Goded v VWA
[2025] VCC 712
•5 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-05556
| JORGE GODED | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May 2025 | |
DATE OF JUDGMENT: | 5 June 2025 | |
CASE MAY BE CITED AS: | Goded v VWA | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 712 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – knee injury – impairment consequences – disentangling
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act2013
Cases Cited:Connelly v Transport Accident Commission [2024] VSCA 20; Peak Engineering & Anor v McKenzie [2014] VSCA 67; TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Walsh with Mr S Pinkstone | Hounslow Lawyers |
| For the Defendant | Mr B McKenzie | IDP Lawyers |
HIS HONOUR:
Introduction
1Some people find pleasure strapping on a backpack and disappearing into the wilderness. The plaintiff in this proceeding, Mr Jorge Goded-Broto,[1] is such a person. Born in Spain in 1989, he completed his schooling, helped on the family farm/beekeeping business and completed tertiary studies relating to social work. He then left Spain and set off to go backpacking and to pursue his love of hiking. Over a period of approximately four years, he worked and backpacked through the Americas before arriving in Australia in 2019 on a holiday visa.
[1] In his evidence, the plaintiff confirmed this to be his full name, but that he preferred to be referred to as Jorge Goded, as described in the formal court document
2The plaintiff combined his love of hiking with paid employment, when in October 2019 he obtained a job as a trail builder in the pristine Tasmanian wilderness. After that job, he worked for a while as a beekeeper.
3The plaintiff then again scratched his hiking itch by relocating to the Grampians in Western Victoria to work for a company called Dirt Art, building the Grampians Peaks Trail, which is a hiking trail.
4The plaintiff was working on the Grampians Peaks Trail on 20 November 2020 when while attempting to move a large boulder, a winch snapped and struck the outside of the plaintiff’s right knee, causing a penetrating wound to the right knee (“the accident”).
5Since the accident the plaintiff has had conservative treatment for his right knee injury, mainly physiotherapy, together with specialist assessment. He claims to have ongoing pain and restriction in his right knee. He has qualifications that enable him to work in disability support, and he is now working as a disability support worker.
6But, because of his claimed ongoing impairment consequences, he seeks the leave of the Court pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act2013 (“the Act”) to commence a common law proceeding for pain and suffering damages. In that regard the plaintiff relied upon a “permanent serious impairment or loss of a body function”, by way of a physical injury to the right knee.
7The plaintiff contended that the ongoing symptoms in his right knee, need for physiotherapy, occasional use of painkillers, the possibility of surgery and the reduction in his capacity for hiking, all equate to a “very considerable” consequence, for a young and previously active man.
8In addition, a claimed impairment consequence from the right knee injury that the plaintiff relied on was a consequential injury to the left knee, which I will discuss in due course. The plaintiff’s primary contention was that the right knee of itself produced sufficient impairment consequences to be “serious”, but in addition, he claimed to have placed greater stress on his left knee because of favouring his injured right knee, such that symptoms he now had in his left knee could be considered as a related impairment consequence.
9On the other hand, the Victorian WorkCover Authority (“the defendant”) contended that the injury to the plaintiff’s right knee was relatively minor and that any impairment consequences simply did not meet the “very considerable” test. The defendant highlighted the fact that the plaintiff can engage in activities such as walking, bike riding, travel and work, with little need for medication or treatment. The defendant submitted that the plaintiff had an unrelated condition affecting his left knee and overall, the claimed right knee injury was simply not “serious”.
10Overall, the defendant submitted that the impairment consequences from the right knee injury – even if the left knee was included - were simply not “very considerable”, bearing in mind that the court must consider the range of possible impairments and not just those that come before the courts.[2]
[2] TTB SMS Pty Ltd v Reading [2020] VSCA 203
11The proceeding was conducted in the usual manner. The parties tendered affidavits, medical reports and other documents from court books. The plaintiff presented for cross-examination and the parties made submissions about “serious injury”.
12I have considered all the evidence, together with the transcript of the plaintiff’s evidence and the parties’ submissions. I shall refer to that material to the extent necessary.
13Finally, by way of introduction, for this proceeding the applicable legal principles are not in dispute.
14In respect to legal principles, to adopt what was said in Connelly v Transport Accident Commission,[3] the question to be asked in this proceeding is whether the claimed right knee injury that the plaintiff sustained in the accident, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described at least as very considerable and certainly more than significant or marked (the “very considerable test”).
[3][2024] VSCA 20 (“Connelly”)
15For this proceeding, there is no dispute that the accident occurred or that it caused the plaintiff to suffer a right knee injury.
16But there is a dispute about the extent of right knee injury and any impairment consequences.
Plaintiff’s evidence
17The plaintiff swore three affidavits setting out various claimed impairment consequences from the right knee injury. He was challenged in cross-examination about his retained capacity for daily activity.
18In cross examination the plaintiff accepted that he did tertiary studies in Spain in social work and that it was always his intention to work in social work.[4] He was cross examined about the work he now did in that industry. He did not suggest that the right knee impacts that work, having done that work for several employers, over several years and variable hours. He agreed that he had not told his employers about a knee injury.
[4] Transcript (“T”) 8, Line (“L”) 30
19Next, broadly, in cross examination the plaintiff accepted that he could still ride a bike, walk, sit, stand and even hike, to some extent. The thrust of his evidence was that prolonged weight bearing activity or strenuous weight bearing activity was productive of pain in his right knee. The cross examination established that he has been on several overseas trips, including back to Spain to see family, but also trips for several weeks at a time through Thailand and Greece, with no real suggestion that the knee injury impacted those trips.
20But the plaintiff maintained in his oral evidence that he was restricted for more physical activity, such as hiking on difficult terrain, or riding a bike off road.
21The plaintiff swore an affidavit on the day of the hearing,[5] setting out in detail the type of hiking he had done before the accident and how his right knee now prevented him from that sort of hiking. He said that losing the ability to go on longer, more difficult hikes “has felt like losing part of my soul” and how that had affected him emotionally. He went on to say in that affidavit that “The sort of hiking that I used to enjoy requires a very high degree of physical fitness and places great stress on the knees and it is simply not possible for me to do anymore because of my right knee injury”.
[5] Plaintiff’s Court Book (“PCB”) 70
22While the plaintiff was challenged broadly about his retained capacity for physical activity, the defendant did not seriously dispute that the plaintiff had a passion for hiking, or that he could no longer do the sort of extreme hiking that he did before the accident. But it did emphasise that the plaintiff’s ability to go hiking had not been destroyed, including by reference to some of the medical evidence, including medical certificates from a physiotherapist in mid-2023 that opined that the plaintiff was able to hike for three hours on uneven terrain.[6]
[6] Defendant’s Court Book (“DCB”) 119-130
23In closing submission, leading counsel for the plaintiff submitted that hiking was “clearly the most significant consequence here”[7] and later accepted that hiking was “the big ticket item”.[8]
[7] T 60, L 25
[8] T 65, L 28
24The plaintiff presented in the witness box as a likeable witness and made appropriate concessions. This is not a case in which credit is an issue. But as the defendant highlighted, the fact someone is credible does not otherwise elevate the consequences, because the Court is entitled to assume that persons coming before the Court will tell the truth.[9]
[9] T 58, L 17-26
25On the plaintiff’s evidence, in combination with the medical evidence that I shall discuss in a moment, I accept that the plaintiff suffered a right knee injury in the accident, that he has had some pain from that injury, a need for conservative treatment and some interference for social, recreational and daily activity. But, consistent with how his case was put, if hiking was put to one side for a moment, I would not conclude that the plaintiff had made out a “very considerable” consequence.
26Therefore, in my opinion, the result of this case turns on a decision about whether someone who can still hike but cannot do the sort of extreme hiking that he did before the accident, in combination with the other impairment consequences, has made out a “very considerable” consequence.
27Overall, this is very much a borderline application for “serious injury”.
28But here arises, at least in part the issue of the left knee. I raised this with the plaintiff’s leading counsel at the commencement of the hearing, because of the lack of a proper report or useful evidence from any treating practitioner about the aetiology of the left knee and whether it was a consequence of the right knee. As I shall get to, the only evidence to support a link is in a medico-legal report commissioned on behalf of the plaintiff. In response, I was told by the plaintiff’s leading counsel that the case was ready to proceed.[10]
[10] T 2, L 17
The plaintiff’s evidence about the left knee
29About the claimed overuse injury to the left knee, in his first affidavit affirmed 9 May 2024 the plaintiff said:
“I hold my body differently now to compensate for the right knee pain. I now have pain in the right side of my back, right hip and left knee which has been increasing in frequency over time.”[11]
[11]PCB 7
30Then in his second affidavit affirmed 16 May 2025, about any left knee symptoms the plaintiff said:
“Since I swore my previous affidavit, I continue to experience pain in my right knee. I have had to favour my left side more as a result. I now experience more continual left knee pain. Sometimes, my physiotherapy sessions with Dan include treatment to my left knee.
In July 2024, I underwent an MRI to my left knee. I understand it revealed a medial meniscus tear, an oedema in the medial tibial condyle, joint effusion and a Grade 1 sprain of the medial collateral ligament.
In August 2024, Dan recommended I have a cortisone injection to the left knee. I haven't had this yet as my GP wanted me to wait to see if my left knee pain improved. I recently had an x-ray and ultrasound of my left knee.”[12]
[12] PCB 12
31The plaintiff was cross examined about the development of left knee symptoms, by reference to the clinical records and about the current left knee symptoms.
32In cross-examination it was suggested to the plaintiff that the left knee is currently the bigger issue. The plaintiff responded by saying that “It’s newer. I don’t – I wouldn’t say it’s bigger issue. Maybe less chronic.”[13]
[13]T 35, L 4-6
33It was squarely put to the plaintiff during cross-examination that the left knee had nothing to do with the right knee, including in the context of a general practitioner note recording a cracking sensation in the left knee when the plaintiff got up from sitting.[14] The plaintiff explained that he started having a cracking sensation in his left knee months after injuring the right knee, but on the day recorded by the general practitioner (“GP”) the crack was stronger.
[14] T 27, L 7-18
34Next, the plaintiff accepted in cross-examination that he walks normally.[15]
[15]T 27, L 25
35He was cross-examined then about the left knee condition and the treatment with Mr Dan Doolan, physiotherapist. He was asked if he was going to see a sports physician about the left knee, and he said “I haven’t yet”.[16] He was asked whether the physiotherapist had been focusing on the left knee when treating him, and he said “I would say, no. I wouldn’t say so, no.”[17]
[16]T 30, L 13
[17]T 30, L 29-31
36But the plaintiff accepted that he had an MRI scan of his left knee last year when travelling in Spain. He explained that his sister-in-law is an orthopaedic surgeon, and he was “checked by her”.[18] He said his sister-in-law had said that maybe in the future he would need arthroscopic surgery on the left knee, but “she thought I wouldn’t need now. She said maybe if the condition worsens in the future”.[19]
[18] T 31, L 18
[19]T 31, L 23-29
37Regarding a cortisone injection in the left knee, the plaintiff explained that was an ongoing conversation with the GP.[20] He went on to say he wanted to talk to the GP about having an injection in the left knee.
[20]T 32, L 4
38I was left with the impression that more active treatment for the left knee is still on the cards, but for some reason is yet to occur. This highlights one of the deficiencies in the evidence caused by the lack of any report from treating practitioners about the left knee condition.
39In his oral evidence the plaintiff gave no direct evidence of any occasion where he had to favour the injured right knee and load up the left knee. That topic was left alone in re-examination.
The medical evidence
40Moving next to a consideration is the medical evidence.
41This is done perhaps slightly out of order because of the conclusions expressed at paragraph [25]. The first issue is the identification of compensable injury to the right knee and to resolve a debate in the medical material whether there are ongoing symptoms referrable to the compensable injury to the knee.
42The medical evidence also needs to be examined for consideration of the plaintiff’s claimed impairment consequence of an overuse injury to the left knee, where, as I have observed he elected to proceed without any useful evidence from a treating practitioner to link the two knees.
The evidence from treating practitioners
43First, as a general observation, even about the right knee there is very little useful evidence from treating health practitioners.
44To the extent that there is evidence from treating doctors, it is out of date, save for the contents of tendered clinical records.
45In fact, the recent evidence from treating practitioners is confined to the tendered clinical records, apart from a report from a physiotherapist.
46The lack of evidence from treating practitioners is a relevant consideration, where the plaintiff bears the overall onus to identify injury, impairment and impairment consequences.
47In a similar theme, there is no lay evidence, for example from the plaintiff’s partner, that might assist for a consideration of impairment consequences, or how the left knee might relate to the claimed right knee injury.
48While the tendered clinical records fill in some gaps, there is an obvious limitation to the evidence in clinical records and in this case, that evidence does not really help the claim advanced by the plaintiff.
Dr Thayanithee Saravanamuthu, general practitioner
49Following the accident the plaintiff first attended a general practitioner, Dr Thayanithee Saravanamuthu, at a medical clinic in Stawell. The evidence from that doctor is confined to a referral letter written to Mr John Dillon, orthopaedic surgeon, on 2 February 2021[21] which, clearly erroneously, referred to the plaintiff having an injury to the left knee. The doctor said in the referral that the plaintiff had ongoing knee pain and swelling and had undergone an MRI and physiotherapy.
[21]PCB 19
Dr Hussein Rabia and Dr Ali Clark-Hamimi, general practitioners
50Next, by way of general practitioners, the plaintiff attended for treatment with Dr Hussein Rabia at the Lyttleton St Medical Clinic in Castlemaine.
51By letter dated 13 August 2021, Dr Rabia referred the plaintiff for psychological support to a Mr David Tries, because the plaintiff was feeling down after his knee injury and for unrelated issues, including missing his family in Spain.[22]
[22] PCB 32
52Otherwise, the only evidence from Dr Rabia is contained in clinical records tendered by the defendant.[23] Those records included notes of attendance on other doctors at the clinic, including Dr Ali Clark-Hakimi, who the plaintiff identified in his oral evidence as his current general practitioner.[24]
[23] DCB 65
[24] T 32, L 10
53But Dr Rabia did refer the plaintiff to the orthopaedic surgeon Mr David Mitchell following the initial attendance with the plaintiff on 13 August 2021.
54The notes record attendances on doctors at the Lyttleton St Medical Clinic for medical conditions other than the right knee, and infrequent attendance for the right knee. There is no mention of the right knee after 13 August 2021, until (infrequent) attendances resume on 7 November 2022, when he attended a doctor who recorded “unable to go back to work building hiking trails”.[25]
[25] DCB 73
55On 17 July 2023 the plaintiff had a phone attendance with Dr Clark-Hakimi, for a right foot injury after a fall that the plaintiff explained in his oral evidence was from an indoor rock climbing wall.[26] Obviously his knee was not bad enough to stop him from engaging in that social activity.
[26] DCB 74
56Then on 10 July 2024 he presented to Dr Rabia with left knee pain recorded as “has had it for a few months – he sustained ? twisted injury – also has right knee pain for which he is seeing physiotherapist”.[27]
[27] DCB 78
57An MRI scan of the left knee was then arranged, the result of which was discussed with Dr Clark-Hakimi at a consultation on 30 July 2024, shortly before the plaintiff travelled overseas to several countries, including to Spain. Dr Clark-Hakimi’s note described a diagnosis of a left knee meniscus tear and a suggestion of a steroid guided injection into the left knee and a referral to an orthopaedic surgeon,
58Then on 27 March 2025 the plaintiff again consulted with Dr Clark-Hakimi, who noted the need for a new care plan. The doctor recorded “Left knee pain: Varies with activity, manageable with walking but exacerbated by cycling”.[28] The doctor further records assessment of the plaintiff’s low back and a foot complaint, but no mention of the right knee.
[28] DCB 82
59The attendances as set out are the sum of any attendance on the Lyttleton St Medical Clinic for either the right or left knee. There is very little attendance for the right knee and that recent attendances have been for the left knee. There is no suggestion in those clinical records of any intervention to the right knee. The only recent suggestion of the need for orthopaedic assessment is in relation to the left knee.
60Further, there is nothing in the clinical records from the general practitioners that in any way link the left knee in some way to the right knee. In fact, the tenor of the evidence in the clinical records, such that it is, is of a twisting injury to the left knee that is unrelated to the right knee.
Mr John Dillon, orthopaedic surgeon
61As mentioned, the plaintiff was referred to Mr John Dillon, orthopaedic surgeon. He wrote back to Dr Saravanamuthu on 15 February 2021. He said the plaintiff had suffered a right knee injury when a heavy object had struck the lateral aspect of the right knee, causing a wound which had been sutured. Mr Dillon said the plaintiff was currently complaining of swelling over his tibial tuberosity, was unable to kneel and had a discomfort in the right knee after standing and walking for prolonged periods. Mr Dillon recommended an MRI and further review.
62Mr Dillon wrote back to the treating doctor on 1 March 2021 after reviewing the plaintiff. He said the follow up MRI scan had revealed a partial disruption of the patella tendon insertion and that he thought the plaintiff would benefit from surgical debridement and fixation.
63Mr Dillon wrote to the general practitioner for a third and final time on 22 March 2021 and said he had scheduled the plaintiff for a debridement and reattachment of the patella tendon insertion of the right knee.
64As shall become clear, the plaintiff did not go back to Mr Dillon and never came to surgery.
Mr Ilan Freedman, orthopaedic surgeon
65Despite the advice from Mr Dillon about surgery, the plaintiff did not proceed with that surgery. Instead, he was referred by Dr Saravanamuthu for a second opinion with Mr Ilan Freedman.
66Mr Freedman consulted with the plaintiff on 30 March 2021 and wrote back to Dr Saravanamuthu noting the plaintiff had two MRI scans which showed some patella tendon insertional tendinopathy.[29] He said the tendon did not seem like it was completely avulsed, and the plaintiff still had the ability to perform full active knee extension. Mr Freedman said that with those findings in mind, he had suggested to the plaintiff that it could be managed in a knee brace and would likely go on to get a good result but may require surgical repair. He recommended that the plaintiff attend a colleague of his, Mr David Mitchell, for follow-up and management as Mr Mitchell’s rooms were closer to where the plaintiff then lived.
[29]PCB 24
67At a final consultation with him on 6 April 2021, Mr Freedman provided the plaintiff with a referral to a physiotherapist and for a knee brace. He advised that the brace be worn for a period of four weeks.[30]
[30]PCB 26
Mr David Mitchell, orthopaedic surgeon
68The plaintiff had a telehealth consultation with Mr David Mitchell, orthopaedic surgeon, on 13 September 2021. Mr Mitchell then wrote back to Dr Saravanamuthu and said he needed to see the plaintiff face to face.[31] I note that by then the plaintiff had transferred to the Lyttleton St Medical Clinic, although not much turns of that.
[31]PCB 33
69Then on 28 September 2021, Mr Mitchell met with the plaintiff for a second and final time and wrote back to Dr Saravanamuthu as follows:
“I caught up with George, he seems to be making enough improvement that we should leave him alone.
He is still not back to work. He has achieved full flexion. It is not particularly tender to lean on, but he finds it difficult to kneel. Cycling hard is problematic, but he can cycle.
The MRI scan demonstrate that the previous delamination of his patella tendon at the tibial tubercle is resolving. Yes we could treat it with autologous blood injections, yes we could treat it with surgery, but clinically, he seems to be getting better and it seems hard to force him to have an operation. He needs to seriously ramp up his activity, and hopefully we find that he stays out of trouble.
Autologous blood injections?”[32]
[32] PCB 34
Mr Luke Blunden, physiotherapist
70Mr Luke Blunden is a physiotherapist to whom the plaintiff was referred for treatment and initially consulted with the plaintiff on 3 May 2021.
71Mr Blunden provided a report dated 18 October 2022.[33] He said the plaintiff had suffered a right knee insertional tendinopathy of the patella and had needed to use a knee brace for a period. He said a reasonable diagnosis would be a right knee tibial tubercle bone stress injury and patella tendon tear, but that the plaintiff would recover his full occupational, domestic and recreational activity of daily living status which would involve him returning to work in his pre-injury duties and hours. He said at that time that restrictions for work involved modification to standing, walking, squatting, kneeling and lifting. He said that he did not believe there were any further recommendations in terms of treatment.[34]
[33]PCB 29
[34]PCB 30
Dr Greg Harris, sports physician
72Dr Greg Harris is a sports physician who assessed the plaintiff. He wrote back to Dr Saravanamuthu on 21 February 2022[35] about a flare up that the plaintiff had of right knee pain.
[35] PCB 36
73Then on 1 April 2022, Dr Harris wrote to Mr Blunden and said the plaintiff described the right knee was feeling better than when he had seen him the month before. But he also wrote that the plaintiff “has had some left medial knee pain as well in the last few weeks”. No precipitating factor was given for the left knee pain.
74Pausing, this is the first documented complaint of any symptoms in the left knee.
Mr Dan Doolan, physiotherapist
75Mr Dan Doolan is a physiotherapist who has more recently treated the plaintiff. He provided a report dated 20 May 2025.[36]
[36]PCB 38
76In addition to his report, the defendant tendered Mr Doolan’s clinical records. Those records establish that the plaintiff first attended Mr Doolan on 14 September 2023, with a presenting complaint of ongoing right knee symptoms and that the plaintiff, at that point, had stopped physiotherapy for a few months. Mr Doolan recorded aggravating factors as including activity-dependent, longer hours on feet, repetition up and down steps and ladders.[37]
[37]DCB 63
77Returning to his report, Mr Doolan said the plaintiff suffered from ongoing right knee pain and dysfunction due to the accident. He described the results of an earlier MRI. He confirmed that his initial assessment was conducted on 14 September 2023 and initial treatment focused on pain and symptom management, along with assessments of the plaintiff’s functional condition and education regarding the injury. He said the plaintiff should continue with periodic physiotherapy in the short-medium term. He said there was a high likelihood the plaintiff would have specialist/orthopaedic review at some point to determine the best course longer term.
78Mr Doolan then made comments agreeing with a medico-legal opinion from Mr Russell Miller, orthopaedic surgeon. His report reads:
“Whether you agree with Mr Russell Miller that our client’s right knee injury continues to incapacitate him for his full time, unrestricted, pre-injury employment duties as a labourer.
-I agree with Mr Miller’s assertation that Mr Goded-Broto is unable to return to his pre-injury role, as a full time labourer.
-Mr Goded-Broto struggles to be on his feet for the period required of his previous role, his pain gradually worsens when walking and standing for extended periods, and this worsens more quickly when traversing uneven and sloped ground.
-Mr Goded-Broto has reduced strength when squatting, and reduced endurance to squatting and lifting. He can complete a functional squat, and can lift up to 15kg, but does not have the ability to do this repeatedly, or with heavier loads.
-Mr Goded-Broto has reduced tolerance to kneeling which also impacts his ability to complete his previous role.
The impact of our clients work related injury on his social, domestic and recreational activities;
-There has been a significant impact of Mr Goded-Broto’s social and recreational activities, given his previously very active lifestyle.
-Soccer; previously to the injuries sustained Mr Goded-Broto was playing regular soccer, which he has been unable to return to playing in the time since due to his injuries. He is unable to run at pace for any extended periods, or twist and turn at pace with confidence in his knee. Attempts at doing these movements in a controlled environment has only aggravated his condition.
-Hiking; Mr Goded-Broto was an avid hiker prior to his injuries. In the time since he has unable to return to the level of hiking he had previously done with packs, on tracks graded to higher difficulties. Whilst he is still able to take on smaller walks, with light packs, he is noticeably diminished in his capacity and has not been able to participate in hiking/bushwalking as he had previously.
-Domestic; There has been a smaller, but noticed diminishing of capacity to participate in some heavier domestic tasks. This mostly includes heavier gardening and maintenance related tasks.
Your prognosis, if possible;
Given the time elapsed since his initial injuries to date, and his current condition, I believe a complete recovery, to pre-injury condition, is unlikely. I believe there is some further condition to be gained through ongoing strength and conditioning work, he should gain and maintain good functional strength for activities of daily life, though I believe it is likely he maintains a level of ongoing impairment, restricting him from returning his highly physical previous employment, and non work physical pursuits.”[38]
[38] PCB 40-41
79Mr Doolan’s report is supportive of the plaintiff having an ongoing right knee injury and incapacity, but there is something left on the cutting room floor in his reports. The clinical records reveal that Mr Doolan is aware of the plaintiff having a problem with his left knee, yet his report is silent about the left knee.
80Before setting out Mr Doolan’s clinical entries about the plaintiff’s left knee, I accept the defendant’s submission that several entries in Mr Doolan’s clinical records suggest that the plaintiff is at least, if not more than moderately active. For example, on 21 September 2023, Mr Doolan recorded the plaintiff aggravating his right knee pain after a bike ride but that the plaintiff had “managed 15-16 kilometres”.[39]
[39] DCB 61
81Returning to the left knee, on 19 October 2023, Mr Doolan for the first time recorded left knee symptoms. His clinical entry of that attendance recorded that the plaintiff felt some pain in left (opposite knee) going upstairs.[40] Then on 2 November 2023, Mr Doolan recorded “Right knee improving. Left knee somewhat limiting. Sharper pains on upstairs, extension under load”.[41]
[40] DCB 59
[41] DCB 58
82There are then several attendances over several months in which Mr Doolan appears to record symptoms in the right knee, although with a mention of right hip pain on at least one occasion. The left knee next gets a mention on 23 April 2024, when Mr Doolan recorded “Left knee, cracks and locks at times, after sitting on ground or awkward movements. Been having episodes”, and that Mr Doolan provided “education on likely meniscus tear in the left knee”.[42]
[42] DCB 49
83The complaint of the left knee cracking and locking was again recorded on 2 May 2024.[43] There are then attendances on 4 June and 9 July 2024, which appear to principally be about the left knee, although some mention as well of the right knee. On 9 July 2024, Mr Doolan recorded “Left knee continuing to hold back right knee at times. Vigorous exercise aggravates. Doing lots of lunges and squats, most days. Difficulty with hiking hills”, and a referral for a left knee MRI.[44]
[43] DCB 48
[44] DCB 46
84By 8 August 2024, there is a discussion recorded in Mr Doolan’s records about the plaintiff needing a cortisone injection, which in context refers to the left knee.[45] The plaintiff then did not attend Mr Doolan again until 17 February 2025, when it was recorded that the plaintiff:
“Had MRI on left knee while in Spain. Potentially looking at arthroscopic surgery to repair meniscus tear.
Trial of cortisone injection first.
Left knee gets sore with hiking, longer walks.
Right knee anterior pain – patella tendon? Medial jt line.”[46]
[45] DCB 44
[46] DCB 42
85The last clinical entry by Mr Doolan is dated 17 March 2025, when he again noted similar findings in the left knee but added a consideration for orthopaedic referral.[47]
[47] DCB 41
86It is surprising that Mr Doolan does not refer to the left knee in his report. Perhaps that came about because he was specifically asked to comment only about the right knee.
87Regardless, the clinical records from Mr Doolan suggest that physiotherapy treatment in recent times has been left knee focused, including suggestions for a cortisone injection and an orthopaedic referral.
88There is also nothing in Mr Doolan’s clinical records that supports a connection between the left knee and the right knee.
Medico-legal reports
Dr Graeme Doig, orthopaedic surgeon
89Dr Graeme Doig is an orthopaedic surgeon to whom the plaintiff was referred for an impairment assessment. He provided a report dated 23 May 2022,[48] which recorded his assessment of the plaintiff. He obtained a history of the plaintiff continuing to have an anterior right knee pain with the classical restrictions of difficulty negotiating stairs, squatting and kneeling. He described the plaintiff as walking comfortably with no evidence of a limp.[49] He found some limited restriction of knee movement on clinical examination, which he said was indicative of Grade 4/5 weakness in the quadriceps muscle. He also noted that the plaintiff found kneeling difficult.
[48] PCB 42
[49] PCB 44
90Dr Doig said the diagnosis was a direct blow to the patellofemoral region and upper tibia of the right leg with an open wound and most likely patellofemoral-joint articular-cartilage damage. He said the plaintiff continued to suffer from pain and restrictions, and the prognosis was poor with respect to returning to his pre-injury activity levels.[50]
[50] PCB 45
91There is no suggestion anywhere in Dr Doig’s report that as of 23 May 2022 the plaintiff was favouring his right knee.
Mr Russell Miller, orthopaedic surgeon
92Mr Russell Miller is an orthopaedic surgeon who examined the plaintiff at the request of his solicitors and provided a report dated 7 April 2025.[51]
[51] PCB 49
93Mr Miller obtained a history of the work injury and the plaintiff’s current symptoms which he reported as:
“Right Knee
This continues to be a major problem for him. He has ache, discomfort and intermittent pain in the right knee. The knee feels weak and insecure and occasionally gives way. He has learnt to be cautious and ‘protect the knee’. The symptoms cause difficulty with kneeling, squatting, stairs, and uneven ground. His symptoms fluctuate and there has been no pattern towards improvement. He states that the pain is worse in cold weather and when sitting for prolonged periods of time. He also intermittently walks with a limp and states the knee feels stiff.
Low Back
He has ache, discomfort and intermittent pain in the low back, radiating into the right leg and foot, with feelings of numbness and tingling. He feels that this has been aggravated by his limping.
The above symptoms fluctuate, causing sleep disturbance and difficulty with activities of daily living.
Left Knee
He has developed some symptoms in the left knee with ache, discomfort and intermittent catching in the left knee. These symptoms are less severe than those in the right knee.”[52]
[52] PCB 52
94Mr Miller noted ongoing use of medications including Panadol and Nurofen, as well as a supplement. He noted the plaintiff having physiotherapy on a monthly basis. He was also aware of the various orthopaedic assessments early on.
95Mr Miller conducted a physical examination and said of the right knee that there was revealed Grade 1 quadriceps wasting. He found patellofemoral joint crepitus and pain on patella compression and a 5-degree extension lag and significant weakness of the extensor mechanism, but that the knee was stable.
96Mr Miller conducted a functional test and said the plaintiff walked with a slight limp on the right side.
97In respect to diagnosis and prognosis, Mr Miller said:
“Right Knee
The client has suffered a significant injury to right knee with a soft tissue injury and laceration. There has been a partial injury to the patella tendon. There are clinical features of post-traumatic chondromalacia patella, and the scar remains slightly tender. He has significant quadriceps weakness and functional limitations. The prognosis for the right knee is poor.
Lumbar Spine
The client suffered a musculo-ligamentous strain and aggravation of degenerative disease in the lumbar spine. There are no other features to suggest radiculopathy, neurological deficit or structural injury.
It is likely this is aggravated by the development of a chronic gait disturbance. The overall prognosis for the lumbar spine is only fair
Left Knee
The symptoms in the left knee are attributed to patellofemoral disease and tear to the medial meniscus. The prognosis for the left knee is only fair.”[53]
[53] PCB 55
98Then in a discussion about the relationship to work, Mr Miller said:
“Relationship to Work Injury
The right knee injury is consistent with the accident described.
The relationship between the work injury and the lumbar spine and left knee injury is a complex and multifactorial issue which includes the following factors:
(i) pre-existing disease, although I note there were no pre-existing symptoms,
(ii) work injury dated 20 November 2020, aggravating pre-existing disease, and
(iii) chronic gait disturbance impacting the evolution of the disease in the lumbar spine and left knee.
The current clinical status is regarded as being substantially work related.”[54]
[54] PCB 56
99Mr Miller then said that the plaintiff would benefit from additional rehabilitation measures and there was a likelihood he would ultimately come to arthroscopic debridement of the right knee and possibly a patella tendon repair. He also said the plaintiff might ultimately come into arthroscopic debridement of the patellofemoral joint in the left knee.[55]
[55] PCB 56
100Regarding the left knee, Mr Miller said the plaintiff would have difficulty with work involving large amounts of prolonged standing, walking, twisting, turning, kneeling, squatting and walking on uneven ground.[56] Mr Miller expressed a similar opinion about the restrictions he considered would apply to the right knee.
[56] PCB 57
101Mr Miller’s opinion is the highwater mark for a conclusion that the left knee is causally related to the claimed right knee injury, because, in his words, “chronic gait disturbance” or overuse of the left knee due to favouring the injured right knee.
102I do not accept Mr Miller’s opinion about the connection between the right and left knees. First, the objective evidence suggests that there is no connection. Second, there is only limited evidence of any gait disturbance and no evidence that I consider to be “chronic gait disturbance”. In fairness to Mr Miller he accepted that the connection between the work accident and any left knee condition was “complex and multi-factorial”.
103On my assessment Mr Miller did not have an accurate picture of any gait disturbance. Further, he was provided with the plaintiff’s first affidavit and some of the relevant medical opinions that were tendered but based on the list of enclosures that he set out as provided to him for his report, he was not provided with any of the relevant clinical records, or any of the evidence from Mr Doolan.
104Therefore, I do not accept Mr Miller’s opinion as to causation of the left knee condition.
Dr Zeeva Cohen, consultant psychiatrist
105Dr Zeeva Cohen is a consultant psychiatrist who examined the plaintiff at the request of his solicitors and provided a report dated 16 January 2025.[57]
[57] PCB 59
106Apart from some relevant matters of history, in circumstances where the plaintiff makes no claim based on a mental injury, the opinion from Dr Cohen is of limited use.
Dr Phil Allen, consultant orthopaedic surgeon
107Dr Charles (Phil) Allen is a consultant orthopaedic surgeon who examined the plaintiff at the request of the defendant and provided a report dated 28 January 2025.[58]
[58] DCB 13
108Dr Allen took a history of the accident and the plaintiff’s symptoms. He recorded the plaintiff as describing the following:
“He has now returned to normal function but he did tell me that he still has some minor residual symptoms which have remained unchanged for some time.
He told me if he is exercising heavily or lifting, he sometimes gets some pain in the front of the knee and around the patella. He told me that there is discomfort when kneeling and also when sitting on the ground or sitting still in one position for a while.
If he has been driving for more than two hours, there is some discomfort in his knee. He told me that the knee may occasionally be symptomatic on “cold days”.
He told me that he occasionally takes an anti-inflammatory about once a month or so and also attends some physiotherapy every now and then.
He is undertaking gainful employment at this time.”[59]
[59]DCB 14-15
109Dr Allen then conducted a physical examination and said:
“Other than the presence of a faint and barely discernible scar at the site of his injury, the examination of the right knee was entirely normal.
There was normal alignment of the right lower extremity with a full range of motion and normal stability. He had well-developed musculature bilaterally and there was no evidence of any wasting. The knee was stable and there was no effusion.
In effect, the condition has entirely resolved.”[60]
[60]DCB 15
110Dr Allen then set out the radiological investigations before providing his summary and assessment as follows:
“Mr Goded Broto has a contusion/laceration to the front of his right knee which has long since healed. It is stable and stationary and has reached maximum medical improvement.
There is no objective evidence of any ongoing functional deficit and the condition has reached maximum medical improvement.
His injury has resolved.”[61]
[61]DCB 16
111Overall, Dr Allen described that the plaintiff’s condition had resolved and that the prognosis was excellent. He said the plaintiff had made a full recovery.[62]
[62]DCB 17
112Obviously, Dr Allen obtained a history different from Mr Miller when it came to any ongoing symptoms from the right knee and any claimed impairment restrictions from the right knee injury.
113Regarding the left knee, Dr Allen said:
“Last year he had an injury to his left knee and has been diagnosed with a meniscal lesion. This is unrelated to his index injury and he is awaiting treatment for it.”[63]
[63]DCB 15
Conclusions from the medical evidence
114That is the extent of the relevant medical evidence.
115The medical evidence supports the conclusion that there was an initial injury to the right knee, that has persisted. The plaintiff has required sporadic general practitioner treatment, and more regular physiotherapy treatment. Despite Mr Dillon’s initial suggestion of surgery, that did not happen, and the balance of the orthopaedic evidence is that now over four and a half years later, the likelihood of any surgery to the right knee is no more than a possibility. The plaintiff uses over-the-counter pain killers perhaps several times a month, and anti-inflammatories two or three times a month.[64] The medical evidence records that he is still moderately active, including bike riding, travel and some hiking.
[64] T 30, L 24
116To the extent that Dr Allen suggests that there is no ongoing accident-related right knee injury, I do not accept that evidence. But his description of minor restrictions is a fair one, if the extreme hiking was left out of the discussion. I also consider that his opinion that the left knee is unrelated is accurate.
117In my assessment, the medical evidence does not support a finding that the left knee is in any way related to the right knee. Objectively, the plaintiff has an unrelated problem in the left knee.
The left knee, disentangling and conclusion
118As I have already set out, at the commencement of the hearing, I asked leading counsel for the plaintiff whether the case was ready to proceed in circumstances where there was no direct opinion from a treating practitioner regarding the left knee as being causally related to the right knee. The response on his behalf was that the plaintiff instructed that the right knee was the seriously injured knee, and that it was serious even if the Court were to conclude that there was a lack of evidence to link the left knee to the right.[65]
[65]T 2, L 1-30
119In closing address, the Court again raised the issue of the left knee in circumstances where the inability to go hiking is the big-ticket impairment consequence.[66] In particular, the Court raised what the situation would be if the conclusion were that the left knee was not a consequence of the right, and that the left knee of itself was an impediment to hiking. In response, it was submitted that the plaintiff had already established that the right knee had caused incapacity for hiking, which has continued, and absent the issue of the left knee.[67]
[66]T 65, L 28
[67]T 66, L 17-20
120I do not accept that to be an accurate description of the applicable legal test.
121It is incumbent on the plaintiff to identify the compensable injury, and the impairment and impairment consequences caused by the compensable injury, excluding impairment or impairment consequences caused by unrelated or coexistent conditions.
122As Maxwell P commented in Peak Engineering & Anor v McKenzie: [68]
“It is difficult enough for a judge to decide whether the ‘pain and suffering consequences’ of a workplace injury satisfy the statutory definition of ‘serious injury’. But the task becomes a good deal more difficult when, by the time of the trial, a separate injury is also producing pain and suffering consequences for the claimant.”[69]
[68][2014] VSCA 67 (“Peak”)
[69]Ibid at [1]
123Further, Maxwell P said in Peak that where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial, as an essential precondition to the task of deciding which of the pain and suffering consequences are attributable to which injury. Further, there may be cases where the consequences of the original injury are so clearly separate and distinct from the consequences of the subsequent injury that no “disentangling” is necessary.[70]
[70]Ibid at [25]
124But the proceeding currently before the Court is not a scenario whereby the consequences of the original right knee injury are so clearly separate and distinct from the consequences of the unrelated left knee injury so that no “disentangling” is required.
125In fact, the situation is the opposite. The plaintiff has an objectively diagnosed meniscal injury impacting his left knee. The clinical records from the treating health practitioners establish that the left knee has been the focus of recent conservative treatment and that there is still the prospect of an injection and an orthopaedic referral.
126As the plaintiff said in the affidavit exchanged the day of the hearing, the sort of hiking he previously enjoyed places great stress on the knees. It begs the largely unanswered question how a man with an injury to the left meniscus, for which he is having physiotherapy treatment, has had recent MRI scanning and is in active discussion with his treaters about cortisone injections or orthopaedic referral, could now be engaging in that sort of strenuous activity.
127A fair reading of the clinical records suggests that the left knee is now a bigger problem than the right.
128Perhaps the left knee is capable of being treated and will not be a cause of permanent impairment? Perhaps it will require treatment and will be an ongoing problem? These are questions that cannot be answered. All that can currently be said is the plaintiff has an unrelated left knee problem that objectively is at least as incapacitating as the right knee and would prevent the plaintiff from undertaking physical activity such the more vigorous type of hiking that he previously enjoyed.
129In short, the plaintiff has failed to establish that any current impairment for the big-ticket item of hiking is because of the claimed right knee injury. Because of the state of the evidence, it cannot be found that the consequences from the right knee injury are so clearly separate from the unrelated left knee injury.
130Therefore, the plaintiff has failed to establish sufficient impairment consequences from the claimed injury to the right knee to meet the test of “very considerable”.
131Finally, even if there the impairment consequences were all due to the right knee injury, in other words if I ignored the left knee meniscal injury, I am not satisfied that the plaintiff’s physical incapacity for some types of hiking is enough to get this case over the line for a finding of “very considerable” impairment consequences.
132In that regard, as the most recent affidavit sets out, the plaintiff can still engage in some outdoor walks and to spend time with friends. As mentioned, he has seemingly gone on pleasurable holidays to Thailand and Greece, including time at the beach, without the right knee impacting him. The recent affidavit places some focus on the emotional consequences of not going on longer hikes, but while that may be understandable, the Act makes it clear that the physical and emotional consequences of an injury are not permitted to be combined for an assessment of a “very considerable” pain and suffering consequence.
133Overall, the plaintiff has failed to establish consequences from the compensable right knee injury that can fairly be described as more than “marked” or “significant” and do not meet the test of “very considerable”.
134Therefore, the application is dismissed.
135I shall invite the parties to provide a minute of appropriate consequential orders, including orders for costs.
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