Harding v Victorian WorkCover Authority
[2021] VCC 916
•22 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-05038
| ROHAN HARDING | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 June 2021 | |
DATE OF JUDGMENT: | 22 July 2021 | |
CASE MAY BE CITED AS: | Harding v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 916 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – knee injury – pain and suffering – whether consequences “very considerable” – “range case”
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timber (No 2) [2008] VSCA 260;
Judgment:Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Ms C Moore | Slater and Gordon Lawyers |
| For the Defendant | Mr A Macnab | Lander & Rogers Lawyers |
HER HONOUR:
1On 9 May 2016, when he was 30 years of age, Mr Harding suffered an injury to his left knee whilst working as a driller for Numac on undeveloped land at old railway premises in Wodonga. Following this incident, Mr Harding underwent surgical anterior cruciate ligament (ACL) reconstruction. Mr Harding claims that since that time, despite continuing to work full time as a driller, he has suffered ongoing pain and suffering consequences, and he is at significant risk of requiring a knee replacement in the years ahead.
2In order for Mr Harding to be entitled to common law damages for his injury, he must satisfy me that the impairment to his left knee satisfies the narrative definition of “serious injury” contained in s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
3The defendant accepted that Mr Harding suffered this injury at work, but disputed the claim on the basis that its consequences were modest, or at best, marked and significant, but could not be described as “at least very considerable”.
4Only Mr Harding was called to give evidence. Also in evidence were medical and radiology reports. I have read these tendered documents, together with the transcript of the proceeding. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence which I consider necessary to give context to, and explain, the conclusions reached in this judgment.
Mr Harding’s life before the workplace injury
5Mr Harding commenced working with Numac in January 2010 and was initially employed as a driller’s offsider to learn the job. He said that had progressed to the level of senior driller by the time of the incident.
6Mr Harding said that when he was younger he had enjoyed playing some competitive sports, such as cricket, indoor cricket, squash and racquet ball; however, in the six years that he worked at Numac, as he often worked on the weekends, Mr Harding said he had not played any sport for some time.
7Mr Harding said that he did not do running or jogging, but sometimes enjoyed going for walks, such as in the You Yangs. He also said that he enjoyed going dancing with his friends at bars and clubs in Geelong.
Mr Harding’s work injury and claimed consequences
8On the day he suffered his injury, Mr Harding was taken to Wodonga Hospital where an x‑ray was performed. It did not indicate any fracture or dislocation, and Mr Harding said he was advised to return to Melbourne to have an MRI scan.
9On 11 May 2016, Mr Harding underwent an MRI scan which was reported as demonstrating an acute complete proximal ACL tear, a grade 3 medial collateral ligament (MCL) tear with ligament tear/avulsion from the femoral origin, and a small posterolateral tibial plateau bone contusion.
10On 16 May 2016, Mr Harding was referred to orthopaedic surgeon, Mr James Canty. Upon review of the MRI scan, and following an examination of Mr Harding, Mr Canty recommended an ACL reconstruction using hamstring tendons. Such surgery was then performed on 27 May 2016.
11In mid-June 2016, Mr Harding commenced physiotherapy and myotherapy which he undertook for a period of time to assist him in his post-operative recovery. Mr Harding said that he attended for such treatment two to three times a week until October 2016.
12On 6 August 2016, Mr Harding was reviewed by Mr Canty. At that time, Mr Harding accepted he had a full range of motion in his knee and Mr Canty considered that he was fit to return to work. Mr Harding said that Mr Canty had wanted him to return for further review, but Mr Harding has not done so, as he had no reason to.
13Prior to this work incident, Mr Harding had resigned from his employment with Numac, and had arranged to commence work with a new employer. Mr Harding said that he was keen to start this job and, on 22 September 2016, his general practitioner, Dr Fitzgerald, certified him as fit to resume work duties, without restrictions.
14On 26 October 2016, Mr Harding said he commenced with his new employer, Drill Works. Mr Harding said he was employed as a senior driller, and he continues to be employed with this company.
15Mr Harding said that in this employment he often has to do long-haul truck driving, including to destinations in North Queensland and Western Australia. Mr Harding said that this involves driving a 24‑tonne truck with a heavy clutch. He said that on occasions he has driven 12 hours in a day. He said that he normally stops for a break every two hours to give his knee a short rest.
16Mr Harding described the nature of the duties which he performs as a senior driller. He said that each day he has an assistant with him on a worksite, and his assistant will often assist him in carrying the heavier items. During the course of his working day, Mr Harding said that he can carry or lift items which weigh between 30−80 kilograms, with the help of his assistant. He said that he sometimes shovels soil where a drill was being inserted, and this can involve him shovelling for six hours or more. Mr Harding said that he sometimes has to do prolonged squatting when inserting a drill into the ground, and he can be in the squat position for five minutes. Mr Harding also said that his work often involved him walking over uneven surfaces.
17Mr Harding said that he works at least 50 hours a week, but most weeks he does overtime which can involve him working up to 60 or 70 hours a week.
18Mr Harding said that his employer is supportive of his ongoing employment, and in the near future he is likely to be promoted to an operations manager role which will involve less heavy and less dirty work. His evidence on this was as follows:
“Q: In recent times you have been offered a position, have you, as an operations manager?---
A: Yes.
Q: And that’s a promotion, isn’t it?---
A: Yes.
Q: So that’s moving your way up in the company?---
A: Yes.
Q: It means more money too?---
A: Yes.
Q: And it’s a good pathway to move into more senior management?---
A: Yes.
Q: And that’s something that you would like to do in the future?---
A: I wouldn’t say it was something I was - I’d want to do now, but it’s something that’s going to be easier for me to continue with.
Q: But it’s a role where - it’s not as heavy?---
A: Yes.
Q: It’s not as dirty?---
A: No.
Q: And you’re getting paid more money?---
A: Yes.
Q: A pretty good job so far?---
A: Yes.
Q: It’s a promotion, isn’t it?---
A: It is, yes.
Q: And you get to move up the food chain, and that’s something that even before your injury you would have aspired to do?---
A: Yes.”
19Mr Harding said this promotion was likely to involve him being relocated to Newcastle, New South Wales. Mr Harding said that this would initially involve his rent being paid and he would also be remunerated at a greater level.
20Mr Harding said that he will be sad when he moves away from his role as a senior driller, as he loves his work in the field and was very proud of the work that he did for his clients. However, Mr Harding also stated that he is keen for the additional money which will come with his promotion, as it will assist him in his living costs as well as pay for an investment property that he has. Mr Harding said that he earned $103,000 in the last financial year, and $111,000 in 2020, with such annual incomes being more than he earned in the year prior to suffering his injury the subject of this claim.
21In February 2021, Mr Harding said that he consulted his general practitioner, Dr Fitzgerald, and requested a referral for an MRI scan. This scan was taken on 9 February 2021 and was reported as demonstrating that the ACL graft was intact, showed no PCL, collateral ligament or meniscal injury, nor joint effusion or Baker’s cyst. The scan also showed that the articular cartilage was normal, showed a small ganglion cyst associated with the popliteus tendon sheath, and a minor oedema within the lateral gastrocnemius muscle of uncertain significance.
22Mr Harding said that Dr Fitzgerald discussed the results with him by telephone and did not recommend any further treatment, and in particular, did not recommend that he be reviewed by an orthopaedic surgeon or attend for further physiotherapy. Mr Harding said that at about this time he decided to wear a knee brace some days when he attended work. Mr Harding said that he decided to do this without being medically advised to do so. He said he tends to wear the knee brace a couple of days a week, on the days that he is doing heavier work on site.
23Mr Harding said that most of the time his knee is pain-free and with activity he gets low-grade pain. Mr Harding said that two to three nights a week, when he returns home from work he suffers pain in his knee, which he rates as being a pain level of approximately 5/10. Mr Harding said that when this occurs, he rests and elevates his knee, and the pain then goes within a couple of hours. Mr Harding said that two to three times a month his pain levels reach 8/10 and on such occasions, Mr Harding said he might take two Panadol tablets.
24Since suffering his injury, Mr Harding has on occasions travelled overseas, including to Thailand on more than one occasion. In April 2019, he travelled to Europe for a month with his mother and siblings and visited Scotland, Ireland, Paris and England. Mr Harding said that on this holiday he walked for much of the day over cobblestones in Edinburgh, walked through uneven ground in castles and along coastlines in parts of Scotland and Ireland, and also did significant amounts of walking in the streets of both Paris and London. Throughout this period, Mr Harding accepted that he was probably on his feet for about six hours each day, and he did not take any painkilling medication during this time. Mr Harding said that he tries to avoid taking any sorts of tablets as it is not his “way”.
25Mr Harding said that at home, he is able to do all household duties, although at times he does them with modifications. He also said that he has a small garden and he is able to manage mowing the small lawns in the front and back of his home.
26Mr Harding said that he lives in a two-storey house and that he has started to have a clicking sound in his knee whilst using the stairs at home, especially going down the stairs.
27Mr Harding said that whilst he still goes out socially and can dance, he now is limited in dancing to only about 5-10 minutes before needing to rest.
28In addition to his left knee pain, Mr Harding said that as he seeks to protect his left knee, he has put more strain and weight through his right knee, and he now suffers right leg pain as well as pain in his lower back.
Medico-legal evidence
29Mr Harding has been examined by orthopaedic surgeon, Mr Iain McLean, on three occasions, in February 2018, July 2020 and June 2021. In his most recent report dated 10 June 2021, Mr McLean detailed Mr Harding’s history, the treatment he had received for his left knee injury, and the symptoms in his left knee. On examination, Mr McLean noted a limitation in movement, together with mild AP and collateral ligament laxity, with a pivot slide/jerk which reproduced insecurity instability symptoms. Mr McLean considered that Mr Harding’s prognosis was guarded. He considered that the ongoing ligamentous insufficiency, together with wasting of his quadriceps, meant that Mr Harding had a vulnerable knee which, “undoubtedly with the passage of time”, will lead to a progression of degenerative changes. Mr McLean considered that Mr Harding’s knee is “very vulnerable” to developing breakdown of meniscal or chondral origin, or further injuries, because of the insufficiency in it. Mr McLean considered that Mr Harding will require knee replacement surgery at an earlier stage than would otherwise have been anticipated.
30In September 2016, Mr Harding was assessed by occupational physician, Dr Gary Davison. The relevance for the tender of this report was merely the note by Dr Davison that within four months of the injury, Mr Harding had already demonstrated a degree of wasting of his left leg.
31In June 2021, Mr Harding was examined via video-conference by orthopaedic surgeon, Dr Anthony Menz. In a report dated 24 June 2021, Dr Menz detailed the history that he had obtained from Mr Harding via video, with a note that no clinical examination was possible. Dr Menz was of the opinion that based on Mr Harding’s history and medical records, there was a prospect that the nature of the injury suffered by Mr Harding could have caused some chondral damage to his knee, which in the future may be associated with the development of arthritis.
32In a supplementary report dated 29 June 2021, Dr Menz reconsidered his previous opinion, having reviewed the MRI scan taken in February 2021. Dr Menz then stated that as the MRI scan did not report any chondral damage inside the knee joint, he was of the opinion that there was no osteoarthritis within the knee joint. In circumstances where it had been more than five years since the accident, in the absence of arthritis on the MRI scan, Dr Menz was of the opinion that it was highly unlikely that Mr Harding would develop osteoarthritis into the future as a result of the injury he suffered at work in May 2016.
Mr Harding’s credibility and reliability
33There was no dispute as to Mr Harding being both credible and reliable. Mr Harding gave frank evidence, including that he had not participated in sporting activities prior to the work incident, that he is capable of and does a full range of duties at work, that he will soon be promoted at his work so that he will do less physical work, that his pain is only occasional, that he takes very minimal medication, and that, with some modifications, his injury does not prevent him doing activities in and around his home. I have no hesitation in accepting his evidence in its entirety.
Can Mr Harding’s consequences be described as “at least very considerable”?
34My assessment of Mr Harding’s claim involves a comparison between his claimed consequences and the other cases in the range of possible impairments. Mr Harding has the onus of satisfying me that, on balance, the consequences to him from his left knee impairment can be fairly described as “at least very considerable”.
35In Haden Engineering Pty Ltd v McKinnon,[1] Maxwell P said:
[1](2010) 31 VR 1
“In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element as ‘the disabling effect’ of the pain.)
As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale mild/moderate/severe. Unless the pain is constant the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily compromise the following:
(a)what the plaintiff says about the pain (both in court and to doctors);
(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c)what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d)what the objective evidence shows about the disabling effect of the pain.
As to (a) the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.”[2]
[2](Ibid) at paragraphs [9]-[12]
36In considering the principles distilled by Maxwell P in Haden Engineering, I note that Mr Harding does not claim his left knee pain is constant, nor is it particularly frequent. Instead, it happens occasionally and is only sufficiently intense for him to take over-the-counter painkillers, at most, two to three times a month. I also note that Mr Harding indicated that his occasional pain is able to be resolved within a couple of hours of him elevating his knee.
37I note that Mr Harding does not claim that his sleep is interfered with.
38I consider it of great significance that Mr Harding has been able to continue in his employment working at least 50 hours a week in what I consider to be relatively heavy work. Mr Harding accepted that he had not taken any days off work due to his left knee pain. I consider that Mr Harding’s ability to work in this role, without the need to have time off, tends against a finding by me that he suffers disabling effects of pain.
39In closing submissions, Mr McGarvie placed great emphasis on Mr Harding shortly moving to a supervisory role which was away from doing hands‑on work as a senior driller, which was a job that he loved. However, I consider a fair assessment of Mr Harding’s evidence is that although he loves being out in the field as a driller, he is equally pleased with the prospect of a promotion which will involve greater remuneration and opportunities, and is something that he hoped to achieve before suffering his injury. As such, I do not consider that Mr Harding’s promotion and move away from the tools is a consequence of any real significance in my assessment of this claim.
40Also in closing submissions, Mr McGarvie emphasised Mr McLean’s opinion that Mr Harding was likely to come to knee replacement surgery as a consequence of this workplace accident. However, I prefer the opinion of Dr Menz to that of Mr McLean in respect of Mr Harding’s prospect of undergoing such surgery. Dr Menz expressly considered the MRI scan taken in February 2021 and noted the absence of any reference to degenerative change. Mr McLean does not address this in his report, despite hypothesising that there would be degenerative changes in his report of June 2020. Further, in circumstances where Mr Harding has worked in relatively heavy employment for five years after suffering his injury and is shortly to move to a supervisory and less hands‑on role, I am not persuaded that knee replacement surgery is as likely as Mr McGarvie invited me to find.
41I note that Mr Harding was not active in sporting before this work injury, and therefore there is no obvious consequence to him in the interference of recreational activities that he previously enjoyed. I am satisfied that Mr Harding will be limited in undergoing sporting activities in the future; however, given that was not part of his life at the time he was injured, I consider I should give limited weight to this potential consequence.
42Mr Harding is unable to run, but again, in circumstances where that was not an activity which he had done previously, I give little weight to this consequence.
43I accept that Mr Harding has some restriction on his ability to dance, and that is an activity that he previously enjoyed. However, he is still able to go out and at least enjoy this activity on a limited basis.
44In assessing Mr Harding’s claim, I have drawn a comparison between what he has lost and what he has retained.[3] As was noted by Ashley J in Dwyer v Calco Timber (No 2):
“… the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”[4]
[3]Dwyer v Calco Timber (No 2) [2008] VSCA 260
[4](Ibid) at paragraph [27]
45I consider Mr Harding has retained a great deal, notwithstanding there are some consequences arising from his left knee injury. However, I consider such consequences are relatively limited.
46Given Mr Harding’s relative youth, and noting that these consequences will persist for decades to come, I accept that the consequences to him could be described as significant and marked, but when compared to the other cases in the range of possible impairments, I am not satisfied they can be fairly described as “at least very considerable”. I therefore must dismiss his claim.
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