Goss v Skilled Group Limited
[2014] VCC 944
•30 May 2014 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-06320
| ANTHONY GOSS | Plaintiff |
| v | |
| SKILLED GROUP LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27, 28, 29, 30 May 2014 | |
DATE OF JUDGMENT: | 30 May 2014 (Revised) | |
CASE MAY BE CITED AS: | Goss v Skilled Group Limited | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 944 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the left knee – pain and suffering only
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Dwyer v Calco Timbers Pty Ltd [2006] VSCA 187; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Leave granted to bring proceedings for the recovery of pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S McCredie | Nowicki Carbone |
| For the Defendant | Ms A Magee | Lander & Rogers |
HIS HONOUR:
1 I will give judgment in this case now. Counsel are excused if they have other commitments.
2 This application under the Accident Compensation Act 1985 (“the Act”) for leave to bring proceedings for the recovery of pain and suffering damages only relies on a paragraph (a) injury to the left knee. The consequential impairment relied on is the function of the left knee and leg. The injury is an admitted compensable injury. The issues for determination were described as being whether or not the consequences of the impairment satisfied the definition of “serious”.
3 In other words, whether or not the consequences when judged by a comparison with other cases in the range of possible impairments could be fairly described as being “at least very considerable”. The defendant described this as a “range case” in that sense. Secondly, the defendant argued that the plaintiff had not established permanence with respect to the Complex Regional Pain Syndrome that had not been treated. The defendant also suggested the unreliability of the plaintiff as a witness was a factor to take into account.
4 On 14 December 2010, the plaintiff was standing next to his own forklift performing a pre-operational check. Another industrial forklift driven by a new worker at the premises drove into the plaintiff, crushing his knee between the two forklifts. He was taken by ambulance to the Royal Melbourne Hospital where dislocation of the patella was diagnosed. The patella was relocated and the knee was placed in a Zimmer splint and then in a hinge brace for the next six weeks. Treatment then followed for some years, including two specialist referrals, although in recent times treatment has more or less ceased.[1]
[1]Plaintiff’s Court Book (“PCB”) 9-11
5 The injury kept the plaintiff off work for some twelve months before returning to work on reduced hours and light duties in December 2011. He has never been able to get back to fulltime forklift driving since his injury.[2]
[2]PCB 12 and 17
6 The plaintiff was only forty one years of age when he was injured and he had worked for some seventeen years in the one factory. He had started as a process worker. He gained qualification as a forklift driver. He had generally worked in factory type manual positions covering all his adult life.[3] He had worked fulltime as a forklift driver for ten to twelve years prior to the knee injury.[4]
[3]PCB 18f
[4]Transcript (“T”) 113
7 The plaintiff enjoyed the forklift work in particular, and used to work 42.5 hours a week, earning $890 gross.[5] Since being injured, he has returned to essentially manual jobs that have been less well paid positions.[6] However clearly, he has not suffered a 40 per cent or more loss of earning capacity as required by the Act. The plaintiff does not rely on the actual pecuniary shortfall between the forklift driver job and his alternative duties. The loss of his forklift driving nevertheless is of central importance in this case.
[5]PCB 12
[6]PCB 18i
8 I accept the plaintiff's evidence that:
“I really enjoyed driving forklifts and took pride and pleasure in my ability. I found it was a job that I could do largely on my own using my own initiative to problem solve, the completion of tasks using the forklift. Driving a forklift was something I was good at.”[7]
[7]PCB 18c-d and 12-13
9 In the witness box the plaintiff became quite emotional when describing what forklift driving meant to him.
“Driving a forklift, ever since I got my licence it was a pleasure. Once I was on the forklift I thought I was my own boss. I was giving instructions what to carry out for the day, and I did it to the best of my ability. Not driving a forklift and being a factory hand, or a labourer I had no satisfaction, but I done the work because I needed the money. I don’t like a boss being over my shoulder eight hours a day, five days a week. I prefer to be on the forklift. I’m in control of something that I love doing, loading, unloading trucks, dispatch work, communicating with drivers. Whereas a labour, or a factory hand I don’t get that satisfaction.”[8]
I accept this evidence.
[8]T112
10 The plaintiff even reached a supervisory role in that chosen field of work. When he applied for the subject job with the defendant he was asked in the application for employment, the position he most enjoyed and why this was so. His answer was “forklift driving”.[9] I find this answer consistent with the plaintiff’s evidence in this application that he has lost the great enjoyment of his chosen vocation due to his impaired knee function. For this man it is a very considerable consequence in all the circumstances of this case.
[9]PCB 18f
11 The plaintiff is a conscientious worker. His work record is faultless. After years of employment with Kimberley Clark, Pilkington CSR and Viridian at the one factory, it closed down in December 2009. He obtained work straightaway with the defendant in January 2010. When the defendant terminated the plaintiff in May 2012 after he had returned to work on limited duties and hours, he again found other work virtually immediately.[10] In spite of his knee symptoms his motivation was such that he was successful in seeking and obtaining alternative work that paid lower wages and gave no real job satisfaction.
[10]PCB 12
12 The plaintiff returned to work on several occasions but that needs to be put in the proper context. While he has worked in various manual handling factory jobs at different locations since losing his capacity for forklift driving, it is worth noting how he felt about these alternative jobs. While he likes physical jobs, I accept his evidence: “I do not get any real pleasure, or pride from performing this work”.[11] The plaintiff does not have the sense of freedom he used to have on the forklift, and is now under the constant supervision of a boss. His most recent job, which started in August 2012, was terminated only last week due to a downturn.
[11]PCB 18d
13 The plaintiff is a married man with two dependent children and his motivation for work is beyond dispute. The probabilities are he will find something else, however, he will not, on all the evidence in this case, be able to return to the work he wants to do, namely forklift driving. I accept the plaintiff’s evidence about the problems with forklift driving and the strain on his left knee and leg as well as the symptoms caused in that occupation.[12] The probabilities are that this incapacity will last for the foreseeable future.
[12]PCB 18c
14 Accordingly, he has permanently lost a capacity to do the work he has always wanted to do and enjoyed. For him this is very considerable. It is an important loss of enjoyment of life to be unable to follow a preferred vocation. Given the time spent in a fulltime job, human experience probably tells us that our chosen field of work arguably comes second to family considerations as the most important aspect of our life. To enjoy a chosen job is often central to general enjoyment to life. I certainly accept that is the case for this man.
15 The plaintiff’s permanently impaired left knee function has deprived him when injured at only forty one years of age of the work that he greatly enjoyed. It gave him a sense of satisfaction, self-esteem and responsibility that he has not been able to enjoy in regard to the alternative jobs he has, to his credit, obtained since being injured. As at 14 December 2010, he was a very active man at work and recreationally and in good health. He was not in any way impeded by any other health issues or considerations. He led a very full life physically.
16 I had the considerable advantage of assessing the plaintiff in the witness box. He was a very straightforward witness but an unsophisticated man. He did not in any way exaggerate his disabilities. I found he was a reliable and accurate witness in terms of describing the consequences of his knee impairment both at the present time and over the last three and a half years. Credit was put in issue to a limited extent. The defendant submitted he exaggerated consequences. I do not agree. Many examples of his candour appear in the transcript. For example, he was quite upfront in relation to stating that his statement or declaration to his last employer included an answer “Nil” to a question about health ailments.[13]
[13]Defendant’s Court Book (“DCB”) 6.9
17 The plaintiff repeatedly admitted that the knee ailment was not troubling him in his last job. The plaintiff candidly admitted that he had taken no time off from his last job since August 2012 on account of knees problems. Again, I take that as reflective of a conscientious man who is prepared to put up with symptoms in order to hold down lesser paid employment. He was very straightforward about his walking to the football at the MCG on Anzac Day and similarly in regard to matters put to him after DVD evidence was shown.
18 The plaintiff openly conceded many things he could do.[14] He was candid also when asked in cross-examination about medication. He even made certain admissions against interest about only taking medication intermittently. Further examples of both his honesty and candour were questions put to him about crouching, walking, kneeling, dirt bike riding recently, golf, what he sold on eBay and how his sleep was impacted. There was no embellishment by the plaintiff in answers to questions on these topics. They were consistent with a man who did not in any way overstate his symptoms.
[14]Exhibit 2
19 I accept what he said in his affidavits about the consequences of his knee symptoms in relation to the loss of the job that he loved and enjoyed. In addition, I accept what he said about the consequences that impact on his day-to-day activities both around the home, recreationally and in terms of his relationship with his wife.
20 In addition to the loss of his forklift driving there are a number of particular activities that I find for this active young plaintiff amount to very considerable losses for him. He was a keen dirt bike rider who had purchased a new dirt bike only two weeks prior to the incident. I accept his evidence that it was a passion. He started at age ten and rode bikes for the next thirty years. He has made an attempt to try and dirt bike ride again but it has not been successful. He has put the bike and his bike riding equipment for sale on eBay. This is consistent with him having reached a state of mind where his dirt bike riding days are effectively over. For him this was a major interest. I accept that it is a very considerable consequence for him now having lost the capacity to enjoy that any more.[15]
[15]PCB 11 and 18b
21 After trying to resume dirt bike riding at Easter this year, the plaintiff came to the realisation that the symptoms made it in effect not worth the trouble. I accept his evidence when he said:
“I had a go at riding my dirt bike when I was there. I rode in paddocks on the property for about an hour hoping to withstand the pain, but was eventually overwhelmed by its exacerbation. I do not intend trying again.”[16]
[16]PCB 18b and T115
He was quite emotional in Court when expressing the loss of this interest he had enjoyed for thirty years since starting as a small boy riding Pee Wee 50s.
“Every time I went into the shed I’ve got where my bike sits, all my bike gear is so away, I grab my bike put it on the trailer and all my gear. I was sick and tired of going in there and - and looking it, and it - it sat there and sat there and sat there, and it was never getting used, so I came to the - the conclusion to myself, sell the bike and gear knowing that if I - I got what I wanted I would never ride again, or never buy another one.”[17]
Most energetic people have at least one passion outside work. This plaintiff has lost his.
[17]T116
22 I consider the impact on this young couple’s sexual relationship as being another matter that is a very considerable consequence. The injury has affected the physical relationship between the plaintiff and his wife and it does not need elaboration by me. I accept his description of how it affects him in this regard.[18] On all the evidence in this case I accept that the injury has impacted on the intimacy this plaintiff and his wife previously enjoyed. For a man now only forty four years of age it is a very considerable consequence of itself.
[18]PCB 17 and 18d
23 There are a number of other consequences that the plaintiff described that taken together amount to serious losses for him in terms of his family life. I accept what he said about the impact on his ability to enjoy general recreational and daily life with his family. He enjoyed fishing and playing golf. These are more minor matters on the evidence but are less enjoyable due to the compensable injury. His sleep is also affected by his injury.[19] The plaintiff rather stoically puts up with most of the limitations on his day-to-day activities, but I accept that he has in effect lost the enjoyment of a number of family involvements that probably were just taken for granted in the past. The loss of his capacity as a parent to involve himself in activities with his children that they used to enjoy together was also put quite emotionally in the witness box. He said Easter was totally different in terms of activities in the past. They used to go to an uncle’s bush property:
[19]PCB 18 and 18e
“Before the accident I used to ride my bike every minute I got up there, I used to ride with my son. Now I go up there because the kids enjoy it, and at the end of the day I - I can’t keep on using my knee as an excuse to my kids."[20]
This loss alone for a devoted parent is a very considerable consequence.
[20]T115
24 DVD evidence was tendered.[21] When considering it the whole of the evidence needs to be looked at. He has good days and bad days.[22] I accept he has constant pain but its severity varies. Mere snapshots of what he did on the DVD film over a few minutes on two days one week apart over two years ago did not detract from his evidence overall. He has radiologically, clinically demonstrated, objective pathology in and around his knee. That pathology supports ongoing but variable symptoms including pain and swelling. They are worse at the end of the day.[23]
[21]Exhibit 2
[22]T105
[23]PCB 18c
25 The DVD film was taken in the morning. There were some unexplained gaps in it. Not all the video evidence was tendered.[24] I agree with the qualifications Ms Manolopoulos put on reaching conclusions on the film about an asymmetrical gait as well as uncertainty about what leg he used to take his weight when he stood up.
[24]Exhibit B
26 I note the repeal of s135AE and the Explanatory Memorandum and Second Reading Speech that accompanied the repeal. Nevertheless, clear, proper and adequate reasons are required. However, it is not necessary in this application to describe the medical evidence in great detail as it is likely self explanatory.
27 Dealing with the medical evidence, the Medical Panel found knee dysfunction but that was in May 2012 so it is quite dated. The panel of doctors has also recorded wasting.[25] The requirement to assess the consequences of the compensable injury now leads to more assistance being given from up-to-date medical reports.
[25]PCB 68
28 For example, a general practitioner, Dr G Garra, has provided no less than eleven reports or letters.[26] They are all about two years or more old and only the 6 May 2014 report is current. The first treating orthopaedic surgeon, Mr F Freeman, has provided four reports or letters and they are all dated 2011.[27] The second of the treating orthopaedic surgeons, Mr H Curry, has provided nine reports or letters and save for his last report they were all back in 2012. His last report does not follow any up-to-date examination either.[28]
[26]PCB 38-47
[27]PCB 48-52
[28]PCB 53-60, DCB 85-87
29 Dr Garra this month reported the knee injury was now chronic. I do not accept the defendant’s argument that this report contains any significant disconnect. The doctor said the plaintiff was well before the injury. He considered the plaintiff was unable to perform his pre-injury duties and was unable to sit, kneel or bend for prolonged periods. The condition has stabilised with no significant improvement over the last three years.[29] The meaning of the restricted work comment in Question 8 is not all together clear but the doctor’s view that the plaintiff is unable to do his pre-injury job is patently clear.
[29]PCB 47
30 Dr Garra thought an arthroscopy to further investigate the damage to the cartilage and bone might be warranted. He put this comment in the context of investigation rather than saying it would lead to any significant improvement. He considered chronic pain will be an ongoing issue for the plaintiff who may need ongoing medication, intermittent physical therapies such as physiotherapy and gymnasium to strength the knee.
31 It is a rather gloomy report for this forty four year old man. He is fit for restricted work, the general practitioner said, but within limits. He is unable to sit, stand, bend, lift and kneel for prolonged periods, together with the requirement that he may need rest breaks. I read and accept this evidence as clear enough and seriously limited the plaintiff’s employment capacity. In particular it puts him out of his chosen job as a forklift driver in industry. Not only do these restrictions impact on the capacity of a manual worker to work in a physical factory job, they must intrude very considerably into many aspects of active everyday life.
32 Any reading of those physical limits readily supports the complaints the plaintiff has in terms of restrictions on his life as a husband, father, sportsman, his recreations and activities around the house. I accept the general practitioner’s opinion. He probably knows the plaintiff best of all the doctors. He clearly supports the discharge of the onus of establishing very considerable consequences in terms of loss of enjoyment of life.
33 The first treating orthopaedic surgeon last reported in August 2011. It is of limited use now. Mr Freeman’s opinion is informative though, in that he noted persistent wasting in the left thigh after seeing the plaintiff on several occasions.[30] He diagnosed:
“Clearly he has sustained a traumatic lateral dislocation of his left patella as well as a medial collateral ligament sprain both being soft tissue injuries that will compound each other in terms of recovery. Furthermore, his recovery is further impeded by the marked quadriceps wasting present in the right thigh.”[31]
[30]PCB 52
[31]PCB 49
34 Interestingly, even in those early days he warned the plaintiff against a return to dirt bike riding until he had fully rehabilitated.[32] On the evidence I find he has never fully rehabilitated. So while Mr Freeman has not seen the plaintiff for some three years as I read his report as consistent with the difficulties the plaintiff described regarding giving up this recreation.[33]
[32]PCB 49
[33]PCB 11, 17 and 18b
35 While Mr Freeman was encouraged by the improvement the plaintiff had made when reporting in June 2011, he still supported the plaintiff remaining off work.[34] At the last examination, Mr Freeman considered there was not –
“… any indication for a diagnostic arthroscopy as the chances of this helping were negligible and will simply result in further thigh muscle wasting.”[35]
[34]PCB 51
[35]PCB 52
36 Mr Freeman referred to Mr Ian Jones, who saw the plaintiff for a WorkCover assessment and agreed that there was no need for surgery.[36] I assume this is Mr Clive Jones; however, it is not clear. Mr Clive Jones first reported on 19 April 2011, which is the date that Mr Freeman is making his comment about Mr Ian Jones.[37] Whether it was Ian or Clive Jones I am unable to conclude.
[36]PCB 50
[37]PCB 50, DCB 51
37 Mr Freeman finally noted there was a likely Complex Regional Pain Syndrome that had occurred. Whether to not that precise diagnosis has also occurred is not certain, but on the weight of the evidence it probably has. To some extent it is not to the point in this application. It is another organic injury that has probably occurred. The consequences of the impairment of his knee function were clear in Mr Freeman’s reports. Precise diagnostic precision in and around the knee is not required when it is an admitted compensable injury. The Court is not required to operate. There is no argument that symptoms are not organic.
38 Mr H Curry was the second orthopaedic surgeon to take up the plaintiff’s treatment at the referral of Dr Garra. This was in March 2012. He noted marked quadriceps wasting, tenderness, hypersensitivity and a palpable bony ridge near the knee region at the femoral condyle. He reported that “Anthony has injured his knee significantly”.[38] A crush injury to the saphenous nerve had also occurred in addition to the other signs of pathology. In April 2012 and August 2012, Mr Curry diagnosed more fully the problems in the left knee.[39]
[38]PCB 54
[39]PCB 55 and 57
39 Mr Curry diagnosed a number of areas of damage, including patellofemoral dislocation, medial ligament injury, bone marrow contusion and impaction fracture of the lateral medial condyle.[40] In addition, saphenous nerve damage had occurred, that was the most problematic condition.[41] Radiological evidence by way of MRI and CT scanning pointed to most of these problems, and also showed an irregularity in the region of the femoral condyle.[42] Injection treatment was undertaken by Mr Curry which gave some relief.
[40]PCB 57
[41]PCB 55
[42]PCB 57
40 Mr Curry advised in 2012 that an arthroscopy was recommended to remove some bone and laterally reduce release the patellar tilt.[43] Approval was sought for it but apparently was not forthcoming from the insurer. It seems the insurer followed Mr Clive Jones’ advice in that regard. Mr Curry also thought pain management may be of benefit but the plaintiff has not been sent for it.[44] Mr Curry last reported in May 2014, but it did not follow any more recent consultation with the plaintiff than October 2012. The problems were then unchanged. He assumed because the surgery had not taken place, the condition was not deteriorating.[45] He was apparently not told that the insurer had not approved the surgery, nor was he told that after that refusal the plaintiff went on a public hospital waiting list for elective surgery.[46]
[43]PCB 59
[44]PCB 59
[45]PCB 60
[46]PCB 15-16
41 The plaintiff was still waiting to hear about the outcome of this dispute about the funding for his surgery in April of this year.[47] I accept the plaintiff's evidence that he has decided now, because of the delay from 2012 to May 2014 not to go ahead with any surgery. He has learned to live with the injury. His decision in that regard is reasonable in my opinion. On the probabilities the frustration with the WorkCover system had clearly led to his decision now, nearly two years later, to not proceed if he was called up by a public hospital.[48]
[47]PCB 16
[48]PCB 16 and PCB 18a-b
42 In effect I accept that on all the treaters’ evidence the plaintiff has been compliant with the various treatment recommendations made to him regarding scanning, medications, specialist referrals, physiotherapy, gymnasium and injections. He was also compliant with respect to the suggested surgery, even though there were different opinions about that. He has been frustrated by the system in that regard. His compliance is, in my view, reflective of ongoing severe symptoms in his knee that he was anxious to see remedied. That has not occurred through no fault of his own and he is left with his symptoms and impairments permanently.
43 I accept his evidence in April 2014 that the knee is not getting any better. A medico-legal witness Ms A Manolopoulos, orthopaedic surgeon, gave oral evidence. She saw the plaintiff in March 2014 and reported on 9 May 2014. She then wrote a letter of 19 May 2014 after additional information was sent to her by the plaintiff’s solicitors. She diagnosed:
“I feel Mr Goss is suffering the effects of a patellar dislocation, the possibility of some intra articular loose bodies in his knee, damage to his MPFL and damage to the infrapatellar branch of the saphenous nerve. I also feel that he has a degree of complex regional pain syndrome (CRPS).”[49]
[49]PCB 63
44 His pain and morbidity in the left knee were likely to persist. She was particularly concerned about the symptoms and signs in relation to the saphenous nerve injury. She was shown the DVDs of the two days in March 2012. Some asymmetry with his gait was seen in her opinion. I agree with that observation. She agreed that there were some inconsistencies in regard to the range of movement shown, especially flexion.[50] However, taking her evidence in its entirety, her opinions were essentially unchanged by the DVDs.
[50]T88
45 The DVD evidence is no more than a very short snapshot of a few minutes on two days over two years ago. I have already indicated they do not alter my opinion on the plaintiff’s credit. It should be noted in that film that he never walked any great distance or maintained awkward postures for very long. It should be borne in mind that until the last week or so, this man has been working fulltime as a factory hand. He clearly does not present himself as an invalid and is capable of a number of activities.
46 Ms Manolopoulos also said the Complex Regional Pain Syndrome (“CRPS”) diagnosis which she accepted would not be likely to improve with treatment given that the trauma occurred back in 2010. If the CRPS was going to resolve with treatment it was likely to be in the first 24 months or else the likelihood of recovery was low.[51] That time delay also meant treatment would be unlikely on the probabilities to improve symptoms.[52]
[51]T77 and T94
[52]T95
47 There were four objective findings she made. They were crepitus, Clarke’s Test, swelling and wasting. They were found at the recent examination in March 2014.[53] I accept these current objective findings years after the injury are consistent with ongoing pathology in and around the knee caused by the compensable injury. They are still present in spite of different forms of conservative treatment. The four objective findings are also consistent with the plaintiff’s evidence, which I accept, of ongoing pain and restrictive activities.
[53]PCB 62 and T91-92
48 This witness, the only doctor to give oral evidence, supported my finding that the plaintiff has proved very considerable consequences in terms of loss of enjoyment of daily life whether at work, home, or recreationally. In the end her evidence was that he was unlikely to improve. She accepted his forklift driving was effectively a thing of the past, because of the knee functions required.[54]
[54]PCB 64b, T97
49 This application brings into relevance the man’s life expectancy. He is a relatively young plaintiff when injured at forty one years of age. He was left with the symptoms and limitations on activity effectively for life. Statistically he can expect many years into the future with that pain and restrictions. They are “serious” for this relatively young plaintiff.[55]
[55]See Stijepic v One ForceGroup Aust Pty Ltd [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26
50 Mr Clive Jones reported for the defendant. In April 2011, he found the plaintiff to be genuine.[56] He diagnosed a kneecap dislocation and described other possible damage. In those early days he spoke of the possibility of incomplete recovery as progress was sometimes disappointingly slow.[57] He thought the plaintiff was not able to return to his pre-injury forklift job. He faced modified duties and shorter hours when he did look at a return to work.[58]
[56]DCB 52
[57]DCB 52-53
[58]DCB 54
51 Mr Jones saw him again in September 2011 and conservative treatment was appropriate.[59] The plaintiff still faced modified duties and reduced hours if and when he returned to work. Duties would have to be suitable as opposed to his old unrestricted job.[60] He said, in answer to Question 18, that he was fit for his pre-injury employment or alternative employment.[61] It is inconsistent and hard to follow in view of his answers to seventeen earlier questions in that same report.
[59]DCB 58
[60]DCB 60
[61]DCB 61
52 A letter of October 2011 indicated Mr Jones thought the plaintiff should be encouraged to drive a forklift for two hours per shift. Nowhere is it clear where Mr Jones has any understanding of what is required in driving a forklift in a factory context. A cabin size is hardly all that is relevant, but that is all that the defendant’s solicitors brought to his attention.[62] He has nothing like the detail about forklift driving necessary to give an informed opinion.[63] Mr Jones reinforced there had been a very slow recovery period and a very limited return to work approach suggested.[64]
[62]DCB 62
[63]PCB 18c
[64]DCB 64
53 He saw the plaintiff again in February 2012. There was still wasting.[65] He considered there was residual pain following the traumatic dislocation.[66] His capacity for full hours had been reduced and he was doing four hours per day with difficulty kneeling and squatting due to symptoms.[67]
[65]DCB 66
[66]DCB 66
[67]DCB 68
54 He then made another statement that is not easy to follow. It is “…his enthusiasm for a sustained work return does not appear to be great”.[68] It is not clear why he said this about a man who he had found genuine, who had returned to work and was doing so with symptoms that Mr Jones accepted. I do not agree with this last comment of Mr Jones about the plaintiff’s motivation. It is inconsistent with this uneducated man’s work history since going into the factories at about fifteen or sixteen years of age, working virtually unbroken up to the time of the knee injury and then later on finding lesser paid and less satisfying labouring jobs via his own contacts after the defendant terminated him.
[68]DCB 68
55 In May 2012, Mr Jones commented on the DVD film of March 2012. Mr Jones was very dismissive. From that short ten-minute snapshot, Mr Jones concluded from the walking and attending to car tyres that the plaintiff has a normal knee function. I do not agree with this commentary on the film. I have already indicated that I considered there was some asymmetry in his gait and that he was only squatting down for very short periods of time. What leg he used to take the weight when getting up is just not clear on the video. In any event, the DVD is now over two years old and consequences must be judged now.
56 Furthermore, in a letter of September 2012, Mr Jones said the plaintiff “did have an organic condition of his left knee with quadriceps wasting”.[69] He thought there was also some maltracking that was “constitutional”. He did not explain that conclusion in relation to some constitutional issue at all. How he arrived at it is purely speculation.[70] It is another comment of his that leads to doubt about how solid the foundations are of his opinions.
[69]DCB 69
[70]DCB 69
57 Curiously in his latest full report, the constitutional comment did not even rate a mention.[71] This was when he re-examined the plaintiff in March of this year. Wasting was still measured.[72] The condition was stable. The plaintiff’s history of ongoing knee pain was a common condition following traumatic dislocation of the patella. It is a common condition in clinical practice and frequently results in ongoing discomfort Mr Jones said.[73] He concluded that the plaintiff will continue to experience ongoing symptoms of knee soreness in the future.[74]
[71]DCB 70.1-70.4
[72]DCB 70.2
[73]DCB 70.3
[74]DCB 70.4
58 Mr Jones thought the plaintiff could interact normally with children, and in boating and fishing. He did not say the same about the plaintiff’s dirt bike riding and Mr Jones seemed to accept the bent position on a motorbike would increase problems.[75] The tenor of this report is that the plaintiff still has a number of ongoing organic problems. The last letter of Mr Jones restated the views he expressed about the DVD evidence in 2012 and takes the matter no further in that regard.
[75]DCB 70.3-DCB 70.4
59 He commented on the criticism of how long the plaintiff said he had spent with him. I cannot reach any conclusion about how long Mr Jones spent with the plaintiff. In the end there is no necessity to do so. Save to say the plaintiff gave precise times he was with Mr Jones in his affidavit material. Mr Jones cannot really say anything precisely about the time he spent with the plaintiff and he only commented generally about consultations and his practice in that regard.[76]
[76]DCB 70.7
60 The probabilities are that the more precise dates of those visits given by the plaintiff are essentially correct.[77] Whatever the true situation, I do not have to reach any firm conclusions one way or the other. In the end I do not accept Mr Jones’ opinions as being generally well founded. They contain ambiguities and at times are hard to follow and are unclear. In any event, he still conceded that the plaintiff has ongoing symptoms.
[77]PCB 15
61 Mr Jones ended with an almost throwaway line that he would not be surprised if the plaintiff developed a pain disorder of some kind.[78] Did he mean CRPS, or some other disorder? What the reasoning is behind the comment was not set out. It did not explain this opinion in any way that it is comprehensible. Taking Mr Jones reports overall, I do not find them well reasoned or persuasive. I do not accept his implied criticisms of the reliability of this plaintiff that he found genuine when he initially reported. I do not accept his criticisms of the plaintiff’s motivation for work.
[78]DCB 70.8
62 This is a plaintiff who has returned to work, put his name down over several years on a public hospital waiting list for surgery and yet somehow it seems that Mr Jones impliedly now questions the genuineness that he initially commented on.
63 The plaintiff saw a psychiatrist, Dr Mendelson, for the defendant. There is no need to detail that doctor’s observations in this paragraph (a) application. The defendant relied on some brief history in the 11-page report as reflecting on the plaintiff’s credit. In my view, that argument is an overstatement regarding comments taken out of context about the plaintiff’s reduced activities outside his work and on weekends.[79]
[79]DCB 77
64 In regard to the issues raised, I have already dealt with the range issue which really amounts to an argument that the consequences of the compensable injury are not “serious”. In regard to the reliability of the plaintiff’s description of his consequences, I have already indicated I found him a genuine and reliable witness.
65 After cross-examination that went into a second day, I found his credit unimpeached. His description of his consequences, if anything, was understated and given in a very straightforward manner. The DVD evidence did not impact on his reliability as a witness. I accept his symptoms that include daily pain. Swelling is also common and by the end of the day at work or with prolonged standing it has increased.[80]
[80]PCB 18c
66 Similarly, the defendant’s argument that permanence has not been made out is not persuasive. The defendant has argued the lack of present treatment should lead to a finding that consequences are not serious. I do not agree. He has few, if any, treatment options provided to him and funded for his rehabilitation that on the evidence will alter his situation to any real extent. As mentioned, the only doctor called was Ms Manolopoulos, and CRPS was her provisional diagnosis among the other areas of organic damage.[81] She thought that now, in 2014, CRPS was not likely to improve, given the injury occurred in 2010.
[81]T76
67 On the evidence, he probably has developed CRPS in time as a result of the damage suffered to his knee in addition to the other pathology which is still demonstrable. I accept the evidence of Ms Manolopoulos about the probability that treatment would not result in any likely improvement now in symptomatology.[82] He has not been referred for any specific CRPS treatment in spite of several doctors raising the spectre of some pain management. Funding issues have already occurred in regard to recommended surgical treatment.
[82]T94-95
68 There is no doctor who has said any CRPS treatment would cure all or even most of the plaintiff’s symptoms. In any event, the plaintiff has other sources of pain and disability as a result of the damage caused to his knee in the compensable incident. CRPS is just one of these sources of pain that some doctors have included amongst the other areas of pathology in and around the knee joint.
69 Some concluding remarks are required in this application. It needs to be stated that in a case such as this where a plaintiff has returned to alternative work, that return is relevant but not determinative of the pain and suffering consequences. It is one element of the evidence. All the circumstances have to be taken into account. In this case, it is pertinent to point to the significant difference in the enjoyment he derives from carrying out his alternative duties as opposed to being a fulltime forklift driver.
70 It has been said it is a question of fact, degree and value judgment in determining comparisons with other cases in a pain and suffering application. Germane to judging the consequences in this application is that I find the plaintiff has a stoical attitude to his pain. He is not to be disadvantaged for this.[83] I also find he suffers constant pain that varies in severity. I accept he has it all the time.[84]
[83]See Dwyer v Calco Timbers Pty Ltd [2006] VSCA 187; Haden Engineering Pty Ltd v McKinnon (supra); Sutton v Laminex Group Pty Ltd (2012) 31 VR 100
[84]T114
71 That tends to point towards establishing very considerable pain and consequences and in this case, I find that pain is such a consequence.[85] The fact he has only taken Panadeine Forte about ten times this year is not a reflection of any less pain. It is a reflection of his determined attitude and his dislike of taking drugs, even for a headache. He hates taking medication.[86] That attitude is not only understandable but it is reasonable. It fits in with a man who just gets on with life and puts up with it.
[85]See Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267
[86]T114
72 He puts up with work he does not enjoy and the limitations on what he can do at home and as a father but they all involve serious losses for him. He was visibly upset and tearful in court when describing his sense of loss of capacity to do the day-to-day things his children wished him to be involved in. He quite emotionally described it: “…at the end of the day I can’t keep using my knee as an excuse to my kids”.[87] I have already commented on this passage.
[87]T115
73 The plaintiff has been a very active parent. This loss of a capacity to enjoy the activities he used to share with his children on its own is very considerable.[88] Helpfully, counsel took me to a number of the relevant principles when a plaintiff has returned to work after injury. Some comments are warranted.
[88]PCB 11, 16-17, PCB 18b-18c
74 As I have already said, I find the plaintiff is deprived of his capacity to be a fulltime forklift driver and that is productive of some wage loss for him.[89] However, on its own that pecuniary loss is not determinative and indeed, the plaintiff does not rely on that mathematical wage loss in this application.
[89]PCB 12-13 and PCB 18i
75 However, wages are not the only benefit derived from a job. It is relevant to the enjoyment of life to enjoy one’s work and the daily satisfaction that brings. I find in this case, that loss of enjoyment for this relatively uneducated man is very considerable. He has lost a job he chose to spend five days a week enjoying.[90]
[90]See Kelso v Tatiara Meat Co Pty Ltd (supra); Hawkins v DHL Express (Australia) Pty Ltd (supra) and Peak Engineering & Anor v McKenzie [2014] VSCA 67
76 For the reasons described I grant leave to bring proceedings for the recovery of pain and suffering damages.
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