smaller Grade 3 chondral ulcer of the lateral femoral condyle and tearing in the posterior horns of both menisci. He recorded that all areas of chondral irregularity were debrided and the meniscal tears resected.[11]
[11]Exhibit E, PCB 46
27 Thereafter, Mr Tsigaras records the plaintiff had made steady progress since the procedure, embarking on physiotherapy and commencing glucosamine. He returned to work on a graduated program six weeks after the procedure, resuming full-time duties by late February 2006.
28 As at April 2006, he denied any previous sharp knees that had impaired him prior to the arthroscopy, no clicking and minimal swelling. Examination confirmed a mild varus pseudolaxity, no effusion, intact ligaments, a full range of motion and no areas of point tenderness. By this time, he was cycling for an hour every second day and was continuing with a self-exercise program for the knee.
29 Thereafter, the plaintiff did not see Mr Tsigaras again until May of 2007. He gave a history of a recurrence of left knee swelling, discomfort and fatigue over the previous three months. The onset of symptoms was related to:
“… a change in his work duties, specifically a requirement to repeatedly twist (under load) his knee every 30 seconds, in working on the door line.”
30 Accordingly, Mr Tsigaras organised for a repeat MRI scan which again confirmed the known derangements but also highlighted further articular loss and posterolateral knee inflammation. He thought this was consistent with the plaintiff’s recent symptoms and localisation of symptoms in the posterior aspect of the knee. He considered that the recent aggravation was related to his recent work duties but reassured the plaintiff that no specific medical or surgical intervention would be required at this stage. He did recommend, however, that his current work role be changed in order to retard further articular loss and inflammation in an already aggravated knee. At this stage, he was fearful that any further deterioration may lead precipitously to the only other feasible option, being replacement surgery.[12]
[12]Exhibit E, PCB 48 and 49
31 By November 2007, Mr Tsigaras noted that there had been a change in the plaintiff’s role on the production line which apparently required walking a considerable distance. He was continuing with glucosamine at that stage and was becoming symptomatic in the right knee. He requested the medical officer at Toyota to try to assist in finding more suitable duties.[13]
[13]Exhibit E, PCB 50
32 At the time of swearing his first affidavit on 6 April 2009, the plaintiff has sworn that he was seeing Dr Gruzauskas, his general practitioner, on a regular basis and he was being provided with Panadeine Forte which he was taking once or twice per week. He also swore he was taking Panadol regularly, probably two to three times per week and glucosamine daily. He was doing exercises for his knee daily, which could last up to an hour. He was also wearing elastic bandages to support the knee, particularly when he was at work. As at that time, he swore that the left knee was painful all the time and “restricting”. Because of the left knee problem, he could not go running and he found squatting or bending to be difficult. He also found walking up or down stairs difficult, as was standing for anything more than two hours, which would increase his pain level and thus produce swelling in the knee by the end of the day.
33 Thereafter, the plaintiff’s employment ceased with the defendant in 2009 when he was diagnosed with cancer in his right leg, together with bowel cancer. He underwent approximately two years of treatment, including extensive operation on the right leg and grafting from the left leg.
34 In a follow-up affidavit dated 7 February 2013, he confirmed he was made redundant in July 2009 and had achieved a good result from surgery to his right knee. He swore that by 2012 he was able to go back to work activities following a prolonged period of cancer treatment. The problem he had with his left knee, however, continued to be restrictive and difficult. He had commenced a business as a real estate photographer prior to leaving the defendant.
35 In February 2012, he also obtained casual employment through Etihad Stadium as a customer service employee. He works there during weekends and the football season and other special events and is paid $25 per hour between three and five hours at a time. He has also recently gained two casual shifts and the Princess Cruise Lines, Port Melbourne, again as a customer attendant.
36 He attests that his left knee is still painful all the time and swells up most days. He states he able to walk perhaps a kilometre but any prolonged walking produces pain and swelling. He uses an exercise bike every day to try to keep his left knee and leg in good muscle tone and flexibility. He further swears that he has one or two bad days in a week and on a bad he will take Panadeine Forte and anti-inflammatory medication. The Panadeine Forte has not been prescribed for him since his cancer treatment and he states that such medication is left over from that period.
37 He attends upon general practitioner, Dr La Spina, but there is no medical report from that practitioner. He also attests that he takes sleeping medication but no further details are given as to frequency or reasons therefore.
38 Further, he has sworn that he has moved to a new address, approximately eighteen months ago, and the garden there needs “quite a bit of work”. He has attended to the following matters: removal of weeds which were chest height; removal of building debris in and around the house; removal of concrete material around the house; removal of mounds of dirt; shovelling of clay material and administration of new soil in and around the precincts. He said that it has taken him approximately six months to perform this work which could have been done ordinarily in two weeks. In re-examination, he said that he had also planted a number of unspecified vegetation and had installed a watering system.
39 In this matter, and the way in which the evidence evolved, two issues became paramount. First, the identity of the injury. Counsel for the defendant relied on what was said to be a comprehensive report from Mr A Dunin to the effect that the injury in December of 2002 was a temporary aggravation of an underlying condition which was well advanced at that time.
40 Counsel for the plaintiff fairly, in my view, identified the injury as one relating to the medial meniscus and the injury being either an aggravation of a pre-existing tear or a further tear with consequences that were serious. Counsel for the plaintiff did not submit that the underlying degenerative change had been aggravated similarly in any significant way and relied on the pathology as already described.
41 In particular, counsel for the plaintiff relies on the medical reports of Mr Miller which are in contradistinction to that of Mr Dunin, to the effect that the injury so described by counsel for the plaintiff has effects to this day which are permanent and which consequences are serious.
42 In tracing the sequence of the injury, I consider that the following matters are relevant:
(a)Report of Mr Simon Williams, surgeon, dated 22 March 2000. He treated the plaintiff in connection with a motor vehicle accident on 25 March 1999 and was first seen on 25 June 1999:
“He underwent an MRI assessment on 21 April 1999, and this suggested a small tear of the medial meniscus. He continued to have problems with the knee, and thus, on 29 February 2000, he underwent a left knee arthroscopy. This did confirm a small tear of the medial meniscus which was excised. He was reviewed 10 days later and was progressing well. It had been hoped he would have made a full recovery at that stage.”
(b)On 11 September 2000, Mr Williams wrote a further report concerning a consultation on 8 September 2000. He recorded:
“Unfortunately, he is still having problems with his left knee. He describes a catching sensation over the front of the knee, particularly when he is changing gears with his car and this is associated with a clicking sensation around his patella… on examination there was also mild quadriceps wasting.”[14]
[14]PCB 55
On that occasion, he thought that the pain was emanating from the patellofemoral joint where there was some chondromalacia.
(c)Mr Williams saw the plaintiff again on 18 May 2001. He took a history that the plaintiff continued to complain of severe pain and swelling of his left knee, especially with kneeling. A recent MRI scan basically showed no significant abnormality, but –
“They did comment about some minor chondromalacia of his medial femoral condyle and also a very minor ‘re-tear’ of the posterior horn of the medial meniscus, which I personally feel is not related to Peter’s symptoms.”[15]
[15]PCB 56
His opinion at that stage was that he thought he could not help the plaintiff’s pain with further surgery. Instead, he encouraged him to continue with a non-operative approach and, in particular, to work hard at building up the muscles around the knee.
(d)On 22 October 2001, the plaintiff was examined by orthopaedic surgeon, Mr John O’Brien, who took a history of the motor vehicle accident on 25 March 1999. He then took the following history:
“The patient stated that following this he continued to experience constant pain in his left knee which he stated was associated with intermittent swelling. He stated that his pain was aggravated by walking, squatting, twisting or suddenly changing directions. Driving a car also apparently aggravated his pain. The patient stated that, in addition, he continued to be aware of neck and intermittent left shoulder pain.”[16]
[16]Defendant’s Court Book (“DCB”) 13
Mr O’Brien took a further history:
“The patient stated that he continued to be aware of significant problems with his knee. He subsequently underwent an MRI of the left knee and he indicated that in the late 1990s he underwent an arthroscopy of the left knee which apparently involved repair of a damaged cartilage. However, the patient stated that following this he did continue to experience fluctuating pain in the left knee aggravated by activities, such as squatting and kneeling.”[17]
[17]DCB 14
Thereafter, as to his current condition, Mr O’Brien records:
“The patient stated that he is still aware of intermittent pain in the left knee with activities such as squatting and kneeling. He describes occasionally swelling and giving way of the left knee. In addition, the patient stated that he still is aware of pain in the posterior aspect of the left calf which varies in severity from day to day, although he did state that excessive walking aggravates the pain.”[18]
[18]DCB 14
Further, he stated:
“At present, the patient requires analgesic medication to control pain, in addition, the patient states that he has antidepressant tablets.”[19]
[19]DCB 14
A further history was taken that in approximately mid-1999 –
“… the patient underwent an ostectomy. On this occasion, examination of the left knee revealed some slight quadriceps wasting and what appeared to be a slight increased circumference of the left calf. Some tenderness was noted along the medial joint line of the left knee. There was also some tenderness on the medial border of the patella.”
Mr O’Brien opined that the plaintiff described a motor vehicle accident in March 1999 when he was in a stationary car which was struck from behind. The plaintiff described the immediate onset of neck and thoracic pain in addition to left knee pain:
“Subsequent investigations in relationship to his ongoing knee symptoms did indicate medial meniscal injury and this apparently was confirmed on arthroscopic examination of the left knee when the meniscal lesion was attended to. Unfortunately, the patient has in fact continued to describe persistent symptoms in the left knee, the patient now demonstrating certainly very mild signs which relate predominantly to tenderness in the anteromedial aspect of the joint suggestive of mild patellofemoral pathology. He considered that the general clinical condition was now somewhat stabilised.”[20]
[20]DCB 16
43 On balance, I consider that the plaintiff did suffer a re-tearing or a tearing of a medial meniscus in the injury of December 2002, but that he was probably suffering symptoms throughout 2002 which were extant, as already indicated, in at least May and October of 2001. As to whether that injury discretely has permanent effects, the consequences of which need to then be assessed as to whether or not they are serious, I consider that the following evidence is apposite:
44 First, the operation note of 21 April 1999 notes that “Clinically there was an injury four weeks ago with tenderness medially and there was to be an assessment for a meniscal tear”. MRI scan disclosed as follows:
“An oblique tear of the posterior horn/body complex of the medial meniscus involving its inferior articular surface.”[21]
[21]PCB 73
45 Secondly, Mr Williams records that as at May 2001, there was a small minor re-tear of the posterior horn of the medial meniscus which he personally felt was not related to the plaintiff’s symptoms.
46 Thirdly, after the subject injury, an MRI scan was taken of the left knee on 22 January 2003 with a finding of a –
“… horizontal oblique tear through the posterior horn of the medial meniscus extending to the inferior articular surface.”[22]
[22]PCB 75
47 Fourthly, on 4 February 2004, Associate Professor Hart conducted an arthroscopic operation and found –
“… a horizontal cleavage tear of the posterior horn of the medial meniscus was trimmed back to a firm rim.”[23]
[23]PCB 82
48 Fifthly, thereafter, on 23 June 2005, an MRI scan of the left knee was again taken in accordance with the clinical history referred to above. It was recorded:
“Appearances are suggestive of a moderate sized re-tear of the posterior horn of the medial meniscus.”[24]
[24]PCB 76
Further:
“A small horizontal tear of the posterior horn of the lateral meniscus is identified, contacting the inferior intra-articular surface and extending from the inner to the mid third of the meniscus.”[25]
[25]PCB 76
49 On conclusion, it was stated:
“Evidence of previous partial medial meniscectomy. Suggestion of moderate sized re-tear of the medial meniscus.”[26]
[26]PCB 77
50 Thereafter, treatment was taken over by orthopaedic surgeon, Mr Harry Tsigaras, and on December 2005, he undertook a left knee arthroscopy, which procedure involved further resection of meniscal tears and debridement of Grade 3 articular defects of the medial femoral condyle.[27]
[27]PCB 48
51 Mr Tsigaras was pleased with the progress thereafter. The plaintiff was discharged from his care in April 2006. He returned again in May of 2007, as he noted a recurrence of left knee swelling, discomfort and fatigue over the previous three months. This onset of symptoms was related to a change in his work duties, specifically a requirement to repeatedly twist (under load) his knee every 30 seconds in working on the door line.[28]
[28]PCB 48
52 Mr Tsigaras made the following comment:
“I agree with Peter’s feelings that the recent aggravation is related to his recent work duties, but have reassured him that no specific medical or surgical intervention is required at this stage.”[29]
[29]PCB 48
53 Thereafter, Mr Tsigaras reported again on 29 May 2007.[30] An MRI scan of that date revealed:
“The cruciate and collateral ligaments are intact. There has been further trimming of the posterior horn and body of the medial meniscus. The meniscal remnants of the posterior horn is moderately degenerative. … There appears to have been trimming of the posterior horn of the lateral meniscus but no re-tear shown.”[31]
[30]PCB 78
[31]PCB 78
54 The conclusion at that stage was:
“Degenerate meniscal remnant of the posterior horn of the medial meniscus.”
55 The next assessment by Mr Tsigaras was contained in a report dated 7 November 2007.[32] He noted that since his last meeting with the plaintiff, he had changed roles on the production line but that this had not met with any great success in being protective of his knee. He took a history that the new role apparently requires him to drive a car off the line and then return to his line promptly. In the process, depending on where the vehicle is taken, he has to walk back a distance of between 30 and 90 metres, a process he has to repeat a minimum of 300 times per shift. (This totals a minimum of 9 kilometres per shift). Whilst in the vehicle, again which he enters and alights 300 times per shift, he has also to prime the brakes, work under the steering column et cetera.
[32]PCB 50
56 Mr Tsigaras then states:
“If Peter’s descriptions and estimates are correct, the situation with his knee will become untenable very soon. He’s becoming symptomatic in his other knee and admits to suffering with significant fatigue and discomfort by the end of each shift.”[33]
[33]PCB 50
57 Thereafter, Mr Tsigaras reports on 1 July 2009.[34] Relevantly, he noted that in 2007, an MRI scan had shown that the plaintiff was suffering “further articular degradation”.[35]
[34]PCB 51
[35]PCB 51
Conclusions
58 In my view, the sequence of events is prima facie evidence that the injury sustained by way of meniscal tear in December of 2002 led to a situation where there was not a complete clinical recovery to the position that his knee was in just prior to that condition, albeit I consider that he had ongoing sequelae from the original injury at that time.
59 Counsel for the defendant submits that the further injuries alluded to above constitute novus actus interveniens such that I cannot be satisfied that there is still a causal link with the aggravation injury so pleaded as at today’s date.
60 There are considerable forensic difficulties in diluting or ascertaining the exact consequences relating to the work injury in this case. As I have already stated, on balance, I consider that there are some consequences, but that those consequences are an aggravation of the situation that pertained immediately before the occurrence of the subject injury. Those circumstances relate to pain and limitation of movement of the left knee, together with other injuries to his body consisting of shoulder and/or back and/or wrist injuries, such that activities such as playing golf were severely affected prior to this injury.
61 I take note of the fact that the plaintiff has returned to work in alternative employment, but, of course, that is not determinative against him for seeking a certificate for pain and suffering damages. I note in particular that he has not only been able to return to work, but that his need for prescription medication is sparse, to say the least, and that he is capable of a wide range of physical activities related to his gardening as described above.
62 Ultimately, the test in this matter is whether the plaintiff has established that the pain and suffering consequences of his injury, when judged by a comparison with other cases in the range of possible impairments or losses of a body function may fairly be described as being more than significant or marked and as being at least very considerable.
63 This test involves a value judgment in which matters of fact and degree and of impression are operative.[36] Further, the emphasis in s134AB(38)(c) of the Act is upon seeing where the facts of this particular case sit in the broad spectrum of cases, remembering that includes cases which do not end up in litigation –
“… because it may be supposed the consequences are glaringly apparent one way or another. The spectrum is not established simply by asking upon a case or two in which the applicant has failed.”[37]
[36]See Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph 41
[37]Stijepic at paragraph 42
64 In this matter, I accept that the plaintiff suffers ongoing pain in the left knee from time to time which has probably affected his ability to fully participate in gardening and other sporting activities, together with a full complement of work activities. I also accept in the foreseeable future, continuation of painful symptoms and of consequences inhibiting upon his enjoyment of life. However, I also find that his ability to be so engaged prior to December 2002 was already significantly compromised to some degree by his prior knee symptoms, together with his shoulder and wrist injuries.
65 Nonetheless, the plaintiff’s evidence in this matter probably discloses pain and suffering consequences which are both significant and marked. However, on balance, I am not persuaded that these consequences can fairly be described as being more than significant or marked or as being at least very considerable.
66 Further, in reaching this conclusion, I take into account “the significance of what has been lost which bears upon the seriousness of the consequences, may be informed to an extent by what he has retained”.[38]
[38]See Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph 27
67 Accordingly, whilst accepting that the plaintiff has suffered from, and will likely continue to suffer from inhibitions on his ability to engage in unrestricted physical activity, by and large his ability to engage in his activities is not affected to the requisite degree. In particular, it does not appear to me that the plaintiff’s enjoyment of life with respect to his involvement in gardening has been affected in a way which could be described as more than significant or more than marked, and certainly not at least very considerable.
68 Accordingly, the application is dismissed.
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