Garnaut v Tempur Australia Pty Ltd
[2018] VCC 643
•18 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-00197
| BRENDAN PHILIPPE GARNAUT | Plaintiff |
| v | |
| TEMPUR AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 & 27 March 2018 | |
DATE OF JUDGMENT: | 18 May 2018 | |
CASE MAY BE CITED AS: | Garnaut v Tempur Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 643 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – application with respect to pain and suffering damages only – injury to the left knee – reliance upon paragraph (a) of the definition of serious injury – specific injury on particular day – the credit of the plaintiff – whether burden of proof discharged – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Dawson | Adviceline Injury Lawyers |
| For the Defendant | Mr B McKenzie | Lander & Rogers |
HIS HONOUR:
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 is seeking leave to bring proceedings in respect of pain and suffering damages only – see Transcript (hereinafter referred to as “T”) 1. In so doing, the plaintiff relies upon sub-paragraph (a) of the definition of “serious injury” found in s134AB(37) of the Act. The injury is one to the plaintiff’s left lower limb and, in particular, the left knee. It is alleged that the injury occurred in a specific incident on 29 August 2011 when the plaintiff was delivering a truckload of king size bed bases and mattresses in the course of his employment – see T4 and 5. What occurred on 29 August 2011 shall be hereinafter referred to as “the accident”.
2 The occurrence of the accident was not disputed – see T5 and 10. Thus, the central issue is whether the statutory test of seriousness has been satisfied, with some credit matters also being relevant to that issue.
3 Mr S Dawson of counsel appeared on behalf of the plaintiff. Mr B McKenzie of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of an affidavit as being true and correct. The balance of the evidence was documentary in nature and tendered either by consent or without objection.
Factual background
(a) The plaintiff’s background prior to the accident
4 The plaintiff is aged 58 years, he having been born in 1959. He has a partner and two teenage children. He was educated to Year 9 level and worked in a number of positions, although primarily as a truck driver. As leave is not sought in relation to economic loss, extensive details concerning his pre-injury employment are not necessary. Suffice to say that he was employed by the defendant as a truck driver. He had worked for it and its predecessor since 1999 and the duties performed by him, in addition to driving, included the delivering and manhandling of mattresses, bed bases and the like.
(b) The plaintiff as a witness
5 I regard the plaintiff as a witness of truth. I note that Associate Professor Nick Paoletti, consultant psychiatrist, who saw the plaintiff at the request of his solicitors, described him as pleasant and cooperative. Certainly that was the impression conveyed by him in the witness box.
6 A quite lengthy video was shown of the plaintiff playing golf, but that is hardly something concerning which he has been secretive. His complaint is that he was a very good golfer (five times club champion) and is now unable to play at the same level or obtain the same enjoyment. He has been forced to reduce his level of golfing activity. Further, I am not of the view that the video material did any great damage to the plaintiff’s credit. He gave evidence that the golf course on which he had been videoed was flat, a proposition which was not challenged, and that what he was doing was, to a considerable extent, giving the person shown with him a lesson or assistance in relation to that person’s chipping and putting. I also accept that he played some competition golf at Sandringham over a period in excess of a year and states that he played every game in a cart. Overall, I am not of the view that the attack on the plaintiff’s golf playing had any negative effect on his credit. As a witness, I consider him to have been straightforward, making appropriate concessions. I accept his evidence.
(c) The state of the plaintiff’s health prior to the accident
7 The plaintiff had suffered a number of pre-accident injuries. In 2000, when playing basketball, he suffered left knee pain. He underwent an arthroscopy with good results and was able to continue in the quite strenuous physical employment in which he was engaged. He also returned to his fairly demanding regime of boxing, going to the gymnasium, playing basketball, playing golf and the like. Indeed, he gave evidence that he was back playing A-grade basketball within a week and a half or two weeks – see T52. Whilst boxing in 2006, he sustained injury to his right knee, undergoing an arthroscopic procedure. He also suffered soft tissue injuries to each elbow, as well as having problems with his left rotator cuff. In addition, he had some elbow problems.
8 The clinical notes of Dr Philip Seymour, an accredited exercise physiologist and registered practitioner of Chinese medicine, show that the plaintiff complained of left knee soreness on 3 September 2008. He had right and left knee pain on 27 May 2009, it being noted that he used his knees to push and unload mattresses from his truck. His active range of movement was found to be “fine”. On 1 July 2009, Dr Seymour noted that the plaintiff had some left knee stiffness and pain and was wearing a brace. On 30 September 2010, the plaintiff was again complaining of left knee pain. There was no effusion and the patella tracking was good, both on knee flexion and extension. In 2011, he began wearing a strap on his left knee, which had been playing up whilst he was performing his duties – see paragraph 12 of the plaintiff’s affidavit of 21 August 2017. The clinical notes of Dr Seymour would indicate that the plaintiff attended with left knee pain only four times in the four and a half years before the injury.
9 Thus, prior to the accident the plaintiff had suffered from pain in a number of areas, specifically, on several occasions, in the left knee. As shall be discussed, subsequent radiological changes would indicate the presence of some degenerative changes in that knee.
(d) The injury, its treatment and diagnosis
10 As stated, the plaintiff suffered injury on 29 August 2011 when unloading a truckload of king size bed bases and mattresses. Whilst so doing, his left knee gave way. This was followed by intense pain and the plaintiff collapsed to the ground. Swelling of the knee commenced immediately. He needed assistance to complete his day’s work. He saw Dr Seymour on the following day and was referred to his general practitioner, Dr Peter Schuijers. The plaintiff saw Dr Schuijers on the same day, namely 30 August. The diagnosis of Dr Schuijers was of a likely medial meniscus tear.
11 The plaintiff was referred to Associate Professor Marinis Pirpiris, orthopaedic surgeon, who reported back to Dr Schuijers on 12 September 2011. Associate Professor Pirpiris was of the view that the plaintiff had probably re-torn the posterior meniscal horn which had been the subject of previous surgery. The plaintiff also had medial compartment degenerative change which had been long-standing, along with patellofemoral degenerative change and a joint effusion. Associate Professor Pirpiris was of the view that the plaintiff would benefit from an arthroscopic debridement. The plaintiff was anxious to continue working so that he could support his family.
12 On 15 September 2011, Associate Professor Pirpiris performed an arthroscopy on the left knee and micro-fractured two grade IV lesions in the posterior weight-bearing surface of the medial femoral condyle and the medial tibial plateau. The medial meniscal tear was also debrided. He reviewed the plaintiff on 4 November 2011. The plaintiff’s recovery had been somewhat slow and he continued to have discomfort in the medial aspect of the knee. This was interfering with his ability to work and carry heavy weights. He was refraining from activities which he enjoyed, including playing with his children, golfing and boxing. The possible need for a MACI-type procedure, which I understand to be a hybrid cartilage repair technique, was foreshadowed.
13 On 24 July 2012, Associate Professor Pirpiris provided a lengthy report to the Accident Compensation Conciliation Service. This covered much of the ground set out above, but also included some additional material. It is apparent that Associate Professor Pirpiris again saw the plaintiff on 23 January 2012. The plaintiff was continuing to have discomfort over the medial aspect of the left knee. On 27 April 2012, Associate Professor Pirpiris injected the plaintiff’s left knee with a synthetic Visco supplement. Effectively, the diagnosis of Associate Professor Pirpiris was of a meniscular tear in the left knee. He was also of the view that the plaintiff had significant chondropathology in that knee prior to the injury, but the plaintiff was adamant that this had been asymptomatic. He felt that there had been an exacerbation of a previously asymptomatic degenerative condition. He placed various restrictions upon the plaintiff’s work activities and foreshadowed the possible need for an osteotomy or an arthroplasty.
14 Associate Professor Pirpiris reported again to Dr Schuijers on 27 November 2015. He had reviewed the plaintiff on that day. The plaintiff’s knee was continuing to give him problems, and he was unable to work. He was playing social golf, having been a good golfer in the past, but also had given up such things as his martial arts and boxing training because of knee problems. Associate Professor Pirpiris thought that an x‑ray and MRI of the knee, in order to determine the underlying status of the hyaline articular cartilage, should be performed. I note that an MRI was performed on 6 January 2016. The conclusion of the radiologist was that there was medial compartment degenerative change with irregular Grade 3-4 chondral loss with subchondral bony oedema. There was a diminutive and degenerate medial meniscus and Grade 2 patellofemoral chondral loss. An ordinary x‑ray was also performed, it revealing mild medial compartment joint space narrowing and a small joint effusion, but no loose body.
15 Associate Professor Pirpiris continued to forward brief reports to Dr Schuijers. He reported on 5 February 2016, noting that the plaintiff continued to have pain particularly over the medial and anterior aspect of the knee. The MRI demonstrated significant chondropathology. Associate Professor Pirpiris indicated an intention for the plaintiff to undergo an intra-articular synthetic Visco supplement injection. An injection seems to have been carried out on 22 April 2016, as reported. On 28 October 2016, Associate Professor Pirpiris reported to the defendant, seeking approval to perform another injection of local anaesthetic. The plaintiff’s knee had started to play up again, particularly over the front. The injection had given him relief for a period of approximately up to six months. A further injection was carried out on 16 December 2016, and a further injection on 21 June 2017. That seems to have been the last administration performed by Associate Professor Pirpiris.
16 Dr Philip Seymour, accredited exercise physiologist, originally reported on 29 March 2012. It is apparent that he first saw the plaintiff in 2008 in relation to tennis elbow and shoulder problems. In any event, Dr Seymour referred the plaintiff to Dr Schuijers and suggested referral to Associate Professor Pirpiris. Dr Seymour reported again on 7 April 2014. He outlined a history of treatment of the plaintiff in respect of his left knee problem. He noted that Associate Professor Pirpiris had told the plaintiff that, in the future, the left knee would require a partial or total joint arthroplasty. He expressed the opinion that the plaintiff no longer had the physical capacity to return to the sort of work which he had been doing. He regarded the plaintiff as a fit, active, positive person, and he noted that he had not been able to participate in a number of recreational activities, such as boxing and playing 18 holes of competition golf. This had increased his anxiety.
17 The plaintiff also put before me a report from Mr Cesar Aldea, physiotherapist. It would appear that the plaintiff was first referred to Mr Aldea by Dr Schuijers on 6 February 2012. Based upon his findings, Mr Aldea was of the view that the plaintiff needed an intensive strengthening program in order to increase joint stability and pain relief. He was also of the view that, given the level of degeneration of the plaintiff’s knee, the next step would be a partial or total joint arthroplasty. He considered that the plaintiff had a limited capacity to work, and that this was directly related to the accident. He also expressed the opinion that the plaintiff would not be able to perform similar physical duties in the future. He considered something in the nature of an office or administrative type of job would be suitable. He also considered that the plaintiff’s limited capacity to work would continue indefinitely and was likely to deteriorate, with further surgical procedures possibly being needed. I appreciate that the plaintiff is not seeking leave in respect of economic loss, but the observations of Mr Aldea concerning the plaintiff’s work capacity can be seen as being of some assistance in an assessment of the interference with the plaintiff’s everyday life. In any event, he had been treating the plaintiff on a weekly basis over the previous four months, attempting to improve the function of the plaintiff’s knee. However, Mr Aldea believed that the plaintiff would need future surgical intervention.
18 The plaintiff has also been examined for medico-legal purposes. Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff at the request of his solicitors, reporting to them on 25 September 2017. He obtained a quite lengthy history. He also noted that the plaintiff told him that his left knee injury impacted upon every aspect of his life. The plaintiff claimed he could not run, jump or walk sideways, and when he does too much he suffers from pain in the left knee. He also referred to disturbance of his sleep, as well as stating that the left knee condition had an impact upon his employability and his social, domestic and recreational activities. The diagnosis of Mr Kossmann was of advancing osteoarthritis in the left knee. Mr Kossmann regarded the prognosis in relation to the left knee as being poor. He thought that there were clinical signs of developing osteoarthritis and, whilst assistance may be gained from medication and anti-inflammatories, in the long term the plaintiff will most likely require a total knee replacement.
19 Mr Kossmann considered that the plaintiff had no capacity to return to his pre-injury employment. He had a partial work capacity for non-physical work and work where he did not have to walk long distances, walk on uneven ground, walk upstairs or downstairs, walk on inclines or declines, climb ladders, kneel, or carry items weighing more than 5 kilograms and the like. Mr Kossmann considered that this incapacity will continue for the foreseeable future. He also referred to these restrictions, along with problems involving prolonged standing, squatting, walking and the like, as being permanent. Again, references to work capacity and restrictions are of some assistance in assessing the plaintiff’s physical limitations and the like.
20 Associate Professor Kenneth Myers, consultant general surgeon, examined the plaintiff at the request of his solicitors on 16 April 2014. Associate Professor Myers was also considering some complaints which the plaintiff had in relation to his left shoulder and elbow. However, he expressed the view that the plaintiff had no current capacity for full-time unrestricted manual or pre-injury employment principally because of the injury to the left knee. He thought that there was no prospect of getting the plaintiff back to employment until there was improvement in the condition of that knee. He also referred to the possibility of a progressive worsening of arthritis within the knee joint and the likelihood of a requirement for left knee joint replacement surgery within the next 10 years.
21 The defendant has also had the plaintiff examined. Mr Jonathan Hooper, orthopaedic surgeon, examined the plaintiff shortly after the occurrence of the injury, such examination being on 5 December 2011. To Mr Hooper, the plaintiff described problems which he had had with the knee in the past, also stating that the last operation that he had was 15 years previously. Mr Hooper’s report, which was completed very soon after the accident, contains a diagnosis of temporary aggravation of a knee which had significant chondral damage. In other words, Mr Hooper saw the situation as being one of temporary aggravation.
22 Associate Professor Anthony Buzzard saw the plaintiff at the request of the defendant on 22 November 2012. The plaintiff told Associate Professor Buzzard of his earlier left knee problem, which had resulted in an arthroscopy performed by Mr Andrew McQueen 17 years previously. He said that he had not experienced trouble with his left knee over many years prior to the accident. The plaintiff also told Associate Professor Buzzard that he had been engaged in boxing training up to the time of the accident, and had been involved in boxing activities three to five times a week for 10 years.
23 In the opinion of Associate Professor Buzzard, the plaintiff had pathology which pre‑dated the accident, but he thought it reasonable to accept that such pathology had been aggravated by it, and that at the time of suffering the injury in question the plaintiff also suffered from a meniscal tear, which had been the subject of the surgery performed by Associate Professor Pirpiris. Associate Professor Buzzard thought that the plaintiff’s condition was stable, presuming that there was not going to be any operative intervention in the next year or so. He thought that there was no scope for apportionment, having been asked in that regard. He drew the defendant’s attention to the fact that the plaintiff was not complaining of any symptoms in the left knee prior to the accident in question since his previous left knee surgery.
24 Mr Clive Jones, orthopaedic surgeon, saw the plaintiff at the request of the defendant on 17 April 2014. Mr Jones thought that the plaintiff had symptoms suggestive of early arthritic changes in both knees, but such changes were more marked on the left. The plaintiff found it difficult to kneel or to negotiate stairs. The knee was also prone to swell. The plaintiff indicated soreness over the medial joint line, and firm compression of the patella resulted in his being distinctly uncomfortable. The opinion of Mr Jones was that the plaintiff had early arthritic change affecting his left knee joint. Changes evident in the radiology would have been present for a considerable period prior to the accident. There had been a temporary aggravation, but with residual symptoms. He thought it reasonable to consider that the aggravation of the underlying arthritic condition had ceased.
25 Mr Jones thought that the plaintiff was capable of seated employment in a comfortable workplace, with other possibilities including employment which did not require kneeling, squatting or excessive lifting. Having described the situation as being one of temporary aggravation, Mr Jones also stated that, had the relevant employment not taken place, presumably the symptoms would not have occurred. Mr Jones conceded the prognosis to be “reserved”, bearing in mind the pathology, which related to pre-existing underlying matters not connected with the accident.
26 Whilst the plaintiff has also been examined by Associate Professor Nick Paoletti, consultant psychiatrist, as reliance is not placed upon paragraph (c) of the definition, not a great deal of attention need be directed towards Associate Professor Paoletti’s report at this point of the judgment. There shall be reference to it when discussing s134AB(38)(h) of the Act.
27 The diagnosis of the injury sustained by the plaintiff seems to me to be as follows. The plaintiff suffered an acute medial meniscal tear of the left knee. The injury also rendered symptomatic significant chondropathology in that knee. This is effectively the diagnosis of Associate Professor Pirpiris, the treating surgeon, and I accept it. I also accept that there are clinical signs of a developing osteoarthritis, as diagnosed by Mr Kossmann. Associate Professor Myers expressed the view that the plaintiff had a tear of the medial meniscus of the left knee and aggravation of pre-existing degenerative arthritis of that knee. The above is also consistent with the diagnosis of meniscal tear and aggravation of quite marked degenerative disease as found by Associate Professor Buzzard, examining on behalf of the defendant. I do not accept the opinion of Mr Clive Jones, also examining on behalf of the defendant, that the aggravation of the underlying arthritic condition has now ceased, nor the opinion of Mr Jonathon Hooper, which is to much the same effect. I prefer what could be described as the majority view of Associate Professor Pirpiris, Mr Kossmann and Associate Professor Buzzard, which view seems to me to make sense.
28 Whilst the plaintiff had suffered previous left knee trouble, whilst there are radiological signs of marked degenerative disease in the knee, and whilst he had been experiencing some symptoms in that region prior to the accident, I accept that he was able to engage in a wide range of activities prior to the accident. He was able to perform regular heavy work and engage in a quite demanding range of sporting and other activities.
29 As stated, in relation to any issue of aggravation, I am satisfied that the plaintiff suffered from some symptoms in the left knee prior to the accident. He also had a history of surgery to that knee many years previously. However, I am also satisfied that he was able to perform heavy and demanding physical work and engage in a demanding regime of sports and exercises prior to the accident. Accordingly, the vast bulk of the symptoms and restrictions from which he now suffers are consequences of the accident.
30 I am also of the view that the consequences from which the plaintiff suffers are permanent within the meaning of the Act, in that they will persist for the foreseeable future and will continue to be related to the accident. As stated, in this regard I do not accept the opinion of Mr Jones and Mr Hooper. The plaintiff’s treating physiotherapist, Mr Aldea, has referred to the plaintiff’s limited capacity for work as continuing indefinitely and likely to deteriorate in the future. This would appear to indicate that it is his opinion that the consequences of the accident are permanent. Mr Kossmann stated that the plaintiff’s prognosis is poor and that the restrictions from which he suffers are permanent. Associate Professor Buzzard was prepared to make an Impairment Assessment of the left knee pursuant to the AMA Guides, an essential ingredient of which is permanence. As stated, I do not accept that the consequences of the accident were temporary and no longer operate.
31 Pursuant to s134AB(38)(h), psychological or psychiatric consequences of physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise. Accordingly, they will not be taken into account in the present case.
32 The plaintiff has been examined by Associate Professor Paoletti, consultant psychiatrist, for medico-legal purposes. He reported on 11 April 2014. He thought the plaintiff suffered from depressive and anxiety disorders “Not otherwise specified”. Associate Professor Paoletti noted that the plaintiff had been seeing a psychologist, a Mr Philip Samuel. Mr Samuel in fact reported to Dr Schuijers on 22 July 2014, at which stage he expressed the belief that the plaintiff’s anxiety and depression, whilst still significant, were improving. Associate Professor Paoletti thought that the plaintiff seeing Mr Samuel was an appropriate and reasonable treatment expense. Whilst it is clear that the plaintiff suffered from some anxiety and depression and saw a psychologist in this regard in 2014, the overall impression created by him was not of a person suffering from major mental or behavioural problems. Such factors will not be taken into account, but I am not of the view that they are of any great moment in any event.
Other developments since the injury
33 Essentially, since the injury the plaintiff has not been working, although in February of this year he performed approximately two weeks work for his brother. His brother is a floor tiler and the plaintiff did assorted odd jobs such as going to tile stores, getting lunch, banking, hand-mixing some glue and the like. He had attended an interview in relation to possible work as a bus driver in 2015, but nothing came of this. He has continued to play some golf, as shall be discussed, but claims that generally he has not played with the same frequency or at the same level as he was able to play prior to the accident. Otherwise, he has been living at home with his partner and family.
Ruling
34 I am of the opinion that the plaintiff has discharged the burden of proof in this matter. I have come to that conclusion for the following reasons, which are not listed in order of importance or significance.
(i) In applications of this nature, the credit of the plaintiff is usually important. As was said by Brooking J in Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi (1998) 4 VR 439 at [448]:
“Moreover, in “serious injury” applications the credit of the applicant is of great importance, …”
This observation was referred to recently by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 176.
As earlier stated, I have no reason to doubt the plaintiff’s credibility. I accept his evidence. I accept what he has sworn in his affidavits.
(ii) The plaintiff has had to undergo a considerable amount of medical and surgical treatment. He had an arthroscopy on 15 September 2011. He underwent an injection into the knee on 27 April 2012. He had an MRI on 6 January 2016, which, according to Associate Professor Pirpiris, demonstrated significant chondropathology, this being followed by a further injection on 22 April 2016. There were further injections on 16 December 2016 and 21 June 2017. Apart from seeing his general practitioner, the plaintiff has also received treatment from a physiotherapist and from an accredited exercise physiologist. In other words, the plaintiff has had considerable treatment of his left knee without any significant improvement.
(iii) The plaintiff has sworn that carrying any weight or load causes him to experience pain at the time of so doing and even more pain later. Left knee pain can also come on without warning, for example when he is carrying out a simple manoeuvre, such as getting out of a car or going down stairs. When seen by Mr Kossmann on 25 September 2017, the plaintiff said that his left knee injury had an impact on every aspect of his life. Whenever he does too much, he suffers from pain in that knee. I accept that the left knee condition is productive of the pain and symptoms of which he complains.
(iv) There has been very considerable interference with the plaintiff’s sporting and physical fitness activities. Prior to the injury, he was a particularly good golfer. He had won the club championship for five consecutive years. The plaintiff had achieved this playing at Riverview Golf Club in Ivanhoe. The plaintiff has returned to golf since sustaining the relevant injury, but I accept that he is now playing less frequently and not to the level which he was previously able to attain. He is no longer a member at Riverview. When he does play, he frequently uses a cart. The video material that was shown of him playing golf was on a course which he described as being particularly flat. As previously mentioned, he stated that, for at least part of the time during which he was videoed, he was in fact giving an unofficial short-game lesson to a friend.
He played for a period at a club which operates out of the Sandringham Golf Course, where he had some success. However, I accept that generally there has been a marked decrease in the number of occasions on which he can play golf. Because of its hilly nature, he is unable to play, or play regularly, on the hilly course where he had been five times champion. For example, I would refer to T61. I accept that playing high quality golf is something that was very important in his life and that this has now been removed from him.
He told Associate Professor Buzzard, examining on behalf of the defendant, how he had been club champion five times, but had not played with his club since the accident. To Associate Professor Myers, he also mentioned the fact that he had been five times champion, also saying that he was “not competitive anymore”. I accept that golf, and particularly playing it well, played a role of major importance in the plaintiff’s life and that this has been grossly disrupted by the injury.
(v) I also accept that physical fitness and sporting activities generally were very important to him and that there has also been disruption in this regard. He previously attended the gymnasium up to five times per week. He also boxed to stay fit and coached boxing. As he has sworn in his affidavit of 21 August 2017, the injury has put an end to this. Because of the pain in his knee, he lacks the mobility to do the things which he could previously do. I note that he described himself as being “sports mad my whole life” – see T46. He can no longer kick a football or play games with his children. He has sworn that, were he able to, he would be training with his son and actively performing the role of his skills, strength and conditioning coach. In short, he is a man who was very involved in matters of fitness and participation in sports, both for his own benefit and in relation to playing with and coaching his children. There has been quite gross interference with his participation and enjoyment in this regard. The loss of this ability is obviously something which he feels deeply.
(vi) The plaintiff has also sworn that he his knee pain affects his sleep. He finds it difficult to sleep due to the pain and tends to wake frequently during the night because of this.
As was said by Maxwell P in Haden Engineering v McKinnon (2010) 31 VR 1:
“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.”
(vii) The plaintiff has sworn that the severity of his pain varies from day to day, but also that he is prone to flare-ups of pain after engaging in certain physical activities and “just generally by the end of each day”.
His partner, Ms Nerredith Dean, who was not cross-examined but who has sworn an affidavit, has stated that most nights the plaintiff has his knee elevated and it is common for him to apply icepacks to the knee.
In Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12, the Court of Appeal stated as follows:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
In the present case, the plaintiff, whilst he may take vitamin tablets and the like, is not a great believer in pain-relieving medication. As he has sworn, he has found that his body simply could not tolerate such medication and caused bleeding. He also gave oral evidence as to bleeding from the rectum, attributing this to taking medication. He has sworn as to daily pain and it is evidence which I accept. It is another factor of some importance.
(viii) Whilst the present application is not one in respect of pecuniary loss, the plaintiff has been deprived of the ability to work in the occupation of truck driver and of the financial benefits and security which this provided. I note the observations of Mr Kossmann to the effect that the plaintiff has no capacity to return to his pre-injury employment. Associate Professor Myers said that the plaintiff has no current capacity for full-time unrestricted or manual pre-injury employment, and his treating general practitioner, Dr Schuijers, used words to the effect that the plaintiff is unable to carry out his pre-injury duties. The inability to continue in an occupation which he has pursued for a large portion of his working life and particularly for 12 years prior to the accident is a factor of importance.
35 In summary, I find that the plaintiff has pain and suffering consequences of the injury which, when the appropriate comparison is made in accordance with s134AB(38) of the Act, could be fairly described as being more than significant or marked and as being at least very considerable.
Conclusion
36 The plaintiff is successful. He has discharged the burden of proof. Leave is given to him to pursue an action for damages for pain and suffering.
37 I shall hear the parties as to any ancillary orders that are required.
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