Gainger v Victoria Hot Springs Pty Ltd
[2021] VCC 1400
•29 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-01789
| TROY HUGH GAINGER | Plaintiff |
| v | |
| VICTORIA HOT SPRINGS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 July 2021 | |
DATE OF JUDGMENT: | 29 September 2021 | |
CASE MAY BE CITED AS: | Gainger v Victoria Hot Springs Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1400 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – permanent serious impairment or loss of a body function – function associated with left hip and left knee – aggravation of an underlying condition – permanent severe mental or permanent severe behavioural disturbance or disorder
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited:De Bono v Victorian WorkCover Authority [2019] VSCA 85; Ansett Australia Ltd v Taylor [2006] VSCA 117; Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard (1975) VR 916
Judgment: Leave granted to the plaintiff to commence a proceeding for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Czarnota with Ms A Tate | Shine Lawyers |
| For the Defendant | Mr S Scully | Thomson Geer Lawyers |
HIS HONOUR:
1Troy Gainger seeks leave to commence a proceeding to recover damages for pain and suffering and pecuniary loss. He does so under s134AB of the Accident Compensation Act 1985 (“the Act”). He relies on paragraphs (a) and (c) of the definition of “serious injury” in s134AB(37). In relation to paragraph (a), he relies on injuries and impairments to his left knee and left hip.
2From the defendant’s perspective, it disputes the alleged hip injury arose out of or in the course of Mr Gainger’s employment with it. Second, it asserts that there cannot be an aggregation of the body conditions associated with the left knee and left hip. Third, the issue of disentanglement arises with Mr Gainger’s psychological and physical condition. Fourth, the issue of loss of earning capacity involves the question of what he is capable of earning in suitable employment. Fifth and fundamentally, the question of Mr Gainger’s credit as a witness.
Circumstances
3Mr Gainger is now forty-four. After completing Year 10 but not Year 11, he went to work with a business, INR Shopfitters, for the next six or seven years, where he learnt carpentry, joinery, plastering and paving.
4Over the years, Mr Gainger has obtained various qualifications including a Certificate IV in Construction and a diploma in building. He commenced and almost finished an advanced diploma in building.
5Mr Gainger has three children, aged thirteen, seventeen and eighteen. They do not live with him but with their mother in Queensland.
6From 2000, Mr Gainger worked as a carpenter for various businesses. In about 2010, he set up his own business called “Artisan Built” to produce quality furnishings including dining tables.
7In late 2008, Mr Gainger injured himself after falling off a skateboard. He fractured his left hip. The injury was treated surgically through an open reduction and internal fixation with three bolts. On 5 December 2008, the surgeon advised Mr Gainger’s then general practitioner that the fracture was in perfect alignment on x‑rays and was happy with Mr Gainger’s progress. Mr Gainger estimates he had recovered by about six months after the operation.
8On 9 August 2011, Mr Gainger started working for the defendant as a maintenance technician and carpenter.
Incident
9In his first affidavit, Mr Gainger said of the incident:[1]
“On 29 January 2014 I arrived at work at approximately 2:00pm and parked my vehicle in the usual place where I parked ready for my afternoon shift of work. At approximately 9.30pm, whilst taking a towel rail out of my car that I had completed in my workshop for a job, I slipped over an exposed conduit which was coming out of the ground. I fell to the ground on my left side twisting my left knee during the fall. The reason for doing this late in the day was to not interfere with facility guests while installing the item.”
[1] Affidavit sworn 14 November 2019 at paragraph 7
10Before this slip and fall, Mr Gainger maintained he had no trouble with either his left knee or left hip. Issue was taken with that evidence as it related to his left hip. Largely, this was based on an entry in the clinical records of the Sorrento Medical Clinic on 27 April 2012. Mr Gainger saw Dr Murrie for solar keratosis. Under the heading “Actions”, Dr Murrie noted “Diagnostic imaging requested: X-ray – Hip (L) – previous # hip. Internal fixation, ? degenerative change.” None of his attendances after this entry refer to the left hip or even the results of the x-ray. Reading Mr Gainger’s answers to questions about this entry, I could not find he had an x-ray.[2] Moreover, if he did, it is surprising the practice did not record the result.
[2] Transcript at p 30
11Pausing there. Whether Mr Gainger fell after slipping on the exposed conduit is contentious. I will return to this issue later.
Aftermath
12The next day, Mr Gainger saw his general practitioner, Dr Peter Meggyesy, who noted “twisted L knee at work yesterday”. His left knee was x-rayed and was essentially normal.
13Mr Gainger completed and lodged a Claim for Compensation. Only because it relates to the issue of a fall, he described the circumstances of his injury:[3]
“Parked in staff carpark/receiving bays, stepped out, unloading a towel rail for a job, didn’t see plastic conduits coming out of the ground and over a hill, slipped on them, twisting knee + body, falling on ground.”
[3] Worker’s Injury Claim Form dated 31 January 2014
14An authorised agent accepted liability in relation to medical and like expenses. Later, the agent accepted liability for weekly payments of compensation.
15Mr Gainger returned to work after a day’s absence. However, the pain in his left knee worsened. He returned to Dr Meggyesy who arranged MRI scans of the knee. Dr Meggyesy referred him to an orthopaedic surgeon, Mr Peter Brydon.
16Mr Gainger saw Mr Brydon on 28 May and 22 October 2014. On the latter occasion, he injected Mr Gainger’s left knee with cortisone. Since the injection provided no relief from the pain, on 7 November 2014, Mr Brydon performed an arthroscopy.
17Mr Gainger was absent from work due to the surgery and his recovery. In December 2014, he returned to work ostensibly on light duties. However, he was pressured to do too much and could not because of the state of his knee. He felt bullied and harassed by a particular construction manager. On 18 December 2014, he resigned.
18Following his resignation, Mr Gainger went to Noosa in Queensland to live. Initially, he worked in a nursery for a “couple” of months, then as a car washer, a car delivery driver and picking and packing bananas and other fruits. He lost each job through his slowness in doing the work. His lack of pace was due to the state of his knee and hip. He also sought medical, physiotherapist and chiropractic treatment.
19His general practitioner in Noosa was Dr Dean. In June 2015, Mr Gainger complained of lower back pain which he attributed to walking and not working. He walked with a different gait due to his knee. He did a good deal of walking in his SPC job.
20In January 2016, he started working for a business, SEC Builders, but stopped in July or September that year and has not worked in paid employment since. At SEC Builders, he had a sympathetic employer who understood his problems. He did carpentry work. Nevertheless, he stopped because of the pain from his knee and his hip.
21Pausing there. A matter of contention in this case is the first onset of pain in the left hip following the incident:[4]
Q:“… did you tell him [Dr Shan] that you suffered left hip pain after the incident immediately, or that you suffered left hip pain in the intervening years?---
A:I’m pretty sure that straight away, my knee was the main problem, and then after that, the hip started to start feeling it as well up until 2016.”
[4] Report of Dr Adrian Murrie dated 13 January 2018; Transcript at pp 56-57
22This answer implies pain in the hip did not occur with the fall but later. The problem with Mr Gainger’s evidence on the point is his belief that the source of the increased pain in his knee was his hip:[5]
Q:“Because it was the knee initially, and later on, the hip came on?---
A:Well, the way they’ve put it, they pretty much said that the hip was a straight off thing, but you felt it through your knee.”
[5] Transcript at p 57
23The effect of this evidence is that the hip was not painful until some time after the accident. When precisely it became painful was not revealed. It was painful throughout the various jobs he attempted in Noosa. It caused him to limp. However, it was the increased pain in the knee which was decisive.
24After being told he could no longer work, Mr Gainger moved from Noosa to Byron Bay so he could camp on a property of a friend. Thereafter, the only work he did perform was raising the height of a pool fence over the space of two days.
25When queried about a comment in a report of a practitioner, there was this question and answer:[6]
Q:“And because of that [appointments with doctors, lawyers, etc], you’re too busy to go to work?---
A:I don’t think I could work with my body in the way that it is anyway and my mental condition on top of it and also dealing with all of this Court case for 7.6 years.”
[6] Transcript at p 53
26In October 2016, Mr Gainger started seeing a psychologist, Christina DeWitt. She saw him on about seven occasions up to May 2017. Later, Mr Gainger continued seeking psychological assistance from another psychologist, John Kotroni and continues to do so.
27In February 2017, Mr Gainger lodged a claim for impairment benefits. The Medical Panel gave an opinion that the injury to the left knee and hip were compensable.
28In May 2017, Mr Gainger saw another orthopaedic surgeon, Mr David Agolley. On 29 July 2017, Mr Agolley replaced Mr Gainger’s left hip.
Surveillance footage
29The Court was shown about 40 minutes of surveillance footage taken in February 2020. It depicted Mr Gainger at the beach, walking on sand and between rocks, wading and surfing. It also showed him walking in the township with the use of a walking stick.
30Of the practitioners only Dr Grossbard commented on the footage. I will quote his comments shortly.
Facebook and Instagram posts
31In the defendant’s court book are extracts from Mr Gainger’s Facebook and Instagram pages. After hearing his oral evidence, they are of no probative value.
Treating practitioners
Christina DeWitt
32Ms Christina DeWitt is a clinical psychologist. She first interviewed Mr Gainger in late 2016.[7] Her last appointment was in May 2017. She saw him a total of seven times. His complaints suggested an Adjustment Disorder associated with chronic pain and loss of livelihood.
[7] Reports dated 9 November 2016, 15 November 2016 and 12 January 2018
33Ms DeWitt struggled to make progress with Mr Gainger:[8]
“It has been an arduous process as Troy was much focussed in righting what had been done wrong to him and he kept getting angry and kept withdrawing from life. I have aimed to install hope in him as well as help him draw on his strengths.”
[8] Report dated 12 January 2018
Dr Mick Dean
34Dr Mick Dean is a general practitioner in Noosa.[9] After an initial attendance on 14 January 2015, Dr Dean saw Mr Gainger on another ten occasions and his colleague saw him twice. Dr Dean diagnosed chondral damage to the left patella with subsequent quadriceps weakness and wasting. By June 2015, the weakness and wasting had been rectified.
[9] Report dated 24 July 2015
35Dr Dean expected Mr Gainger to return to his pre-injury duties –
“… with allowances made for repetitive or heavy lifting or prolonged postures that unduly strain his left quadriceps.”
36About sixteen months later, Dr Dean wrote to Mr Gainger’s lawyers.[10] At an examination on 19 September 2016, the condition of his left knee was similar to its condition twelve months earlier. There was wasting in the left thigh. The range of movement was normal. The knee was stable with no ligamentous laxity. There was no effusion.
[10] Report dated 18 November 2016
37Dr Dean considered the condition of the knee because of the lack of change over twelve months. He reiterated his view as to Mr Gainger’s capacity for work.
Lise van Oostenbrugge
38Ms Lise van Oostenbrugge is a physiotherapist. At the request of Dr Coldwell, she treated Mr Gainger. On 30 October 2017, she wrote to Dr Coldwell. Her principal concern was Mr Gainger’s mental state. During his attendance on 23 October 2017, he had cried and admitted ingesting his medicines over a short period.
39Almost incidentally, she noted the wish of “W/C” to treat Mr Gainger’s left knee. However, her examination revealed a stable knee with minimal PFI findings while the majority of his left lower limb pain, functional limitations, neurological symptoms and altered gait came from his hip and lower back. The hip responded well to surgery and his gait was improving but –
“… I do belief (sic) his back is still causing him significant discomfort, worse with stress, better with improved gait secondairy (sic) to his hip surgery”.
Dr Bruce Campbell
40Dr Bruce Campbell is a chiropractor.[11] He treated Mr Gainger during 2017 for various complaints including those relating to the left knee, left hip and low back. It was Dr Campbell who voiced the opinion, echoed by Mr Gainger during his oral evidence, that his knee pain came from the hip:
“… the knee pain that Troy experienced after the fall onto his left side was probably referred pain from the hip misdiagnosed as a knee problem. There may have been a knee sprain as well.”
[11] Report dated 14 November 2017 to an authorised agent
41He then explained:
“In this case I think it is likely that the fall onto the greater trochanter caused the bolts in the neck of the femur to transfer the impact of the fall directly into the head of femur resulting in bone bruising and subsequent necrosis due to disruption of blood flow to the head of femur.”
Mr Peter Brydon
42Mr Peter Brydon is an orthopaedic surgeon. Following referral by Dr Meggyesy, he first saw Mr Gainger on 28 May 2014.
43On 7 November 2014, Mr Brydon carried out an arthroscopy on the left knee. He identified the presence of patellofemoral chondropathology in the form of unstable cartilage fragments on the retropatellar surface and the fold of synovium on the suprapatellar pouch, which was catching. He resected the latter.
Mr David Agolley
44Mr David Agolley is an orthopaedic surgeon. On 8 May 2017, he saw Mr Gainger after Dr Coldwell referred him. Mr Agolley recommended a total replacement of the left hip. Although Mr Gainger complained of symptoms from the left knee and hip, Mr Agolley said:[12]
“I suspect the majority of Troy’s symptoms are coming from his left hip avascular necrosis. I suspect his left knee pain is referred pain from the left hip as is the thigh pain. The right knee is difficult to elucidate and maybe the pain is in compensation for favouring the left lower limb.”
[12] Report dated 8 May 2017
45On 28 July 2017, the left hip was replaced. Mr Agolley found avascular necrosis which he considered was due to the femoral neck fracture suffered in the 2008 skateboard accident. When Mr Agolley reviewed Mr Gainger six weeks after the surgery, his main complaint was “deep knee pain”. After viewing MRI scans and his examination, Mr Agolley was puzzled as to the cause. He did not think a further arthroscopy was warranted. He invited Dr Coldwell to investigate nerve root impingement from the lumbar spine.
46In a report dated 12 September 2017, Mr Agolley reiterated his view that the femoral head had developed avascular necrosis and suspected this occurred within months to years after the 2008 accident. In his view, Mr Gainger’s groin pain and stiffness was due to the 2008 accident and not the 2014 accident.
47The last report of Mr Agolley is dated 12 March 2018 and is addressed to Dr Coldwell. Clearly, he thought the hip replacement was a success. He had a range of movement which was pain free and there was no pain in the groin.
48Despite Mr Gainger’s complaint of deep left knee pain, Mr Agolley could not identify the cause, with the results of recent MRI scans not helping.
49Attention moved to the pain Mr Gainger was suffering in his right hip and groin which Mr Agolley attributed to femora acetabular impingement. Despite Mr Gainger linking this area of pain to his fall, Mr Agolley considered it developmental and unrelated.
50Mr Agolley last saw Mr Gainger on 12 September 2017. Judging from Mr Agolley’s 2018 report, Mr Gainger was dissatisfied with Mr Agolley saying the problems with the right hip and groin were unrelated to the fall.
Robert Carr
51On 8 October 2017, Mr Gainger saw an osteopath, Robert Carr.[13]
[13] Report dated 8 November 2017
52Mr Carr considered the disfavouring of the left hip caused overloading of the right side of Mr Gainger’s lumbar spine and pelvis. Coupled with other issues, this has caused changes in various muscle groups extending from the pelvis to the cervical spine as well as scoliosis of the thoracolumbar spine on the right. Interestingly, Mr Carr seems to place these changes with a fall in January 2017.
Dr Spencer Duke
53Dr Spencer Duke is a psychiatrist. In a report to Dr Coldwell dated 20 February 2019, there is a discussion of several issues including Mr Gainger’s anger at the occurrence of the fall and its aftermath. At that stage, Dr Duke did not consider Mr Gainger clinically depressed, and owing to the rejection of various anti-depressant medicines, did not consider further medicines warranted.
Dr Jonathan Coldwell
54Dr Jonathan Coldwell is a general practitioner. He practises from a clinic in Byron Bay. He has treated Mr Gainger since 28 September 2016.
55In an undated document, but likely to have been written in June 2017, Dr Coldwell notes Mr Gainger’s fall where he “knocked out one of his front teeth”. Apparently, Dr Coldwell accepts the fall was due to the instability of the injured left knee and links it causally to the fall in 2014.
56By June 2019, Dr Coldwell considered Mr Gainger unfit for any employment due to his “conditions”. This had been the situation since September 2016. Although not distinguishing between the organic and psychological factors, Dr Coldwell did emphasise the psychological.[14]
[14] Report dated 6 June 2019
57By January 2021, Dr Coldwell painted an appalling picture of Mr Gainger’s current condition, physically and psychologically. When he last saw him on 20 January 2021:[15]
(a) psychologically, he accepted the opinion of the psychologist, John Kotroni, that Mr Gainger is unfit for any employment due to his anxiety and depression and his psychological state had stabilised. These conditions caused erectile dysfunction, anhedonia, social isolation, avoidance behaviours and low mood;
(b) Mr Gainger may be able to perform some physical activities but is limited by back, hip, knee and ankle pain;
(c) physically, Dr Coldwell adopts the opinion of the orthopaedic surgeon, Mr Bruce Low, that Mr Gainger is incapacitated for employment;
(d) Mr Gainger suffers from chronic pain in the back, hip, knee and ankle and dental problems due to his fall in 2017.
[15] Report dated 1 February 2021
Phil Walshe
58Phil Walshe is a physiotherapist. Mr Gainger has been an irregular attendee at Mr Walshe’s clinic in Byron Bay. His first attendance was on 17 July 2017, where he complained of pain in his left hip, knee and low back. Then, the treatment consisted of “patient education and exercise”. He was seen again on 11 May 2020 due to an exacerbation of his lower back pain. His last attendance was on 17 August 2020.
59Mr Walshe considered the 2014 fall caused a Trendelenburg gait which contributed to Mr Gainger’s lumbar spine degeneration and hastened the arthritic changes in his left knee. The degeneration was revealed in MRI scans of 25 May 2020.
60Mr Walshe did not believe Mr Gainger would return to his pre-injury employment or suitable employment.
61As to future treatment, Mr Walshe anticipated acute episodes of lower back pain requiring physiotherapy one to two times per year and each episode needing four to six treatments.
John Kotroni
62John Kotroni is a consultant psychologist. Dr Coldwell referred Mr Gainger to Mr Kotroni and was first seen on 11 October 2017.[16]
[16] Report dated 20 August 2018
63At the first attendance, Mr Kotroni administered a psychometric test, DASS-95. The results indicated Mr Gainger was suffering from extremely severe depression and extremely severe stress. When the same test was re-administered on 31 July 2018 and 9 April 2019, the results for depression and stress were virtually the same while his level of anxiety was in the extremely severe category.
64Mr Kotroni has treated Mr Gainger frequently and regularly since 2017. By April 2021, the frequency of sessions was fortnightly.
65This treatment has seen some improvement in his symptoms of anxiety, depression and stress. They are now severe rather than extremely severe. The purpose of ongoing treatment is to minimise the risk of deterioration and improve his ability to manage himself.
66He re-affirmed the diagnosis made following the first attendance in 2017 of an Adjustment Disorder with Mixed Anxiety and Depressed Mood. The disorder was chronic.
67The disorder prevented Mr Gainger from engaging in any form of employment now and into the foreseeable future. It limited his ability to undertake the usual daily activities. He is depressed, anxious, withdrawn, isolated and avoidant.
68Mr Kotroni analysed the effects of the disorder upon Mr Gainger in terms of mobility, communication, social interaction, learning, self-management and self-care. He paints a thoroughly depressing picture. His prognosis is poor.
Mr Richard Adams
69Mr Richard Adams is a consultant neurologist. He saw Mr Gainger on 25 February 2021 at the request of his general practitioner. His complaints were a flickering sensation on the left side of both eyes and headache. MRI scans of the brain revealed a tumour which was unrelated to the 2014 fall and plays no part in the vision defect or the headaches. It seems the vision defect and the headache are related due to the beneficial effects of the migraine preventative medicine, Pizotifen. Mr Adams tentatively related the 2017 fall with the occurrence of the headaches. His prognosis was excellent, for he expected to bring the migraines under good control.
Dr Jan Siefken
70Dr Jan Siefken is a consultant psychiatrist. He saw Mr Gainger on about 1 June 2021 at the request of a general practitioner.[17] Owing to Mr Gainger’s late arrival at his appointment, Dr Siefken had little time to explore his complex history. Nevertheless, he increased the dosage of Amitriptyline to 75 milligrams for one week and then to 100 milligrams if well tolerated. He proposed a further session in three months’ time.
[17] Report dated 1 June 2021
Professor Laurence McEntee
71Professor Laurence McEntee is an orthopaedic spine surgeon.
72Professor McEntee saw Mr Gainger for the first time on 26 March 2021. Apparently, he saw MRI scans of the lumbar spine showing a “collapsed” L5-S1 disc with foraminal stenosis bilaterally but no overt neural compression. At the L4‑5 disc, there was a broad-based central disc protrusion without any nerve compression.
73Professor McEntee considered Mr Gainger’s low back pain was caused by his chronically altered gait due to the condition of his left hip and knee.
74He does not recommend surgery due to the absence of radicular pain. He did recommend physiotherapy, home exercises and then developing into exercises supervised by an exercise physiologist.
75As to the foreseeable future, Mr Gainger can expect low back pain which should be manageable if the recommendations are followed.
Medico-legal
Mr Michael Shannon
76Mr Michael Shannon is a surgeon. At the request of an authorised agent, he examined Mr Gainger on 28 June 2017 for an impairment assessment.
77Mr Shannon diagnosed a soft tissue injury to the left knee and avascular necrosis of the left hip. The prognosis for the knee was “entirely favourable”. For the hip, it was replacement.
78Mr Shannon found diagnosis difficult. However, Mr Gainger told him and Mr Brydon of his left kneecap “going out sideways”. He adopted Mr Brydon’s view that the giving way of the knee was due to quadriceps weakness, which was unrelated to the knee but due to the developing avascular necrosis.
79Mr Shannon gave a zero whole person impairment for the knee. While the two centimetres of wasting on the left thigh merited 3 per cent impairment, it was due to the hip condition and not the knee.
Medical Panel
80On 8 February 2018, three members of the Medical Panel examined Mr Gainger.[18] An authorised agent had rejected Mr Gainger’s claim that the injury to his left hip arose out of or in the course of employment with the defendant. It did so in the context of a claim for impairment benefits.
[18]Reasons dated 18 February 2018. The Panel consisted of Associate Professor Brand, rheumatologist, Associate Professor Goldwasser, orthopaedic surgeon and Associate Professor Gibbons, musculoskeletal physician
81On the basis of what Mr Gainger said, the Panel assumed:
(a) he had no pain or functional restrictions with his left hip until the 2014 incident;
(b) during the 2014 incident, he fell heavily onto his left hip.
82After reviewing the imaging of the left hip between October 2008 and September 2017, the Panel concluded:[19]
“… that the worker’s current residual dysfunction of the left hip secondary to left hip arthroplasty for treatment of traumatic a vascular necrosis arose a direct consequence of the injury occurring on 29 January 2014 and that the current medical condition of the worker’s left hip resulted from and was (and still is) materially contributed to by the accepted/claimed injury.”
[19] At p 5
83In reaching those conclusions, the Panel explained the lack of groin pain at the time of the fall as due to referred pain from the hip to somewhere else, presumably the knee. In reaching a different conclusion to that reached by Mr Shannon, the Panel commented –
“… that the worker’s history, clinical progression and imaging are consistent with traumatic avascular necrosis eventually requiring operative intervention in the form of hip replacement surgery.”[20]
[20] At p 5
Dr Robyn Horsley
84Dr Robyn Horsley is an occupational physician. On 5 September 2018, at the request of Mr Gainger’s solicitors, she examined him.[21] As is her practice, she took a detailed history from Mr Gainger. She was provided a number of reports from treating practitioners, which she summarised in some detail.
[21] Report dated 5 September 2018
85Dr Horsley noted the opinion of the Medical Panel, which she incorrectly considered binding.
86Dr Horsley examined his lumbar spine, left knee and left hip. With the lumbar spine, she found a low level of lumbar movements with very low figures for flexion and extension and half the normal range for lateral flexion and rotation, both left and right.
87With the left knee, she recorded Mr Gainger’s complaints of pain. The level is low grade but can escalate with prolonged sitting. She noted a full range of motion with a click on flexion and extension. The joint appeared stable and various ligaments were intact. Unsurprisingly, in light of the complaints and her clinical findings, she looked for evidence of a Complex Regional Pain Syndrome and found none.
88With the left hip, its movements were limited to half the normal range. She examined the right hip and found its movements were even more limited. His gait was antalgic and “non-organic”, with excessive favouring of the left leg.
89Interestingly, Dr Horsley administered the Beck Depression Inventory and the Beck Anxiety Inventory to Mr Gainger. Their results suggested significant emotional distress and significant suicidal ideation. Dr Horsley followed this revelation with questions and discovered there was no specific plans.
90As to diagnosis, she makes none in the usual sense except to note an injury to the left knee and avascular necrosis in the left hip prior to its replacement. As to prognosis, she believed his symptoms would persist, given their nature and the time since the fall in 2014.
91With the left knee, for the purposes of employment, she recommended Mr Gainger avoid repetitive squatting, avoid repetitive kneeling, avoid running, avoid jumping and avoid repetitively ascending and descending stairs and hills.
92With the left hip, for the same purpose, her restrictions are more restrictive:
· avoid repetitive squatting, avoid lifting items greater than 10 to 12 kilograms except occasionally
· avoid lifting items of up to 8 to 10 kilograms repetitively
· avoid climbing ladders
· avoid activities that could potentially result in low back and hip jarring
· avoid using tools which vibrate; and
· avoid using machines with a significant vibratory component.
93Looking at the issue of capacity for work and at the left hip and left knee separately, Dr Horsley said:[22]
“At this point in time, when considering Mr Gainger’s left knee and left hip alone, I believe that he does have capacity for work, probably in the vicinity of 15 to 20 hours per week, within the restrictions as outlined above. He would need to work in a more sedentary role. I note that he has considerable transferrable skills with no literacy issues and very good computer skills. I note that he ran his own business, twice.”
[22] At p 10
Mr Thomas Kossmann
94Mr Thomas Kossmann is an orthopaedic surgeon. Also on 5 September 2018, he examined Mr Gainger at the request of his solicitors.[23] He made a detailed examination of Mr Gainger. He was given a large number of medical and other reports.
[23] Report dated 14 October 2018
95Mr Kossmann identified twelve items under the heading of “Diagnosis” including retropatellar chondral pathology retropatellar left knee. He identified something no one else did – signs of scalene entrapment syndrome.
96As to the link between the injuries to the left knee and left hip, Mr Kossmann reached the same conclusion as the Medical Panel.
97There was no capacity for work due to his symptoms of scalene entrapment syndrome, severe headaches, vision problems, pins and needles in both hands, pain behind the eyes and “a substantial number of investigations pending”.
98The prognosis depended on the outcomes of investigations. He made a number of recommendations for further investigation and treatment.
99In a supplementary report, Mr Kossmann considered Mr Gainger’s work materially contributed to the signs of scalene entrapment syndrome.[24]
[24] Report dated 14 October 2018
Dr Nicholas Ingram
100Dr Nicholas Ingram is a consultant psychiatrist. He interviewed Mr Gainger on 19 November 2020, having previously done so on 4 September 2018. He was provided many medical, psychological and other reports.
101Dr Ingram diagnosed a Chronic Adjustment Disorder with Anxiety and Depressed and Angry Mood. The disorder was due to his pain, physical limitations, his inability to work, perception of bullying at work and his prolonged “WorkCover” case.
102There was a slight improvement since the 2018 interview. He did not think antidepressants would cause any improvement but recommended continuing the psychological counselling. The prognosis was uncertain.
103He is incapacitated for work because of his depression and his anger. For psychological reasons, he cannot return to his pre-injury employment or suitable employment. This state will continue for the foreseeable future.
Mr Russell Miller
104Mr Russell Miller is an orthopaedic surgeon. On 18 November 2020, he examined Mr Gainger by means of an audio-visual link.[25] He was provided a multitude of reports and a surveillance report of activities in February 2020 and about 40 minutes of film from the surveillance.
[25] Report dated 23 November 2020
105Although the hip replacement saw significant improvement in his symptoms, Mr Miller thought the prognosis was only fair.[26]
[26] At p 9
106As to the link between the condition of the hip and employment with the defendant and specifically, the 2014 incident, Mr Miller said:
“It is clear the client had pre-existing disease in the hip for which he had undergone surgery. There was a marked deterioration following the second injury, and it is likely that this has caused or precipitated symptoms in relation to avascular necrosis. There was some delay before the recognition of this pathology, and I think it is likely that initially the hip pain was being referred predominantly to the knee, a commonly observed phenomenon. The current clinical status relates predominantly to the second injury. I acknowledge the difficulty in making such a determination.”
107Mr Miller examined Mr Gainger’s cervical and lumbar spines. He identified injuries to both, including musculo-ligamentous strain and aggravation of degenerative disease. He assigned five factors as bearing responsibility for these injuries without pointing to any one in particular or its link to the cervical or lumbar spines.
108As to the left knee, its ongoing symptoms relate to the pathology seen by Mr Brydon during the arthroscopy and to a Chronic Pain Syndrome. To Mr Miller, this syndrome has a psychological origin. Again, Mr Miller points to four factors responsible for the injury with one, the 2014 incident, as substantially responsible.
109Mr Miller does not regard the symptoms of the right hip and knee as related to Mr Gainger’s employment with the defendant.
110As to his capacity for work, the state of the left hip means Mr Gainger will have difficulty with work involving prolonged standing, walking (including on uneven ground), twisting, turning, kneeling, squatting and climbing. The same difficulties apply to his left knee.
111Mr Miller saw no prospect for improvement and a moderate risk of long-term deterioration. Since the hip was replaced at a relatively young age, there was the likelihood of revision surgery some time in Mr Gainger’s life.
112In April 2021, Mr Gainger’s solicitors asked Mr Miller for another report after supplying him with several reports.[27] He adhered to his earlier view of a marked deterioration in the state of the left hip after the 2014 incident with the development of symptoms with the avascular necrosis. This condition was previously asymptomatic.
[27] Report dated 8 June 2021
113As to his capacity for suitable employment on a regular, reliable and consistent basis after accounting for his incapacity, age, education, residence, skills, work experience and medicines, Mr Miller commented:
“Taking into account these restrictions, I do not believe the client has a capacity for work unless all of the above restrictions could be implemented on an ongoing basis and this is an unlikely scenario.”
114The restrictions were the same concerning the left knee and left hip. Mr Miller added different restrictions concerning his spine involving repetitive bending and lifting. These restrictions were permanent.
Dr Dush Shan
115Dr Dush Shan is a consultant psychiatrist. On 11 March 2021, he interviewed Mr Gainger at the request of the defendant.[28]
[28] Report dated 11 March 2021
116Dr Shan was provided with a large number of medical and other reports including a surveillance report and film.
117Dr Shan diagnosed Mr Gainger as suffering from an Adjustment Disorder with Mixed Depression and Anxiety. He predicted persistent psychological complaints with exacerbations due to external stress such as Centrelink or WorkSafe processes.
118As to severity, Dr Shan noted no admissions to psychiatric facilities and the taking of relatively low doses of Quetiapine and Amitriptyline.
119As to the continuing relationship between his psychological condition and his employment, Dr Shan responded in the manner often seen with psychiatrists because of the uncertainty of physical injury:[29]
“Employment can be considered to be a contributing factor if it is considered that his ongoing physical complaints continue to be related to the employer.”
[29] At p 6
120From the psychiatric perspective, Mr Gainger was unfit to perform his pre-injury duties “as he would become anxious about exacerbating his various complaints”.[30] Provided the duties were within his physical limitations, psychiatrically, he could perform employment as a shopfitter/joiner, furniture finisher/cabinet maker, sales assistant (furniture and hardware) and general labourer. Again, these jobs could be undertaken on a full-time basis subject to the same physical proviso.
[30] At p 7
121As to the surveillance footage, Dr Shan could not comment on Mr Gainger’s claim his ability as a surfer was diminishing. By placing his gear in a secluded place but also obviously knowing other surfers, apparently lent support to his claim of isolation. Similarly, the film did not show his walking around a shopping centre but did show him parking at Byron Plaza at a busy time. He showed no signs of malnutrition despite claiming irregular meals. These observations are largely inconsequential.
Mr Garry Grossbard
122Mr Garry Grossbard is an orthopaedic surgeon. On 30 March 2021, he examined Mr Gainger at the defendant’s request.
123Mr Grossbard viewed the surveillance film and commented:[31]
“This surveillance was undertaken in February 2020 and therefore is twelve months old. I noted Mr. Gainger walked with a mild antalgic gait when walking on the beach, but he was able to carry and manoeuvre a surfboard easily. The antalgic gait seemed to fluctuate in its intensity. He was able to mount a surfboard and paddle using both arms, exhibiting a full range of shoulder motion bilaterally. He was able to rapidly stand up on his surfboard and squat with his hips and knees flexed well beyond 90° whilst balancing on the surfboard. He was seen to come off the surfboard in the surf on several occasions and did not appear to struggle with these incidents.”
[31] At p 4
124Mr Grossbard believed the avascular necrosis of the femoral head occurred with the 2008 fall. It became symptomatic with the 2014 fall. Since Mr Gainger complained of left knee pain, the focus was on his knee despite the largely negative results of imaging and the absence of major pathology at arthroscopy. Implicitly, Mr Grossbard feels some of the original symptoms of the knee could have been referred from the hip. Presently, he feels much of the hip pain has resolved, leaving lateral upper thigh pain. He is uncertain whether some of this pain is due to local trochanteric bursitis or is referred from the lumbar spine.
125As to capacity for work, Mr Grossbard virtually excluded his pre-injury duties as a maintenance technician and in cabinetmaking because of the need to lift heavy objects and get into very awkward positions. However, he was suitable for other types of work provided there were no periods of crouching, lifting and bending. He noted difficulty working above shoulder height but that related to his neck pain. Although eliminating work as a shopfitter, furniture finisher and cabinetmaker, he could work as sales assistant (particularly in a surf shop) and general labourer, provided he did not lift heavy objects and presumably not get into very awkward positions.
Dr Peter Blombery
126Dr Peter Blombery is a physician practising as a pain specialist and cardiologist. On 15 June 2021, Dr Blombery examined Mr Gainger at the request of his solicitors, doing so by an audio-visual link.[32]
[32] Report dated 15 June 2021
127Dr Blombery attributed the avascular necrosis to the 2014 incident. His current experience of pain:[33]
“… is caused by the underlying bony abnormalities but superimposed on those is a pain syndrome where there is sensitisation of pain nerve pathways, both in the periphery as well as in the brain and spinal cord such that non-painful stimuli become interpreted by the cerebral cortex as being painful.”
[33] At p 4
128This is an organic, not psychological, pain syndrome affecting the area of the left hip. He also diagnosed soft tissue injuries to the shoulders and left knee, all of which contribute to his pain.
129Dr Blombery thought the prognosis was poor for his hip, knee and spine. There was a possibility of replacing the right hip and surgery to his shoulders.
130Mr Gainger was either precluded or limited by the pain felt in his left knee from doing a variety of activities including kneeling, bending and prolonged sitting. The same considerations of pain apply to his left hip. To a lesser extent, the spinal pain would restrict the same activities markedly.
131Dr Blombery considered Mr Gainger had no capacity to perform his pre-injury duties on a regular, reliable and consistent basis and that incapacity was permanent. Although asked to disregard the psychological state of Mr Gainger, Dr Blombery considered he was incapacitated for suitable employment and that was permanent. Unfortunately, Dr Blombery did refer to his mental state.
132In a supplementary report, looking at either the left hip or the left knee, first, Dr Blombery considered Mr Gainger had no capacity to meet the key employability and vocational requirements set out in the 2015 NES Vocational Assessment report for shopfitter/joiner, furniture finisher/cabinet maker, sales assistant in furniture and hardware and general labourer. Second, after taking into account his incapacity, age, education, residence, skills, work experience and medicines, he did not consider Mr Gainger could perform suitable employment on a reliable and consistent basis.
Vocational reports
Jemma Moses
133Jemma Moses is a senior rehabilitation consultant with a background in psychology. She works for IPAR. At the request of the defendant’s solicitor, she interviewed Mr Gainger on 18 February 2020.[34] She was aware of earlier IPAR assessments. She took a detailed history from Mr Gainger and came to decidedly negative conclusions about Mr Gainger’s capacity for work.
[34] Report dated 18 March 2020
134Ms Moses excluded Mr Gainger’s suitability to perform his pre-injury employment or suitable employment for a variety of reasons. She also excluded the previously identified employment options of shopfitter/joiner, furniture finisher/cabinetmaker, sales assistant (furniture and hardware) and general labourer.[35]
[35] Report dated 3 June 2021
Mary Oliver
135Mary Oliver is a human resources consultant and an employment recruiter. Starting on 29 April 2021 and for three to four hours, she assessed Mr Gainger at the request of his solicitors.[36] After what appears to be an extensive and careful examination, she concluded he would have difficulty in efficiently and consistently performing suitable alternative employment, whether from the perspective of the left hip or left knee. Relying on the medical opinion, she excluded his pre-injury duties.
[36] Report dated 3 June 2021
Legal considerations
Pain and suffering
136For the purposes of this application, “serious injury” means “permanent serious impairment or loss of a body function”.[37] The word “serious” is explained in two paragraphs of s134AB(38). First, relevantly, it is satisfied by reference to the consequences to Mr Gainger of any impairment or loss of a body function with respect to pain and suffering or loss of earning capacity when judged by comparison with other cases in the range of possible impairment or loss of body function. Second, an impairment or loss of a body function is not serious unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function fairly described as being more than significant or marked, and as being at least very considerable.
[37] s134AB(37)
137With paragraph (c) of the definition of “serious injury”, instead of “serious” there appears “severe”, which is understood as a stronger word than “serious”.[38]
[38]Mobilio v Balliotis [1998] 3 VR 833 at 846
Loss of earning capacity
138To establish the loss of earning capacity consequence, Mr Gainger must establish:
(a) his loss of earning capacity consequence, when judged by comparison with other cases in the range of possible impairments or losses of a body function, is fairly described as being more than significant or marked and at least very considerable (the narrative test); and
(b) he suffered a loss of earning capacity of 40 per centum or more, measured as set out in s134AB(38); and
(c) he would continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more.[39]
Present
[39] De Bono v Victorian WorkCover Authority [2019] VSCA 85 at paragraph [47]
Pain
139Mr Gainger suffers a constant dull pain in his left hip, the level of which varies. The level increases with adduction of the hip and if he walks long distances (about 100 metres) or sits for prolonged periods. With sitting, he needs to stand and stretch his hip regularly. Prolonged driving does not affect the level of his hip pain which he attributes to his comfortable driving seat. Nevertheless, he needs regular breaks to stretch his hip.
140Again, the pain in his left knee is constant, also with variable intensity. The pain radiates from the knee in two directions along his left leg into his shin and his thigh. It occasionally swells. It makes a “horrible” sound when used. It worsens with twisting or sitting, standing for long periods or walking long distances (about 100 metres). It swells if he stands or walks for prolonged periods, twist, turn, kneel or squat. Even driving for prolonged periods aggravates the pain. He has suffered pain in the left knee from the time of the fall. It improved somewhat after the surgery but worsened after he resumed working.
141The instability of the knee causes him to fall six or seven times a week on average. The defendant submitted this evidence is the only time so many falls are mentioned. Although puzzling, it is not a ground to doubt that evidence for it is not an inconsistent statement, rather an omission.
142Before his hip replacement, he slipped, fell onto a concrete bench and damaged two of his front teeth. Both were removed but only one was replaced through an authorised agent. He now has difficulty turning his head.
143He has difficulty getting out of bed. He uses handles to pull himself out of bed.
Treatment
144He sees his general practitioner regularly. He continues to see his long-term psychologist, Mr Kotroni, regularly. Recently, he started seeing a psychiatrist, Dr Georgina Hayworth. She prescribed a medicine, the name of which did not emerge in the evidence. Recently, he started attending an exercise physiologist in the hope of gaining enough fitness to resume surfing.
145Mr Gainger takes an extensive range of medicines. It is so extensive that from a non-medical perspective it may require re-assessment. He takes Oxycodone three times a week, amitriptyline nightly, meloxicam nightly, quetiapine nightly, Circadin nightly, Temazepam nightly, Noxicid nightly, Diazepam three times a day, melatonin nightly, esomeprazole nightly, Sando Migraine nightly, cannabis-based medicines and Nurofen every second day.
146Historically, Mr Gainger has had surgery for his left hip and left knee. The former involved a hip replacement. The latter was an arthroscopy. Presently, he does not seek the assistance of an orthopaedic or pain specialist.
Accommodation
147Before the incident, Mr Gainger rented a six-bedroom house on seven acres of land. He conducted his private business there. Now, he lives in a friend’s garage. The contrast could not be greater. I can easily accept his comment: “I feel like a complete failure and worthless.”[40]
[40] Affidavit sworn 29 June 2021 at paragraph 33
Sleeping
148Mr Gainger sleeps for a long time at night and during the day. He attributes his ability to sleep to “the plethora of medications” he takes and his use of an electric blanket. Absent the medicines, he believes: “I would have terrible sleep, and wake multiple times every night due to left hip and knee pain.”[41]
[41] Affidavit sworn on 29 June 2021 at paragraph 26
Surfing
149Surfing was Mr Gainger’s favourite pastime. He was a proficient surfer, almost good enough to become a professional surfer. He had been trained by a professional surfer. Before the 2014 incident, he enjoyed surfing and swimming. He is not surfing now, having last surfed in about May 2021. Although filmed surfing in July 2020, he cannot surf now because of the increased pain. He has gained weight since then, about 15 or 20 kilograms.
150As I said earlier, he attends an exercise physiologist now “to get my muscles working again to be able to even think about it”.[42] He is keen to return to surfing but expects a lot of work with his exercise physiologist before he is able.
[42] Transcript at p 71
151At the time of the filming, he was surfing every second day and could surf usually for 30 minutes. His ability to stand on a surfboard and surf was limited to about 10 seconds.
Walking
152Before the 2014 incident, Mr Gainger enjoyed long walks. Now, he can walk for about 30 metres before the pain stops him.[43] Usually, he then stops and has a stretch. He uses a walking stick when he is walking more than 100 metres or going into a shop where he cannot lean on a trolley or in a shop where he expects to stand too long or if he is going upstairs.
[43]Transcript at p 64
153He walks with a limp. This was seen in one of the surveillance films taken in February 2020. At times, the limp is barely noticeable. The same film shows Mr Gainger walking for more than 30 metres. However, his condition has worsened since then.
Cycling
154Before the 2014 incident, Mr Gainger cycled on roads. Even now, he cycles but only minimally.
Social Life
155Before the incident, Mr Gainger was a sociable person. Now, he socialises much less. He rarely goes out to dinner – twice in the last three years. He does not go to the movies with his children. He avoids crowds and events where there are crowds. He avoids meeting people, because they ask what is wrong with him and he is tired of having to answer.[44]
[44] Transcript at p 66
156There were references in his evidence of social contacts other than his friend, Derick. I would not consider his evidence about isolation was a “moveable feast” or that I was being drip-fed information. These matters emerged from cross-examination, as one would expect. If the contacts are isolated then one would not expect them to be the first things he remembers. If they represent the totality of his social interaction, then he is indeed isolated. Nor do I consider his evidence about camping when shown a Facebook entry amounts to drip feeding of information.
157On a different note, since the incident, he has developed erectile dysfunction. He attributes this problem to the effects of his injuries, since it has occurred after the incident.
Domestic duties
158Since 2016, Mr Gainger has lived in a garage on a friend’s property in Byron Bay. His friend helps him with whatever domestic duties he needs to do. His friend cooks his meals now.
Camping
159He still goes camping, which is something he did before the accident. However, his reason for camping has changed. Before the accident, it was for enjoyment. Now, it is to get away from others and where “I can just look at dolphins and just try and think of a better existence than what I’ve got”.[45]
[45] Transcript at p 92
Rock climbing
160He cannot do rock climbing since the 2014 incident.
Sitting and standing
161He has good and bad days. On bad says, he can only sit and stand for five minutes
Driving
162He has difficulty driving his motor vehicle for long distances. He now owns a large vehicle which allows him to haul himself into the driver’s seat. Previously, he had difficulty getting into and out of smaller vehicles.
Depression
163He suffers from depression. With the pain, it is the cause of erectile dysfunction.
164He has a high opinion of his skill as a carpenter. He greatly regrets his inability to use the skill.[46]
[46] Transcript at p 87
Employment
165Before the incident, Mr Gainger prided himself on the quality of his work, making large dining and business tables. No longer can he produce that quality of workmanship due to the medicines he takes, his limp and lack of concentration.
166Mr Gainger tried working after leaving Victoria. His efforts failed despite a sympathetic employer at SEC Constructions. Since 2018, he has received a disability support pension for his physical and mental conditions. He does not seek work and has not for some time. While at Byron Bay, he has done two small jobs – an extension of poolside fencing and a flyscreen.
167He rejected the possibility of working as a sales assistant. With the example of a sales assistant at a Bunnings store, he said he visited such stores using a walking stick and finds moving about these stores difficult because of their size. More generally, he rejected working as a sales assistant, because of a lack of patience.[47] Moreover, he could not stand, sit or walk long enough, as well as the medicines he takes.
[47]Transcript at p 88
168As to the tasks of a general labourer, speaking of his knee, he does not believe he could physically do it. He could not frequently lift items weighing up to 25 kilograms or stand for extended periods. If the labouring job took him to a building site, he foresaw tripping and falling five to seven times a week and feared what he might fall onto. He could not work a full day and feels if he tried, he would need another four days to recover.
169As to his hip, he could not constantly stand, walk, bend, crouch or squat.
Discussion
Credit
170Mr Gainger told Dr Shan he believes his life has entirely changed by his injuries. To Dr Shan, he gave brief answers with few spontaneous remarks. In his oral evidence, he exaggerated and was somewhat flamboyant. Nevertheless, he painted a picture of someone hard done by. He is a bitter man. A constant theme in his evidence is loss. He saw himself as a superb craftsman and that is now lost. He saw himself as a good surfer and that is lost. He gave the example of beating many applicants to get the job with the defendant despite an unprepossessing appearance.[48] The time it took to sort out his Disability Support Pension. The doctors do not diagnose things properly: for example Dr Brydon, who thought there was nothing wrong with his knee. Then after he continued to complain of pain, reassessed and operated. He accuses the defendant of editing the video.[49] Given the psychological problems identified by Mr Kotroni, he presented well during his oral evidence. It must have been an ordeal.
[48] Transcript at p 87
[49]Transcript at p 64
171The defendant submits Mr Gainger changes his position on issues. He always has an answer. It gave as an example, retail work. His initial objection to such work was his injuries. When asked if he could perform that role if he could sit, stand and walk, he referred to the medicines he was taking.
172Except that he was prone to exaggerate, I consider Mr Gainger was a truthful and generally reliable witness.
Did he fall?
173Mr Gainger gave evidence of twisting his left knee and falling heavily onto his left side. Whether he did fall is an issue.
174When he completed the Worker’s Injury Claim Form, Mr Gainger mentions a fall. He does not give a fuller description of the fall. His description of the incident is very brief but the space allowed in the form does not invite anything more than the briefest of descriptions. This is a document completed within two days of the incident. There is no reason for Mr Gainger to mention a fall if it did not occur.
175Given the nature of the surgery in 2008 on the left hip, the defendant submits it is incomprehensible for Mr Gainger not to disclose previous hip injury in the Claim Form. It submits this failure leads to one or other of two conclusions: he did not fall on his hip; or, if he did, it was a minor fall. Mr Gainger says he did not fill out that part of the form because he was pressured by his construction manager, Peter Cannes, to complete form. The tenor of Mr Gainger’s other evidence is that his employer thought little of the consequences of the incident. Pressuring him to fill out a necessary form without taking time to ponder the questions is plausible.
176Although his counsel submits Mr Gainger did not fill out that section because he experienced no pain there, Mr Gainger did not say that in his evidence.
177None of Doctors Meggyesy, Brydon, Coldwell or Agolley mention a fall in the 2014 incident. The earliest mention of the hip among clinical records is an x-ray report of 27 January 2016.[50] This is almost a two-year gap between the alleged fall and the onset of symptoms. It does raise the question of a causal link. However, the existence of the gap proved no barrier to the Medical Panel concluding that the fall caused the avascular necrosis. The Panel explaining the gap in terms of, first, referred pain, and, second, the development over time of a symptomatic avascular necrosis.
[50] Plaintiff’s Court Book at p 32
178If a person twists a knee after slipping on exposed piping and falls, then you would expect the fall to be a heavy one. The slipping and falling in this case was unexpected. Mr Gainger was carrying a towel rail at the time. Presumably, one or both of his hands were not free and he was unlikely to be able to break his fall using one or both of his hands and arms.
179It is true Mr Gainger mentions only the knee when speaking to practitioners in 2014. It is also true he makes no mention of the fall to Dr Agolley which led him to link the avascular necrosis to the 2008 fracture. These are previous inconsistent statements to his evidence of the fall. However, I do not doubt his evidence of the fall. In part, his lack of reference is explained by the referral of pain from the hip to the knee which reinforced the pain in the knee and obscured the pain in the hip. By June 2017, if not earlier, Mr Gainger was telling practitioners of his fall onto his left hip.
180The Medical Panel saw consistency in the history of a fall, followed by the progress of his problems with the hip and the progress shown in the imaging. It explains the lack of groin pain as being due to referred pain. This is also the view taken by Mr Miller.
181I am satisfied Mr Gainger fell heavily on his left hip.
Ansett v Taylor
182Relying on Ansett Australia Ltd v Taylor,[51] Mr Gainger relies upon the acceptance of liability for various claims as rebuttable admissions of an injury to the left knee and left hip. I do not understand the defendant denied an injury to the left knee arising out of or in the course of employment.
[51][2006] VSCA 171
183As to the left hip, the original claim did not refer to the left hip. Mr Gainger’s claim for impairment benefits was initially rejected. Following the Medical Panel opinion, the authorised agent accepted the left hip as a compensable injury. The defendant submits the opinion required the agent to accept liability and that dilutes the effect of the acceptance. Frankly, I would have thought the agent had no choice. There was no question of dilution. In terms of the medical question asked in that proceeding, the agent, on behalf of the defendant, was bound by the answer. There could be no admission due to that acceptance of liability.
Injury arising out of or in the course of his employment
184I am satisfied that on 29 January 2014, Mr Gainger suffered an injury to his left knee and left hip arising out of or in the course of his employment with the defendant.
185There is considerable opinion supporting the finding that the injury to his left hip was either an injury simpliciter or an extended injury. In the first category, the fall caused the avascular necrosis. In the second, the avascular necrosis existed but was asymptomatic until the fall rendered it symptomatic.
186It appears the Medical Panel holds the first view. In its Certificate of Opinion, it speaks of traumatic avascular necrosis. In its reasons, it explains why Mr Gainger did not experience groin pain at the time of the fall as due to his symptoms being focussed on the knee, and those symptoms included referred pain from the hip. As the injury to the hip progressed to more symptomatic avascular necrosis, the groin pain appeared in late 2015 and associated with cortical collapse.
187Dr Blombery also apparently holds that view[52] – “It is my opinion that the avascular necrosis is a consequence of the injury that occurred when he had the fall in January 2014”; and “Injury to the left hip complicated by the development of avascular necrosis requiring hip replacement and complicated by a pain syndrome in the affected area.”
[52] Report dated 15 June 2021 at p 4
188In the passage I earlier quoted from Mr Miller’s first report, it appears he holds the second view – the fall caused or precipitated symptoms in relation to avascular necrosis. He also noted the delay in the recognition of the pathology through the referral of pain from the hip to, predominantly, the knee.
189Mr Grossbard holds the second view and also notes the referral of pain from the hip.
190The other view that it developed independently of the fall is the view of Mr Agolley. Since Mr Agolley was unaware of the fall, this view has little value because of his ignorance of an essential fact. He did not enjoy a “fair climate” of assumed fact to express that opinion.[53]
[53]Paric v John Holland Construction Pty Ltd [1984] 2 NSWLR 505 at 509
191Professor McEntee incorrectly thought Mr Gainger broke his hip in the fall. He focussed on his lumbar spine and considered the development of discogenic low back pain came from the altered gait due to the hip fracture and knee injury. I doubt the fact the hip was not fractured would affect Professor McEntee’s opinion for it is the altered gait which is the determining factor, not the reason for it.
192The evidence raised the possibility of an x-ray of the left hip in 2012. There is no report concerning such an x-ray. The motive of the practitioner in seeking an x‑ray does not appear in the clinical records. Nor is there any further mention of the proposed x-ray in later clinical notes. It is puzzling but not the basis to make any finding of fact.
193The defendant raises the issue of the timing of the onset of his hip symptoms after 2014 and asks whether the avascular necrotic condition might be related to subsequent employment. It points to Mr Gainger’s evidence of climbing and descending stairs when he worked for SEC Constructions, the improvement of his knee pain after surgery and the relationship between the knee pain and lumbar problems. These are interesting considerations but there is no expert opinion on the issue of subsequent employment and it would be foolish for me to reach a finding without such evidence. It would be speculation.
194The defendant submits Dr Agolley’s history is reliable because he treated Mr Gainger and is an orthopaedic specialist. Whether understanding the mechanism of an injury is necessary for its treatment is debatable.
195As to the left knee, undoubtedly, Mr Gainger suffered a soft tissue. The arthroscopy demonstrated pathology and certain parts were removed.
196Although several practitioners speculated about the existence of a Chronic Pain Syndrome in a psychological sense, neither the psychologist, Mr Kotroni, nor the psychiatrists, Doctors Ingram and Shan, diagnosed a Somatic Symptom Disorder or any other psychologically-based pain disorder. One cannot say whether Dr Siefken is diagnosing a psychological disorder when he speaks of chronic pain. Since it is a matter of psychological opinion, the speculation of other practitioners is useful only as it points to complaints of pain greater than they expected organically. However, Dr Blombery explains the pain organically through sensitisation.
197The defendant questioned Dr Blombery’s expertise to speak about avascular necrosis for he is not an orthopaedic surgeon. Avascular necrosis results from the restriction of blood flow. In his curriculum vitae, Dr Blombery sets out his experience, which includes that of a vascular physician.[54] A vascular physician deals with blood vessels in the body. On paper, Dr Blombery has the expertise to express an opinion about the aetiology of avascular necrosis in this case. I cannot say he is better placed than the orthopaedic surgeons.
[54] Plaintiff’s Court Book at pp 226-227
198Interestingly, the defendant submits there is no practitioner who says Mr Gainger’s pain is substantially organically based. That may be so. But it is a necessary implication from the evidence that that is so for the reasons I have set out in the preceding paragraphs.
199Psychologically, there is no dispute Mr Gainger suffers from an Adjustment Disorder with Mixed Anxiety and Depression. This disorder also arose out of or in the course of his employment with the defendant.
Disentanglement
200A theme throughout the defendant’s submissions was the need for Mr Gainger to disentangle the organic from the psychological. In this case, there is no need to disentangle or even, as Mr Gainger submits, find that there is a substantial organic basis for his experience of symptoms, particularly pain. Accepting, as I do, the view of Dr Blombery as to central sensitisation, then his experience of pain is entirely referrable to organic factors. There is no opinion supporting the existence of a psychological pain disorder or even that his experience of pain is heightened by psychological factors. Mr Gainger is one of those many cases where the experience of symptoms is serious and has led to a serious psychological reaction.
Loss of earning capacity
201Mr Gainger’s counsel commenced their submissions by dealing with the issue of loss of earning capacity consequence. They did so because of the dicta in Advanced Wire & Cable Pty Ltd v Abdulle:[55]
“There is no analogue of s 134AB(17) limiting an applicant who satisfies the loss of earning capacity requirements of s 134AB, but not the pain and suffering requirements, from claiming pain and suffering damages … A plain reading of s 134AB permits a plaintiff who satisfies the loss of earning capacity requirements of that section to claim damages for both loss of earning capacity and pain and suffering … .”
[55] [2009] VSCA 170 at paragraph [63]
202It is common ground that the figure which most fairly represents what Mr Gainger was earning or was capable of earning is $70,029 per annum. The 60 per cent annual figure is $42,017.40 or $808.03 per week.
203It is clear Mr Gainger has no capacity to return to his pre-injury duties as a maintenance technician and carpenter from the perspective of his injury to left knee or the injury to his left hip.
204Working with IPAR for some time, Mr Gainger explored suitable employment without success.
205From the perspective of his self-assessment, Mr Gainger does not think he could work reliably or consistently in an office, administrative or sedentary role due to his experience of pain, problems with his memory, concentration and drowsiness.
206The defendant’s vocational assessments identified four occupations said to be suited to Mr Gainger. As is pointed out by his counsel, of the four, only two have details of their weekly earnings. The two are sales assistant (furniture and hardware); and general labourer. The other two were specific jobs at Bunnings Group Ltd and Asphalt FX.
207To reach the 60 per cent figure, counsel pointed out Mr Gainger would need to work 29 hours per week in the general labouring position while in the sales assistant position he would need to work full hours with some overtime.
208I have noted Mr Miller’s opinion about the restrictions Mr Gainger will need to observe for his left knee and, separately, for his left hip. The restrictions are the same for each.
209Dr Blombery answered the question asked of him regarding a wide range of activities. They were all restricted. As to suitable employment other than his pre-injury duties, Dr Blombery confused the issue by referring to Mr Gainger’s state of anxiety and depression.
210In 2018, Dr Horsley placed significant restrictions after considering the left hip and the left knee separately. However, as an occupational physician, she identified transferable skills and considered Mr Gainger was capable of 15 to 20 hours per week of certain kinds of employment. Such limited employments fall well short of the threshold.
211Dr Grossbard is more optimistic about what Mr Gainger can perform provided they do not involve crouching, lifting and bending. Only crouching could be linked to the left knee or hip or both. Lifting and bending seem to be functions associated with other parts of Mr Gainger’s body.
212I do not accept the defendant’s submission that Mr Gainger does not work or seek work because he believes he cannot and he has no need to do so because he receives a disability support pension.
213Mr Gainger does believe he is unable to work for good reason. Given the way he lives, I doubt he would settle for the pension if he had a choice between receiving that or earning an income through employment. He was a craftsman earning $70,000 a year with the defendant.
214I do not think a particular job is excluded from consideration simply because counsel did not ask Mr Gainger about them. A plaintiff’s self-assessment can be important. As with all evidence, it must be evaluated. Sometimes, an assessment can be overly optimistic and sometimes overly pessimistic. But a plaintiff is in the best position to know his or her capacities and how they align with the duties of a proposed job. In this case, in respect of those jobs, I am left with Mr Gainger’s general denial of capacity. This is left unchallenged with those two jobs.
215If one accepts Dr Horsley’s opinion as to capacity, it is difficult to gauge the extent of Mr Gainger’s deterioration since 2018. He does sleep 15 hours daily, with his medicines leaving him drowsy and lacking in concentration. Since the burden of proof is upon him, I will work on the basis detailed by Dr Horsley. Accepting her views, then Mr Gainger has established the relevant level of incapacity and its permanence. He has established it, whether one considers the left knee in isolation or whether one considers the left hip also in isolation.
Psychological
216Unusually in these cases, Mr Gainger’s psychologist and a medico-legal psychiatrist exclude him from any kind of work on psychological grounds. However, there is an opposing view from the defendant’s psychiatrist, Dr Shan.
217Largely, these three practitioners agree on the diagnosis – an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Each believes the disorder is permanent.
218Mr Kotroni has treated Mr Gainger since 2017. He has done so very frequently. There has been some improvement in his mental state. The degree of the disorder is now severe, where previously it was extremely severe. As a general rule, with psychological disorders, the correct assessment of the severity or otherwise of the symptoms of a disorder comes through contact with the patient. Mr Kotroni has had enormous contact with Mr Gainger. He is easily in a far better position to assess his capacity for work on psychological grounds than Dr Ingram or Dr Shan. I accept his view on the capacity for work and find that Mr Gainger is incapacitated for his pre-injuries employment or suitable employment and that state of affairs is permanent.
Serious injury: left hip
219Mr Gainger was relatively young when his hip was replaced. Even apart from his present difficulties, he faces the possibility of needing further surgical intervention.
220His current problems with his left hip are very significant, whether through pain or the restrictions in activities. It is true when speaking of some activities, Mr Gainger attributes his difficulties to more than one body part. His difficulty bending is due to the state of his knees, not just his left knee. Similarly, his ability to stand and sit is limited by the state of his knees. His difficulty in prolonged walking (for example at a Bunnings store) is due to his left knee and left hip. His difficulty in lifting is due to the condition of his lumbar spine. This is understandable, for certain activities involve more than discrete areas of the body. Despite this, it is clear that the left hip causes or significantly contributes to such restrictions.
221Dr Blomberg attributes part of the cause of central sensitisation to the condition of the left hip. This condition does not appear to be treatable.
222I consider the injury associated with his left hip considered on its own is “serious”.
Serious injury: left knee
223Until the hip replacement, part of his experience of knee pain was on reference from the hip. Since the replacement, the knee remains very disabled.
224Similarly, I am satisfied that the injury associated with the left knee considered alone is “serious”.
Serious injury: psychological
225The psychological injury suffered by Mr Gainger is severe. Its effects upon him are described in considerable detail by Mr Kotroni. The injury is so bad as to be incapacitating for work. I am satisfied this condition meets the stern test of “severe” as required by the definition of “serious injury”.
Other conditions
226In considering body functions, I was not invited to consider the state of Mr Gainger’s shoulder.
227More interestingly, I was not invited to consider the condition of his lower back even though there is evidence linking its state to his antalgic gait.
Jones v Dunkel
228Relying on Jones v Dunkel,[56] the defendant urges the drawing of an adverse inference against Mr Gainger through the absence of reports from Dr Rickord, Dr Hayworth and the emergency department of the Byron Bay Hospital.
[56] (1959) 101 CLR 298
229In about early July 2021, Mr Gainger went to the emergency department. He was feeling very low. After concluding he was not suicidal, he was discharged and went to a psychiatrist, Dr Jamie Rickord. Dr Rickford prescribed a medicine, the name of which did not emerge.
230Dr Hayworth prescribed medicinal cannabis some eighteen months earlier to calm Mr Gainger.
231The number of reports obtained on behalf of Mr Gainger is very large, even for this type of proceeding. His solicitors have been busy. The attendance at the emergency department and upon Dr Rickord are very recent. They are not even mentioned in his third affidavit, sworn in July 2021.
232The test is whether obtaining reports from the hospital and those practitioners is something one would expect Mr Gainger to do. I would not.[57] The attendances upon the psychiatrist and the emergency department are too recent. I doubt the psychiatrist could say much more than how Mr Gainger appeared mentally and what exactly was prescribed. The first consideration applies to the emergency department. As for Dr Hayworth, so little was made of medicinal cannabis that it weighs very little in this application.
[57] O’Donnell v Reichard (1975) VR 916 at 929
Conclusion
233I will give Mr Gainger leave to commence a proceeding for pain and suffering and loss of earning capacity damages.
234I will hear the parties on the question of the form of orders and costs.
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