George, Rodney v Norken Transport
[2009] VCC 1109
•15 September 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-01499
| RODNEY GEORGE | Plaintiff |
| v | |
| NORKEN TRANSPORT | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 August 2009 |
| DATE OF JUDGMENT: | 15 September 2009 |
| CASE MAY BE CITED AS: | George, Rodney v Norken Transport |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1109 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s.134 AB serious injury – Pain and suffering – whether right knee constitutes permanent serious impairment – relevance of coincidental impairment in left knee.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J D Philbrick SC | Maurice Blackburn |
| with Mr G E Chancellor | ||
| For the Defendant | Mr R J Stanley QC | Herbert Geer |
| with Ms M Taaffe | ||
| HIS HONOUR: |
1 In this application the plaintiff seeks leave to commence proceedings seeking damages for an injury which he suffered to his right knee in the course of his employment with the defendant on 30 March 2004. The injury involves the aggravation of pre-existing asymptomatic degenerative changes in the right knee.
2 The only issue in dispute in the proceedings relates to whether the plaintiff’s injury satisfies the definition of serious injury within the provisions of the Accident Compensation Act 1985 (“the Act”).
3 In support of his application the plaintiff has sworn two affidavits[1] in which he deposed that:
[1] 7 June 2007 – the first affidavit; 23 July 2009 – the second affidavit.
•
Following the happening of the incident he suffered from symptoms of pain and swelling of his knee, which eventually caused him to undergo surgery which was undertaken by Mr Clive Jones on 26 July 2004. He said that following the surgery there was some improvement in the pain and swelling. However, as time progressed there was a slow increase in his symptoms.
•
In late 2004, he commenced experiencing symptoms of pain in his left knee. Since that time he has suffered from symptoms in both his knees.
•
Whilst he has pain in his left knee, it is his right knee which is the most painful and causes the most inconvenience. He suffers increased symptoms of pain if he walks for more than a few hundred metres. Sitting for more than an hour results in the knee becoming stiff and painful when he stands. He has difficulty with steps, walking on uneven ground, or squatting. He said that he manages his symptoms of pain in his right knee by the use of strong painkillers, including Panadeine Forte. In addition he undertakes exercises in accordance with instructions previously given to him by a physiotherapist.
•
His great passion before his accident was fly-fishing, in the practice of which he travelled to remote mountain areas and would hike to fishing spots. The effect of his injury has been to limit the areas in which he can fish. He now must choose areas with easy access where he does not have to walk into or stand whilst fishing.
•
He had worked in the transport industry as a truck driver for most of his working life, and by reason of the injury to his right knee he has been rendered unfit to perform duties which involves driving for long distances or which required him to climb in and out of prime movers and onto and off trailers to secure loads.
•
Since the incident, amongst other jobs, he had regularly worked for a friend who operates a strawberry farm.[2] He said that he had also worked as a truck driver with the Estcourt Group and with Belmont Nominees but that he gave up working with each of these companies because that work aggravated the symptoms in his right knee to the extent that he could not cope.
[2] known as ‘Strawberry Springs’
4 The plaintiff gave evidence and was cross-examined. In the course of his evidence-in-chief, the plaintiff said that:
•
He was not currently working but that he had been looking for work. As to the type of work he had sought, the plaintiff said “whatever I could do basically. Mostly driving, but a lot of them I wouldn’t be able to do when I investigated them”. He was asked “If you are not lucky enough to get some sort of suitable driving job, if the position at Strawberry Springs becomes open to you again, will you consider working there again?”, to which he responded “Probably”.[3]
•
He had fished in all the tributaries of Eildon Weir and in areas such as the Snowy Mountains, Thredbo, the upper Eucumbene and the Murrumbidgee.[4] He said that when fishing in these rivers he was required to wade into the rivers, the bottoms of which were formed mostly either by freestone or rock bar. He said that he had been forced to give up this activity, as the hike into the area, the need to negotiate the tussocks surrounding rivers, and the requirement to stand whilst fishing there, were now beyond him.
[3] Transcript (“T”) 8
[4] T 9
5 In cross-examination the plaintiff said that:
•
He had problems in both of his knees, but that his right knee gave him more trouble than his left. It was put to him that even with a good right knee his left knee would stop him from fishing in the remote places which he had described, to which the plaintiff answered:
“I honestly do not know.”[5]
[5] T 12
•
Before his accident in 2004 he would go fishing up in Tumut twice a year for a week or ten days.
•
He suffers from asthma and had had sinus problems for many years. He had undergone three operations to deal with his sinus problems. He described the last operation as being successful in that his sinuses are now better, but his most recent operation had caused some nerve damage which caused him to suffer from really severe headache when he was exposed to cold. He said that he had been told that the “headache problem” would gradually heal itself up. He would probably not be able to do driving work if it did not.
•
His post accident employment had included working for a friend who owned a strawberry farm with whom he had an arrangement that there was a job for him during the strawberry season. He agreed that his employment with two companies with whom he had worked following his accident, namely the Estcourt Group and the Belmont Group, had finished at the start of the strawberry season[6] but did not demur from the statement made in his affidavit[7] that the work he was required to perform with these companies was really beyond him. He said that it was not his intention to go back to work at Strawberry Springs, but that if he could not find other work he had no choice, as he had to earn some money.
•
The condition in his knee did not prevent him from doing anything that he wanted to do, but made some things more difficult for him.[8]
•
That he suffers from symptoms of neck pain, which was being managed conservatively.
•
When he last saw Mr Jones in July this year, Mr Jones had asked him how old he was, and commented:
[6] T 13
[7] Plaintiff’s Court Book (“PCB”) 12
[8] T 19. This statement made by the plaintiff, taken at face value, would suggest that the accident has had limited consequences for him. When the statement is considered on the basis of the plaintiff’s evidence as to the effect of the accident upon his capacity to be employed as a driver; his ability to walk; his level of symptoms and the effect which his injuries had upon his ability to pursue his sport of fly fishing, I am of the opinion that the statement is of little assistance in assessing the true consequences to the plaintiff of his injury.
“I will probably see you in about ten years’ time for a knee
replacement.”[9][9] T 21
6 In re-examination the plaintiff said :
• That his right knee was the one that gave him the most trouble. •
That these days he could not walk for more than half a kilometre or so because his right knee started to hurt.
•
That he had limited movement in his right knee and that he suffered from occasional swelling in the knee.
•
That he had given up working with Estcourt because his knee became painful, but he would have continued in this work had he been able to do so.
•
That before the accident he went fishing whenever he could get away for the weekend if the weather was right. He would also occasionally fish during the week if he was not working, and sometimes at night.
Findings as to the Plaintiff’s Evidence
7 I had the opportunity of assessing the plaintiff as he gave evidence. I formed the opinion that the plaintiff had a stoic nature and that throughout his evidence he was doing his best to give truthful and accurate answers to the questions he was asked. I found no reason not to accept the plaintiff’s evidence:
•
As to the extent of the symptoms from which he suffers in his right knee and their impact upon his life and lifestyle.
•
As to the extent of the symptoms from which he suffers in his left knee and the severity of those symptoms when compared with the symptoms which are present in his right knee.
Further Affidavit Evidence
8 The plaintiff’s wife, Mrs Helen George, in an affidavit dated 14 July 2009, deposed:
•
That before his accident the plaintiff was a keen golfer, a passionate angler, and he was active and self-sufficient.
•
That the plaintiff had given up hiking. He could no longer walk even for nine holes of golf and by reason of his symptoms, he has now had to give up activities as basic as walking his dog.
9 In an affidavit sworn 23 July 2009, Mr Craig Broadbent deposed that he was a long-term friend of the plaintiff’s, and that he had over many years accompanied the plaintiff in camping, fishing, and hiking in the Victorian Alps and the Snowy Mountains. He described the plaintiff now as being unable to go for walks with his wife, to take his dog for walks, to play golf, or to fish.
10 The evidence of each of these witnesses was not challenged.
The Medical Evidence
11 The plaintiff relies upon three reports from his treating general practitioner, Dr P Malcolm:
• In a report dated 24 May 2005, Dr Malcolm comments that the plaintiff suffered a tear of his medial meniscus which had caused a partial incapacity of his right knee, such that he was unable to return to work as a truck driver. Dr Malcolm expressed the opinion that the plaintiff was able to return to suitable employment, and that he would eventually require a compartmental or total knee replacement. • In a further report dated 23 December 2008, Dr Malcolm described the plaintiff’s prognosis as being fair. This comment was repeated in a final report dated 14 August 2009 in which Dr Malcolm expressed the opinion that the plaintiff may need a total knee replacement in the future, and that he had a partial incapacity for work. 12 The plaintiff’s orthopaedic surgeon, Mr Clive Jones, has provided four reports:
•
In his first report, dated 13 April 2005, Mr Jones described the plaintiff’s condition as involving early knee degeneration on the right side, and expressed the opinion that the plaintiff’s prognosis was somewhat reserved.
•
In a further report dated 27 January 2007, Mr Jones commented that an MRI and arthroscopic evaluation indicated a degenerative meniscal tear associated with early arthritic change. He expressed the opinion that the plaintiff’s arthritis would slowly progress and that he may eventually require a total knee replacement. In the meantime he thought that the plaintiff’s capacity for work had been significantly reduced.
• In a further report dated 18 November 2008, Mr Jones commented:
(a)
“Mr George continues to experience knee symptoms bilaterally due to degenerative changes in the knee joint associated with articular cartilage thinning and meniscal cartilage degeneration.
(b)
His knee disability is a minor one,[10] but it is expected he will continue to experience symptoms of pain, swelling and stiffness in both knees.
(c)
While he is expected to experience ongoing symptoms, his future medical-treatment needs do not appear to be great. It is unlikely that his arthritic change will progress rapidly, and further surgical treatment is thought to be unlikely.
(d)
Mr George does have a work capacity and is currently working. His work experience is limited mainly to truck driving, and there is not much else on offer.”
[10] I do not accept this description by Mr Jones as to the level of the plaintiff’s disability. I have previously commented that I accepted the plaintiff’s evidence as to the symptoms from which he suffers in his right knee, and the way in which those symptoms have restricted his ability to work, pursue his sport of fly-fishing, limit his ability to walk, and cause him pain. In providing his report, Mr Jones clearly took the view that the plaintiff’s symptoms did not restrict his ability to work. I consider this to be a simplistic and inaccurate analysis of the plaintiff’s position. Further, it is inconsistent with the previous history obtained by Mr Jones on 27 January 2007 that the plaintiff was unable to drive long distances and was limited in his ability to walk to less than one kilometre. In the circumstances I do not find this description by Mr Jones as to the level of the plaintiff’s disability by reason of the condition in his right knee to be persuasive.
• In his report dated 13 August 2009, Mr Jones expressed the opinion that:
(i)
Over the years there has not been major progression in his osteoarthritis, and there has been little change.
(ii)
He has symptomatic knee degeneration, more marked on the right than the left side.
(iii)
He has arthritic change in his knee which has shown little tendency to progress over the years.
(iv)
The future medical-treatment needs do not appear to be great, as his arthritic change has progressed little, if at all. In ten years’ time the long-term outcome may be a total knee arthroplasty, dependent on symptoms.
13 Dr Amanda Sillcock, an occupational physician, in a report dated 5 August 2009 expressed the opinion:
• That the plaintiff was suffering from osteoarthritis in the right knee, secondary to his injury sustained in the course of his work in 2004. • That he was unfit for his pre-injury duties as a semi-trailer driver but was fit for alternate duties. • That his condition was unlikely to change significantly in the short term, but that his symptoms would increase as he aged. • That it was likely that he would need a total knee replacement at some future date. 14 Mr Rodney Simm, orthopaedic surgeon, saw the plaintiff on two occasions on behalf of the defendant:
•
On 10 November 2004 he expressed the opinion that the plaintiff had aggravated degenerative pathology in his right knee whilst working on 30 March 2004, and that he was likely to have a permanent impairment and loss of function of the right lower extremity as the result of the right- knee injury.
•
On 22 March 2006, Mr Simm noted that the plaintiff was aware of pain in his right knee each day, and that his left knee was developing similar symptoms. As to the plaintiff’s right knee, Mr Simm expressed the opinion that his condition may gradually deteriorate over a period of years, and that definitive knee-arthritis surgery such as a knee replacement may ultimately be necessary.
15 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 8 August 2006. He expressed the opinion that the plaintiff had aggravated a pre-existing degenerative condition in his right knee as the result of his injury, but that the condition in his left knee had not been caused by his employment, nor by reason of the fact that the plaintiff was required to favour his right knee. He said that the combination of bilateral knee problems certainly would make it difficult for the plaintiff to perform the normal tasks of truck driving.
16 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on 14 February 2008. He expressed the opinion that the plaintiff was suffering from naturally occurring constitutional medial compartment arthritis of both knee joints, but that the work-related episode of March 2004 aggravated this underlying condition in the plaintiff’s right knee. He commented:
“While one might consider the option of total knee replacement or perhaps medial unicompartmental knee replacement surgery, I would concur with Mr George’s hesitancy in terms of undergoing these sorts of procedures. I believe that it would be reasonable to state that overall 60-year-old men do not do as well as what one might term the average following total knee replacement surgery.”[11]
[11] I interpret this evidence to be a statement that whilst surgery may be warranted due to the level of the plaintiffs symptoms and disability it may not be recommended given the uncertain prognosis associated with such surgery.
He further opined:
•
That the plaintiff would have difficulty with prolonged standing and with kneeling and squatting on his right knee.
• That he will continue to note right-knee pain as he described. • That it was possible that the symptoms would progress slowly with time. •
That many patients could continue to self-manage this condition for many years, and that arthritis of the knee behaved differently from arthritis of the hip joint, with the result that many patients can self-manage with conservative treatment.
17 In a further report dated 19 May 2009, Mr Dooley:
•
noted that the plaintiff suffered from pain with prolonged standing and prolonged activity, and that he had difficulty kneeling and squatting, and seemed to take no issue with the plaintiff’s history in this regard. He opined that the plaintiff was fit for restricted driving duties, but he would be unable to drive large trucks for long distances or to do heavy loading and unloading.
•
opined that the plaintiff would suffer at least from intermittent right-knee pain which would progress slowly in time. The probable long-term prognosis was that symptoms would deteriorate over a long period of time; however, the deterioration did not always correlate with the need to undertake surgery such as knee-replacement surgery.
The Issues Raised by the Defendant
18 It is submitted on behalf of the defendant that:
(i)
The pain and suffering consequences of the injury to the plaintiff’s right knee do not meet the threshold established by the Act.
(ii)
The condition of the plaintiffs left knee has, independently of any symptoms in the right knee, caused the plaintiff significant problems, and that this condition alone is such that it restricts the plaintiff’s ability to engage in unrestricted work and leisure activities, including his passion of fly-fishing.
(iii)
That on occasions the medical practitioners who have examined the plaintiff have found a greater restriction of movement to be present in the plaintiff’s left knee than that of his right.
(iv)
That the extent to which the plaintiff’s life has been affected by the condition in his right knee, with respect to his ability to engage in recreational activities and also employment, is extremely limited having regard to the disability from which the plaintiff suffers in his left knee.
Findings
19 Whilst there is no issue that the plaintiff suffers from a degenerative condition in his left knee which causes him pain and restriction of movement, the role which I am required to undertake is to determine the consequences of the injury suffered to the plaintiff’s right knee. In undertaking this task I am required to determine the consequences which I am satisfied have been materially contributed to by the injury. In this regard the plaintiff is not required to establish that the injury to his right knee is the sole cause of such consequences.[12]
[12] Grech v Orica Australia Pty Ltd (2006) 14 VR 602
20 In his affidavit the plaintiff described the condition in his left knee, when compared with that in his right, in the following terms:
“Whilst I have some pain in my left knee, it is my right knee which is the
most painful and which causes me the most inconvenience.”
21 He thereafter deposed in detail to the symptoms which were present in his right knee.[13] In cross-examination, it was put to the plaintiff that his left knee gave him just as much trouble as his right knee. The plaintiff did not accept this proposition, commenting that his left knee was “not quite as bad but it has been giving me some trouble”.[14]
[13] PCB 8
[14] T 11
22 The relevance of the symptoms in the plaintiff’s left knee to his level of incapacity was further explored in the passage of evidence to which I have earlier referred[15] in which the plaintiff commented that he honestly did not know whether in the presence of an uninjured right knee, the condition of his left knee was such that it would prevent him from hiking into remote areas for the purpose of fly-fishing.
[15] T 12
23 I am satisfied on the basis of the plaintiff’s evidence that his right knee presents the plaintiff with his most significant problems, both with respect to pain and difficulty associated with sitting, standing, and walking.
24 Whilst I accept that the plaintiff’s condition in his left knee, when considered independently to that in his right knee, may have impacted upon the plaintiff’s ability to engage in his sport of fly fishing and to work as a driver, I do not accept that the condition in his right knee has not materially contributed to the plaintiff’s incapacity to work as a truck driver, to pursue his primary sporting interest of fly-fishing, or to the diminution of his general enjoyment of life by causing pain and impairing his ability to walk. In this regard I accept the plaintiff’s evidence:
•
That the symptoms in his right knee are more significant than those in his left knee.
•
That whilst he is able to quantify the effect of the symptoms in his right knee in restricting his ability to engage in various activities, he cannot say whether the condition in his left knee would have had a similar effect when considered independently of his right knee.[16]
[16] I interpret the plaintiff’s evidence in this regard at T 12 as being consistent with and confirming his evidence that the symptoms in his right knee were the primary source of his incapacity.
25 I am satisfied that the injury to the plaintiff’s right knee has had a significant impact upon his ability to work. I accept the plaintiff’s evidence that he was required to cease working both at Estcourt and with the Belmont Group, primarily by reason of the presence of the symptoms from which he was suffering in his right knee[17], and that his employment with Mr Corella at Strawberry Springs is really a fall-back position which arises primarily by reason of financial necessary. The plaintiff is presently unemployed. I am satisfied that, but for the injury to his right knee, the plaintiff’s range of employment opportunities as a truck driver would have been much greater than those he presently faces, and that he would, for example, have taken the contract extension offered to him in his employment with Estcourt.[18]
[17] The medical evidence is generally consistent with plaintiff’s evidence in this regard: see, for example, Mr Dooley at Defendant’s Court Book (“DCB”) 39; Mr Shannon at DCB 30; Dr Sillcock at PCB 73 ; Dr Malcolm at PCB 79 and Mr Jones at PCB 77.
[18] T 13
26 I accept the plaintiff’s evidence that on the occasion of his last assessment with Dr Jones, Dr Jones told him that he would probably see the plaintiff in ten years’ time for a knee replacement. I am not satisfied that the plaintiff has established on the probabilities that it is inevitable that his condition will deteriorate to such a level that knee-replacement surgery is required. The evidence satisfies me, however, that the plaintiff has, by reason of the aggravation of the underlying degenerative condition in his right knee by the accident, been exposed to a very real risk that such surgery will be required, and to the certainty of continuing symptoms of pain, swelling, and restriction of movement which will progress with the passage of time should such surgery not be required.
27 I am satisfied on the basis of the material to which I have referred that the effect of the plaintiff’s symptoms in his right knee has been:
(i)
To restrict his employment capacity to lighter and restricted driving duties, with the result that the plaintiff has faced periods of unemployment and has had to take less remunerative employment than he otherwise would have but for the condition in his right knee.
(ii)
To impose a restriction upon the plaintiff’s ability to engage in his passion of fly-fishing, to an extent as to almost destroy his ability to engage in that activity in a meaningful way.
(iii)
To cause increasing symptoms of pain upon that the plaintiff walking only for modest distances; to restrict his ability to stand for long periods of time and to sit for long periods without experiencing difficulty upon standing; to restrict the plaintiffs ability to kneel, squat, climb stairs, or walk on uneven surfaces; and that in these circumstances the plaintiffs disability would impact adversely upon most aspects of his daily life.
(iv)
That as time passes the plaintiff’s symptoms are likely to increase, and that he has been exposed to the real risk that he will require treatment to his right knee in the form of a right knee replacement.
28 For these reasons I am satisfied that the consequences to the plaintiff with respect to pain and suffering by reason of the impairment of function of his right knee may be fairly described as being more than significant or marked and at least very considerable when judged in comparison with other cases in the range of possible impairments or losses of body function.
29 In these circumstances, I find that the plaintiff is entitled to leave to commence proceedings claiming damages for the pain and suffering consequences of the injury to his right knee which occurred in the course of his employment with the defendant on 30 March 2004.
30 I will hear counsel as to the precise order which is sought in the proceeding and as to the issue of costs.
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