Hiri v Morrissey
[2014] VCC 478
•4 April 2014
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-01918
| JUDITH HIRI | Plaintiff |
| v | |
| GERARD MORRISSEY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 26 and 27 March 2014 | |
DATE OF JUDGMENT: | 4 April 2014 | |
CASE MAY BE CITED AS: | Hiri v Morrissey | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 478 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Pain and suffering damages only – causation – aggravation of injury – range case
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted to the plaintiff to bring proceedings for the recovery of damages in respect of pain and suffering arising from the injury to her left knee on 10 November 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr I R Fehring | Brown McComish |
| For the Defendant | Mr P D Elliott QC with Mr J L Batten | Lander & Rogers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 11 April 2013 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of or in the course of her employment with the defendant. The plaintiff alleged the injury to her left knee occurred on or about 10 November 2008. The body function which the plaintiff says has been lost or impaired is her left leg as a result of an injury to her left knee.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages only. The plaintiff abandoned her application in respect of loss of earning capacity as a result of the injury on 10 November 2008.
3 During the course of the proceedings, Mr Elliott QC, on behalf of the defendant, stated that the issues in this application were:
(i) To identify the injury and impairment to the plaintiff’s left knee which arose from the incident on 10 November 2008;
(ii) Whether the plaintiff’s current injury or impairment to her left knee was caused by her employment with the defendant;
(iii) Whether the aggravation to her left knee which occurred in March and/or May of 2011 was the true cause of her current disability and impairment;
(iv) Whether the plaintiff satisfied the threshold for “serious injury” under the Act, in the sense that the consequences flowing from the injury to her left knee were “at least very considerable”;
(v) It was a “range” case.
4 The following evidence was adduced during the hearing:
·The plaintiff gave evidence and was cross-examined. The plaintiff tendered the following documents in evidence:
§ Exhibit A – the Plaintiff’s Court Book (“PCB”) pages 20–77
§ Exhibit B – Warrnambool Medical Clinic practice notes as at 18 March 2014
§ Exhibit C – Medical Panel determination dated 22 August 2013
§ Exhibit D – the Defendant’s Court Book (“DCB”) pages 54–57.
·The defendant tendered the following documents:
§ Exhibit 1 – the Defendant’s Court Book (“DCB”) pages 1–32, 39–43, 58–75, 85–101, 116–135 and 141–179;
§ Five reports of Mr N Sundaram, orthopaedic surgeon, dated 6 August 2009, 24 March 2011, 29 April 2011, 30 June 2011 and 10 November 2011;
§ Exhibit 2 – USB stick of CCTV footage from hotel incident on 13 February 2011.
5 The matter that I have to consider is whether or not the plaintiff has satisfied the serious injury test for permanent serious impairment or loss of a body function to left knee as a result of her employment with the defendant, in particular in an incident which occurred on 10 November 2008.
The statutory scheme
6 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.[1]
[1]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-section (38). I have applied the principles set forth therein in reaching my conclusions in this application.
8 I am required by s134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
9 The plaintiff was born in New Zealand in 1965. She is now forty nine years old.[3] The plaintiff has three children aged twenty-seven, twenty-five and seventeen.[4]
[3]PCB 20
[4]Transcript (“T”) 16
10 The plaintiff’s youngest child lives with her. The plaintiff lives in close proximity to her three grandchildren who she cares for on an occasional basis for her eldest daughter.
11 The plaintiff attended school until Year 8 in New Zealand and left school at the age of fifteen.[5] After leaving school the plaintiff mainly worked in sheds either a shearer or a shed hand in New Zealand.[6]
[5]PCB 20
[6]PCB 21
12 The plaintiff migrated to Australia in 2000 and continued as a shearer for approximately two years.[7]
[7]PCB 21
13 In 2003, the plaintiff completed a Certificate II in Business Administration. She then worked for Vic Roads as a customer service officer for a period of nine months.[8]
[8]PCB 21
14 In 2004, the plaintiff returned to working in shearing sheds. She worked as a shearer and as a roustabout.
15 The plaintiff, in 2006 and 2007, moved into a hotel which was owned by her sister. She commenced working in the hospitality industry. The plaintiff, in her evidence, stated that she gave up shearing because “I lost the passion for shearing”.[9]
[9]T11
16 In 2007, the plaintiff moved to Warrnambool after being granted access to emergency housing. She was engaged in a work for the dole program at that time.
17 On 9 November 2008, the plaintiff returned to work as a shed hand.[10] The plaintiff was injured on 10 November 2008 whilst working as a shed hand.
[10]PCB 21
18 Since her injury, the plaintiff has attempted to retrain and re-educate herself. In 2009, she attended Warrnambool Community College and completed a refresher course in computers.[11] At the same time she also did a first aid course and a responsible service of alcohol course, trying to broaden the scope of work that she was qualified for.[12]
[11]T13
[12]T14
19 In 2011, the plaintiff attended TAFE and completed a Certificate III in Business Administration. The plaintiff has also completed an Agent’s Representative in Real Estate Certificate IV level.[13] At the time of hearing in this matter, the plaintiff was involved with training for on-line marketing using the internet. The plaintiff described this as webpage training.[14] My impression that this involvement was really a situation where the plaintiff was to obtain further training on the webpage courses in order for her to be receiving any funds.
[13]T14
[14]T15
20 The plaintiff’s current position is she is receiving social security payments and living in a farm house on the farm of her daughter and son-in-law. She lives with her youngest daughter and occasionally cares for her grandchildren who live on the other part of the farm.
The Plaintiff’s injury with the Defendant
21 The plaintiff commenced work with the defendant on 9 November 2008. She was employed as a shed hand. On her second day of work with the defendant, the plaintiff was injured.
22 The plaintiff described the injury in the following terms:
“The shed was old and poorly designed. I was required to work in extremely awkward conditions. The board was designed in such a way that it was difficult to keep out of the way of the shearers.
In the course of picking up a large fleece, I was more or less squatting. I had to move sideways to enable a shearer to push the sheep out the porthole. I had to move whilst in the squatting position to get out of his way and felt a tearing sensation in the left knee.
I continued working for about half an hour when I started to feel severe pain in the left knee. I swapped with another shed hand and worked on the wool table where I didn’t have to run up and down the board and I could stand in one position while skirting the fleeces.”[15]
[15]PCB 22
23 The plaintiff continued her work the next day at the table sorting and skirting fleeces. She continued to work in that shed for two or three more days and her knee was not improving. Her left knee was swollen and painful. The plaintiff had been rubbing anti-inflammatory cream into the knee.
24 The plaintiff continued work for approximately two weeks prior to going to see her general practitioner, Dr Philip Hall, on 21 November 2008.[16] At that consultation the general practitioner thought there may have been meniscal or ligament damage to the plaintiff’s left knee. The plaintiff was referred for x‑ray and subsequently sent to the orthopaedic surgeon, Dragomir Mladenovic.
[16]Exhibit 2
25 In December of 2008, the plaintiff was referred to Anthony Pritchard, physiotherapist, and prescribed Voltaren tablets.
26 Mr Dragomir Mladenovic sent the plaintiff for MRI scan examination. The MRI scan of the left knee was performed on 18 December 2008. Mr Mladenovic stated that the MRI scan report indicated there was no damage to the meniscus or the ligament. He noted that there was minimal cartilage and a small baker’s cyst present which did not require surgery.[17]
[17]DCB 58
27 The plaintiff continued with treatment from her general practitioner, Dr Hall. The plaintiff continued to see Dr Hall on approximately a one-monthly basis for treatment for her knee. In 2010 Dr Hall administered three cortisone injections to the plaintiff’s left knee. Those injections were administered on 10 February 2010, 26 March 2010 and 24 September 2010.[18] The plaintiff was prescribed the medications of Augmentin Duero Forte, Panadeine Forte and Cipramil to assist with her sleep disturbance. The plaintiff was also prescribed Voltaren.
[18]Exhibit B
28 The treatment regime referred to in the previous paragraph remained constant until 15 February 2011.
29 On 13 February 2011, the plaintiff was involved in an incident at a local hotel and as a result suffered further injury to her left knee. On examination on 15 February 2011, Dr Hall noted that the left knee was swollen and that there was moderate effusion.
30 On 28 February 2011, the plaintiff re-attended the Warrnambool Medical Clinic complaining of a further injury to her left knee. She stated that she was moving furniture on the weekend and had some knee pain. She felt that her knee had moved sideways. On this occasion there was no knee swelling but some joint line tenderness to the left knee. The plaintiff was then referred to the orthopaedic surgeon, Mr Sundaram.[19]
[19]Exhibit B
31 Mr Sundaram had first seen the plaintiff on a second opinion basis in August 2009. Mr Sundaram examined the plaintiff on 17 March 2011. At this time, Mr Sundaram noted that the plaintiff walked with a limp and that she had a mild valgus deformity. He noted that there was also quadriceps wasting and a small effusion. He noted that the plaintiff was tender over the medial joint line. Mr Sundaram ordered an MRI scan of the left knee. Mr Sundaram then reviewed the plaintiff on 18 April 2011. He noted that the MRI scan showed evidence of capsular and medial ligament strain to her left knee. She was tender over the medial ligament area. Mr Sundaram referred the plaintiff off to Tony Pritchard, physiotherapist.[20]
[20]Exhibit 2
32 Mr Sundaram’s final report was dated 10 November 2011 and set out that the plaintiff had some wasting in the quadriceps muscle with a good range of movement. He noted that she was tender over the anterior aspect of the knee. His recommendation was conservative treatment with physiotherapy and anti-inflammatory medication.[21]
[21]Exhibit 2
33 The plaintiff has most recently been seen by Mr Kunle Arogundade, orthopaedic surgeon. Mr Arogundade found that the plaintiff had mild swelling in her left knee. She had tenderness over the lateral joint line and to a lesser extent the medial joint line. He noted that the plaintiff’s medial and lateral collateral ligaments were intact. Mr Arogundade does not advise any surgery at this stage but anticipates that surgical intervention will be required if the symptoms persist.[22]
[22]PCB 70
34 The plaintiff’s ongoing medical treatment consists of regular attendances on her general practitioner and the prescription of pain relief and anti-inflammatory medication. She also has medication to assist with her sleep.
The aggravation to the left knee injury as a result of the hotel incident
35 In her affidavit sworn 25 October 2012, the plaintiff sets out the two aggravating incidents to her knee condition. The plaintiff nominates that the hotel incident which occurred in February 2011 and a further incident which was said to have occurred on 5 May 2011 while she was moving house.[23] The plaintiff states that she believed she had recovered from the temporary aggravation of pain as a result of those two incidents. She stated that in each case within a couple of weeks the pain and discomfort to her left knee had returned to the level she had lived with since her incident in the shearing shed in November 2008.[24]
[23]PCB 23 and 24
[24]PCB 24
36 As I have previously noted in these reasons, the medical notes of the Warrnambool Medical Clinic have the furniture moving incident as being some time immediately prior to 28 February 2011. If this notation is correct, then the two incidents of aggravation to the plaintiff’s knee occurred prior to her being reviewed by Mr Sundaram on 17 March 2011.
37 In her evidence, the plaintiff conceded that the two incidents caused an aggravation of her left knee condition.[25] In cross-examination, her evidence was as follows:
[25]T52
Q:“Was your knee worse after these two incidents in 2011?---
A:At the time it was bad, yes. And then it – like I've said, it came back to where it was beforehand, the daily limitation, the tenderness and the pain that I had before that pub incident.
Q:How could you judge that, Mrs Hiri?---
A:Easily. Very easily. Because when the incident happened, the feeling I had with my knee because I'd had the injury so long, I knew the site of the pain if I wasn’t careful. It’s a kind of stretched and if you pull it too much, it’s going to like that. So I knew my limitations. I knew the feeling that I had was – it was at that point of a break. That’s why I let go. It was painful for a few weeks after. The knee joint thing was very different, and it did get better. And then it went back to that tension with my injury site. It’s always there.[26]
[26]T37, L26 – T38, L10
38 Mr Paul Kierce, orthopaedic surgeon, examined the plaintiff on behalf of the defendant. In his first report dated 16 January 2011, Mr Kierce gave his opinion as follows:
“In my opinion Judith Hiri suffered a significant injury to the medial ligament of the left knee in the incident of the 112th (sic) November 2008 in the course of her work. This has rendered her unable to return to work as a roustabout or a shearer. She is not fit for heavy work. She is only fit for sedentary type work. In my opinion she has a 7% whole person impairment as a result of the medial ligament injury.”[27]
[27]DCB 117
39 Mr Kierce was asked to review the MRI examinations performed on the plaintiff on 17 December 2008 and 1 April 2011. The first MRI scan was after her injury in the shearing shed. The second MRI scan was after her incident in the hotel. Mr Kierce gave his opinion as follows:
“In my opinion the later films show a tear of the medial meniscus which was not evidence in the 2008 films. It is apparent however that the medial ligament injury was already obvious on the initial MRI study of 17 December 2008. It is on that basis that I have decided she has an AMA 4 impairment reading of a 7 per cent whole person impairment.
It is likely that she suffered a further injury in the way of a tear of the medial meniscus in the later incident but I have assessed her on the basis of the strain which was a significant one to the medial ligament of the left knee in my opinion occurring on 12 November 2008.”[28]
[28]DCB 131
40 I note that Mr Kierce had an incorrect history as to the date of the work accident. It is clear that Mr Kierce was of the opinion that the plaintiff’s left knee was damaged in work accident in the shearing shed.
41 Mr Dooley, orthopaedic surgeon, examined the plaintiff on behalf of the defendant. He examined her on 12 January 2012. He noted in his report that the partial tear referred to by Mr Kierce has healed. He went on to state that patients can at times know a feeling of instability in the knee. This most often relates to wasting of the quadriceps muscle and exercises to improve its strength do help this subjective feeling.[29]
[29]DCB 134
42 These two opinions from the surgeons, Mr Kierce and Mr Dooley, in effect confirm what the plaintiff has stated in her evidence. In short, the plaintiff’s left knee condition was aggravated by the hotel incident, particular and to a lesser degree the furniture moving incident. However I accept that on the balance of probabilities the knee condition has returned to its pre-hotel incident status and it is now in the same condition it was after the shearing shed incident in 2008. I find that the aggravation incidents had a short term impact on the plaintiff’s condition of the left knee following the hotel incident and the furniture moving incident.
Dr Philip Hall, general practitioner
43 Dr Philip Hall prepared three reports in respect of this application dated 27 October 2009, 16 June 2011 and 18 December 2013. Dr Hall’s most recent report is somewhat outdated. The plaintiff also relies upon the medical notes which became Exhibit B in the application.
44 In his most recent report, Dr Hall confirmed that there was damage present in the medial and lateral compartments of the left knee. He described that damage as being consistent with the mechanism of injury described by the plaintiff in her incident at the shearing shed. Dr Hall notes that there was an aggravation injury in March 2011 to the plaintiff’s knee. In his opinion, the plaintiff is unable to work in shearing sheds due to her limitation of standing, squatting, lifting and using steps. Dr Hall noted that the plaintiff does have a capacity for work as long as it did not involve use of her knee which may result in knee pain and swelling.[30]
[30]PCB 37
45 In Dr Hall’s latest report, 18 December 2013, he noted that the plaintiff had suffered a soft tissue injury to her knee in 2008 during her work as a roustabout in the wool shed. He noted that she had twisted her left knee and felt a tearing sensation in that knee. She had swelling and pain and limitation in that left knee on and off since that time. He notes that the plaintiff often walks with a limp. Dr Hall stated as follows:
“I believe that Mrs Hiri’s symptoms have remained static over the last five years and will continue to limit her activities of daily living, social life and her ability to undertake gainful employment. I believe that she requires access to regular physiotherapy and analgesic treatments and further assessment by an orthopaedic surgeon as stated above. I am happy to provide further information as required.”[31]
[31]PCB 67
46 Dr Hall referred the plaintiff to the orthopaedic surgeon, Mr Kunle Arogundade.
Mr John Aloysius Henderson, orthopaedic surgeon
47 The plaintiff was examined for medico-legal purposes by Mr John Aloysius Henderson. His report is dated 17 May 2011. In his report, Mr Henderson noted as follows:
“Certainly the MRI that was done 7 weeks ago, documents quite a cluster, now, of quite disturbing internal derangement injury conditions, following the initial incident at work2 years and 4 ½ months ago; and the two very well documented episodes of significant aggravation result from the very significant instability of her left knee joint, that your client has had since her work accident.
…
“Obviously, in my opinion, employment was, and remains, a significant contributing factor: both as a result of the original injury accident at work in November 2008; as well as a result of the further aggravation associated with episodes of instability and giving way, of the left knee joint, since that time.”[32]
[32]PCB 50
48 Mr Henderson’s prognosis was:
“In my opinion, your client’s prognosis, now, would be very guarded indeed, especially in relation to her left knee joint multiple internal derangements injury/condition.”[33]
[33]PCB 51
Dr Helen Sutcliffe, occupational physician
49 The plaintiff was examined by Dr Sutcliffe for medico-legal purposes on 21 September 2011. Dr Sutcliffe’s examination took place after the aggravating events of the hotel incident and furniture moving incident. In Dr Sutcliffe’s opinion, the plaintiff now has a permanent impairment of function of the left knee and more likely than not will require surgery.[34]
[34]PCB 59
50 Dr Sutcliffe stated that the plaintiff could not return to her pre-injury duties as a shearer or shed hand.
51 Dr Sutcliffe diagnosed the plaintiff as follows:
“From the history obtained and following examination and perusal of the investigation reports, particularly the recent MRI and also from assessment of accompanying medical reports, I believe that Mrs Hiri sustained onset of left knee derangement as a result of an incident in her workplace while she was squatting.
She has a clear history of persisting left knee pain from the date of onset and in particular onset of medial left knee pain.
The presentation is consistent with the recent MRI findings of medical collateral ligament tear Grade II and also with the findings of an anterior cruciate tear, chondral injury and also baker’s cyst partial leak.
I believe the conditions are related to Ms Hiri’s employment and to the squatting injury she received as described.”[35]
[35]PCB 58
52 It is clear that Dr Sutcliffe is of the opinion that the current impairments to the plaintiff’s left knee result from her employment accident. Dr Sutcliffe was in a position to know about the subsequent aggravating events at the hotel and/or furniture removal time.
Mr Thomas Kossmann, orthopaedic surgeon
53 The plaintiff was examined for medico-legal purposes by Mr Thomas Kossmann. His report is dated 3 September 2013. Mr Kossmann diagnosed the plaintiff as follows:
“Pain left knee on the basis of moderately high grade proximal MCL grade 2 injury, chondral fraying and thinning with a horizontal chondral flap at the central weight bearing surface of the medial femoral condyle, an associated partial tear involving the MPFL adjacent to the MCL, a possible meniscal capsular injury and minor patellar tendinosis and quadriceps insertional tendinosis.”[36]
[36]PCB 63
54 Mr Kossmann thought that the plaintiff had ongoing pain issues and clinical signs of meniscal injury as well as a chondral pathology. Mr Kossmann recommended that the plaintiff undergo operative intervention in the form of an arthroscope. He stated that the plaintiff had no capacity to work in her pre-injury employment.
Mr Tony Pritchard
55 Mr Tony Pritchard is the treating physiotherapist. He prepared a report dated 6 December 2013. Mr Pritchard set out the full treatment he gave to the plaintiff over the course of three treatment sessions. He was of the opinion that the plaintiff could not tolerate the demands of working in a shearing shed but would be able to be involved in more sedentary type employment. He noted that the plaintiff may require a total knee replacement some time in the future to improve her function and decrease her level of pain.
Mr Kunle Arogundade, orthopaedic surgeon
56 Mr Arogundade prepared two reports dated 17 January 2014 and 18 March 2014. Mr Arogundade arranged for the plaintiff to have the most recent MRI examination which was performed on 17 January 2014. The MRI scan is reported as follows:
“Conclusion:
1No significant joint effusion. There is no definite meniscal or ligamentous injury identified.
2Diffuse grade 3 chondral irregularity is seen over 2cm of the mid medial femoral condyle but the medial tibial plateau is preserved.
3Mild patellofemoral joint degenerative change. This is most marked at the medial patellar facet and central patellar ridge.”[37]
[37]PCB 77
57 Mr Arogundade stated that he had not reviewed the earlier two MRI examinations performed in 2008 and 2011.
58 Mr Arogundade reported as follows:
“Clinical examination of the left knee demonstrates mild swelling, she had moderate tenderness in the lateral joint line, and to a lesser extent in the medial joint line. She had complete range of motion. She had intact medial and lateral collateral ligaments, and anterior cruciate ligament. Xray performs in March 2011 demonstrates mild decrease in medial joint space.
I reviewed Judith again on 10th February, 2014, after she had an MRI performed on her left knee. The MRI confirmed diffuse Grade 3 chondral irregularities seen over 2cm of the mid medial femoral condyle, but the corresponding tibia is preserved. She also has mild patellofemoral joint degenerative changes, mostly affecting the medial facet of the patella and the central ridge.
I advised Judith of this finding, and recommend that as a start left knee physiotherapy to include but not be limited to range of motion and peri-articular muscle strengthening exercises in particular Quadricep muscle. I have advised that if this does not settle her symptoms after six weeks of physiotherapy, then she should be represent to see me for further management, knee arthroscopy.
In summary, Judith has moderate degenerative arthritis involving the medial compartment as well as patella articulation of the left knee. The work-related injury possibly contributed to this injury. At the moment she has been advised non-surgical management, but she may require surgical intervention if her symptoms persist.[38]
[38]PCB 69, 70
59 I note that Mr Arogundade has a history that prior to the work accident, the plaintiff did not have any symptoms in her left knee. I accept the plaintiff’s evidence that she did not have any symptoms in her left knee prior to the injury in November 2008. The position now for the plaintiff is that a previously asymptomatic left knee has now become symptomatic as a result of that knee injury. The symptoms have now progressed to a situation where there is identified quadriceps muscle wasting in the left leg and the plaintiff’s treating surgeon is now contemplating an arthroscopic operation to make further investigations of the knee condition.
Mr Dragomir Mladenovic
60 Mr Mladenovic prepared three reports dated 4 December 2008, 6 January 2009 and 30 June 2009. In his latest report Dr Mladenovic stated that the MRI scan performed in December 2008 showed no meniscal or ligament damage to the plaintiff’s left knee. His recommendation was that the plaintiff should be treated conservatively but recommended that she obtain a second opinion from another orthopaedic surgeon.
Dr Michael Bowles
61 Dr Michael Bowles prepared three reports on behalf of the defendant dated 12 January 2009, 15 June 2009 and 6 November 2009. These reports were not prepared for the basis of this application. Mr Bowles is an occupational physician and he diagnosed the plaintiff with a medial collateral ligament strain in the left knee. Mr Bowles has not seen the plaintiff since the incidents in 2011 and consequently his opinions are of limited value in this application.
Dr Gary Davison
62 Dr Gary Davison, occupational physician, examined the plaintiff on behalf of the defendant and prepared three reports dated 16 November 2010, 21 January 2011 and 20 January 2012.
63 In his first report, Dr Davison stated that the worker presented with non-specific left knee pain. He noted the symptoms most likely relate to the degenerative changes noted on the MRI scan performed two years ago. He went on to say that the worker may have suffered a temporary aggravation in the context of employment but there is no evidence to suggest that the worker’s employment is still a cause of the plaintiff’s symptoms.[39]
[39]DCB 88
64 Dr Davison after noting the MRI scan performed in April 2011, stated that the history and the MRI changes together with the clinical examination findings, suggested that there has been a significant further injury to the left knee, in relation to the injury received in the hotel incident.[40]
[40]DCB 97
65 Dr Davison went on to state his opinion as follows:
“I formed the opinion at the previous assessment that the claimant’s employment probably caused a temporary aggravation but I considered at that assessment 15 months ago that contribution from employment had ceased. Since that time the worker has suffered further injury in non-compensable circumstances. I consider therefore that the worker’s employment is not a significant contributing factor to the condition or its recurrence, aggravation, acceleration, exacerbation or deterioration. I consider that there is ongoing contribution in regard to degenerative change in the medial compartment as a result of the worker’s persisting obesity.”[41]
[41]DCB 98
66 I reject the evidence of Dr Davison in this application because it does not take into account the history of the plaintiff, which I accept, and the treatment regime that she has had prior to the injury in the hotel incident. The prior treatment and the subsequent that the plaintiff has received from her general practitioner indicates that her condition has returned to a level which was consistent with the post-work injury symptoms.
Mr Paul Kierce, orthopaedic surgeon
67 Mr Paul Kierce examined the plaintiff on behalf of the defendant and prepared three reports dated 16 January 2012, 5 February 2012 and 27 February 2012. In his first report, Mr Kierce noted as follows:
“In my opinion Judith Hiri suffered a significant injury to the medial ligament of the left knee in the accident of the 112th (sic) November 2008 in the course of her work. This has rendered her unable to return to work as a rouseabout (sic) or shearer. She is not fit for heavy work. She is only fit for sedentary type work. In my opinion she has a 7% whole person impairment as a result of the medial ligament injury.”[42]
[42]DCB 117
68 At the time of making that assessment, Mr Kierce was aware of the incident which had occurred in the hotel causing that temporary of the plaintiff’s left knee condition. Mr Kierce diagnosed the plaintiff as having suffered a tear of her medial collateral ligament in the left knee in the course of her work on 12 November 2008. As has been previously noted, Mr Kierce was asked to consider the impact of the hotel incident upon the plaintiff’s left knee condition. He clearly was of the view that the injury to the plaintiff’s left knee which occurred in November 2008 was an ongoing medial ligament injury which continued to affect the plaintiff’s condition.
69 Mr Kierce accepted that the plaintiff was injured and continues to suffer symptoms form her injury as a result of the workplace accident in November 2008.
Mr Michael Dooley, orthopaedic surgeon
70 Mr Dooley prepared a report on behalf of the defendant dated 17 January 2012. I have previously referred to Mr Dooley’s findings in respect of the plaintiff’s knee on the issue of aggravation caused by the hotel incident. At that time (2012) Mr Dooley thought that the plaintiff would continue to suffer intermittent left knee pain. He did not expect that the pain would be a major problem and that her condition would not deteriorate in time.[43]
[43]DCB 134, 135
71 It is clear from the evidence of the latest orthopaedic surgeon to examine the plaintiff that her condition has deteriorated over time and that she is now facing the prospect of arthroscopic surgery. The plaintiff continues to receive pain relief medication and anti-inflammatory medication.
Consequences of the left knee injury to the Plaintiff
72 In assessing the consequences of the left knee injury to the plaintiff I rely upon the contents of her affidavits dated 25 October 2012 and 18 March 2014. I also rely upon the affidavit of Teresa Hiri sworn 24 March 2014. I rely upon the evidence given by the plaintiff in the course of this application.
Sleep
73 The plaintiff stated in her first affidavit that:
“Not a night would go by that I do not wake as a result of an ache in my knee. I don’t always get out of bed but it does often take me a while to settle down and get back to sleep.”[44]
[44]PCB 24, paragraph 32
74 In her second affidavit the plaintiff stated:
“It is now not unusual for me to get up and have a cup of tea and have medication and wait for the medication to kick in before going back to bed.”[45]
[45]PCB 30
75 In her evidence, when asked what medication she was taking, the plaintiff stated that she had three medications at the moment.[46] The plaintiff deposed:
[46]T44
Q:“What are you taking at the moment?---
A:Diclofenac which is - - -
Q:Sorry?---
A:Diclofenac.
Q:What’s that for?---
A:An anti-inflammatory and painkiller. Lyrica, which is nerve tablet from my understanding, and painkiller for night times so I can sleep.
Q:Do you take that at night do you?---
A:Yes.
Q:To help you with your sleep?---
A:Yes.”[47]
[47]T44, L14–20
76 If I accept that the plaintiff suffers from regular interruptions to her sleep, the loss of sleep and interruption to her sleep is caused predominantly by her left knee injury. I find that the interruption to the plaintiff’s sleep as a result of her left knee injury is a very considerable consequence for her.
Pain
77 The plaintiff in her evidence deposed that she has pain in her left knee all the time. The plaintiff described the pain in her knee as a constant nagging ache, but there are times, and particularly when she is in bed, that the knee really throbs and the pain is almost unbearable.[48] The plaintiff stated that after she had been driving for approximately one hour her left knee would be swollen and painful.[49] The plaintiff stated that she had attempted the physiotherapist’s exercise, including swimming. She stated:
Q:“So the exercises by the physiotherapist and the swimming made your condition worse?---
A:Yes.”[50]
[48]PCB 24, paragraph 31
[49]PCB 24, paragraph 36
[50]T43, L8–9
78 The plaintiff’s evidence was that she was unable to swim and/or ride a bike to improve her physical condition. This was due to the pain in her left knee.
79 The plaintiff has consistently complained of pain to each of the treating medical practitioners and has been treated for it. She has undergone three cortisone injections to her left knee but they have not succeeded in reducing the level of pain to her knee joint. The initiating and principal cause of the pain in the plaintiff’s left knee is her employment with the defendant. The plaintiff has continued to have symptoms of pain in her left knee since her accident in November 2008. She has persistently and consistently attended medical practitioners with pain symptoms in her left knee since that date. I conclude that the pain and the level of pain that the plaintiff is suffering is a very considerable consequence for her.
Medication
80 The plaintiff has been prescribed numerous medications over the course of time since her initial injury in November 2008. The initial medication was Voltaren. The plaintiff has subsequently been prescribed with Panadeine Forte and Augmentin Duo Forte and Cipramil tablets.[51]
[51]Exhibit B
81 The plaintiff’s current medication regime includes:
· Diclofenac twice a day
· Panadeine Forte, two to three tablets a day on approximately three days a week
· Lyrica, two tablets at night
· Over the counter medications such as Panadol and Nurofen when the pain in the knee is really bad.[52]
[52]PCB 27–28
82 The plaintiff confirmed that she is currently receiving and taking those medications in her evidence.[53] I accept that the plaintiff takes this medication to ameliorate the level of pain she suffers from her left knee injury. I find that the necessity for the plaintiff to continually take painkilling and anti-inflammatory medication on a continual basis for the foreseeable future is a very considerable consequence. The medical opinions in this case continue to endorse the prescription of painkilling and anti-inflammatory medications for the plaintiff.
[53]T44
Activities of daily living
83 The plaintiff stated that she now lives with her daughter on a farm.
84 In her first affidavit the plaintiff stated that she found it very difficult to get down on her knee in order to wash and clean the bathroom, shower and the toilet.[54] In her later affidavit the plaintiff stated:
“I’ve been living in a separate home on my daughter and son-in‑law’s dairy farm and there are times I am awfully embarrassed at the state of the house when they visit me.”[55]
[54]PCB 24
[55]PCB 29
85 In her evidence the plaintiff was cross-examined about her ability to do the activities of daily living and keeping her home. The evidence was as follows:
Q:“The type of things that you are able to do regularly at home?
A:I don’t do them regularly. I do them when I have to.
Q:Which would be on a regular basis when you have to do it?---
A:Not really no. I have a pile of washing. I have dishes on my bench top. I do them when I have to. I don’t clean my bathroom as often as I should. I don’t mop my floor as often as I should.
Q:But you still do it?---
A:I do it when I have to.”[56]
[56]T49, L23–31
86 The plaintiff is clearly hampered by her lack of mobility and pain in performing the activities of daily living, in particular to do with the cleaning and keeping of the family home. I accept that the plaintiff accurately describes her inability to perform these activities at home, and that that is a considerable consequence for her.
Work
87 The plaintiff has not sought a certificate for loss of earning capacity in this application. Due to the injury to her left knee, the plaintiff is now unable to attempt to work in her previous type of employment of either being a shed-hand or a shearer. All of the medical opinion is that the plaintiff should not attempt such work. Whilst I accept that the plaintiff has given evidence that she had lost her passion for shearing and was looking to exit the wool growing and/or harvesting industries, the fact that her ability to perform this type of work and any other physical work has been taken from her is a considerable consequence for her.
88 The plaintiff in her evidence has clearly stated that she has made several efforts to attempt to retrain and obtain employment in alternative fields. She stated that she had made as many as seventy applications for work, and has not been successful in getting it.
89 The plaintiff has undertaken courses in Business Administration Certificates III and IV. The plaintiff has also undertaken Agent’s Representative in Real Estate training to Certificate IV level. The plaintiff is currently attempting a marketing online course with respect to creating webpages.[57]
[57]T15
90 I accept that the plaintiff has made every effort to obtain alternative employment. What the plaintiff has lost as a result of this injury is her ability to fall back on her old employment of working in a shed either as a shed-hand, rouseabout or a shearer. I consider that aspect of loss of choice of employment for her as a very considerable consequence given her work history.
Conclusion
91 I am satisfied that the plaintiff suffers the aforementioned consequences as a result of the injury to her left knee, and that such consequences, when judged by comparison with other cases in the range of possible impairments, can be fairly described as being more than significant or marked, and as being at least very considerable. I consider that the consequences as described are for the foreseeable future, in the sense that they are permanent.
Credit of the Plaintiff
92 The credit of the plaintiff was not fully challenged in this application. The plaintiff readily made concessions about the aggravation of the incident at the hotel and/or moving the furniture in the early part of 2011. I do not accept that that aggravation to her left knee condition in February and March of 2011 has overshadowed the underlying condition caused by the incident in the course of her employment in November 2008.[58]
[58]Petkovski v Galletti [1994] 1 VR 436
93 I accept that the plaintiff is a person of stoic disposition. The plaintiff was challenged during the course of her evidence about the gap in time between seeking treatment by orthopaedic surgeons. The evidence was:
Q:“Why did it take three years?---
A:Because I’m one of those people who will put up with it and I’ll work with it and try make it happen as I’ve been told and then eventually I’ll try and look for an opinion from somebody.”[59]
[59]T60, L28–31
94 I accept that the plaintiff has withstood a great deal of pain from her left knee as a result of her injury in November 2008.
95 The other area of challenge to the plaintiff was in respect of her behaviour in the February 2011 incident. I was shown a CCTV recording of part of the incident involving the plaintiff in the hotel in question. There was no footage of the encounter with the barman or security within the hotel. The only footage that was shown to the court was relating to the police arrest and the plaintiff throwing a table at the bottom of a stairway. I was unable to determine what injury occurred that was filmed in that CCTV. I rely upon the description given by the plaintiff as best she can as to her recollection of how the further aggravation to her injury occurred at that time.[60]
[60]Exhibit 3
Conclusion
96 Based on the reasons outlined in this judgment, I find the plaintiff has satisfied the statutory test for leave to bring proceedings for pain and suffering damages arising out of a left knee injury she received in the course of her employment with the defendant on 10 November 2008. I accept that the injury to her left knee, when judged by comparison with the range of cases of possible impairments, may be fairly described as being more than significant or marked, and being at least very considerable. I regard these consequences as permanent, in the sense that they are for the foreseeable future.
97 I grant leave to the plaintiff to bring proceedings for the recovery of damages in respect of pain and suffering arising from the injury to her left knee on 10 November 2008.
98 I will hear the parties on costs.
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