Greet v Qube Ports Pty Ltd
[2024] VCC 291
•19 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-03817
| DARREN GREET | Plaintiff |
| v | |
| QUBE PORTS PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 March 2024 | |
DATE OF JUDGMENT: | 19 March 2024 | |
CASE MAY BE CITED AS: | Greet v Qube Ports Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 291 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the knee – pain and suffering – consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:TTB SMS Pty Ltd v Reading [2020] VSCA 203, Connelly v Transport Accident Commission [2024] VSCA 20
Judgment: Proceeding dismissed
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Saunders | Footner Wren Legal |
| For the Defendant | Mr E Makowski | Russell Kennedy |
HIS HONOUR:
Introduction
1This is an application for “serious injury” brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
2Specifically, Mr Darren Greet (“the plaintiff”) claimed to have suffered a serious physical injury pursuant to s325(a) of the Act, by way of a “permanent serious impairment or loss of a body function” to the left knee. He sought the leave of the Court to commence a common law proceeding for pain and suffering damages.
3The proceeding was conducted in the “usual” manner. The parties tendered relevant documents, mostly from Court books, and the plaintiff was required for cross-examination as to the contents of his affidavits and what he had told doctors. I have considered all the tendered evidence and the transcript of the plaintiff’s oral evidence but will refer to it only to the extent necessary.
4As I shall return to discuss, the narrow dispute in this proceeding is simply the question of whether the plaintiff had a “very considerable” pain and suffering consequence from the accepted left knee injury.
5The plaintiff is now 54 years of age and continues to be employed by Qube Ports Pty Ltd (“the defendant”) as a stevedore. Recently, he has had time off work for an unrelated psychological injury after a “near miss” at work, although he has recently been cleared to return to work from the psychological injury.
6For this proceeding, there is no dispute that the plaintiff was at work with the defendant on 4 July 2020 when he slipped, losing his footing and transferring his weight onto his left leg (“the incident”) and injuring his left knee.
Treatment and prognosis
7The initial treatment was with doctors at the Lakes Boulevard Medical Clinic, who assessed the plaintiff, arranged scans of his knee, and then referred him for orthopaedic assessment with Mr Nigel Hartnett, a specialist knee surgeon. Mr Hartnett reported on 19 January 2022,[1] in which he described an MRI scan taken after the incident as confirming:
“a complex oblique tear of the posterior horn and body of the medial meniscus, Grade 4 full thickness patellar chondral loss in the apex with adjacent subchondral marrow oedema and cyst formation in the patella of the LEFT knee.”
[1]Plaintiff’s Amended Court Book (“PACB”) 146.
8Mr Hartnett opined that:
“The complex oblique tear of the posterior horn and body of the medial meniscus was caused by the loss of footing on the ship whilst at work on 4 July 2020 with all the weight being transferred to his LEFT leg. The patellar chondral loss given the thickness of this with the associated subchondral marrow oedema and small cyst formation was more than likely present prior to the injury but given that Darren had no previous problems with this knee is likely to be an exacerbation of the injury.”[2]
[2]Ibid.
9On 11 November 2020, Mr Hartnett performed a left knee arthroscopic partial medial meniscectomy and submeniscal debridement. He has also performed several ultrasound-guided cortisone injections into the plaintiff’s left knee.
10In a report of 19 January 2022, Mr Hartnett said the plaintiff would require ongoing physiotherapy and potentially future hyaluronic acid injection therapy. He also said the plaintiff “may well require further surgery but I cannot give an answer as to when this may be”.[3]
[3] PACB 147.
11Mr Hartnett expressed the opinion that, from a meniscal point of view, there are no issues or concerns in the short term but, in the long term, the plaintiff will develop medial compartment osteoarthritis, which would require in the future potentially a knee joint replacement.[4]
[4] Ibid.
12The plaintiff has had physiotherapy with Mr James Green at Mill Park Physiotherapy. In a report dated 7 February 2024[5] (which referred to an earlier report prepared in September 2022, but which is not in evidence), Mr Green said the plaintiff post-surgery had improved his function slightly, but that he required ongoing physiotherapy and access to a gym/swim program. He said the complex nature of the injury and the development of complex regional pain syndrome would limit the plaintiff’s ability to improve his functional capacity.[6]
[5] PACB 43.
[6] PACB 47.
13Overall, as at 7 February 2024, Mr Green described the plaintiff as having a “reduced capacity as well as pain and discomfort from his complex work injury”.[7] Mr Green said further that the plaintiff was likely to remain around 65% to 75% of his lower extremity function index, “which is a representation of his current level of function”[8] and that he would not get back to full capacity. He said it was “likely” the plaintiff would require a total knee replacement.[9]
[7] PACB 44-45.
[8] PACB 48.
[9] Ibid.
14Mr Green then provided a short report on 29 February 2024[10] in which he discussed his diagnosis of the plaintiff having developed complex regional pain syndrome. He said the plaintiff had mechanical, functional and neuropathic limitation and described complex regional pain syndrome symptoms such as pain that can be constant but can also change with activity, changes in skin colour and swelling.
[10] PACB 50.
15Pausing, the diagnosis of a complex regional pain syndrome was not pressed by the plaintiff as a reason why he had a “serious injury”. I also place less weight on Mr Green’s opinion regarding the knee replacement surgery where I have opinion from a specialist treating knee surgeon on that topic.
16Nevertheless, Mr Green’s opinions support a conclusion that the plaintiff has ongoing restrictions and pain from the left knee injury, which requires ongoing conservative treatment, but where he has returned to about 75% of his pre-injury level of function in the knee.
Medico-legal evidence
17There is no need to say a great deal about the medico-legal evidence because there is broad agreement amongst the medical examiners that the plaintiff injured his left meniscus because of the incident. The disagreement in the medico-legal evidence is whether he also aggravated underlying degenerative change, or whether any ongoing symptoms relate to the compensable injury as identified.
Russell Miller
18The plaintiff relied upon an opinion from Mr Russell Miller, orthopaedic surgeon. In a medico-legal report dated 22 December 2023,[11] Mr Miller took a history from the plaintiff, conducted a physical examination, and then expressed opinions. In that report, he noted the operative findings of Mr Hartnett. Then, Mr Miller said:
“The relationship between work injury and the left knee is a complex and multifactorial issue which includes the following factors:
(i)Pre-existing disease and I note there were no pre-existing symptoms in the left knee,
(ii)constitutional predisposition to develop left knee problems,
(iii)significant physical work over a protracted period of time,
(iv)specific work injury on 4 July 2020,
(vii)subsequent development of a chronic regional pain syndrome.
The current clinical status is regarded as being substantially work injury related.
[11]PACB 35.
Other Disease and Injury
Apart from the above, nil identified.Requirement for Further Treatment
The client will require ongoing conservative treatment. His current conservative regime is appropriate and will need to continue indefinitely and may include additional measures for pain management and rehabilitation, including continuation of physiotherapy, hydrotherapy and attendance at a formal pain management program.
It is possible the client may benefit from further surgery to the left knee in the form of a left total knee replacement.
The requirement for treatment is work injury related.”[12]
[12]PACB 40.
David Love
19Dr David Love is an orthopaedic surgeon who examined the plaintiff and provided a medico-legal report dated 2 June 2022.[13] In that report, he noted the plaintiff had been treated in a routine fashion by way of arthroscopy to address the torn meniscus. He noted the plaintiff had injections on at least three occasions into the knee which had been of some help, but that there had been a limit to the timeframe they are helpful for. He then said in conclusion that the plaintiff suffered a new meniscal tear because of the incident. He noted at arthroscopy there were mild grade 2 changes of arthritis in the patellar surface.[14]
[13]Defendant’s Court Book (“DCB”) 59.
[14]DCB 61.
Ralph Poppenbeek
20Dr Ralph Poppenbeek is an occupational physician who examined the plaintiff and provided a medico-legal report dated 22 July 2022.[15] In that report, he noted there had been a medial meniscus injury, surgically treated, but that progress had been slow. He opined that the plaintiff “possibly aggravated pre-existing chondromalacia of the patella”.[16]
[15]DCB 64.
[16]DCB 68.
The Medical Panel
21A Medical Panel examined the plaintiff on 28 September 2022 and provided an Opinion dated 3 October 2022.[17] In the Reasons for Opinion, the Panel opined that the plaintiff was suffering from persistent pain and dysfunction of the left knee following a soft tissue injury of the left knee, surgically treated, relevant to the accepted left knee injury.[18] For the purposes of an impairment assessment, the Panel disregarded crepitus in the left patellofemoral joint because there was no history of direct trauma to the anterior aspect of the knee.[19]
[17]DCB 72.
[18]DCB 77.
[19]DCB 78.
Joseph Slesenger
22Dr Joseph Slesenger, specialist occupational physician, examined the plaintiff and provided a medico-legal report dated 3 March 2023.[20] He opined that the plaintiff had suffered a soft tissue injury to the left knee, a meniscal tear for which he had undergone arthroscopic repair, and chronic left knee pain.[21]
[20]DCB 82.
[21]DCB 89.
Francis Ghan
23Finally, Dr Francis Ghan is an orthopaedic surgeon who examined the plaintiff and provided a medico-legal report dated 30 January 2024.[22] He took a history from the plaintiff, conducted an examination, and provided his opinions in the context of the documentation provided to him, which included the radiology, although it is unclear whether he had the reports of the radiology as opposed to the radiological films.
[22]DCB 95.
24In any event, he described the sole injury from the accident as “a minor medial meniscal tear” and said that the plaintiff “underwent in my opinion a successful simply arthroscopic procedure”.[23]
[23]DCB 99.
25Mr Ghan then said the prognosis was good in the short and medium term but that in the very long term, that is 10-15 years, there was an increased probability of earlier degenerative change.[24] He then described non-organic factors and said the work injury no longer contributed to the plaintiff’s current left knee condition.[25]
[24]DCB 99.
[25]DCB 100.
26Implicit in the opinion from Mr Ghan is that he does not consider that there was any evidence of arthritis, or that because of the incident the plaintiff had aggravated the pre-existing chondral loss and associated condition. Therefore, I interpret his opinion of the long-term possibility of knee replacement surgery to be a reference to the underlying condition and not because of any work-related aggravation of that condition.
Summary and consideration of the medical evidence
27In short, all the medical examiners agree that the plaintiff suffered a meniscal injury which required surgery. The dispute is whether the plaintiff also aggravated underlying, but previously asymptomatic, degenerative change in the left knee.
28In a resolution of this dispute, I prefer the opinions from Mr Hartnett and the medico-legal examiners such as Mr Miller and Dr Poppenbeek, who concur with Mr Hartnett’s opinion that the plaintiff injured the left meniscus and aggravated degenerative change in the knee, which will further progress because of the work injury. I consider the weight of the medical evidence to support that conclusion. Therefore, I do not accept Mr Ghan’s opinion in that regard as he is essentially the odd one out. While the Medical Panel disregarded left knee crepitus for the purpose of an impairment assessment, it is unclear if the Panel also considered that the pathology in the knee was aggravated by the meniscal injury. Even if the Panel’s Opinion is read as consistent with Mr Ghan, that does not alter my assessment of the whole of the evidence on this point.
29Accordingly, I conclude that the plaintiff suffered a left meniscus injury and some aggravation of underlying, but previously asymptomatic, degenerative change in the left knee because of the incident.
30Ultimately, not much turns on this conclusion, because the defendant’s primary contention was that the plaintiff simply had not made out “very considerable” impairment consequences, regardless of whether the Court accepted Mr Ghan’s opinion, or rejected it.
The plaintiff’s affidavit evidence
31The plaintiff swore three affidavits. In his first affidavit sworn 1 March 2023,[26] he set out his current treatment, pain and suffering and relevant consequences as follows:
[26]PACB 4.
“17.I first sought treatment from the doctors at Lakes Boulevard Medical, first Dr Ali and later Dr Sandhu.
18.Dr Sandhu later referred me to an orthopaedic specialist, Mr Nigel Hartnett.
19.Mr Hartnett subsequently operated on my knee - an arthroscopy in November 2020. He then arranged for me to have shockwave therapy, (which the defendant's WorkCover insurer refused to fund) and, later, an injection (in late 2021).
20.As the defendant's WorkCover insurer refused to fund the shockwave therapy and I would have had to pay for this myself, I opted to continue with physiotherapy and hydrotherapy.
Current treatment.
21.I now see my physiotherapist weekly (and I do exercises at home as recommended). I also have hydrotherapy two to three times a week.
22.By way of medication, I now take Panadol. I also use Voltaren Gel.
23.However, I do not like taking medication. My brother once got addicted to painkillers. I do not want that to happen to me. I also do not want to have to rely on medication just to get through the day.
24.I prefer then, to manage my condition by avoiding - or at least limiting - activities that I know aggravate it.
25.I also use a knee brace, which helps.
Pain and suffering consequences
26.As a result of the injury, I suffer chronic left knee pain, with, and following, activity - and especially after a long day at work. My knee often also feels unstable. From time to time, my knee also swells.
27.My condition is readily aggravated by activity, especially:
a.Walking long distances, on uneven ground, and up and down stairs (we live in a three-story house but we are now thinking about moving);
b.Standing for long periods;
c.Kneeling and squatting - both of which I find very difficult; and
d.Running even a short distance - which I find particularly difficult.
28.To the extent possible then, I try to at least limit such activities.
29.I add, too, that the pain disturbs my sleep from time to time.
Resultant consequences
30.Because of the injury, I am unable to do, or have difficulty with, a range of activities.
31.Firstly, I struggle to things around the house.
32.Before the accident, I helped my fiancée to do things around the house. But I now struggle to be of much assistance with things like the cleaning, especially after a hard day at work.
33.Secondly, I am no longer able to do much in the garden.
34.I was also able to maintain the garden without difficulty before the accident. Now, however, I find that it is too hard on my knee.
35.Thirdly, I am no longer [sic] to play golf.
36.Before the accident, I played golf socially, say, fortnightly. I enjoyed both the game and the socialising afterwards. Now however, I am no longer able to play. It is too hard on my knee.
37.I also enjoyed kicking the footy and playing cricket and social events - which I have also had to give up.
38.Fourthly, I now struggle to walk long distances.
39.I also enjoyed going for regular walks before the accident. My fiancée and I used to walk for at least an hour every day. Now, however, I walk by myself and much shorter walks of about half an hour maximum.
40.Finally, my intimate relationship with my fiancée has also been affected by the injury.”[27]
[27]PACB 7-10.
32In that affidavit, the plaintiff exhibited an affidavit sworn by him on 25 March 2015,[28] in support of a previous “serious injury” application but for a low back injury suffered with the defendant on 6 June 2012. That affidavit set out a range of pain and suffering consequences from the low back condition as at 25 March 2015. The plaintiff was challenged in cross-examination about whether those restrictions had continued up until the incident and beyond.
[28]PACB 13.
33The plaintiff then swore a second affidavit for the purposes of this proceeding on 16 February 2024.[29] That set out his ongoing treatment and symptoms as follows:
[29]PACB 20.
“2.Since my first affidavit, I have seen my GP (now Dr Sapuppo, Lakes Boulevard Medical) to get medication prescriptions and radiology referrals.
3.I continue to have physiotherapy treatment every week with Mr James Green. He provides me with Certificates of Capacity. And I have likewise continued with my exercise program. I go to the gym twice a week; I also swim.
4.By way of medication, I now take Meloxicam for pain (one 50mg tablet per week) and Temazepan [sic] to help me sleep, usually once per week. I also continue to wear a knee brace for support.
5.However, I continue to limit how much medication I take; I do not like taking for the reasons set out in my first affidavit. I prefer to manage my condition by avoiding, or limiting, activities that I know aggravate it.
6.Otherwise, I have been told that I am likely to require a total knee replacement in the future by my physiotherapist.
7.Finally, I have recently been diagnosed with severe obstructive sleep apnoea.
8.I have put on a significant amount of weight since the injury (as I can no longer exercise as much as I did). I believe that this may be a cause of the sleep apnoea.
9.My specialist, Dr B Dawood has told me that I need to lose ten to 15kg for the sleep apnoea to improve. But I am very worried that I will struggle to do so because of the injury.
Pain and suffering
10.Since I swore my first affidavit, my knee condition has worsened slightly. Aside from that, I continue to suffer the left knee pain, along with the restrictions, set out there.
11.So, too, I remain unable to do a range of things, and have difficulty doing others, again as set out in my first affidavit.
12.To what is set out there, however, I add that:
a.I have difficulty falling asleep due to pain in my knee and inability to get comfortable in bed;
b.I no longer assist with household chores including carrying groceries (we live in a townhouse and I struggle carrying things upstairs), vacuuming and even making the bed;
c.I have not been able to return to any real work in the garden; the WorkCover insurer has now started funding a gardener to help me; and
d.When I played golf before the injury, I played 18 holes (say, fortnightly). I enjoyed it very much; it was my main hobby. I miss the game, and the socialising that always followed a round
Return to work and work capacity
13.My certificate of capacity states that I can work up to five days for up to a maximum of 12 hours per day, with the following restrictions - no uneven surfaces, no squatting, no kneeling and ability to take rest breaks as required.
14.However, I have only been working, on average, two to three days per week, for anywhere between four and 12 hours due to an allocation error on behalf of my employer, Qube.
15.I do not know if l could manage doing 12-hour days, five days per week as I have not actually done this since my injury. And I am worried about job security if l cannot.
16. I worry, too, that I will not be able to work as a stevedore indefinitely, especially if my condition was to worsen further.
Other matters
17.On 14 April 2023 , I had a near miss accident with a crane at work; I now suffer anxiety as a result.
18.Consequently, I was off work for a short period. I later returned to work with a restriction that I do not work around cranes - which has only recently been lifted.”[30]
[30]PACB 20-23.
34The plaintiff then swore a third affidavit on 1 March 2024,[31] in which he said:
“2.On 7 September 2023 I had a third cortisone injection to my left knee. After receiving the injection, the pain in my knee improved for a short period, after which the pain levels returned to the same as I had before the injection.
3.I had an MRI scan done in November 2023. There was no further treatment recommended other than to continue with physiotherapy and my gym/swim programme.
4.In my affidavit dated 16 February 2024, I stated that I take meloxicam about once per week. I was taking this medication several times per week, sometimes every other day, however I am trying not to take it as much for the reasons set out in my previous affidavit.”[32]
[31]PACB 148.
[32]PACB 148-149.
Credit
35I interrupt the narrative of the plaintiff’s evidence to record that this is not really a credit case. The plaintiff presented mostly as a straightforward witness during his oral evidence, who gave appropriate answers without embellishment.
36Yet, as I shall come to in a moment, early on in cross-examination he denied that he had severe sleep apnoea or that he had been told he had severe sleep apnoea by a doctor.[33] When pressed further, he accepted that he had been diagnosed with severe sleep apnoea and that it was the main impairment on his sleep.[34] It begs the question why he obfuscated about that topic when initially asked about it, although he did say that he was not understanding of the questions at the start.[35]
[33] Transcript (“T”) 16, Line (“L”) 4-13.
[34] T 17, L 11-17.
[35] T 17, L 20-21.
37In any event, the defendant did not suggest this was a credit case and my conclusion has been arrived at on the basis that the plaintiff was broadly a reliable and credible witness.
38As I shall come to in a moment, the plaintiff was cross-examined about his current and ongoing social activities involving friends, greyhounds, and gambling.
39In his affidavits, the plaintiff explained what he had lost by way of social activity because of his knee injury, but he omitted to say anything about some social activities that he now engaged in. He did not mention that he part-owns several greyhounds as part of a syndicate, or that he occasionally travels to country racetracks to watch the dogs. He did not mention his regular habit of having a beer with mates at a local pub, or enjoying a flutter on the horses, both on track and at the pub.
40The defendant tendered social media extracts that confirmed the plaintiff’s ongoing love of a beer and a bet to highlight that he still has an active social life with mates, centred around gambling and drinking. Not all of that was in his affidavits.
41Rather than a direct credit attack, the defendant instead emphasised that the oral evidence had disclosed the plaintiff’s ongoing social interests, in the context of a submission about what he had retained by way of enjoyable social activity. The defendant also highlighted that the plaintiff had a retained capacity, in accordance with recent medical certification, to work up to 12-hour shifts, 5 days per week, as a stevedore, again not as a credit point, but to highlight what was retained.
The oral evidence
42Much of the cross-examination of the plaintiff was, appropriately, directed to the plaintiff’s interest and enjoyment from owning greyhounds and socialising with mates at the pub. The plaintiff readily conceded that he did those things.
43The plaintiff also conceded that he did not use painkillers every day. He said he took Panadol or Voltaren only when pain persists.[36]
[36]T 7, L 19-20.
44The plaintiff agreed there had been no real reduction in his social life since injuring his left knee[37] and accepted in cross-examination that he was now enjoying his social life with friends as it was before his knee injury.[38]
[37] T 8, L9-10
[38]T 8, L 12.
45He described some difficulty for daily activity, such as gardening and housework. He was not a particularly keen gardener before he hurt his left knee, saying simply that he “didn’t dislike it”.[39] He maintained that his left knee caused the interference with housework and the like as set out in the affidavits.
[39]T 9, L 22-23.
46Notwithstanding his previous back injury, the plaintiff maintained that, before he hurt his left knee, he was jogging and going for regular walks. In closing submissions, the defendant highlighted that there was no affidavit from the plaintiff’s partner to corroborate his affidavit evidence about going for long walks.[40]
[40] T 73, L 5-9
47It was suggested to him that, over the years, his left knee pain had improved but he said that it had “actually got worse”.[41] However, he conceded that, despite the pain worsening, he had not sought to use any further pain medication. He explained there was a “reason for that”,[42] which was clarified in re-examination as the fact that his brother passed away with an addiction to painkillers. It is easy to understand why the plaintiff would therefore avoid using stronger painkillers.
[41]T 14, L 13.
[42]T 14, L 17.
48As mentioned, the plaintiff eventually agreed that he had been tested for sleep apnoea. He also accepted that now when he went to sleep his main problem was to do with his breathing.[43] As such, any interference with sleep because of the knee injury fell away on the evidence as a relevant consequence.
[43]T 17, L 12.
49The plaintiff was cross-examined about his drinking. He readily accepted that he would binge drink several times a week up to 10-15 standard drinks.[44] He drank with friends at pubs and at racetracks. He confirmed that he owned greyhounds, which he raced in a syndicate of friends. It was put that he enjoyed a greyhound hobby now, and he dryly responded, “I wouldn’t say enjoying, it’s not winning”.[45] He gave evidence of sometimes getting a lift with the trainer to watch one of the greyhounds race, including to race tracks in Geelong and Healesville.
[44]T 19, L 6-16.
[45]T 19, L 21-22.
50The plaintiff was challenged about whether he always had a limp because of the knee injury, for example if he went to the shops. He said that he did not always have a limp and that he is able to go shopping, to the pub and to catch up with friends. He goes to the AFL a few times a year and was taken to a Facebook post which showed him enjoying the Richmond Football Club’s Grand Final victory in 2020.
51Next, the plaintiff was cross-examined about his ongoing employment as a stevedore. He explained that he used a crane from time to time, or a forklift. He was able to climb stairs or ladders to get into the crane. He could work three hours in the crane and then do three hours on the ship deck as a spotter. Whilst doing the work on the ship’s deck, he would sit and stand.[46] He described how he operated a forklift and coped with that.
[46]T 27, L 15-16.
52When the cross-examination returned to horseracing and dog racing, the plaintiff accepted it was fair to say that he enjoyed those activities and regularly bet on the races.[47]
[47]T 42, L 12-16.
53In re-examination, he said he did not think he would be able to work five days a week, up to 12 hours a shift.[48] He said he would try it, but he thought the pain might be too much.[49]
[48]T 50, L 28-29.
[49]T 51, L 2.
54In re-examination, he said he took Nurofen on average once a week and Panadol probably twice a week. He said he was never pain-free but there were periods when the pain was at a lower level, generally when he was doing nothing and just relaxing. He said if he engaged in activity then the pain comes on and increases.[50]
[50]T 51, L 1-17.
55The plaintiff gave relatively straightforward oral evidence, save for the issue of the sleep apnoea. He candidly made concessions about important matters such as his use of medication, social life and interest in greyhound and horseracing. He was a relatively straight shooter in the witness box, but his oral evidence did reveal a greater level of retained social activity than what he described in his affidavits.
No big ticket item
56There are some “serious injury” applications in which the plaintiff can identify a single “big ticket” item, such as the loss of a daily activity that had been a great love or provided a lot of pleasure before injury.
57However, the proceeding before the Court is not such an example.
58The evidence from the plaintiff set out a range of consequences, and restrictions, that, when taken in isolation, would not produce a “very considerable” pain and suffering consequence.
59As the plaintiff’s counsel appropriately conceded, to establish a “very considerable” consequence in this proceeding, the plaintiff relied on the whole suite of consequences established by the evidence, but no one “big ticket” item.[51] As his counsel conceded, as an example, the limited amount of social golf or kicking the footy with mates that he did before injuring his left knee would not in isolation produce a “very considerable” consequence.
[51] T 68, L 7-19.
60Rather, on behalf of the plaintiff, it was contended that the combination of a series of smaller losses for pleasurable and day-to-day activity, combined with an amount of ongoing pain, especially after a shift at work, with the need for some ongoing conservative treatment and intermittent use of painkillers, produced a “very considerable” consequence.
61I am conscious that I must consider the range of possible impairments and not just those that come before the Court.[52] In a consideration of such a range, there are injuries and impairments that are clearly “serious” and those that are clearly not. Then there are injuries and impairments that sit somewhere in the middle, and I consider the current proceeding to be such an example.
[52] TTB SMS Pty Ltd v Reading [2020] VSCA 203.
Serious or not
62I accept that the plaintiff suffered a meniscal injury, which required surgical repair and involved some aggravation of the underlying degenerative pathology.
63I also accept that the plaintiff has ongoing pain from the left knee injury, likely due to the aggravation of the underlying degenerative pathology, as the meniscal injury seems to have been successfully repaired. Certainly, Mr Hartnett did not consider the meniscal injury to be much of a problem when he last examined the plaintiff.
64The plaintiff’s pain is at a level that does not require daily medication. I accept that when the pain flares up, he takes Nurofen or Panadol to manage it. I accept that if he spends long periods on his feet, such as a shift at work, then there is an aggravation of pain.
65The ongoing symptoms in the plaintiff’s left knee would likely make it difficult for him to walk for prolonged periods, such as the walking that he enjoyed with his partner before he was injured. Prolonged standing is also likely to increase his knee symptoms.
66But the ongoing knee symptoms do not prevent the plaintiff from driving, socialising, working, or enjoying his hobby of greyhound racing. While he may have some restriction for domestic activity, he is still able to perform housework and shopping. He can still walk when needed for work or to go the pub near his house or go to the footy with his mates.
67The ongoing symptoms do not prevent him from performing work as a stevedore, where he is now certified as fit to perform 12-hour shifts. That work involves a reasonable level of weightbearing activity and the use of the left knee, such as climbing steps or ladders, sitting or standing for prolonged periods and climbing in and out of forklifts as required. On the evidence, it is not back-breaking work, but it is work that requires a level of weightbearing activity and the plaintiff is able to do that work, even if it produces increased symptoms after extended hours or time on his feet, without the job being modified for him.
68The left knee pain is not at a level that requires daily medication or strong prescription medication. The pain is at a level that the plaintiff can manage with the use of over-the-counter painkillers when the pain flares up. The plaintiff gave compelling evidence as to why he avoids stronger painkillers, but there is no real suggestion in the medical evidence that his pain levels require stronger painkillers.
69The plaintiff’s pain is also at a level that does not require much by way of active treatment. He does self-managed exercise at a local gym, including hydrotherapy. He has had ongoing physiotherapy.
70In final submission, the plaintiff did not really press the possibility of a knee replacement as a relevant impairment consequence. Having considered the medical evidence, I conclude that, in the longer term, a knee replacement is a possibility. But that evidence is not compelling for a conclusion that the plaintiff will come to a knee replacement. The fact that a knee replacement is only a possibility is an indication that the arthritic change in the knee is not at a level that is likely to impact the plaintiff in the short-medium term, or during his working life.
71The synthesis of the overall impairment consequences from the left knee injury in a consideration of what is lost with what is retained[53] leads to the conclusion that, after injury, a lot is retained.
[53] Connelly v Transport Accident Commission [2024] VSCA 20 at [49].
72The plaintiff’s main hobbies seem to centre around seeing his mates, having a beer and a bet. He still regularly engages in those pleasurable activities. Indeed, if there is a “big ticket” item in this proceeding, it is probably the combination of drinking and gambling with friends, which, of course, is retained.
73As I said earlier, there are injuries and impairments that fall somewhere in the middle of the range of possible impairments or impairment consequences. I accept that the plaintiff’s ongoing pain and interference with daily activity is not trivial. In fact, it might be capable of being described as marked or even significant, but, as the well-known legal principles explain, to satisfy the test of “serious injury” the plaintiff must demonstrate a “very considerable” impairment consequence.
74On a consideration of the whole of the evidence, the plaintiff’s injury, impairment, and impairment consequences fall below what might be fairly described as “very considerable”.
75Therefore, for the reasons expressed, I am not satisfied that the plaintiff has suffered a “serious injury” to his left knee.
76The plaintiff’s application is dismissed.
77I shall hear from the parties as to consequential cost orders.
0
2
0