Hamling v VWA
[2024] VCC 930
•24 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-05962
| Brevan Hamling | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | Her Honour Judge Sanger | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 June 2024 | |
DATE OF JUDGMENT: | 24 July 2024 | |
CASE MAY BE CITED AS: | Hamling v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 930 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – paragraph (a) - injury to right knee – pain and suffering – loss of earnings – successive injury to the same body part – whether aggregation or exacerbation
Legislation Cited: Workplace Injury and Rehabilitation Compensation Act 2013 (Vic), s335
Cases Cited:Altona Bus Lines & Anor v Lococo [2002] VSCA 159; Rowe v Transport Accident Commission (2017) 83 MVR 195; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Victorian WorkCover Authority v Brassington [2021] VSCA 236; Victorian WorkCover Authority v Kalenjuk [2017] VSCA 17; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Leave granted to proceed with a claim for damages for pecuniary loss and pain and suffering arising from the injury sustained on 13 August 2017
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L. Allan with Ms B. King | Prime Injury Lawyers |
| For the Defendant | Mr B.R. McKenzie | Hall & Wilcox |
HER HONOUR:
Introduction
1Mr Hamling is a sixty-four year old man who has spent most of his working life driving trains. On 13 August 2017, while working as a driver for Metro Trains (“the employer”), he became aware that a passenger in a wheelchair, who was trying to board the train, was stuck and distressed. One of the wheels of the passenger’s wheelchair was jammed between the platform and the train, and the wheelchair was at risk of tipping over (“the 2017 incident”). Mr Hamling immediately left the driver’s cab and went to assist the passenger. As he did so, Mr Hamling felt a sharp pain in his right knee. For the purpose of this proceeding, there is no dispute that he suffered an injury to his right knee in the 2017 incident. Following an arthroscopy in 2018, he returned to work. He modified the way he performed his normal duties to minimise his knee ‘collapsing’. He nonetheless continued to experience flare-ups of his symptoms.
2On 28 April 2022, he walked on crushed rock at the Dandenong Railway Station and suffered a flare-up of his symptoms (“the 2022 flare-up”). He was eventually able to work five hours a day, two days a week following this incident.
3He continued working until 28 March 2023 when he resigned his employment, with an effective date of 6 January 2024.
4Mr Hamling is seeking leave to proceed with a claim for damages for his pecuniary loss and his pain and suffering pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act”) for his right lower limb impairment arising from his right knee injury sustained in 2017.
5For this proceeding, the Victorian WorkCover Authority (“the defendant”) accepts that Mr Hamling has a “serious injury”. But what the defendant does not accept is that Mr Hamling has sufficiently discharged his evidentiary onus to link the incident with his current impairment consequences, because of what the defendant says was a subsequent injury, or aggravation injury, that occurred in 2022.
6Therefore, the issue in this proceeding is not so much a dispute about whether Mr Hamling has a “serious injury”. Rather, it is a dispute about the analysis of the evidence and what can be relied on in determining whether Mr Hamling is entitled to leave to proceed.
7The questions to be resolved in this case are:
(a) What was the injury that was suffered on 13 August 2017?
(b) What impairment and impairment consequences were caused by the 2017 incident?
(c) Excluding any unrelated impairment consequences, including those caused by the 2022 flare-up, has the plaintiff discharged his evidentiary onus to establish that his current “serious injury” is causally related to the 2017 incident? (the “causation” question)
8I have considered the affidavits, Mr Hamling’s oral evidence and the reports of the experts tendered at the hearing. While I do not propose to refer to all the evidence, I shall refer to it to the extent necessary to explain my reasons.
9For the reasons set out below, I find that Mr Hamling is entitled to leave to proceed with a claim for damages based on his pecuniary loss and his pain and suffering because of the impairment consequences arising from the 2017 injury.
Relevant Background Matters
10Mr Hamling is sixty-four years of age. He is single, and lives with a boarder in Wonthaggi. He has two children and two grandchildren.
11Mr Hamling grew up in Apollo Bay, and eventually moved to Melbourne when he was a teenager. He attended school until the end of Year 9, then began working as a store person. When he was 17 years of age, he commenced employment with Victorian Railways as a trainee train driver. He continued working on railways until 1992.
12Mr Hamling then worked as a dogman or labourer with various construction companies until 2008. He then resumed working as a train driver for Connex before the employer took over the contract. Mr Hamling remained in this role until he ceased work in 2023.
13As outlined earlier, Mr Hamling suffered an injury to his right lower limb after attempting to extract a passenger in a wheelchair who was stuck between the platform and the train in 2017.
14Following the injury, he attended his general practitioner, Dr Overton, for treatment. He was treated conservatively.
15He made a claim for WorkCover compensation which was accepted.
16He was referred to Mr Solaiman, an orthopaedic surgeon, in 2018.
17Mr Solaiman performed an arthroscopy to repair a meniscal tear in July 2018.
18Mr Solaiman recommended that he take Mobic to treat his pain.
19After a period off work, he was certified fit for normal duties and returned to work in or about September 2018.[1]
[1]Exhibit P1, Plaintiff’s Third Further Amended Court Book (“PTFACB”) 16 at paragraph [16]; Exhibit D1, Defendant’s Court Book (“DCB”) 9
20In June 2020 he returned to Dr Overton with increasing right knee pain.
21He returned to see Mr Solaiman on 29 June 2020 with a history of acute pain which was sharp and intermittent. Mr Solaiman advised him against further knee surgery.
22He was referred to Mr Fary, an orthopaedic surgeon, on or about 5 July 2020 for a second opinion.[2]
[2]Exhibit P1, PTFACB 17 at paragraph [23]; Exhibit P5, PTFACB 72
23Mr Fary recommended steroid injections and aspirations of the knee, which Mr Hamling underwent in August 2020 and November 2020.
24Mr Hamling continued working until the incident in 2022, when he walked on crushed rock at the Dandenong Railway Station and suffered a flare-up of his symptoms.
25He made a further claim for compensation which was accepted.
26Following a period off work, Mr Hamling commenced light duties, which consisted of solely driving trains for four hours a day, two days a week. After a couple of months, he increased his duties to five hours a day, two days a week.
27He had physiotherapy and hydrotherapy treatment.
28He was referred to another orthopaedic surgeon, Mr Samuel Joseph, for an opinion and saw him on 14 November 2022.[3]
[3]Exhibit P1, PTFACB 19 at paragraph [32]
29He underwent a six week intensive exercise program called the GLAD program.
30He resigned from his employment on 28 March 2023 after learning that he was about to be asked to drive trains from Flinders Street Station, rather than Cranbourne Station, as he was not coping with his knee pain and did not believe that he could manage the longer drive and travel required with his knee symptoms. He has not returned to work since.
31He began taking Tramadol to treat his symptoms.
Mr Hamling’s evidence
32Mr Hamling swore three affidavits, the first being sworn on 4 July 2023, the second on 22 May 2024, and the third on 31 May 2024.
33He also gave oral evidence at the hearing of his matter.
34The parts of his evidence relevant for deciding the issues in dispute are those relating to the impairment consequences attributable to his knee injury sustained in 2017.
35In summary, Mr Hamling consistently attributed the cause of his current pain and symptoms to the 2017 incident in his affidavits and oral evidence.[4]
[4]Exhibit P1, PTFACB 23 at paragraph [4]; Transcript (“T”) 19, Lines (“L”) 13-15; T21, L25-28; T24, L1-9; T25, L6-11
Affidavit evidence
36In his first affidavit, Mr Hamling outlined the cause of his injury, his treatment, and his impairment consequences.
37He provided an update on his treatment and impairment consequences in his second and third affidavits.
38Mr Hamling said the following about his pain in his second affidavit:
“I continue to suffer constant, variable right knee pain. I have not been free of right knee pain since 13 August 2017. Since my first Affidavit, I have been experiencing sharp pain in my right more often (sic). When I walk, I regularly experience a sensation like someone has shoved a large needle into my right knee. On average, I experience this sensation around three times a day, depending on how much walking I have done. My right knee still feels unstable. On occasions, I need to grab hold of something nearby to support myself when I get sharp pain in my knee. I still experience occasional cramping in my right leg.
…
For right knee pain, I take Tramadol (2 tablets per day) and Panadol every night. The Tramadol makes me very drowsy. I need to be careful when I take it. For example, I avoid taking it if I know I am going to be driving.”[5]
[5]Exhibit P1, PTFACB 23-24 at paragraphs [4]-[7]
39Mr Hamling said that stopping work in 2023 helped reduce his pain levels “a bit” and that he advised Mr Fary of this, but that the improvement did not continue, and if anything, things were getting worse.[6]
[6] Exhibit P1, PTFACB 132 at paragraph [10]
40He deposed to enjoying regular, long walks prior to his injury. He said that since his injury, he was only able to walk short distances and with constant pain.[7] He said that he walked his dog daily for approximately 20 minutes but required a break after ten minutes.[8]
[7] Exhibit P1, PTFACB 21 [45]
[8] Exhibit P1, PTFACB 25 [14]; T24, L26-31; T25, L1-2
41Mr Hamling said that he was restricted in his ability to perform household and gardening duties by reason of his right knee injury.[9] In his first affidavit, he said that mowing his lawns caused an aching pain to his knee.[10] He would only mow a small area of lawn inside his fence, and WorkCover paid for someone to mow his main lawn.[11]
[9] Exhibit P1, PTFACB 20 at paragraph [43]; Exhibit P1, PTFACB 25 at paragraph [12]
[10] Exhibit P1, PTFACB 20 at paragraph [44]
[11] Exhibit P1, PTFACB 25 at paragraph [13]
42He said that his boarder did most of the heavier housework.[12]
[12] Exhibit P1, PTFACB 25 at paragraph [12]
43Mr Hamling deposed to experiencing broken sleep every night because of his right knee pain,[13] and said that he slept with a pillow between his legs to get comfortable.[14]
[13] Exhibit P1, PTFACB 19 at paragraph [40]
[14] Exhibit P1, PTFACB 23 at paragraph [9]
44He said that after his injury, he could no longer trust his right leg and that his knee was “giving way at times”.[15] He described his knee as feeling unstable in his first and second affidavits.[16] He said that he struggled with heavy lifting, squatting and kneeling, and that standing and walking for long periods caused increased knee pain.[17] He said that he could not run at all.[18]
[15]Exhibit P1, PTFACB 16 at paragraph [20]
[16] Exhibit P1, PTFACB 19 at paragraph [35]; Exhibit P1, PTFACB 23, at paragraph [4]
[17] Exhibit P1, PTFACB 19-20 at paragraph [38]
[18] Exhibit P1, PTFACB 19-20 at paragraph [38]
45Mr Hamling said that he experienced increased pain and cramping in his right leg after driving for long periods and knee pain when applying the brake with his right foot.[19] He deposed to requiring breaks when driving on longer trips.[20]
[19]Exhibit P1, PTFACB 19 at paragraph [42]
[20] Exhibit P1, PTFACB 24 at paragraph [11]
46Mr Hamling stated he had enjoyed riding motorbikes since his early twenties.[21] In his first affidavit, he said that:
“Since my right knee injury, I have had increasing difficulty riding a motorbike. I eventually decided to sell my motorbike in June 2023 because I was not using it.”[22]
[21]Exhibit P1, PTFACB 19 at paragraph [41]
[22] Exhibit P1, PTFACB 20 at paragraph [41]
47In his second affidavit he said that he had not returned to motorbike riding due to his knee pain and instability.[23]
[23] Exhibit P1, PTFACB 23 at paragraph [10]
Mr Hamling’s oral evidence
48Mr Hamling was asked about the consequences of his injury in the period before and after the 2022 flare-up at the hearing of this matter.
49He said he had pain and cramps with sitting, bending, squatting, and kneeling in 2018 to 2021,[24] despite his general practitioner certifying that he could do all of these activities on the clearance certificate dated 9 September 2018.[25]
[24] T39, L25-31; T40, L1-11
[25] D3, DCB 10
50He explained that after returning to his normal duties following his arthroscopy in 2018, he modified the way he did his job to accommodate his right knee restrictions.[26]
[26] T33, L24-31; T34, L1-14; T35, L15-22; T37, L22-31; T38, L3-4; T40, L4-9
51He said he made the following modifications at work during the period between the arthroscopy and the 2022 flare-up:
a)when inspecting the undercarriage of a train, he would stand back and observe from a distance to avoid bending his knee or kneeling;[27]
b)when deploying wheelchair ramps, he would place the ramp down by bending only the left knee and keeping the right knee straight;[28]
c)when entering a carriage, he would use a modified three-point hold relying on his left leg and his two arms to pull his body weight up, avoiding putting pressure on his right knee;[29] and
d)when shunting a train at the end of his shift, he would leave early to accommodate his slower walking pace while inspecting the train.[30]
[27] T34, L1-8; T37, L22-24
[28] T35, L15-22; T40, L4-9
[29] T34, L9-14
[30] T33, L24-31; T37, L26-31; T38, L3-4
52He said he was conservative about the way he undertook his duties at work and at home[31] to minimise the risk of his right knee collapsing.[32]
[31] T26, L10-12
[32] T33, L24-31; T37, L15-19; T40, L3-4
53In re-examination, he was asked to explain what he meant by doing his job conservatively in the period between the arthroscopy and the 2022 flare-up. He said:
"…I mean that the knee never healed relative to - my left knee works fine. Post the operation, the knee still felt a little bit different, all right? And when I went back to Dr Overton in 2020, I was getting increasing pain in my knee, so when I use the knee I will be very conservative with it so it doesn't collapse, because it did collapse several times over the years - walking along, my knee just gave way.”[33]
[33]T37, L12-19
54Because of his ongoing problems and increasing pain, he sought further medical treatment in mid-2020. He suffered from a dull, permanent ache and occasionally a greater pain at that time.[34]
[34] T39, L1-3
55As outlined above, Mr Fary recommended he have two right knee ultrasound guided aspirations and steroid injections and undergo physiotherapy. Mr Hamling underwent the first of these aspirations and injections in August 2020 and the second in November 2020. He said these provided temporary relief, but ultimately did not make any real difference to the pain.[35]
[35] T39, L7-10; Exhibit P3, PTFACB 33
56He had a flare-up of his symptoms in the 2022 incident.
57Mr Hamling was asked about the incident in 2022 in cross-examination. Mr Hamling said he had increasing pain that came on suddenly.[36] When asked to clarify this in re-examination, Mr Hamling said he always had pain in the knee following the operation in 2018, which was why he returned to see Dr Overton in 2020.[37]
[36] T20, L24
[37] T41, L4-6
58He was asked about walking his dog. He said that he purchased a dog in 2018, and that he probably walked the dog for 20 minutes in one go and at a reasonable pace.[38] He was asked how his ability to walk differed after the incident in 2022. He agreed that he had to walk the dog with a couple of breaks, and that he walked a lot slower these days.[39] He was asked whether he was comparing his walking now to that before 28 April 2022 with that answer, to which he said:
“Since I had the incident in 2017, and even though I had the arthroscope in 2018, I’ve always walked slower because the knee’s never felt better, right? I’ve always had ongoing pain with the knee.”[40]
[38] T24, L28-30
[39] T25, L4-5
[40] T25, L7-11
59Mr Hamling was cross-examined regarding his motorbike riding. He stated that he bought the motorbike in 2019, and that he rode the motorbike about once a month for about 30 kilometres in the period from September 2018 to April 2022.[41] After the incident in 2022, he said that he did not ride it much or for very long.[42] He sold the motorbike in 2023.[43]
[41] T23, L24-25
[42] T23, L30-31; T24, L1-6
[43] T21, L18-19
60Mr Hamling was asked about medication. He stated that he did not take Mobic as suggested by Mr Solaiman in 2020, as Dr Overton had advised him that it would negatively interact with his blood pressure medication.[44] He also did not take any analgesics or anti-inflammatory medication, as he said that they had not made any difference to his pain when he had tried them previously.[45]
[44]T26, L29-31; T27, L1
[45] T27, L3-5
61He was asked whether the reason he was prescribed and started taking Tramadol in June 2023 was because his right knee was causing him more pain following the 2022 flare-up. He said that he had pain in the knee prior to that time, but that he could not take Tramadol at that time.[46] He was asked to clarify this in re-examination. He said that he wasn’t legally able to take Tramadol and drive a train.[47]
[46] T27, L26-28
[47] T41, L14-15
62Mr Hamling was asked about performing housework and gardening around the home prior to and after the 2022 flare-up in cross-examination. He agreed that he could not do as much housework or gardening after the 2022 flare-up.[48] Mr Hamling was asked to elaborate during re-examination, with specific reference to the period after his arthroscopy in 2018 but before the 2022 flare-up. He said that during this period, he could mow the lawn, but would do it very slowly. He got pain in his right knee when he pushed the lawnmower.[49] He said he could do things around the house, it would just hurt when he used it.[50]
[48] T28, L6-10
[49] T38, L7-8
[50] T38, L10-12
Mr Hamling’s medical evidence
63Most of the medical practitioners attributed Mr Hamling’s injury and consequences to the 2017 incident. Some of the practitioners did not refer to the 2022 flare-up in their correspondence or reports.
Dr Mark Overton, treating general practitioner
64In his report dated 12 April 2024, Dr Overton noted that:
“He had a right knee arthroscopy for a meniscus tear caused by the work injury done on 24 Jul 2018 by Mr Rabi Solaiman. Since then he has had ongoing right knee pain in spite of reviews by a number of orthopaedic surgeons; steroid injections, physio including a GLAD program.
2) Whether the diagnosed injury is consistent with the stated cause
The stated cause is a workplace incident on 13 Aug 2017 when Brevan lifted a passenger in a wheelchair and twisted his right knee. In my opinion, the initial meniscus tear and subsequent symptoms are consistent with the workplace incident as stated.
3) Details of symptoms and treatment
Brevan had a right knee arthroscopy: for a meniscus tear caused by the work injury, done on 24 Jul 2018 by Mr Rabi Solaiman. Since then he has had ongoing right knee pain in spite of reviews by a number of orthopaedic surgeons, steroid injections, and physio including a GLAD program. At review on 14 Feb 2024, he reported a constant right knee dull ache. He used to get sharp pain in the anterior knee occasionally (a few times a week) but this was now happening more frequently (daily 1-2 times each time he has a walk). He is unable to walk long distances or use steps frequently.”[51]
[51]Exhibit P5, PTFACB 89-90
Mr Rabi Solaiman, orthopaedic surgeon
65Mr Hamling saw Mr Solaiman on or about 21 May 2018. He told Mr Solaiman that he that he had right knee pain, which was progressively worsening, for nearly nine months.
66Mr Solaiman had a copy of the MRI undertaken on 2 May 2018, which showed a “medial meniscal tear with parameniscal cyst extruding posteriorly”.[52]
[52]Exhibit P6, PTFACB 91
67Mr Solaiman reported that the pain in Mr Hamling’s popliteal fossa could be explained by the parameniscal cyst and extensive meniscal tear. He was unsure of the cause of the anterior knee discomfort.[53] He noted minimal arthritic changes and recommended Mr Hamling proceed with an arthroscopy.
[53]Exhibit P2, PTFACB 27
68Mr Hamling underwent the arthroscopy on 27 July 2018. Mr Solaiman found that there were grade I to II chondral changes to the patellofemoral joint and medial compartment, and a posterior horn horizontal cleavage tear of the medial meniscus.[54]
[54]Exhibit P2, PTFACB 29
69Mr Hamling returned to see him in or around 29 June 2020 complaining of an acute onset of pain in the right knee. He said it was intermittent and sharp in nature. It was across the anterior joint line. It sometimes radiated down to his leg. The pain was worse with weightbearing. He had no associated mechanical symptoms of clicking, locking, or giving way.[55]
[55] Exhibit P2, PTFACB 29
70After examining Mr Hamling and reviewing the MRI, Mr Solaiman did not recommend further surgery. He wrote:
“Apart from a small degree of chondral wear, there is no other findings in Mr Hamlings MRI scan. The chondral changes were previously seen during the knee arthroscopy. it may cause him intermittent symptoms. However it is not full thickness cartilaginous loss and it does not require any surgical intervention. I have advised Mr Hamling to take simple analgesics and anti-inflammatory medication. I have prescribed him Mobic 7.5mg as well as an ultrasound guided injection of local anaesthetic and steroid if his symptoms do not settle with oral analgesics. He does not require a repeat arthroscopy. Thank you for your kind referral.”[56]
[56]Exhibit P2, PTFACB 29
Mr Camdon Fary, orthopaedic surgeon
71Mr Hamling was referred to Mr Fary for a second opinion regarding further surgery.
72Mr Fary diagnosed Mr Hamling as having a right knee medial meniscus tear and medial tibiofemoral arthritis.[57] Mr Fary said that Mr Hamling’s mechanical symptoms had resolved, however he had been having more medial pain consistent with osteoarthritis.
[57] Exhibit P3, PTFACB 176
73Mr Fary went on to write that:
“Brevan’s symptoms are predominantly arthritic and weight bearing in nature. His medial meniscal tear is not giving him any mechanical symptoms at the moment. He will trial a right knee ultrasound guided aspiration and steroid injection.”[58]
(Original Emphasis.)[58]Exhibit P3, PTFACB 176
74He sought approval for a right knee ultrasound guided aspiration and steroid injection and a 6–12 week trial of conservative management, including physiotherapy and hydrotherapy.
75Mr Hamling underwent two aspiration and steroid injections in August 2020 and November 2020.
76Mr Fary reviewed Mr Hamling on or about 18 May 2021 following the injections. Mr Hamling told Mr Fary that the injections provided him with two to three weeks of therapeutic relief before his symptoms returned, that he had pain at rest and on weight bearing, and that while he was able to complete his work duties as a train driver, he had some issues with ladders and walking on uneven ground.[59]
[59] Exhibit P3, PTFACB 33
77Mr Fary diagnosed the injury as right knee moderate to advanced medial and patellofemoral arthritis.[60] He recommended a continuation of the conservative management program.[61]
[60] Exhibit P3, PTFACB 33
[61]Exhibit P3, PTFACB 33
78Mr Hamling returned to see Mr Fary on 17 May 2022, about 3 weeks after the 2022 flare-up. Following that consultation Mr Fary wrote to Dr Overton as follows:
“I reviewed Brevan today whose anterior right knee pain has continued to progress. There is a component of patellofemoral arthritis and patella tendinopathy. His left hip is stiff with loss of internal rotation. The two are most likely affecting each other.
He will have up to date imaging and review.”[62]
[62]Exhibit P3, PTFACB 178
79After reviewing the updated MRIs and seeing Mr Hamling again, Mr Fary authored two letters to Dr Overton dated 26 July 2022, each of which has different content.
80In the first letter he said:
“I reviewed Brevan today who has had ongoing discomfort for the last 2 years primarily in his right knee but also occasionally in his hip. 2 injections into his right knee where neither were diagnostic or therapeutic. He will have his right hip injected. I have also requested for a 3 month conservative management program through work cover.”[63]
[63]Exhibit P3, PTFACB 34
81In the second letter he diagnosed Mr Hamling as having a right knee medial meniscal tear with mechanical symptoms with failed conservative management. He went on to write:
“I reviewed Brevan today following the MRI of his right knee. He has trialed (sic) conservative treatment and failed. He has regular sudolocking (sic) and occasional inability to flex fully.
I have requested approval from work cover for surgery.[64] This is a separate work cover claim from his previous.”[65]
[64]It is not clear what surgery Mr Fary is referring to. However, I note that neither counsel for the defendant nor plaintiff made submissions in connection with that, so I am content that the reference is not significant.
[65]Exhibit P3, PTFACB 180
82On 11 August 2022, Mr Fary wrote to Allianz, the WorkCover Insurer, seeking approval for right hip injections. He then provided further information on 28 September 2022 following a request by Allianz.[66]
[66]Exhibit P3, PTFACB 32
83The questions asked by Allianz and answers provided by Mr Fary were as follows:
“Please note Brevan’s compensable injury is for a Right knee strain, which was sustained on the 13th August 2017. Please justify, in your clinical opinion how the ongoing referred pain into his knee is related to his hip?
As per my letter knee pain can be referred from the hip joint. So I requested for a hip joint injection to confirm this.”[67]
[67]Exhibit P3, PTFACB 36
84And then later:
“In your clinical opinion, if it were not for the workplace injury which occurred in August 2017, would the worker be experiencing any symptoms in his hip?
This is difficult to answer unless in 2017 he had a hip joint injection at the time to confirm.”[68]
[68]Exhibit P3, PTFACB 37
85He saw Mr Hamling again on 11 July 2023. In his correspondence to Dr Overton he said:
“Diagnosis : - Right knee moderate patellofemoral and tibiofemoral osteoarthritis, responding well to conservative management.
- Right hip moderate osteoarthritis – Relatively asymptomatic
Management : Continue low impact & GLAD program
I reviewed Brevan today who felt that the GLAD program dropped the discomfort in his knee from 6/10 to 5/10. I suspect this combined with him retiring in April and decreasing the load of his manual job, has also had a significant benefit.
In regards to predicting knee replacement. At present Brevan is quite comfortable with his symptoms and his current mobility. As a rough guide, I recommended waiting until his pain is seven out ten (sic) and has exhausted conservative managements before considering knee replacement.”[69]
[69]Exhibit P3, PTFACB 133
86There was no further material from Mr Fary.
Dr Iain McLean, orthopaedic surgeon
87Mr Hamling was reviewed by Dr McLean on 6 March 2024 at the request of his solicitor.
88Dr McLean noted that Mr Hamling had a flare-up of symptoms in mid-2022 after walking across an uneven surface. He also recorded that Mr Hamling ceased work in March 2023 and had not worked since because of his increased pain and need for analgesic medication.
89He noted the findings of the MRI reports of 2 May 2018, 17 June 2020 and 3 June 2022, and the x-ray of 4 May 2022.
90He said:
“1. Diagnosis of our client’s right knee injury:
Right knee; internal derangement of meniscal and chondral origin.
Treated surgically by arthroscopic partial medial meniscectomy.
Ongoing quadriceps/VMO muscle wasting, imbalance and dysfunction.
Complex pain and functional disability suggesting progression of degenerative changes.
2. Whether the injury as diagnosed is consistent with the stated cause that is, as a result of the work incident on 13 August 2017;
Yes; given the fact that he had had no prior problems with his right knee; but following that incident/injury had symptomatic problematic right knee that has required the surgical intervention, but having ongoing pain and functional limitations as described.”[70]
[70]Exhibit P7, PTFACB 101
91And later he said:
“Mr Brevan Hamling is a 63-year-old former train driver with Metro Trains Melbourne who had had no prior problems relative to his right knee before the stated work injury of 13 August 2017 when assisting a passenger in a wheelchair. From that time, having the sharper and catching pain to the right knee that then led to the MRI studies and the arthroscopic surgical procedure by Mr Rabi Solaiman; at that time noting the medial meniscal and chondral pathologies.
Despite that procedure and two cortisone injections to the knee, the knee has continued to worry him with him describing his permanent dull ache present 24/7 and being 5-6/10 and then worried by the random unpredictable sharp stabbing pain of 10+/10. This worrying him (sic) as he moves about and the sharp pain can “stop him in his tracks.”[71]
[71]Exhibit P7, PTFACB 102
Dr Eman Awad, occupational physician
92Dr Awad saw Mr Hamling on 15 March 2024 at the request of his solicitor.
93She had copies of the three MRI reports of the right knee.
94Dr Awad took a full history of the 2022 flare-up and the changes to Mr Hamling’s hours and duties after this incident. She wrote as follows:
“He remained at work with no workplace adjustments despite his persistent pain and instability.
In April 2022, he had an aggravating incident walking over loose rocks which increased his pain. A WorkCover claim was put in and he reduced his hours to two days a week, 5 hours per shift undertaking a modified role of driving duties only i.e. no prepping of the train and no shunting of the train. In November 2022, he saw another Orthopaedic Surgeon, Mr Samuel Joseph who recommended conservative treatment. He was enrolled in a six week intensive exercise program i.e. the GLAD program and remained at work. He noted that his pain became progressively worse and he ceased employment on 28 March 2023. I note he has not been seen by a pain specialist.”[72]
[72]Exhibit P8, PTFACB 106
95She diagnosed the injury as osteoarthritis of the right knee, medical meniscal tear and chronic pain:
“2. Whether the injury as diagnosed is consistent with the stated cause that is, as a result of the work incident on 13 August 2017;
Yes in my opinion his injury is consistent with the work incident described.”[73]
[73]Exhibit P8, PTFACB 108
The defendant’s medical reports
Dr Bruce Low, orthopaedic surgeon
96Mr Hamling was reviewed via telehealth by Dr Low at the request of Allianz on 24 May 2022, three weeks after the 2022 injury.
97He said that Mr Hamling:
“…says the knee was never 100% following the 2017 injury. This time it has been aggravated as a result of walking along the railway on crushed rocks with uneven footing. He aggravated his previous knee injury that he had with his employer four years ago for which he had an arthroscope.”[74]
[74]Exhibit P11, PTFACB 163
98When asked about the diagnosis of the worker’s injury or medical condition, he said:
“Aggravation of whatever is causing the chronic knee pain that happened in 2017. It could be that he has some patellofemoral dysfunction. He could have a further tear of the medial meniscus or chondral damage in the medial compartment or the patellofemoral compartment that has been aggravated. I do not think he has any ligamentous disruption; and is waiting on the MRI.”[75]
[75]Exhibit P11, PTFACB 166
99When asked about the cause of the worker’s injury or medical condition, he said that:
“He has had an aggravation at work, working on uneven ground of a pre-existing right knee problem that emanates from 2017 when he had a work-related injury lifting a heavy client out of a mobility aide working as a train driver for Metro Trains Melbourne. This is an aggravation from three weeks ago.
The diagnosis is uncertain, but as mentioned previously there is some early arthritis of the medial compartment, patellofemoral compartment, further torn tear in the meniscus and ligamentous disruption. I need to examine the knee myself and look at the MRI.
…
Based on my examination this injury is an aggravation of the previous injury that occurred in 2017. Before 2017 he had no trouble.”[76]
[76]Exhibit P11, PTFACB 166-167
100Dr Low said that Mr Hamling’s symptoms emanated from the 2017 injury and that the 2022 flare-up was an aggravation of his pre-existing injury. However, he also stated he would need to examine the knee himself and see the MRI before providing a diagnosis of the injury.
101No further material was tendered from Dr Low, so I have inferred that he did not see Mr Hamling again.
Dr Umberto Boffa, occupational physician
102Mr Hamling was reviewed by Dr Boffa on 28 September 2022 in connection with his claim for compensation arising from the 2022 flare-up.
103He was provided with the following material:
· a certificate from Dr Overton dated 1 May 2022 and 17 July 2022;
· a copy of the MRI of 3 June 2022; and
· the report of Dr Low of 24 May 2022.
104He noted the history of the 2017 injury and the aggravation of the injury in 2022.
105He found that:
“1. The worker has post-surgical aggravated knee osteoarthritis.
2. The worker’s condition results from an incident at work in 2017.”[77]
[77]Exhibit P12, PTFACB 171-172
Dr David Love, orthopaedic surgeon
106Mr Hamling was assessed by Dr Love on 8 November 2023, at the request of the defendant’s solicitor.
107Dr Love took a history of the 2017 injury and Mr Hamling’s subsequent treatment. In relation to the 2022 flare-up, he said:
“It should be noted that in April 2022 he suffered an aggravation of his right knee injury while walking along a footpath in Dandenong. This was a subsequent Workcover claim as this occurred during work hours.”[78]
[78]Exhibit D3, DCB 21
108Dr Love had copies of the three MRI reports of the right knee and reviewed these before providing his opinion.
109In his conclusion he said:
“I am of the opinion that the right knee was most likely developing osteoarthritic change and was aggravated in the incident he described. Although there may have been a meniscal tear that could have been acute at the time of the injury, it is unlikely that that would have been the significant pain generator at the time and it was more likely he was suffering from osteoarthritis that was aggravated. This would have been a pre-existing pathology that was slowly developing.
I think there is a chronological relationship between the onset of the pain in his right knee and his work. I do note there has been a subsequent aggravation as mentioned in the body of this report.”[79]
[79]Exhibit D3, DCB 22
110In response to the questions asked of him, he said:
“3. What injury did the worker sustained [sic] in the course of his employment on 13 August 2017?
In my opinion, this gentleman sustained an aggravation of some pre-existing degenerative change in the right knee. This occurred as a result of the work place accident on 13 August 2017. Even though this was asymptomatic at the time, this was pathology that was likely to develop. I state this because the mechanism that he described, although relevant, was relatively minor.
5. What injury did the worker sustained [sic] in the course of his employment on 28 April 2022?
The injury that the worker sustained in April 2022 represents an exacerbation of a pre-existing pathology of the right knee. This is in the form of an exacerbation of arthritis that was well known.
6. In your opinion, does any aggravation, and/or exacerbation, and/or acceleration, and/or deterioration the worker sustained on 2 8April 2022 continue to impact on the worker's functional capacity including his capacity to work?
In my opinion, this gentleman had an initial aggravation of the right knee leading to ongoing pain, secondary to arthritis and possibly a minor meniscal tear. This was further exacerbated by the second work place accident on the 28 April 2022. This has led to significant pain in his right knee that is preventing him from doing his work.”[80]
[80]Exhibit D3, DCB 23
Contentions of the parties
Defendant’s contentions
111Counsel for the defendant submitted that:
(a) For Mr Hamling to succeed, the medical evidence needed to establish what the causal impact of the 2017 injury was on the 2022 aggravation of the injury.[81] However, as the medical evidence failed to establish a causal relationship between the 2017 and 2022 injuries, and as it was impermissible to aggregate the injuries and their consequences at the date of the hearing, Mr Hamling’s application should fail.
(b) Alternatively, as Mr Hamling failed to establish the causal relationship between the incidents as required by Altona Bus Lines & Anor v Lococo (“Lococo”),[82] the Court would be limited to consideration of the consequences as evident prior to 2022. When assessed according to this framework Mr Hamling’s application would also fail, as he would fail to meet the threshold for pecuniary loss or pain and suffering on his evidence.
[81]In accordance with Altona Bus Lines & Anor v Lococo [2002] VSCA 159 (“Lococo”) and Rowe v Transport Accident Commission (2017) 83 MVR 195, [82] – [83]; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309, [37] – [42]; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511, [26] – [27]; Victorian WorkCover Authority v Brassington [2021] VSCA 236, [48]
[82]Lococo, [11]
112Alternatively, if I were to find that Mr Hamling’s impairment and impairment consequences arose from the 2017 incident, and thus find that Mr Hamling’s pecuniary loss was based on his presentation at the day of the hearing, Mr Hamling would succeed on establishing leave to proceed by reason of his pecuniary loss and pain and suffering.
113Counsel for the defendant characterised Mr Hamling’s evidence regarding the consequences he experienced after the 2022 flare-up as follows:
(a) Mr Hamling did not return to his pre-injury (modified) normal duties after the 2022 flare-up.
(b) Mr Hamling went from walking the dog for 20 minutes prior to 2022 to 20 minutes with a break.
(c) He rarely rode his motorbike after 2022 (and sold it in 2023), whereas prior to 2022 he was able to ride it once a month for about 30 kilometres.
(d) He started physiotherapy in August 2022.
(e) He started taking Tramadol in 2023.
(f) Between September 2018 and the 2022 flare-up he was performing his activities around the house and garden without restriction.[83]
[83] T55-56
Plaintiff’s contentions
114Counsel for the plaintiff submitted that:
(a) The overwhelming weight of the medical evidence established that the cause of Mr Hamling’s consequences as at the date of the hearing was the injury suffered in 2017. There was no aggregation of the consequences from 2017 and 2022 because the cause of his current condition, supported by the medical evidence, was the 2017 injury.[84] The 2022 flare-up was, at its highest, a temporary exacerbation of Mr Hamling’s impairment from 2017.[85]
(b) Alternatively:
(i)If the Court found that the 2022 flare-up played some role in Mr Hamling’s presentation and consequences, Mr Hamling would still succeed because the medical evidence established the link, as set out in Lococo, between the 2017 injury and the 2022 flare-up[86] which demonstrated that the consequences of the 2022 events were rendered substantially more severe due to the vulnerability created by the 2017 injury.[87]
(ii)If Mr Hamling failed on the causation question, it would be difficult for him to succeed on pecuniary loss due to his earnings prior to the 2022 flare-up, but he would succeed on pain and suffering based on his evidence and the contemporaneous medical evidence about the consequences of his impairment after 2017 but before 2022.[88]
[84]T69, L25-31; T70, L1-6, 29-31; T71, L1-2
[85]T80, L21-27
[86] T81, L16-19
[87]T81, L16-22
[88]T82, L16-23
Mr Hamling’s credit
115Counsel for the defendant did not make any submissions about Mr Hamling’s credit and reliability as a witness in their closing address.
116However, in their opening address, counsel for the defendant said that Mr Hamling’s credit and reliability were in issue in the case to the extent that they ‘flowed’ from some of the analysis.[89]
[89] T12, L23-27
117Thus I will make comment on findings on Mr Hamling’s credit and reliability as a witness.
118I found Mr Hamling provided straightforward and clear answers to the questions he was asked in Court. He made concessions when appropriate. His account of his injury and its consequences was consistent with the evidence he provided by affidavit, and the histories as re-told by his treating medical practitioners and the medical experts in their tendered reports. There was nothing in the evidence he provided that impugned his credit or reliability as a witness.
119I thus find that Mr Hamling was a reliable and credible witness.
Findings and Analysis
120Having considered all the evidence, I make the following findings of fact:
(a) Mr Hamling had pre-existing and asymptomatic degenerative changes in his right knee prior to the 2017 incident which were rendered symptomatic in the 2017 incident and on balance caused injury to the meniscus.
(b) His knee has not ever felt better since this time. He has suffered from ongoing pain in the knee since 2017.
(c) He continued at work with a compromised knee.
(d) Because of the 2017 incident, he was diagnosed with a meniscal tear and underwent an arthroscopy to treat the tear in July 2018.
(e) He returned to work with a clearance certificate for normal duties in September 2018.
(f) He has struggled with bending, crouching, kneeling and squatting since at least the time he returned to work.
(g) He was conservative about how he undertook his work and home duties to protect his knee and minimise flare-ups. He modified the way he performed his work so he could continue with his duties.
(h) Despite this, his knee continued to collapse and give way.
(i) He has walked more slowly since the 2017 incident due to his pain. His ability to walk his dog has reduced from being able to walk for 20 minutes in one go at a reasonable pace, to needing to take a break and walk at a slower pace.
(j) He bought a motorbike in 2019 that he rode about once a month for about 30 kilometres. Due to his increasing knee pain and symptoms, he stopped riding the bike. He sold it in 2023.
(k) Due to his worsening symptoms, he sought further treatment in 2020.
(l) He was referred for a further orthopaedic opinion due to ongoing symptoms. No further surgery was recommended. He was advised to take Mobic and anti-inflammatory medications to treat the symptoms.
(m) He was referred to another orthopaedic surgeon, Mr Fary, for a second opinion.
(n) He had aspirations and steroid injections into the right knee to treat the ongoing symptoms in August and September 2020.
(o) He continued performing his work and home duties with modification with pain, flare-ups of his pain and his knee collapsing or giving way.
(p) He had a flare-up of his knee pain in 2022 when walking on uneven ground at work.
(q) He sought further medical advice about the increasing pain. He underwent a further MRI, following which he was referred for physiotherapy. Surgery was not recommended.
(r) He returned to work on light duties after a couple of months, albeit that he continued to suffer from knee pain.
(s) He resigned from his employment when he learned that his employer was about to ask him to start his shift from Flinders Street Station rather than Cranbourne Station, as he knew he could not manage the additional driving due to his increasing pain.
(t) After ceasing work, he started Tramadol, having not been permitted to take it while driving trains.
(u) His pain initially improved after he stopped working but has since worsened.
(v) He has been advised to wait a long as he can before seeking a total knee replacement.
121Mr Hamling did not place any emphasis or weight on the 2022 flare-up in his evidence. As outlined earlier, his evidence about the history of the injury and its resulting consequences was consistent between his affidavits, his oral evidence and the histories recounted by his treating practitioners and the medical experts. His description of the onset of pain and its origins were clear. He said that his knee had not been the same since 2017.[90]
[90] T19, L13-15
122This history is supported by the contemporaneous medical material written both before and immediately after the 2022 flare-up by Dr Overton and Mr Fary. They refer to the ongoing problems experienced by Mr Hamling as being caused by the 2017 incident in their contemporaneous notes, either not referencing or barely referencing the 2022 flare-up. This has led me to conclude that they did not believe the 2022 flare-up was relevant to the ongoing pain and symptoms being experienced by Mr Hamling. It has also led me to conclude that the history Mr Hamling provided to them at the time was consistent with his evidence on affidavit and at the hearing that the pain and symptoms he was experiencing in his knee were caused by the incident in 2017.
123The significance of the 2017 incident is also supported by the fact that Mr Hamling had surgery prior to 2022. He has only had conservative treatment since the 2022 flare-up. While he started taking Tramadol after ceasing work, I found it significant that he could not take this while working as he would not have been permitted to drive trains. I also found it significant that Mobic and anti-inflammatory medications were recommended to him prior to 2022. Ultimately, I did not find it significant that there was a change in the medication prescribed after 2022 in the context of his 2017 injury causing him increasing pain.
124Most, if not all, of the medical experts attributed the cause of Mr Hamling’s injury and his current consequences to the 2017 incident.
125Dr Awad had a full history of the 2017 and 2022 flare-ups and the relevant medical material in her possession before providing her opinion. She did not place any significance on the 2022 flare-up in her ultimate opinion. She attributed the cause of Mr Hamling’s injury and impairment to the 2017 incident. She diagnosed Mr Hamling as suffering from osteoarthritis of the right knee, medical meniscal tear, and chronic pain arising from the 2017 incident.
126Her opinion was consistent with the opinions and diagnoses of Dr Overton and Mr Fary, Mr Hamling’s long-standing treating practitioners.[91]
[91]Victorian WorkCover Authority v Kalenjuk [2017] VSCA 17, [56]
127Dr Overton has had the benefit of a long relationship with Mr Hamling, as well as the opinion of three orthopaedic surgeons from 2017 onwards. He has had the benefit of obtaining the history from Mr Hamling in real time since 2017. Given this, I found it significant that he did not place any weight on the 2022 flare-up in his report and attributed the cause of Mr Hamling’s injury to the 2017 incident.
128Although Mr Fary’s description of the diagnosis of injury has varied, he has essentially diagnosed Mr Hamling’s right knee injury as being an aggravation of osteoarthritis, with a background of a medial meniscus tear, since first seeing him in 2020. I found the consistency of his diagnosis before and after the 2022 flare-up significant.
129Their opinions and diagnoses are also consistent with the opinions and diagnoses of Mr Solaiman, Dr McLean[92] and Dr Boffa.
[92] Counsel for the defendant was critical of the fact that Dr McLean did not have a history of the change
in work duties after the 2022 flare-up. I am not troubled by this given the opinion of Dr Awad and Mr Hamling’s treating practitioners, and my findings of fact regarding the 2022 flare-up.
130Dr Love represented the high-water mark for the defendant’s submissions on causation, in so far as he referred to the 2022 flare-up as either an aggravation or an exacerbation. However, his expert medical opinion on the relevance of the 2022 flare-up was unclear. I ultimately concluded that his references to ‘aggravation’ or ‘exacerbation’ were used to describe Mr Hamling’s history of incidents, rather than providing his expert opinion about the clinical significance of 2022. I thus found that he had the same opinion as the other medical experts with respect to causation and diagnosis, that is, that the cause of Mr Hamling’s injury and consequences arose from the 2017 incident.
131After considering all the evidence, I formed the view that Mr Hamling was a stoic man, who continued at work until 2023 in the face of increasing pain,[93] only resigning when he formed the view that he could not continue at work any longer.
[93]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1, [13]
132Seen in the context of the evidence and this analysis, the incident in 2022 is no more than a flare-up of the knee that was compromised in the 2017 incident.
133Based on my findings of fact and the analysis of the medical evidence, I reject the submissions of the defendant and find that:
(a) Mr Hamling sustained an aggravation of osteoarthritis of the right knee, a medial meniscal tear, and chronic pain arising from the incident at work on 13 August 2017.
(b) Mr Hamling experienced and continued to experience significant right knee pain and dysfunction after the 2017 incident up to April 2022 and there was no recovery in that time.
(c) The cause of Mr Hamling’s injury producing his impairment or loss of body function is the 2017 incident, and that alone.
What impairment consequences were caused by the 2017 incident?
134It follows from the above analysis that I find the impairment consequences that Mr Hamling had at the date of the hearing were consequences that were produced by the 2017 incident and injury.
135I find that those consequences are:
(a) He can no longer work as a train driver due to the pain.
(b) He has either modified the way he performs tasks around the home or no longer undertakes the tasks.
(c) He takes Tramadol and Panadol daily to treat his symptoms. The Tramadol makes his drowsy and prevents him from driving.
(d) He avoids driving for long distances, and when he needs to do so he ensures he can take regular breaks.
(e) He can no longer mow the lawn, except for a small area inside his fence.
(f) He can no longer ride motorbikes.
(g) He has reduced walking tolerances. He takes a break when he goes for a walk and walks more slowly.
(h) He experiences broken sleep every night due to the pain in his right knee. He has to sleep with a pillow between his knees to try and get comfortable in bed. He wakes up feeling unrested.[94]
(i) He has been told to wait as long as he can before having a total knee replacement.
[94]Exhibit P7, PTFACB 107
Is the injury serious by reference to economic loss consequences?
136Counsel for the defendant did not make submissions in relation to pecuniary loss because of the way they conducted the case.[95]
[95] T65, L20-25
137As outlined above, counsel for the defendant conceded that if I were to make findings on pecuniary loss based on Mr Hamling’s presentation as at the day of the hearing arising from the 2017 injury, he would succeed on establishing leave to proceed by reason of his pecuniary loss and pain and suffering.[96]
[96] T66, L1-6
138Given my findings are made on that basis, it is not necessary to consider the limited evidence that was submitted on this point.
139However, I make the following observations about the evidence relied upon with respect to loss of earning capacity:
(a) Counsel for the plaintiff submitted that Mr Hamling’s without-injury earnings were $137,214.[97]
(b) Sixty per cent of this figure is $82,238.40.[98]
(c) The weight of the medical opinion was that Mr Hamling is permanently incapacitated for his work as a train driver[99] and is unable to retrain in other work due to his limited other work experience, education, and age.[100]
(d) CoWork identified several positions as being suitable for Mr Hamling.[101] These positions were not put to him at the hearing. The full-time earnings of those positions would not meet the 60 per cent threshold.
[97]T6, L27-29; Exhibit P9, PTFACB 128
[98] T6, L30
[99]Exhibit D3, DCB 24; Exhibit P11, PTFACB 167; Exhibit P12, PTFACB 172
[100]Exhibit P5, PTFACB 90; Exhibit P7, PTFACB 101; Exhibit P8, PTFACB 108
[101] Exhibit D4, DCB 52
140I thus find that he has a permanent loss of earning capacity of 40 per cent or more arising from his 2017 injury.
Consideration of the pain and suffering consequences
141Given the concession from counsel for the defendant, it is not necessary to consider the pain and suffering consequences before making final orders in this matter.
142However, I will nonetheless make the following observations.
143Based on my findings about causation and the consequences, and given the need for me to consider the range of impairments and impairment consequences in deciding whether an impairment or loss of body function is serious, and not just those that come before the Courts,[102] I would nonetheless have found that Mr Hamling’s consequences met the relevant threshold for leave.
[102]TTB SMS Pty Ltd v Reading [2020] VSCA 203, [31]
144Should it have been necessary, I would also have found that he was entitled to leave to proceed based on his pain and suffering consequences even if my consideration were limited to the injury and consequences as they were prior to the 2022 flare-up. This is because of the evidence he provided about his consequences at the hearing, and the contemporaneous material from his treating medical practitioners that referred to his consequences. That evidence and those consequences were:
(a) He was diagnosed with the aggravation of the osteoarthritis and a medial meniscus tear after the 2017 incident and prior to the 2022 flare-up.
(b) He had undergone surgery.
(c) He returned to work after a period off work with a compromised knee, suffering from flare-ups of and increasing pain, and his knee collapsing and giving way.
(d) He modified the way he performed his work and home duties to minimise the risk of flare-ups from 2018 onwards.
(e) He struggled with bending, crouching, kneeling and squatting from 2018 onwards.
(f) He was referred for further orthopaedic opinion in 2020 due to ongoing symptoms.
(g) He had aspirations and steroid injections into the knee to treat the ongoing symptoms in August and November 2020.
(h) He was stoic in the manner he continued at work.
(i) He had a limited capacity to ride his motorbike from 2018.
(j) He had a reduced walking capability by way of distance and speed from 2017.
(k) He had a reduced driving capability, needing to allow extra time and take breaks when driving.
Conclusion
145I find that Mr Hamling is entitled to leave to proceed with a claim for damages based on his pecuniary loss and his pain and suffering.
146I ask the parties to draft orders to reflect this finding and will hear from the parties on the question of costs.
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