Drew v Hallam Employment Services Pty Ltd
[2024] VCC 1819
•14 November 2024 (ex tempore)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-23-07053
| LISA MARIE DREW | Plaintiff |
| v | |
| HALLAM EMPLOYMENT SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 November 2024 | |
DATE OF JUDGMENT: | 14 November 2024 (ex tempore) | |
CASE MAY BE CITED AS: | Drew v Hallam Employment Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1819 | |
REASONS FOR JUDGMENT
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Subject: WORKPLACE INJURY
Catchwords: Serious injury – pain and suffering consequences – very considerable test – knee injury – range
Legislation Cited: Workplace Injury (Rehabilitation and Compensation) Act 2013
Judgment: Leave granted to the plaintiff to commence a proceeding
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Y Chen | Carbone Lawyers |
| For the Defendant | Ms G J Cooper | TG Legal + Technology |
HIS HONOUR:
1Lisa Drew is the plaintiff in this proceeding. She is a now 37 year old lady in a long-term relationship, and the mother of a small baby girl.
2The employer in this proceeding is Hallam Employment Services, who are also the defendant. I assume that is some form of labour hire company.
3In approximately April of 2020 the plaintiff was then working at The Main Café Restaurant and Bar, but due to the imposition of COVID and shortage of work her employment was transferred to a Hungry Jack's store.
4The plaintiff was working at Hungry Jack's on 29 July 2020 when she apparently tripped over a trolley that was then blocking access to a passageway. It would seem that whilst the burgers might be better at Hungry Jack's, the means of egress and moving about the premises were not.
5In any event, without wishing to be flippant about things, the plaintiff suffered a nasty fall onto her knee, which is described as an undisplaced posterior cruciate ligament avulsion fracture from the posterior tibial plateau.
6Pausing here, there is no dispute that the fall at Hungry Jack's occurred or that it resulted in the injury to the right knee as described. In that context, the proceeding before the court is a "serious injury" application brought pursuant to the Workplace Injury (Rehabilitation and Compensation) Act 2013 ("the Act"). Specifically, the plaintiff claims to have suffered a serious injury by way of a serious physical injury to the right knee/lower leg pursuant to s.325(a) of the Act.
7The proceeding was conducted in the usual manner. The parties each tendered court books which contained affidavits, medical reports, clinical records and other relevant material. The plaintiff gave oral evidence and was cross-examined relatively briefly but appropriately as to the contents of her affidavits and what she had told the doctors before again an appropriate but concise re-examination.
8Dealing with a broad proposition, and that is this - that the legal principles in this proceeding are not in dispute. They are well-known, namely that the plaintiff must meet the "very considerable" test by reference to the claimed impairment and impairment consequences as accepted by the court. In the consideration of whether or not the plaintiff has made out a "very considerable" pain and suffering consequence, the court is required to consider the range of possible impairments and impairment consequences, including those that do not come before the courts, for a value judgment as to whether the injury is serious.
9As has often been said, particularly for the purpose of a value judgment, the credit of the plaintiff is often of critical importance. This is not a proceeding in which the defendant sought to raise the credit of the plaintiff as an issue. Of course, that does not mean that the court should unquestionably accept everything that she says and reach a conclusion of serious injury. In fact, sometimes the acceptance of credit works in favour of a defendant in the sense that the symptoms complained of at the highest, even if accepted, may not be serious.
10In that context, it seems to me that in a consideration of the range of injuries, impairments and impairment consequences, it could be said that there are some that are obviously and clearly serious, and some that are obviously and clearly not serious. In between, there is a range, including some impairments and impairment consequences that are finely balanced as to whether they meet the "very considerable" test. In my view, the proceeding before the court is an example of a finely balanced assessment.
11Before dealing with the evidence, I will briefly set out the parties' contentions. The defendant firstly submitted that the plaintiff's impairment and impairment consequences simply do not meet the threshold of "very considerable". The defendant accepted that the injury had been suffered, and that the plaintiff had some consequences, but described those consequences fairly as mild to moderate. The defendant highlighted the fact that the plaintiff now has no real treatment apart from over-the-counter medication.
12The defendant submitted that the evidence demonstrated that the plaintiff otherwise lived a full and busy life, highlighting that she was doing the hours at work in her current job that she is offered in her chosen profession in hospitality. The defendant highlighted how the plaintiff is able to do the housework and drive a car. And whilst she might have some level of pain in her right knee, it is not at a level that has pushed her out of the job that pre-injury she loved.
13The defendant also highlighted that structurally there was nothing wrong with the knee, that the plaintiff had a good result either from physiotherapy or self-managed exercise.
14In an overall contention the defendant highlighted the plaintiff's current level of activity, the fact that there was a healed fracture, at worst there might be some slight ligament laxity, some slightly higher risk of degenerative change but where the knee is still structurally sound and the plaintiff lives a busy live then she had simply not met the "very considerable" threshold.
15On the other hand, counsel for the plaintiff submitted broadly that the plaintiff had met the threshold. It was highlighted that the plaintiff has a base level of pain as set out in her affidavits and in her oral evidence. It was highlighted that the plaintiff has described restrictions to which she was broadly not challenged.
16It was highlighted that whilst the plaintiff can do activities such as bending, she has had to modify how she goes about that. It was highlighted that she has difficulty kneeling, squatting and an affected mechanical function of the knee in a number of ways.
17Plaintiff's counsel highlighted some of the medical reports that had documented some restriction of movement in the right knee, some mild swelling and crepitus. Matters such as the plaintiff's use of some form of sleeve or brace whilst working, her increased pain with longer shifts, the fact that she was still relatively young at 37 years of age with several decades of work in front of her in which she would have to put up with her current restrictions in combination with the type of restrictions, for example, as set out in the report from Dr Slesenger to which I shall get to in a moment, made out a "very considerable" consequence.
18Dealing firstly then with the plaintiff's affidavit evidence. I do not propose to go through it in great detail. For the purpose of this proceeding the plaintiff swore two affidavits, the first on 16 August last year,[1] and more recently on 11 November this year.[2]
[1] Plaintiff’s Court Book (“PCB”) 4
[2] PCB 12
19Her reporting of consequences, restrictions and the need for treatment in those affidavits is broadly consistent. As a general proposition this is not a proceeding in which the plaintiff says that she cannot use the right knee or cannot do things because of the right knee. Rather her case is that she has had to modify how she uses her right knee or has a restriction or has increased pain with increased activity.
20But relevantly in her most recent affidavit,[3] she said that she continued to suffer from constant pain and discomfort in the right knee, that most of the time she felt a dull ache which she rated at about three out of ten but the pain could increase with activity.
[3] PCB 12
21She noted flare ups of pain which can be seven out of ten or worse on the pain scale, describing those times when the pain is sharper and more intrusive. She said when the pain is really bad she had a slight limp and the base line level of pain was worse in cold weather.
22In her affidavit she then broadly set out a range of consequences such as stiffness, clicking, some unsteadiness, some difficulty with activities such as using stair, some interference with sleep because of knee pain and discomfort, some interference with her family and personal life, interference with longer car trips, interference with physical activity.
23She said in that affidavit, which perhaps resonates with me a bit more where I've been silly enough to have five children, that one of the biggest effects on her was that the knee pain made it hard for her to care for and play with her young daughter. She said she found it hard to kneel down and then get back up when caring for her daughter or bathing her. And she was concerned as her daughter gets older and more active, she will not be able to keep up with her.
24That evidence really highlights what might broadly be called the battleground in this proceeding. That is, the plaintiff does not say that she cannot play with her daughter or care for her, or even keep up with her at this stage, rather she says that the knee makes it harder for her, or she has had to adapt so that she can do those sorts of things.
25In the affidavit the plaintiff set out how she continued to work. She described some restriction with longer hours, she described some restriction with the heavier activities at work. She noted that towards the end of a shift, and particularly with full day shifts, she had increased pain and needed to rest when she gets home, or take extra medication.
26In respect of medication, I note that that is over the counter medication. True it is that that is not at the level sometimes seen of stronger opioids or prescription medication, but equally in the context of the evidence that the plaintiff is likely to continue to need that over the counter medication, that is in my opinion of some considerable consequence.
27In her oral evidence the plaintiff was challenged broadly about what she had said to doctors and in her affidavits about her level of function, pain and restrictions. True it is that she may not have been taken line by line to what she had said in the affidavits, but as I said a moment ago, I consider that she was broadly challenged.
28The cross-examination commenced with an appropriate and effective set of questions regarding the plaintiff's current work, which the plaintiff accepted was her preferred career and one that she enjoyed very much. She accepted that because of her co-morbid but unrelated diabetic condition, she had always needed some flexibility with employment to fit in with other medical obligations, and that flexibility came from working in hospitality.
29She described the work at The Main Cafe & Restaurant up to about April of 2020, and then the heavier job at Hungry Jack's. She confirmed in her oral evidence how she was off work for a relatively short period of time after the accident, before then returning firstly to Hungry Jack's and then back to The Main Cafe & Restaurant when COVID restrictions allowed. She confirmed that by about October 2021 she had returned to pre-injury duties and hours.
30The plaintiff was cross-examined about treatment, in particular with the physiotherapist, Mr Monaco. She was cross-examined about leaving a job in August of 2022 after the boss had been difficult, and she had had trouble managing her blood sugars after three particularly long days at work. That cross-examination was by reference to a clinical note in her general practitioner's records.[4]
[4] Defendant’s Court Book (“DCB”) 38
31Whilst accepting that that employment came to an end because of the difficult employer, the long hours and her blood sugars, the plaintiff also said that around that time she had begun again to notice some difficulty with her knee.
32She then confirmed in cross-examination that in October 2020 she obtained alternate hospitality employment. She has remained in that employment save for it being interrupted due to the happy occasion of the birth of her daughter and the need for a period of maternity leave.
33It was put to her that she was currently working the hours that her employer offers to her, which she accepted. She accepted that they were not modified duties. It involves her standing and doing barista or bartending type work, perhaps with some waitressing work, for five hour shifts, although sometimes they were extended out to 11 hour shifts if she does the luncheon/dinner service.
34The plaintiff described how the morning service was okay, but in her words, the second half is the difficult part. She accepted that she did some stocking, mopping and taking out garbage in her current employment. The hours vary and she prefers the shorter shifts, as described.
35She was asked in cross-examination whether her current employer could offer her 38 hours and she said no, and accepted that she works the maximum hours with this employer, that she is offered.
36In cross-examination the plaintiff stuck to her guns to some extent. She described how squatting is quite painful. She says she has a dull ache all the time, which sits at 3 out of 10, I note consistent with her most recent affidavit.
37She accepted that she has no treatment, but about three or four times a week she takes over-the-counter medication, more so in winter. She described how she tapes the knee for the longer shifts and used what was described as a sleeve for the shorter shifts.
38Notwithstanding her symptoms she accepted that she had not seen her general practitioner since May of this year, and that was an attendance for the purpose of the compilation of a medical report. She accepted that the last time she had attended her general practitioner for treatment was December 2022.
39The plaintiff was cross-examined again about Mr Monaco and physiotherapy. Broadly she accepted there had been some improvement with physiotherapy, but said there had been some decline since the physiotherapy ceased in September 2023. She described how she understood from that treatment that the knee was really "the best they can do." She then said that after Christmas she intends to investigate a return to physiotherapy.
40The plaintiff was cross-examined about some activities, such as tennis, which she candidly accepted that she had given up well before the accident. And at its highest it was something that she might have hoped to return to one day.
41She accepted that she can still walk and she said 30 minutes, no problem, but downhill sometimes after that. Noting that she said again candidly she has some good days. She accepted she still socialises with friends. She said how they meet her halfway. She accepted that she does the housework, cleaning, looks after the baby. Works, walks and socialises.
42It was put to her that her knee pain didn't interfere with daily activity, and again she stuck to her guns and disagreed with that. She said no.
43In re-examination, when asked about the physiotherapy, she described how there had been a patch of swelling on the inner side of her right leg or knee, just below the kneecap, which had motivated her to return to physiotherapy. She said in re-examination that the knee felt stiffer, and she gets a shooting pain at times with work. She thought the knee was worse since physiotherapy had ceased.
44While she accepted that she did the usual tasks she emphasised how tasks such as cleaning the bathroom were harder, she still cleaned the shower and did some mopping, but getting down or back up was difficult.
45I propose next to briefly deal with the medical evidence. I consider I can deal with it briefly because broadly most of it is singing from the same hymn sheet.
46In the context where immediately after the fall the plaintiff saw a general practitioner and had some conservative treatment, I note that she first commenced physiotherapy with Mr Nathan Monaco on 7 August 2020. And he first reported on 24 November 2022.[5]
[5] PCB 45
47Next the plaintiff first had orthopaedic assessment with Mr James Canty on 11 August 2020. Mr Canty provided a report dated 8 December 2022.[6] He confirmed the presenting history and the diagnosis. He noted the plaintiff had used a brace for a period of time, had physiotherapy and had otherwise returned to work.
[6] PCB 52
48He noted that at a review on 21 September 2021 a recent MRI had shown no acute issues, but he said the plaintiff did have some mild patellofemoral maltracking which he said was no doubt due to some muscular weakness and some associated secondary knee pain due to this. He noted physiotherapy had told her to work on building up her strength as well as some taping to assist with the patellofemoral maltracking, which he suggested would be the mainstay of treatment, describing how the rest of the knee was structurally sound.
49Mr Canty said treatment requirements were very much nonsurgical with physiotherapy for strengthening of the muscles to assist in better patellofemoral tracking as well as to take pressure off the joint. He said the PCL injury itself was fully healed. He said the plaintiff by then should be back to performing her usual certified practicing accountant on a full-time basis. He did not think the knee would be an impediment to normal suitable employment.
50In an overview opinion about prognosis, Mr Canty then said that the plaintiff's knee condition was nearly fully resolved with the acute injury fully united and only mild symptoms, although he qualified that by saying that was an opinion expressed 15 months ago and no review subsequently. But he did say that the condition being mild in nature usually does settle just through rehabilitation strengthening.
51The plaintiff has not been back to Mr Canty.
52The next practitioner to treat the plaintiff was Dr Neels Du Toit, a sports and exercise physician. The plaintiff presented to him on review from the general practitioner in January 2023. In a letter back to the GP dated 24 January 2023,[7] he noted the plaintiff had been treated conservatively but now two and a-half years later was struggling with knee pain on bending and she was unable to flex to the full range. He recorded the plaintiff as being concerned about knee swelling and also medial and lateral knee discomfort, and that she had experienced some clicking on walking. There had been some short-term benefit from an intraarticular steroid injection.
[7] PCB 55
53Dr Du Toit was sufficiently concerned about the plaintiff's symptoms to refer her to a knee surgeon, which is consistent with a letter he wrote to Mr Tim Whitehead, who I understand is an orthopaedic surgeon, also on 24 January 2023.[8] Mr Du Toit noted in that referral that he was looking for Mr Whitehead's expertise regarding a possible surgical procedure to clean out the base of the posterior cruciate ligament and free up knee flexion. There is no report or material from Mr Whitehead, but amongst the other medical evidence, I understand that Mr Whitehead apparently advised against surgery.
[8] PCB 56
54Next, there is the report from the plaintiff's current general practitioner, Dr Faye D'Souza at the Narre Warren Medical Clinic dated 8 May 2022.[9] That is broadly a supportive report although I think that needs to be qualified by the fact that the report and the clinical records reveal that Dr D'Souza has looked after the plaintiff for other conditions and not really seen her at all for the knee.
[9] PCB 57
55In that context, Dr D'Souza records the plaintiff as describing chronic right knee pain and ongoing restrictions. Dr D'Souza said the plaintiff might need further treatment by way of pain management or surgery. She said at that point though the plaintiff did not require assessment by any other specialist. She said overall, the plaintiff has shown good recovery and capacity in her return to work since the initial injury, but then said that chronic pain is unlikely to improve any further and potentially may worsen to secondary complications such as arthritis.
56Pausing there, this is not a proceeding in which there is strong evidence about the likelihood of the secondary complication of arthritis and to that extent I do not place great weight on what Dr D'Souza had to say about that.
57Turning next to the evidence from the treating physiotherapist, Mr Monaco. I've already mentioned his report of 24 November 2022. That report is of some limited utility given the date of it but I note at that stage he described the plaintiff's leg stability as improved but still provocative to a three out of ten pain on squatting with a single leg kneeling. He said the plaintiff's symptoms had settled with a variety of techniques, primarily being exercise, knee cap taping, soft tissue therapy and biomechanical retraining.
58He said the plaintiff still needed more time to settle. At that point he said regarding prognosis,[10] that in his opinion the plaintiff was likely to experience some ongoing anterior knee cap related pain for the foreseeable future. He said that did not indicate that her pain will be debilitating or severe as knee cap pain is well managed with modification to load and biomechanics and a consistent general lower leg strengthening program.
[10] PCB 51
59I note in fact that the plaintiff was around that time or soon after discharged from Mr Monaco's treatment. The evidence of that is contained in some correspondence in the defendant's court book. There is a letter from Mr Monaco back to the then treating general practitioner in which he said he was pleased to inform the plaintiff was being discharged from treatment.[11]
[11] DCB 124
60He said he'd reviewed her that day and discussed the excellent progress that had been made over the last six months and that she'd been a diligent participant in the gym program. He said the plaintiff reports to not have any issue with day-to-day activities, could then run and no longer limps following long 12 hours shifts. He said her only complaint is knee stiffness and discomfort when it gets cold which is likely to be an ongoing issue that the plaintiff will have to manage long-term.
61Mr Monaco then wrote to Dr Whitehead and Dr Du Toit on 4 September 2023.[12] He wrote, in his words, to touch base about her progress. He said he'd reviewed her recently and that the plaintiff had been feeling relatively good with maintenance of her regular exercise program.
[12] DCB 3
62He said at that time that he and the plaintiff had figured out that double shifts are the main culprit for her patella femoral and intra articular flare ups as her knee does not simply tolerate extensive or prolonged standing.
63He said objectively there was minimal swelling. There was very minor tenderness of the medial patella facets, inferior pole and Hoffa's fat pad. He noted quadricep bulk had improved and single leg squat control was quite impressive compared to months past. He said the knee was still limited to 130 degrees of flexion with a soft end feel.
64He said mobilisation to the patella and soft tissue therapy helped obtain and additional five degrees of flexion. He said that presented functionally with a deficit in kneeling which is aggravating. He described how he and the plaintiff had worked "tirelessly" on trying to optimise knee flexion and kneeling through stretching acentric exercises but none have seemed to normalise her flexion range.
65And he said that his impression was that her knee range will remain as is for the long-term. But overall he said he was pleased with the plaintiff's progress and diligence around that time to maintaining an independent exercise program. I understand the plaintiff had some further ongoing physiotherapy with Mr Monaco until May of this year.
66Dealing then with the medico-legal evidence. Firstly the plaintiff was seen for medico-legal purposes by Mr Raf Asaid, orthopaedic surgeon, at the request of the plaintiff's solicitors. The first of his reports is dated the 23rd of October 23.[13] He took a history that the plaintiff was then continuing to experience right knee pain which differs in intensity depending on her level of activity.
[13] PCB 59
67At a physical examination he noted the plaintiff to walk with a normal gait, had neutral lower limb alignment, had difficulty squatting, was unable to perform a single leg squat, had some evidence of right knee crepitus. Range of motion was through from zero to 130 degrees, and there was some mild posterior cruciate ligament laxity, and a posterior test.
68Pausing there, I note that examination finding to be broadly consistent – not only with Dr Du Toit, but also with Mr Monaco as described. In any event, at that time Mr Asaid said the plaintiff was likely to be restricted in performing more physical tasks or activities that include repetitive pushing, pulling, lifting, bending, kneeling and squatting, which may impact her ability to work long shifts in the hospitality industry.
69He also had a history that she was strapping or bracing the knee. He said the plaintiff might benefit from further physiotherapy. At that time he said given the three years since the injury, the ongoing persistent knee pain, the chronicity of symptoms, that the condition was likely to persist for the foreseeable future.
70Mr Asaid then reported again on the 27th of March 2024.[14] That report is broadly consistent with his earlier one. He reported again that the plaintiff continued to experience right knee pain which differs in intensity, depending on her level of activity, described by him as a constant dull ache that can occasionally become a sharp pain.
[14] PCB 65
71Again he recorded a range of motion from zero through to 130 degrees, and posterior cruciate ligament laxity. He repeated his earlier diagnosis and opinion that the plaintiff is likely to be restricted for more physical tasks. He noted the plaintiff was independent in day to day activities, but they were performed slowly. And he noted that the plaintiff had described increased knee symptoms, for example with driving for long periods or longer walks, and that the plaintiff struggled to get off the floor to play with her daughter, or pick her up from the floor. He otherwise repeated his opinion regarding prognosis.
72Next is a report from the occupational therapist and acupuncturist, Mr Arum Sharma, to the plaintiff's solicitors dated the 24th of May 2024. In that report right knee flexion was recorded at 130 degrees with moderate pain.
73There was then described the plaintiff's return to employment and difficulties described to Mr Sharma. Broadly that report does not really advance things much beyond what I have already read out from the opinion of Mr Asaid. For what it is worth, Mr Sharma reported again on the 9th of November this year.[15]
[15] PCB 82
74As a catch all opinion, having reviewed some of the other medical reports, Mr Sharma said that based on the assessment as set out in his earlier report, he believed that due to a reduction in the plaintiff's endurance following persisting pain, reduced range in the right knee, difficulties with lifting, kneeling, squatting or managing stairs and slopes, the plaintiff was likely to remain on reduced hours of employment. Next in the plaintiff’s court book is the opinion from Dr Joseph Slesenger, a specialist occupational physician, that was commissioned at the request of the defendant's solicitors, not that much turns on that in the context of expert evidence.
75In the report dated 19 September 2024,[16] Dr Slesenger took a similar history, as I have already set out from the other doctors. But relevantly I note he recorded the plaintiff telling him that she can walk, stand and sit for about 30 or 60 minutes, although on the whole she is more comfortable in standing.[17] That she had told him she had difficulty climbing up and down stairs, walking on uneven ground, and unable to squat or to kneel.
[16] PCB 88
[17] PCB 91
76He had a history of the plaintiff's return to work. On examination he noted a mild right-sided limp. He recorded flexion through to 160 degrees, which is a little more than the others had documented. He conducted a review of the various medical reports and then said, regarding prognosis, that given the length of Ms Drew's impairment and disability, the limited response to treatment to date, she was likely to have residual right knee impairment, although the knee was stable, and she had a well preserved range of movement.
77He opined that the plaintiff should continue to engage in a self-managed exercise program. He opined that the plaintiff had a residual capacity for work, but with restrictions, as no pushing, pulling, carrying or lifting over 10 kilograms.[18] To avoid squatting and kneeling. Avoid walking over uneven ground. Avoid standing greater than one hour without a five minute break.
[18] PCB 100
78He expressed an opinion that he was concerned about the viability of the plaintiff's then return to work arrangement. Recommended a cautious approach to returning to work, and should work within the restrictions set out.
79He then noted the history of the double shifts and said that he anticipated that factors such as that had also impacted on her return to work arrangements.
80I do not propose to deal with the opinion from Associate Professor Doherty, Consultant Psychiatrist, as I do not consider it is relevant to an assessment of a knee injury.
81That brings me to the remaining medico-legal opinion which is that of Dr Anthony Menz, a consultant orthopaedic surgeon. He reported for the defendant's solicitors by a report dated 7 August 2024.
82Mr Menz took a history from the plaintiff, including current symptoms and treatment. He took a history that the plaintiff's symptoms were, described by him, as an ache which she rated as about 3 out of 10.
83Regarding daily living, he took a history that the plaintiff could do the cooking, cleaning and washing around the house, but that it took her longer. She can drive her car short distances. Has a walking time-frame of about an hour.
84He conducted an examination of the knee, and opined that the plaintiff could flex to about 135 degrees on the right, whereas 150 on the uninjured left. Unlike Mr Asaid he found a negative posterior draw test indicating good stability of the knee joint, and the other ligaments were intact. He said there was some mild medial joint line tenderness. No effusion or swelling.
85I note at the time that Mr Menz examined the plaintiff she had only returned to work for a few weeks after the birth of her daughter. That was highlighted by Mr Menz in his opinion. In any event, he diagnosed the avulsion fracture injury. He then described the short and long-term prognosis as excellent. That the plaintiff had made a very good recovery. The knee was stable and had good joint function.
86Regarding work, he said the plaintiff had recently had a baby and had only just returned to work, about 15 hours a week, and there was plan to increase it up to 24 hours. That was effectively the end of his opinion.
87Mr Menz's opinion that the plaintiff has an excellent prognosis and has made a very good recovery on one view could be a matter of language or semantics, but if what he is seeking to convey is that effectively there is really nothing wrong with the plaintiff's knee, then I do not accept that opinion. In the words of the plaintiff's counsel, I accept the submission that he is something of an outlier.
88Turning then to tie some threads together, and namely whether or not the plaintiff has made out a very considerable consequence - first, I note that the plaintiff is relatively young at 37 years of age. I note that the injury occurred about four and a-quarter years or so ago. Leaving to one side Mr Menz, the thrust of the medical evidence really is that the plaintiff's recovery has plateaued and in lay terms, things are now as good as they are going to get. I guess the question really is in that context whether as good as it gets has or has not made out a "very considerable" consequence.
89I take into account the fact that the plaintiff has a significant diabetic condition. I accept her oral evidence that meant she had to steer away from the nine to five type employment to hospitality-type employment which while she enjoyed also gave her the flexibility to manage her other medical conditions. To her credit, she has returned to that hospitality-type employment, but I think it should not be forgotten that to some extent that has been forced on her because of the fact that she does need to manage and to have the flexibility to deal with her unrelated diabetic condition.
90The plaintiff to some extent could be described as a stoic, and it has often been said it would be wrong-headed to treat a stoic person differently to someone who more readily succumbs to their injury. I consider her a stoic in the sense that she has gone back to the employment that gives her the flexibility to manage her diabetes and the employment that she enjoys rather than succumb to her injury and perhaps seek out some part-time sedentary type employment, which I have no doubt she has the intellectual capacity to perform. But balanced against that, she is not a stoic in the sense of someone with intractable and severe pain who is battling on at work, notwithstanding intractable and severe pain.
91Nevertheless, I accept that the plaintiff does have constant knee pain. I accept her affidavit evidence, consistent broadly with the other evidence, including what she has said to the doctors and in a setting where her credit is not in dispute that she does have a baseline level of pain as three out of ten. The broad thrust of the evidence is that the plaintiff is able to do many daily activities, but the more she does, the more pain she has. I accept that that makes daily activities difficult for her. I accept that at times she needs to rest. I accept at times she simply has no choice, for example when looking after her daughter or completing a longer shift, other than to push through and put up with pain.
92In respect of treatment, this is a proceeding in which no-one suggests there is some form of treatment that will make much of a difference to her baseline level of symptoms. In other words, there is no suggestion of some potential treatment which will fix the problem. In that context, I consider it highly relevant that the plaintiff is only 37 years of age and in circumstances where the evidence tends to the conclusion that the plaintiff not only enjoys work but financially needs to work, that she will have to put up with symptoms when working, and I accept her evidence that she has difficulty with housework and looking after her daughter, but nevertheless in the context where her partner works full-time, she does those activities even if they cause pain.
93I am also conscious that children only get more active as they get older and that the plaintiff is currently in that perfect sweet spot where you can sit a child in one spot and they'll still be there when you come back but that is likely to change in the very near future.
94I expect that the plaintiff is a loving and caring mother and will be active in her daughter's life but equally I accept that she had pain when doing that and in that context I think the question of her stoicism is more relevant.
95At the end of the day in the consideration of a value judgement and perhaps what could be described as a synthesis of all relevant considerations, in what is something of a finely balanced conclusion, ultimately I am persuaded that the plaintiff has a "very considerable" consequence in particular because of her relatively young age, the length of time since the injury, the chronicity and constant symptoms and the flare up with activity. I accept they are all things that she is going to have to put up for the balance of her life.
96Accordingly, I shall grant leave to the plaintiff to commence a common law proceeding for pain and suffering damages.
97I shall hear from the parties as to consequential orders.
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