Fiske v VWA
[2020] VCC 48
•7 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-02277
| STANLEY FISKE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November 2019 | |
DATE OF JUDGMENT: | 7 February 2020 | |
CASE MAY BE CITED AS: | Fiske v VWA | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 48 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – application in respect of pain and suffering damages only – reliance on paragraph (a) of the definition of serious injury – injury to the right knee and leg – specific incident in course of employment – alleged later consequence being injury to left shoulder when plaintiff fell as a result of right knee giving way – whether statutory test satisfied – factors to be considered
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms H Donmez | Verduci Lawyers |
| For the Defendant | Ms F Ryan | IDP Lawyers |
HIS HONOUR:
(a) General background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (hereinafter referred to as “the Act”). The plaintiff seeks leave to bring proceedings for damages in respect of pain and suffering only. In so doing, he relies upon paragraph (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
2 The injury relied upon is one to the right knee and leg and shall hereinafter be referred to as “the injury”. The injury occurred on 6 July 2013, when the plaintiff fell whilst he was working. This shall hereinafter be referred to as “the accident”. At the time, the plaintiff was employed by an entity called Scope (Vic) Pty Ltd, which shall hereinafter be referred to as “Scope”. The nature of the plaintiff’s employment was that of a disability support worker. The occurrence of the fall is not disputed and liability in respect of the claim made by the plaintiff at the time was accepted. I would refer to Transcript (hereinafter referred to as “T”) 7.
3 There are a couple of features of this application which lift it out of the ordinary. Firstly, the plaintiff suffers from quite profound deafness. In relation to his giving evidence, this was a problem which was largely overcome. Secondly, the plaintiff subsequently suffered an injury to his left shoulder, this allegedly occurring when his right knee gave way on him when he was on a bus and he fell. This appears to have happened in mid-2019. This resulted in an absence from work and surgery. It was the basis for a separate and accepted claim. Its relevance is that it is argued that this was in turn a consequence of the left knee injury. I shall return to arguments concerning this proposition subsequently. I might add that it was conceded by counsel for the plaintiff that the plaintiff has undergone comparatively recent surgery for his shoulder on 20 August 2019, and it is too early to know whether or not he will be left with a long-term problem.
4 Ms H Donmez of counsel appeared on behalf of the plaintiff. Ms F Ryan of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of three affidavits as being true and correct. The balance of the evidence was documentary in nature and was tendered either by consent or without objection. I might add that this was a matter that was conducted in a concise and efficient manner and, at times, despite some difficulties. Counsel are to be congratulated in this regard.
(b)The plaintiff’s background, education and employment prior to the accident
5 The plaintiff is aged 62 years, he having been born in 1957. He is a married man with an adult son. He was educated to Year 11 level. Upon leaving school, he completed a course in painting and decorating. He moved from Benalla, where he had been born, to Melbourne and obtained an apprenticeship as a signwriter. When he obtained his qualifications, he commenced his own business in that industry. He travelled for some years before settling in Western Australia, where he remained for eight years, whilst continuing his signwriting business. He then worked with his brother in a printing business for some 15 years.
6 Ultimately, he returned to Victoria. At some point he retrained and obtained a Disability Diploma Certificate IV. He commenced employment with Scope in approximately 2009. For some 18 months he cared solely for one person, but then undertook work for accommodation residents. Ultimately, and at the time of the accident, the plaintiff was employed by Scope as a disability support worker at a care house in Lincoln Road, Croydon.
(c) The plaintiff as a witness
7 The plaintiff impressed me as a completely genuine and straightforward witness. Associate Professor Miron Goldwasser, orthopaedic surgeon, who examined the plaintiff at the request of the defendant, described him as being friendly and cooperative. Dr David Barton, occupational physician, also examining the plaintiff at the request of the defendant, described him as presenting in a straightforward manner. The plaintiff seemed to me to be a person who was doing his best to give honest and accurate answers, even if, at times, they were not particularly helpful to his case.
8 In her closing address, Ms Donmez described the plaintiff as being credible, stoical and motivated. I indicated at that time that I had no difficulties with his credit – see T45 – and that continues to be my opinion. Indeed, this case was fought essentially on medical issues and the plaintiff’s credit was not the subject of attack. As stated, both his claim in relation to his right knee injury and that in relation to his left shoulder were accepted.
(d) The state of the plaintiff’s health prior to the accident
9 There is no indication that the plaintiff suffered from any prior orthopaedic problems, and particularly not in relation to his right knee and leg or, for that matter, his left shoulder. He has had a couple of conditions, such as benign prostatic hypertrophy, but there seems to me to be nothing of particular relevance or importance in the plaintiff’s medical history. As mentioned, he is quite profoundly deaf.
(e) The injury, its treatment and diagnosis
10 The plaintiff slipped and fell in the course of his employment on 13 June 2013. He was in immediate pain. He was conveyed home by work colleagues and on the following morning went to the Emergency Department at Melbourne Eastern Private Hospital. An MRI of the right knee was carried out on 16 July 2013. The conclusion of the radiologist was that the plaintiff had suffered a complex tear of the body and posterior horn of the medial meniscus. I might add that the nature of the tear was described in considerable detail, which would certainly seem to be consistent with it being considered complex. Moderate degenerative changes within the medial femoral tibial compartment with widespread thinning of articular cartilages, along with some chondral ulceration, was also reported.
11 It is apparent that the plaintiff’s treating and general practitioner, Dr Nalini Hooper, referred the plaintiff to Mr Rodney Richardson, orthopaedic surgeon, who reported back to Dr Hooper on 17 July 2013. To Mr Richardson, the plaintiff described “excruciating pain” for a few days, but the pain had settled. Nevertheless, there was continual pain, significant swelling, and the plaintiff required crutches to assist with mobilising. Mr Richardson had seen the MRI, which he also referred to as demonstrating a complex tear of the medial meniscus. He was of the view that this was clear as the cause of the plaintiff’s severe pain. He recommended a right knee arthroscopy.
12 Approval was obtained for the performance of the surgery. Mr Richardson performed a right knee arthroscopy on 2 September 2013. Amongst other changes, which read as if they were consistent with some degeneration, Mr Richardson found a complex tear of the posterior horn and body of the medial meniscus. This required resection of the body and posterior horn back to stable margins. A letter from the authorised agent of the defendant makes it clear that approval for such surgery had been granted. The plaintiff was off work for approximately three months following the surgery and returned on light duties and office work. Ultimately, he returned to normal hours and duties.
13 Reports have been obtained from the plaintiff’s longstanding general practitioner, Dr Guy Campbell. Dr Campbell is based at the same clinic as Dr Hooper and would appear to have been the plaintiff’s family doctor for many years. In any event, in a report of 19 July 2016, Dr Hooper stated that he first saw the plaintiff on 31 July 2013. This was after the plaintiff had first seen Mr Richardson, but was awaiting surgery. At this time, the plaintiff was still on crutches. Dr Hooper reported that, following the surgery, the plaintiff engaged in a return to work plan from 30 September 2013, with increasing hours of work and the undertaking of physiotherapy. When seen, the plaintiff’s right knee was globally swollen and he was unable to weight bear.
14 Dr Campbell provided a lengthier report on 22 August 2019. A more detailed history of events was obtained, including the fact that, when the plaintiff returned to work, he was still on crutches. Dr Campbell also stated that, some six years later, the plaintiff is still unable to do what he used to do. He experiences chronic pain requiring analgesia, has decreased ability to walk, and has great trouble with tasks around the house. Anything requiring stepping up or kneeling down is a problem, as are activities such as gardening. Getting in and out of cars and public transport is also difficult due to the inherent instability and pain in the plaintiff’s knee. He has some good days when he is quite able to carry out cleaning and maintenance around the house, but has a chronic limp. On the plaintiff’s bad days, which occur three to four days per week, it hurts him to walk. He requires analgesia. He struggles at work due to the distances which he is required to ambulate and the physical nature of much of his work.
15 Dr Campbell reported that the plaintiff can no longer undertake activities which he used to enjoy, such as indoor soccer, which he coached, and dancing on social occasions. He is mentally more hesitant to engage in social occasions and activities. Dr Campbell was of the view that the plaintiff’s current condition was the result of the injury and meniscal tear, as well as general degenerative change, which would increase with time.
16 A report from the plaintiff’s treating physiotherapist, Mr Aidan Rich, dated 17 June 2019 was also tendered by the plaintiff. Mr Rich first saw the plaintiff in respect of the injury on 15 August 2017. He took a quite detailed history. The plaintiff told him that his knee had never returned to normal. He had ongoing difficulty with squatting and the intensity of the symptoms varied. The plaintiff had to take occasional breaks from work due to his knee symptoms. He had undergone dry needing or acupuncture with temporary relief. He was taking occasional Voltaren at the time of the initial assessment, and this gave good benefit.
17 Mr Rich noted an x-ray of the plaintiff’s right knee of 22 May 2015. This showed moderate narrowing of the medial compartment, suggesting moderate osteoarthritis. There was also mild narrowing of the lateral compartment and the patellofemoral joint, again suggesting mild osteoarthritis. A well-defined ossicle was seen adjacent to the tibial tubercle. Mr Rich reported that a further x-ray had been performed on 18 May 2017. The report in relation to this x-ray was also placed in evidence. The conclusion of the radiologist was that there was medial compartment osteoarthritis. Mr Rich seems to have had access to a lengthier report than that placed in evidence, although it did say that the medial compartment was substantially narrowed on the weight bearing view.
18 In any event, the diagnosis of Mr Rich was of medial knee joint osteoarthritis following the injury. Further, there was some deconditioning and loss of strength in the right lower limb. He expressed the view that the accident was the cause of the plaintiff’s injuries. However, he had not treated the plaintiff since August 2017. A further MRI was carried out on 8 November 2019, but this was in the context of a medico-legal examination. There will be some discussion concerning it subsequently.
19 The plaintiff has also been seen for medico-legal purposes. At the request of his solicitors, he was seen by Dr Craig Mills, orthopaedic surgeon, on 10 July 2019, Dr Mills reporting on 6 August. He took an appropriate history, including the fact that the plaintiff, having commenced on modified duties, had progressed to full duties, but noted that there were occasions when he required assistance with some of the heavier aspects of his work. The plaintiff informed Dr Mills that he had stabbing pain in the medial aspect of the right knee, particularly with squatting and kneeling-type activities or standing for prolonged periods, or walking and twisting. He had a standing tolerance of 20 minutes and was able to walk for 20 to 30 minutes. He could drive and was able to carry out the bulk of his occupational tasks.
20 Dr Mills recorded that the plaintiff was undergoing monthly trigger point management and needling. In addition to his current knee symptoms, his back had become increasingly stiff and the transfer of load to the other leg had led to increasing medial left knee pain on the left side. He was taking Voltaren on an as-required basis and occasional Panadeine, both for treatment of his painful knee. His knee caused him insomnia and occasionally restricted him from performing his duties, but largely he was able to push through and manage his life acceptably, performing all required tasks, but perhaps more slowly and with some increased discomfort. Dr Mills also noted that the plaintiff had torn a tendon in his left shoulder as a result of a fall and was on a waiting list for repair.
21 The opinion of Dr Mills was that the plaintiff had a history of an asymptomatic knee being injured as a result of a twisting fall at work. He had been treated with arthroscopic debridement of the medial compartment, with rapidly progressive osteoarthritis of the medial knee as a result. The findings were consistent with progressive osteoarthritis of the right medial knee, with limited motion and marked tenderness consistent with the diagnosis.
22 Dr Mills was of the view that there were no grounds for “previous apportionment”, he noting that there may have been some pre-existing osteoarthritis. There was a clear link between the injury at work and the diagnosis of medial compartment meniscal and chondral injury, which had now progressed to osteoarthritis as a result.
23 Whilst the plaintiff was currently coping with work, social and domestic life, it was likely that, in the near term, there would be further substantial deterioration and surgical intervention may be required. There was “a moderate negative effect” on all work, social and domestic life in the foreseeable future. This would become moderate to severe in all three areas. In the opinion of Dr Mills, the accident would appear to be the substantial causative factor of the progressive osteoarthritic condition. The condition was close to deteriorating, with probable surgical intervention required.
24 It is apparent that a further MRI was carried out on 8 November 2019, this apparently being at the request of Mr Peter Lugg, who examined the plaintiff at the request of the defendant. I shall turn to this shortly. In any event, the report of the MRI was forwarded to Dr Mills for his further opinion, he reporting on 22 November 2019. The report of Mr Lugg was also considered by Dr Mills. He stated that such report goes into great detail and has quibbles over most points, but largely agrees with what Dr Mills described as “the most important point”. In other words, Dr Mills stated that Mr Lugg agreed that the injury at work led to a substantial progression, aggravation, acceleration or further speed of change to the arthritis of the knee. Therefore, Mr Lugg was agreeing with the opinion of Dr Mills. Accordingly, Dr Mills was of the opinion that there was nothing which required him to alter his original report.
25 Turning to the MRI report of 8 November 2019, the conclusion of the radiologist was that there had been a partial medial meniscectomy. There was advanced loss of articular cartilage in the medial compartment of the tibiofemoral joint with moderate to advanced loss of articular cartilage in the lateral compartment of the tibiofemoral joint and in the patellofemoral joint. There was limited joint effusion with associated popliteal cyst. There were features of old and Osgood-Schlatter disease.
26 The defendant has also organised examinations of the plaintiff. Dr David Barton, consultant occupational physician, reported to the defendant on 21 November 2013. Of course, this was only approximately four and a half months after the accident. At this time, the plaintiff was employed only on a part-time basis and, as stated, Dr Barton is an occupational physician. In the event, he described the plaintiff as presenting in a straightforward manner. Dr Barton noted that the condition had been accepted as being work-related. Dr Barton found no particular area of tenderness of any joint effusion. He thought that there was a full range of movement. He expressed the view that the plaintiff had persisting, but resolving, dysfunction of the knee following a meniscal injury treated surgically. Overall, this report is not of great assistance, being the report of occupational physician prepared very soon after the accident.
27 Associate Professor Miron Goldwasser, orthopaedic surgeon, saw the plaintiff at the request of the defendant on 24 April 2018. He took an appropriate history, including that the plaintiff had no previous problems with his right knee. He noted that the plaintiff had occasional exacerbations of pain, needing occasional days off totalling between two and four weeks per year. The plaintiff continued to have pain in the right knee, present at least 50 per cent of the time and particularly in relation to activities. The plaintiff had trouble walking on uneven ground and avoided the use of ladders. For example, he had difficulty negotiating the step on the bus. The plaintiff was seeing a local doctor as necessary and was taking 5 to 10 Voltaren tablets a week. He was also taking Panadeine Extra, two or three a day, and using Voltaren cream three to four times per week. In addition, he used heat packs approximately six times per week and particularly at night time. He also performed home exercises five days per week and attended physiotherapy when there was a flare-up.
28 The plaintiff told Associate Professor Goldwasser that his activities were reduced. He did less walking, very little renovating (of which he used to do a lot), was slower when undertaking any gardening, had to take frequent breaks and avoided the use of ladders. He was obtaining some temporary relief from acupuncture. It is fair to say that Associate Professor Goldwasser seemed to be impressed with the plaintiff as an individual.
29 In Associate Professor Goldwasser’s opinion, the plaintiff had suffered a right knee injury, probably soft tissue in nature, aggravating previously symptom-free degenerative changes in the knee. Investigation had also revealed a tear of the medial meniscus. Associate Professor Goldwasser referred to the surgical treatment and physiotherapy. He was of the view that the plaintiff’s condition had now been much the same for a long period of time and noted that there was no current plan for further surgical treatment. He believed that the condition was unlikely to change substantially and was prepared to make an assessment of Whole Person Impairment. Associate Professor Goldwasser saw the plaintiff on the one occasion only.
30 Mr Peter Lugg, orthopaedic surgeon, saw the plaintiff at the request of the defendant on 15 October 2019, reporting five days later. It is to be remembered that he seems to have organised the MRI of 8 November 2019. The plaintiff told Mr Lugg that, following the surgical procedure, he was a little better, but had never really improved significantly. The plaintiff considered the knee to have had ongoing pain and occasional swelling since the arthroscopy, although there was a little improvement immediately after it.
31 In addition, the plaintiff described how he had slipped and fallen when his right knee had given way on him when he was on a bus. He injured his left shoulder, resulting in a recent acromioplasty. The plaintiff complained of a constant background of pain on the inner aspect of the right knee, occasionally with stabbing or sharp pain in the same area. That is usually brought on by periods of prolonged walking, standing or twisting. Sometimes there was swelling. The plaintiff’s standing and walking tolerance was about 20 minutes. He cannot crouch down. He receives assistance at work in relation to some of the tasks. Such things as heavier physical tasks around the garden, the mowing of the lawn and the like are well-beyond him. He made a similar observation concerning his ability to coach his son’s underage team.
32 The plaintiff’s current treatment regime consisted of four physiotherapy visits every six months. There was a plan on foot in relation to hydrotherapy. Mr Lugg did not enquire about medication. Mr Lugg stated that there was a background of medial pain, with occasional swelling and episodes of more severe, stabbing pain.
33 Mr Lugg diagnosed medial compartment degenerative change. He seemed to have some doubt about the efficacy of an arthroscopy in such a situation. He thought it extremely unlikely that the plaintiff’s work injury actually caused the current state of his right knee. Mr Lugg did not believe that the meniscal tear was one typical of a traumatic tear. He believed that it was degenerative change, the cause being constitutional in nature. He thought that, at best, the injury caused some of the degenerative cartilage on the medial femoral condyle to displace and/or become unstable.
34 Mr Lugg was asked to make comments concerning various observations contained in the report of Dr Mills. In relation to a history of the plaintiff having stabbing pain in the medial aspect of the right knee, particularly with squatting and kneeling-type activities or standing for prolonged periods or walking and twisting, the opinion of Mr Lugg is not altogether easy to understand. He thought it could be true that the lateral patellofemoral compartments now appeared to be involved, with degenerative change as well. However, he did not believe that the plaintiff had rapidly progressive osteoarthritis, believing it to be gradually progressing. Mr Lugg thought that the gradually worsening symptoms were simply due to the gradual progression of degenerative change. He did not think that the injury would have caused the arthritis, but might have made the small area on the medial compartment that was particularly affected become a symptomatic one.
35 Mr Lugg believed that there would be a continual relatively slow deterioration in the plaintiff’s condition. However, it was possible that he would suffer a substantial deterioration in the near term. That had not yet happened. Mr Lugg did not believe that the plaintiff currently had severe osteoarthritis of the knee and thought that, with appropriate non-surgical management, he might be able to cope for a further few years. There was a 50 per cent chance that there would be the need for surgical intervention.
36 He again expressed the view, based upon the radiological investigations, that the plaintiff’s right knee was one with mild to moderate osteoarthritis, and in particular of the medial compartment. It remained the symptomatic compartment. He believed that, even without the accident, the plaintiff would have developed a symptomatic knee by now. Even if there was no history of presentation to his doctor concerning this prior to the accident, Mr Lugg thought that his opinion would remain the same.
37 Having viewed the results of the MRI scan of 8 November 2019, Mr Lugg stated that the medial compartment disease had now advanced to moderate to severe degenerative change. There were still some areas of only partial loss. However, he suggested that the progression was now advancing moderately quickly, but not rapidly. There was likely to be further deterioration, Mr Lugg expecting that there might be the need for a knee replacement within two to three years.
38 However, Mr Lugg’s opinion concerning the causative factors changed little following his obtaining the results of the recent MRI. It remained his opinion that the injury did not cause the complex tear of the medial meniscus or the degenerative changes already present. He continued to be of the view that the plaintiff “… would have presented with similar symptoms as he did which led him to have the arthroscopy, for some other relatively simple injury in day to day life”.
39 However, he also added that the removal of a significant part of the posterior third of the medial meniscus, as stated in the recent MRI scan, may have played a role in the more rapid progression of the degenerative change. If a meniscus has a mobile unstable tear, this would also have contributed to the progression of change. Therefore, in the opinion of Mr Lugg, there may be a small contribution from the fact that the plaintiff ended up having an arthroscopy and resection of a tear of the medial meniscus and that the injury did occur at work. Mr Lugg then modified that opinion to the extent that he stated that the plaintiff had moderate underlying degenerative change of the medial compartment at the time of the arthroscopy not caused by the twisting injury and that this change would have deteriorated anyway. It may not have done so as quickly as it now has, but this is something which is open to argument.
40 Mr Lugg observed that no one could really quantify the contribution from the removal of part of the degenerative meniscus. He wondered if there had not been some old injury to the knee, given that the degenerative changes were in the right knee but not the left. However, he considered it more likely that the degenerative change was based on hereditary factors or on the fact that the plaintiff had gout.
41 Mr Lugg concluded with an interesting observation as follows:
“I don’t think anyone can be more accurate in answering these questions than I have, and it is very difficult to make an accurate judgement on these matters.”
42 As earlier indicated, the report of Mr Lugg was forwarded to Dr Mills. I would again refer to the letter of Dr Mills of 22 November 2019. It is apparent that he interpreted the report of Mr Lugg as concluding that the injury at work led to a substantial progression, aggravation, acceleration or further speed of change to the arthritis of the knee. He observed that Mr Lugg had noted the role played by menisci and that removal because of tear or symptoms had sped up the condition of the knee. Reference is again made to the comments of Dr Mills set out in paragraph 25 above.
43 In my opinion, the injury suffered by the plaintiff in the accident is the rendering symptomatic of previously asymptomatic degenerative changes in the right knee, this resulting from the trauma involved. This included a tearing of the medial meniscus. I would also accept that, the injury having occurred, there has been rapidly progressing osteoarthritis as a result. This, essentially, is the opinion of Dr Mills and is set out by him with some clarity.
44 This is similar to the conclusion reached by Associate Professor Goldwasser, examining on behalf of the defendant, who described the injury as being of a soft tissue nature, but aggravating previously symptom-free degenerative changes in the knee. He also refers to a tear of the medial meniscus. It is of interest that Associate Professor Goldwasser was prepared to make an assessment of impairment evaluation in accordance with the AMA Guides.
45 Dr Campbell has expressed his opinion in somewhat simpler terms, saying “Yes, the accident was a cause of the injury”. He has also stated that the plaintiff’s current condition is the result of the injury.
46 I find the opinion of Mr Lugg to be more difficult to accept. He saw the plaintiff on 15 October 2019. At that time, and other than a couple of plain x-rays, there had been no MRI or ultrasound procedure since October 2013. Mr Lugg does not seem to have challenged or doubted the description given by the plaintiff of his symptoms, nor made any particular enquiry as to whether the plaintiff suffered any symptoms prior to the accident, although noting that previously he used to be able to do a lot more than he can now. He does not seem to have contested the proposition, advanced by the plaintiff, that the symptoms have progressed and certainly not improved. This appears to include the assertion by the plaintiff that he was suffering stabbing or sharp pains and that they were worsening.
47 It is also to be remembered that Mr Lugg effectively organised the MRI of 8 November 2019, following which he observed that the plaintiff’s medial compartment disease had now advanced to moderate to severe degenerative change. He did change his opinion of the causative factors “a little”. His opinion continued to be that the injury did not cause the complex tear of the medial meniscus or the degenerative change already present. He also expressed the view that the plaintiff would have presented with similar symptoms which led to the arthroscopy “for some other relatively simple injury in day to day life”.
48 Of course, the fact remains that the plaintiff, when at work, suffered the admitted incident of injury, had to be driven home in the work bus, and helped into bed by his colleagues, before attending at the emergency department of a hospital on the following day.
49 However, it is of interest that, in his concluding paragraphs, Mr Lugg conceded that the removal of part of the medial meniscus may have played a role in the more rapid progression of the degenerative change and that:
“… there may be a small contribution from the fact that he ended up having an arthroscopy and resection of a tear of the medial meniscus and that injury did occur at work.”
50 I also note that Mr Lugg effectively concluded by speculating as to whether there was some old injury to the knee. This appears to be despite the fact that the plaintiff did not mention such occurrence and that Mr Lugg appears to have recorded very little of his pre-accident history.
51 The bottom line is that I prefer the clear opinion of Dr Mills, which effectively coincides with that of Associate Professor Goldwasser and of Dr Campbell.
52 In her closing submissions, Ms Ryan referred me to the decision of the Court of Appeal in Bezzina v Phi & Anor [2012] VSCA 161. That decision does not seem to me to be of great assistance to the defendant in the present case. In Bezzina, the plaintiff (appellant) suffered from pre-existing injuries of sufficient magnitude for him to be already in receipt of a disability pension prior to the transport accident which was the subject of the litigation in question. The Court of Appeal found that the judge at first instance, her Honour Judge Cohen:
“… was bound, when examining the consequences of the claimed serious injury, to look at how they affected the applicant as he was and would likely have been absent the injuries he sustained in the transport accident. This included looking at and considering the effect (and likely effect in the future) of the applicant’s pre-existing injuries.”
53 Indeed, there appears to have been no criticism by their Honours in relation to her Honour Judge Cohen saying during the course of the hearing that she:
“had to look at … what his level of functioning in total was just before the transport accident and what worsening on a long term basis has been brought about by the injuries suffered in the motor accident …”
54 I would point out that, in Bezzina, the Court of Appeal was dealing with specific pre-accident injuries at work, essentially, of a different nature. If one looked at the present plaintiff’s level of functioning just before the accident it was, for all intents and purposes, unimpeded. The “worsening” that occurred as a result of and following the accident is apparent.
55 In Bezzina, her Honour Judge Cohen referred to the fact that, before the accident, the plaintiff already had a very modified and limited lifestyle “due to pre-existing conditions”. There were very few changes in the mode and parameter of the plaintiff’s activities since the accident. The Court of Appeal quoted these extracts from her Honour’s Judgment with apparent approval.
56 In the present case, there is no suggestion of the plaintiff already having a very modified and limited lifestyle due to pre-existing conditions. There is no evidence of him suffering pain of any great moment or of there being interference with his lifestyle or pattern of sleep. In short, whilst it was quite proper of Ms Ryan to refer me to the decision in Bezzina, my overall impression is that the observations of the Court of Appeal are not detrimental to the plaintiff, given the factual background to this case, and in fact may assist him.
57 In any event, I refer to and repeat my finding as to the nature of the injury suffered by the plaintiff.
58 Whilst it may be that at least one aspect of the injury is that there was aggravation of a pre-existing condition, I am totally satisfied that such condition had been totally asymptomatic. The speculation of Mr Lugg as to the plaintiff having suffered an earlier injury to the knee is just that – speculation, in a situation where he does not seem to have made any particularly detailed enquiry as to the plaintiff’s medical history. Both Associate Professor Goldwasser and Dr Mills enquired as to the plaintiff’s past history, and in neither instance was there any reference to earlier knee injuries.
59 I am also of the opinion that the consequences of the injury are permanent within the meaning of the Act in that they will persist for the foreseeable future. Associate Professor Goldwasser was prepared to make assessments of permanent impairment. He also observed that the plaintiff’s condition had been much the same for a long period of time. Mr Lugg stated that there was a 50 per cent chance that the plaintiff would need surgical intervention within the next few years, but also stated that, if the plaintiff lost weight, he may cope for many years. Further, Dr Mills stated that there existed moderate negative effects on all of the plaintiff’s work, social and domestic life and in the foreseeable future this would become moderate to severe. As pointed out by Dr Campbell, six years after the accident the plaintiff is unable to do what he used to do.
60 I am satisfied that the consequences of the injury are permanent within the meaning of the Act.
61 There is no suggestion of any psychological or psychiatric consequences of the injury. Any that might exist will not be taken into account, but the evidence, along with the plaintiff’s presentation, would suggest that any such consequences are either non-existent or negligible.
Other developments since the injury
62 After the accident, the plaintiff was absent from employment for approximately three months. Upon his return to work, he was given light duties and performed some office work. Eventually he returned to normal hours and duties. He relies upon his colleagues a lot and is of the view that, without them, he would not be able to work. He works four out of seven days, and, after four working days, sleeps the next day. As earlier discussed, in mid-2019 he fell and suffered the injury to his left shoulder. There have been no other relevant developments of note since the accident.
Ruling
63 I am of the opinion that the plaintiff has discharged the burden of proof. I have come to that conclusion for the following reasons, which are not set out in order of importance or significance.
(a)I accept the plaintiff as a completely honest and reliable witness. In applications of this nature, the credit of the plaintiff is usually important. As was said by Brooking JA in Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439 at 448:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance.”
This observation has been referred to more recently by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 and in Haidar v Transport Accident Commission [2016] VSCA 182. Bearing the above in mind, I accept the plaintiff’s evidence, both oral and in his supporting affidavits, in relation to his pain, suffering and interference with his life.
In this regard, I would also refer to what was said by Maxwell P in Haden Engineering Pty Ltd v McKinnon [2010] 31 VR 1 as follows:
“As to (a), 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.”
I am of the view that the plaintiff presented as a highly credible and reliable witness and I accept his evidence without reservation.
(b)The plaintiff has given evidence that his pain is constant and is present 95% of the time. In his affidavit of 16 October 2019, he referred to his experiencing constant pain in the right knee, worsening with most activities requiring the use of the right leg. Prior to suffering the left shoulder injury in the fall, he was taking Voltaren 24 on a daily basis, together with six to eight Panadol a day. After suffering the left shoulder injury, he has additionally been taking Panadeine. He also uses Voltaren cream for his right knee daily.
As was said in Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
Before the injury to the left shoulder, the plaintiff had referred to his employment and got on with his life. He remains an employee of Scope. These are not matter which I count against him. As was said by Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260:
“… the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can … it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
(c)True it is that the plaintiff suffered from severe sleep apnoea which was diagnosed in May of last year and caused him to see a respiratory sleep physician. However, he said that he had a machine for this condition. He would not agree with the proposition that the sleep apnoea had affected his sleeping worse than did his knee injury. He volunteered that prostate difficulties also interfered with his sleep – see T15, but would not accept that these were matters that caused him to have poor sleep and that his right knee was not the cause. He has sworn that his sleep is quite disturbed by knee pain, this occurring generally at least two to three times a week. It is not an assertion from which he was prepared to resile.
As was said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 by Maxwell P:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.”
(d)The injury causes considerable interference to the plaintiff’s everyday life and his enjoyment of it. Generally he is no longer able to mow the lawns. He cannot climb ladders or perform the handyman tasks in which he engaged. He is heavily reliant upon his wife for assistance with cooking activities. He now tries to avoid social outings and can no longer dance at functions because of the pain. He used to enjoy playing soccer with his children and engaged in the training of an Under 9s team. He can no longer do this. Running or walking long distances is now too painful. The plaintiff has difficulty walking on uneven ground and has problems with such simple things as negotiating a step of the bus. Thus, many everyday activities exacerbate his pain and interfere with his enjoyment of life.
(e)Whilst the plaintiff is continuing to work, there is noticeable interference with his capacity so to do. An affidavit of a workmate, Mr Alan Jones, was placed in evidence and was not the subject of challenge. In it, Mr Jones has sworn that he constantly witnesses the plaintiff looking for relief from his knee pain. He and other workmates are aware of the plaintiff’s injury and assist him when they can. Mr Jones has sworn that the plaintiff, at least some of the time, wears a knee brace to work to help with the swelling of his knee. He is aware of the plaintiff taking anti-inflammatories and having rest breaks in between long shifts. The plaintiff has sworn that he relies upon his colleagues a lot, but there is considerable difficult manual handling involved in his work. He has sworn that, without his colleagues, he would not be able to work. Of course, he has also been away from work because of the injury to his shoulder.
(f)It has been argued that the shoulder injury is a consequence of the knee injury in that the plaintiff slipped or his leg gave way when he was attempting to climb into the driver’s seat of one of Scope’s buses. Whilst I am not saying that the argument that this can be treated as a consequence of the knee injury is totally without merit, in the circumstances of the present case it seems to me to be of very limited assistance to the plaintiff’s application. As was argued by Ms Ryan, there was an absence of medical material, including contemporaneous reports, concerning any link between the plaintiff’s knee condition and the injury to the shoulder. Further, it was quite properly conceded by Ms Donmez that there were no medical reports which would indicate what the prognosis is in respect of the left shoulder. I would refer to T37-38. What is known is that the plaintiff has undergone an arthroscopic rotator cuff repair and subacromial decompression surgery on 20 August 2019. There is no indication as to what the future holds. In all the circumstances, it is difficult to be confident that the shoulder injury was a consequence of the knee injury, even if this has some superficial appeal. There is no dispute that it happened in the course of employment and has been the subject of a separate claim, but whether it was, for example, a simple slip or a consequence of the knee injury is another matter. In the absence of medical material, what is even more problematic is what the future holds and whether there are any permanent consequences.
64 In summary, and even without attaching any weight to the shoulder injury, the plaintiff has satisfied the statutory test.
Conclusion
65 The plaintiff is successful. He has discharged the burden of proof. Leave is given to him to bring proceedings for pain and suffering damages. I shall hear the parties as to any further orders that are required.
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