Hodgson v Bluescope Steel Ltd
[2020] VCC 514
•30 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-04672
| PAUL HODGSON | Plaintiff |
| v | |
| BLUESCOPE STEEL LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2020 | |
DATE OF JUDGMENT: | 30 April 2020 | |
CASE MAY BE CITED AS: | Hodgson v Bluescope Steel Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 514 | |
REASONS FOR JUDGMENT
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Subject:
Catchwords:
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013;
Cases Cited:Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141; Ansett Australia Ltd v Taylor [2006] VSCA 171; Hayden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26;
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis | Maurice Blackburn |
| For the Defendant | Mr B McKenzie | Hall & Wilcox |
HIS HONOUR:
Introduction
1 Mr Hodgson seeks leave to commence an action for damages. He relies on paragraph (a) of the definition of “serious injury” in s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act), being the permanent serious impairment or loss of a body function relating to the injury to his left knee. He relies on the consequences to him with respect to pain and suffering.
Circumstances
2 Mr Hodgson is 71.[1] He is married with two adult children. He left school at 16 and worked for 10 years as a clerk in the Royal Air Force and the next 11 years as a fitter and fabricator for two Scottish firms. Mr Hodgson and his family immigrated to Australia in March 1987 where he has worked as a builder’s labourer, gardener, technician and process worker. On 6 October 2003, Mr Hodgson started employment with Bluescope Steel Pty Ltd as a storeman and machine operator in its stores in South Dandenong. Despite the combined jobs, he worked as a storeman, picking and packing products which included spouting, guttering and downpipes.
[1]Born on 14 January 1949.
3 In 2004, he twisted his left knee at work, suffered a meniscal tear and underwent an arthroscopy. He was off work for about a month, returning gradually until reaching his pre-injury hours and no longer experiencing pain in the knee. In 2012, without a specific incident, and over period of four months, he experienced gradually increasing pain in the medial aspect of the joint margin of his left knee. MRI scans were performed and led to another arthroscopy. This time he was off work for about two months before, eventually, returning to his normal duties and hours on 23 December 2013 and, again, being pain-free.
4 On 9 April 2015, at work, Mr Hodgson was pushing a trolley carrying boxes when “I went to turn a corner and the trolley was getting away from me. I felt a sharp pain in my left knee”. The next day, he saw Dr Phua at a medical clinic in Dandenong. He continued working and then, on 11 May, “I aggravated my left knee pain, again pushing a trolley”. This time the trolley was stacked with boxes of stock. He was working in the stores area where there is limited space between racks. The trolley got away from him. He tried to control it and, in doing so, twisted his left knee with pain over its medial aspect. This incident was the subject of a claim, made that day and later, a claim for impairment benefits. He continued working with some modifications.[2] He attended Sonic Health and then Thuan Quang Le, a general practitioner at the Parkmore Medical Clinic. Dr Le referred him to an orthopaedic surgeon, De Juan Ng.
[2]In 2016, Chris Baker, an occupational physician, saw a photograph of a loaded trolley, saying it is heavy gauge metal with four wheels and laden with boxes carrying stock.
5 On 17 February 2016, Mr Ng performed another arthroscopy enabling Mr Hodgson to return to work on light duties. Unfortunately, his knee did not improve. On 23 August 2016, Mr Ng replaced his left knee entirely. After rehabilitation, in January 2017, Mr Hodgson returned to work. On 11 January 2017, he twisted his knee while rising from a seated position. It swelled and prevented him from walking on it. He was admitted to the Dandenong Valley Private Hospital. On 23 January 2017, he returned to work, performing his pre-injury duties. However, the pain continued and, after stopping work, he retired on 28 May.
6 From November 2011, Christopher Love, a urological surgeon, has monitored the state of Mr Hodgson’s prostate. By April 2017, a biopsy revealed a moderately aggressive prostate cancer. It was treated by radiotherapy and over 20 weeks of radiotherapy and neoadjuvant hormone therapy, finishing in early 2018.
7 In April 2019, arrangements were made for knee revision surgery but were cancelled because Mr Hodgson suffered from arterial fibrillation.
8 In August 2019, he travelled to England, Scotland and parts of Europe, including Berlin, Prague, Vienna and Budapest. At each of those cities, he visited sites including museums and churches. He stayed with sisters in England and Scotland. He saw family and friends. In all, he spent eight weeks in England, Scotland and Europe. While in England, he suffered a heart attack. He spent about a week in hospital, undergoing surgery with the insertion of a stent. On his return to Australia, he saw his cardiologist, David McGaw. In January, Dr McGaw said his heart was in a fine condition, to watch his diet and to exercise. He takes tablets for his heart.
Current position
9 The total knee replacement did not eliminate trouble with the knee. In May 2018, Mr Hodgson swore the first of two affidavits. He had continued to suffer constant soreness, ache or pain in and around his knee, feeling sharp pain two or three times a week, which came on at any time and lasted from five minutes to an hour. He found walking increased his pain, and when he walked he avoided uneven surfaces. He walked with a stick in case he suffered the sharp pain. He felt numbness when his leg was bent or had walked for long periods. This numbness could last for about an hour. He avoided squatting, kneeling, standing for long periods and lifting heavy weights, all of which increased his pain. His ability to push and pull weights was limited. When getting up after sitting, he heard a “crunching noise” in his knee. He favoured his right leg to rise. Against a background of sleep apnoea, the soreness in his knee would wake him about once a week. Mr Hodgson still saw Dr Le. He did not take medicines, putting up with the pain. Domestically, he still helped at home but avoided anything requiring prolonged standing or vigorous physical activity. He was limited in gardening, avoided climbing ladders and had stopped playing lawn bowls. However, he recently started playing golf: “I have worked out ways to hit the ball which avoid aggravating my left knee”. He played about once a week but only nine holes and used a golf cart to travel, limiting the amount of walking. With his five young grandchildren, he cannot do everything he would like to do with them.
10 On 27 February 2020, Mr Hodgson swore his second affidavit. The condition of his knee and its interference with his life remained mainly the same as in May 2018. He no longer uses a walking stick. Movements of his knee are restricted. His pain worsens if he stands on the leg too long or walks for too long. He still avoids squatting, kneeling, lifting heavy weights or any activity around the house which strains his knee. He favours his right leg when walking or negotiating stairs. He mows his “small patch” of lawn, taking 15 minutes. He does not trim his hedge because he cannot use a ladder. He has put on weight. Since the first affidavit, his knee has locked unexpectedly. He gave a recent example of it locking and being painful. He still hears the “crunching” noise. Mr Ng told him of the benefit of a further knee replacement:
“He told me it was up to me when I would do it. I am not keen to have it done but I will do it if the pain continues to deteriorate. I am putting up with the pain for as long as I can.”
11 He may have the operation within the next 12 months. Mr Hodgson believes his prostate cancer is in remission without any “ongoing issues” apart from taking medicine and being reviewed regularly. Certainly, when Dr Love last saw him in June 2019, his PSA level was very low and his bladder functioned normally without the use of the medicine, Duodart.
Medical evidence
Weber
12 Andrew Weber is an orthopaedic surgeon. In August 2004, he examined Mr Hodgson’s left elbow and left knee. MRI scans of the latter showed a tear of the posterior horn of the medial meniscus. On 19 January 2005, he performed an arthroscopy, debrided the medial meniscus to a stable rim and shaved the fibrillation over the lateral aspects of the medial femoral condyle. At review on 1 February 2005, there was no effusion and the wound had healed well. Apart from the tear, Mr Weber diagnosed chondromalacia over the medial femoral condyle which he felt should give some occasional discomfort in the future.
Tang
13 Andrew Tang is an orthopaedic surgeon, who examined Mr Hodgson at the request of his general practitioner. Mr Tang arranged MRI scans and operated on 24 October 2012. There was a torn medial meniscus which was resected to a stable rim. He noted chondral damage (mild-moderate) to the medial compartment consistent with early osteoarthritic change.
14 In October 2018, Mr Tang re-examined Mr Hodgson at the request of the general practitioner to give a second opinion. Mr Tang had not treated him since 2012. After an examination, Mr Tang considered his anterior knee pain arose from the patellofemoral articulation and, in the end, he would need resurfacing of the patella. Initially, he raised the possibility of an arthroscopy which would release tissue from his knee and remove scar tissue around his fat pad. However, the results of a subsequent bone scan revealed the possibility of loosening or stress reaction associated with the femoral and tibial prostheses. He now felt a revision of the knee replacement was needed. Mr Tang no longer thought resurfacing of the patella would make any difference to his pain. He sought permission for a revision of the knee replacement. His request was denied by the defendant. Although Mr Tang made an appointment for the revision in April 2019, it did not happen.
Nash
15 John Nash is a general practitioner. It appears he examined Mr Hodgson and his workplace at the request of the defendant. His report, dated 18 December 2012, contains a description of the storage area where Mr Hodgson worked and his duties. Since Mr Hodgson had fully recovered from his recent left knee injury, Dr Nash considered him fit to resume his pre-injury duties.
Wong
16 Yvonne Wong is a general practitioner. She wrote two reports about Mr Hodgson’s attendances at her clinic. It is unclear whether she treated him. Nevertheless, in answer to a question, she said:[3]
“I consider the medial meniscal tear is a work related condition. I consider the degenerative change in the left knee is constitutional and longstanding. I note that Paul has worked as a storeman for 13 years. His job involves long hours of standing, walking and repetitive squatting. Overuse of joints increases risk of developing osteoarthritis.”
[3]Report dated 12 February 2019.
Ng
17 De Juan Ng is an orthopaedic surgeon. He first examined Mr Hodgson on 5 October 2015. He took a history of an incident on 9 April 2015 but not on 11 May 2015. Mr Ng was aware of the result of the MRI scans. He performed an arthroscopy on 17 February 2016. This was preferred to a knee replacement as his knee function was then too good. His knee pain worsened after the operation, which Mr Ng attributed mainly to the arthritis. After persevering for some time, Mr Hodgson underwent a total replacement of his left knee on 23 August 2016. There was improvement. Then a further twisting incident at work occurred in early 2017 and Mr Hodgson was admitted to hospital for pain control. The pain did improve but, on 24 April 2017, he told Mr Ng the pain worsened after working and improved when he was not. The worsening was put down to the amount of walking in his job. By his next appointment on 8 May 2017, Mr Hodgson had resigned and his knee was now pain-free.
Baker
18 Chris Baker specialises in occupational medicine. He examined Mr Hodgson on 7 September 2012 and 19 January 2016. The first examination concerned the gradual onset of left knee pain over four months in 2012. He suspected degenerative changes in the knee and, if so, did not consider them aggravated by his work. They were due to the progression of age-related and constitutional degenerative changes. This examination occurred before an arthroscopy.
19 Dr Baker re-examined him in 2016, before the knee replacement. He considered the incident in May 2015 caused a small radial tear in the medial meniscus. He now saw the possibility that the underlying degenerative changes were aggravated by the two workplace incidents on 9 April 2015 and 11 May 2015. The aggravation would be short-term and limited. To him, the only surgery necessary was debridement of the meniscus involving trimming the damaged meniscus and resecting any ragged or poorly attached meniscus. He expected the degenerative changes to progress resulting in more radical surgery.
20 On 10 May 2016, Dr Baker wrote to the defendant, after receiving a report from Dr De Juan Ng, dated 26 April 2016 and answering certain questions. Essentially, he considered the knee replacement was appropriate for the condition of the knee but was not required as a result of the incident on 11 May 2015, because Mr Hodgson was suffering from constitutional and longstanding degenerative changes. Following a period of recovery from the surgery, he expected a return to work on a gradual basis with some restrictions.
Buzzard
21 On 20 December 2017, Anthony Buzzard, a surgeon, examined Mr Hodgson at the request of the defendant’s solicitors for an impairment assessment. Mr Hodgson gave him a fair account of his history. Associate Professor Buzzard saw the injuries to the left knee starting in 2003 and with each subsequent injury as representing an aggravation of the pre-existing pathology and culminating in the knee replacement. The mechanism of the injury in May 2015 was consistent with a diagnosis of aggravation of pre-existing left knee pathology. The medial meniscal tear was due to the incident. If the incident in May 2015 had not occurred then “it is more likely than not that he would probably have required knee replacement surgery in, say, five years’ time”. Encompassing a legal question, he considered his employment continues to materially contribute to his injury of 11 May 2015. He disagreed that the requirement for the total knee replacement was due to underlying constitutional degenerative changes. The incident aggravated his pre-existing pathology as well as causing the meniscal tear.
McLean
22 On 23 January 2020, Iain McLean, an orthopaedic surgeon, examined Mr Hodgson at the request of his solicitors. Mr McLean saw the incidents at work in April and May 2015 as aggravating the underlying degenerative knee pathology, particularly to the medial compartment. This aggravation led to the total knee replacement. Following the replacement, Mr Hodgson has been left with limitations of the knee, which are permanent. These limitations translate into care when walking on flat surfaces, avoiding, if possible, uneven surfaces, steps, stairs, inclines and an inability to squat or kneel. With his ongoing symptoms of pain and crepitus, there is the possibility of revision of the patella. Apart from his current problems, he faces developing prosthetic wear, loosening, infection and periprosthetic fractures.
Rowe
23 On 29 January 2020, James Rowe, an occupational physician, examined Mr Hodgson at the request of his solicitors. On examination, Dr Rowe noted a grossly swollen left knee, great difficulty kneeling or squatting, an inability to fully extend the knee with a loss of 20 degrees of flexion. There was impaired sensation about the lateral aspect of the scar and tenderness about the medial joint line with laxity about the medial and lateral ligaments. He diagnosed an internal derangement of the knee evidenced by damage to medial meniscus with osteoarthritis and other degeneration affecting the ligaments and articular surfaces. These injuries were a direct result of the nature of his work and specific incidents. Dr Rowe detailed six limitations on activities which were permanent: prolonged sitting or standing; bending, crouching, kneeling, squatting; lifting heavy objects; walking over uneven ground or rough terrain; negotiating steps or ladders; and twisting or pivoting of the knee. The prognosis was not good, with the likelihood of further deterioration and the possibility of a second knee replacement.
Dooley
24 Michael Dooley is an orthopaedic surgeon. He examined Mr Hodgson twice at the request of the defendant’s solicitors, on 21 November 2018 and 13 January 2020. In his first report, Mr Dooley expressed his disapproval of the knee replacement. It was done for an unsound reason (to regain full fitness and return to normal duties) and, generally, the results are very poor when done in a compensation environment. The twisting incident in May 2015 heightened the effect of the pre-existing degenerative condition of the knee but would have returned to his pre-injury level of symptoms. It was possible the underlying osteoarthritis would have evolved to a degree where knee replacement surgery was indicated. He did not believe pain and significant disability is entirely organic for the symptoms are influenced by an understandable psychological reaction. He was uncertain whether the failure to resurface the patella is the cause of the pain. Resurfacing could occur if there was patellofemoral tenderness, crepitus and x-rays showing narrowing of the patellofemoral joint. But even the results of that surgery are “notoriously unpredictable” in terms of relieving pain and improving function. However, he would be very hesitant in performing further surgery. Any meniscal tearing was due to the underlying degenerative condition.
25 Drawing on his many years of performing knee replacements, Mr Dooley made two comments. First, Mr Hodgson’s pain and disability are greater than expected organically, although he did not exaggerate his symptoms. Second, any further surgery on his knee is inadvisable because an improvement in lessening pain and improving function is very uncertain and could worsen his condition. He should continue his exercise programme and continue to lose weight. Mr Dooley considered the May 2015 incident aggravated the existing degenerative changes but the effects of the aggravation had ceased.
Legal considerations
Generally
26 To gain leave, Mr Hodgson must prove:
(a) he is entitled to compensation in respect of an injury arising out of or in the course of his employment with the defendant. The injury is alleged to be the tear in the medial meniscus of his left knee and the aggravation of pre-existing osteo-arthritis in that knee;
(b) the injury is a “serious injury” where “serious” is satisfied by reference to the consequences to him of the impairment or loss of body function with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments or losses of a body function;[4]
(c) the impairment or loss of a body function is not serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable.[5]
[4]s134AB(38)(b) of the Act.
[5]s134AB(3)(c) of the Act.
27 For these applications, a plaintiff must establish a compensable injury. That is, an identified injury arising out of or in the course of his employment with the defendant. I was referred to the expression “arising out of or in the course of employment” and Zlateska v Consolidated Cleaning Services Pty Ltd.[6] I was also referred to six letters from the defendant, some accepting a liability, some rejecting, and one reducing an entitlement, and also to Ansett Australia Ltd v Taylor.[7] Both referrals were unnecessary as I consider, on the evidence, Mr Hodgson suffered a compensable injury.
[6][2006] VSCA 141 at [8] and [9].
[7][2006] VSCA 171.
28 For completeness, this is not a case of acceptance of liability in error. The acceptances were made in the face of the relevant material, including the three reports of Dr Baker. The acceptance of liability for impairment was based on the report of Associate Professor Buzzard. The defendant denied the need for an affidavit to explain its acceptance and denial of liability. I should infer its acceptance of liability for permanent impairment derived from the report of Associate Professor Buzzard dated 20 December 2017. While its rejection of Mr Tang’s proposed arthroscopy to perform a lateral release and examine the patellofemoral articular surface was based on the views of Dr Baker and Mr Dooley. Even though there were acceptances of liability, the defendant’s change of position is sufficiently explained in its notice rejecting the proposed arthroscopy. The thrust of the defendant’s notice, dated 11 December 2018, is that the effects of the May 2015 injury had ceased by, at least, when seen by Dr Baker in 2016.
29 In Haden Engineering Pty Ltd v McKinnon,[8] Maxwell P said the concept of “pain and suffering consequences” encompassed both the experience of pain and the disabling effect of the pain upon a person’s physical capabilities, including capacity for work and enjoyment of life. As to capacity for work, His Honour said:[9]
“…it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which an area of work which [the plaintiff] enjoyed has been closed off to [him or her].”
[8][2010] VSCA 69 at [9].
[9]At [15].
30 In Hawkins v DHL Express (Australia) Pty Ltd,[10] Tate JA said that the diminution of earning capacity is not restricted to claims for loss of earning capacity and can be considered with pain and suffering consequences in two ways: a diminution may indirectly be evidence that an area of work which a worker enjoyed has been closed off; and may be indirect evidence of the extent of the loss of enjoyment of life, including interference with particular recreational or social activities. It is a factor considered with all other relevant factors but alone it is not determinative.
[10][2013] VSCA 26 at [72].
Discussion
31 Mr Hodgson has had a longstanding problem with his left knee. In February or March 2004, he twisted his knee at work, felt a “twitch”, which became increasingly stiff and swollen. This was the first time he experienced symptoms with that knee. He was placed on light duties. When Mr Weber saw him, the knee was painful on the medial aspect with swelling. MRI scans showed a tear of the posterior horn of the medial meniscus. On 19 January 2005, Mr Weber performed an arthroscopy. He debrided the tear, which he described as degenerate and noted, among other things, some softening of the joint surface of the patellofemoral joint.
32 During 2012, Mr Hodgson developed pain in his left knee. He was referred to Mr Tang who, on 24 October 2012, debrided or resected the torn medial meniscus and noted, among other things, early medial compartment osteoarthritis. During 2012, Mr Hodgson was performing his normal duties with the defendant.
33 Mr Ng performed an arthroscopy on 17 February 2016. He repaired a medial meniscal tear with extrusion of the meniscus. He found grade 4 osteoarthritis affecting the trochlea and a small part of the posteromedial tibial compartment, grade 2 to 3 arthritic changes affecting the medial compartment and grade 2 changes affecting the medial facet and lateral tibial plateau. He felt the main cause of his pain was arthritis, which was aggravated by the incident in May 2015 when he twisted his knee. After seeing him again on 16 August 2016 with complaints of increasing pain which affected his walking and sleeping, Mr Ng replaced his left knee on 23 August 2016.
34 After the replacement, on 11 January 2017, Mr Hodgson again twisted his left knee causing considerable pain. By 27 February, when he saw Mr Ng, the pain had settled and he had returned to work. However, on 24 April, he was experiencing pain on medial side of his proximal tibia. It worsened after he had been working because work involves a lot of walking.
35 Each of the involvement of Mr Weber, Mr Tang and Mr Ng arose out of either incidents at work or Mr Hodgson merely doing the work. This process of aggravation upon aggravation makes it very difficult to say the effects of the aggravations have ceased and the natural process alone is responsible. It is, as Associate Professor Buzzard said in December 2017:
“I think Paul Hodgson developed increasing degenerative disease in his left knee starting in 2003 with his first left knee injury. I think that each of the subsequent injuries represented an aggravation of pre-existing pathology, culminating in him having a left total knee replacement operation in August 2016.”
36 The overriding problem was the arthritis in the knee. It was made symptomatic through the effect of work and remained symptomatic until the knee replacement and, unfortunately, remains so. Counsel described the issue as causation, which it is. That is, whether there is now and permanently an injury which is the aggravation of pre-existing left knee pathology. Undoubtedly, his employment caused the meniscal tears and the aggravation of the pre-existing pathology. The question is whether the effect of the aggravation has ceased by the time of the knee replacement and the natural process of degeneration had taken over.
37 I have five opinions. I have already quoted the opinion of Associate Professor Buzzard.
38 Initially, I thought Dr Baker was handicapped by the timing of his examinations of Mr Hodgson. However, he gained a reasonable picture through his history-taking. His first examination occurred on 7 September 2012. He was aware of the 2004 incident. For 2012, he knew there was no incident or accident but of Mr Hodgson’s pain gradually increasing over a four month period. At that stage, he ascribed Mr Hodgson’s pain to age-related constitutional factors. His second examination occurred in January 2016 and was told about the incidents on 9 April and 11 May 2015. He believed the injury flowing from the May incident was a small radial tear of the body of the medial meniscus and, as to the knee overall, he said:
“I consider that the degenerative changes in the knee are due to osteoarthritic changes, which are progressive and have been possibly aggravated by workplace accidents. I note that there appears to have been an incident on 9 April 2015, as well as on 11 May 2015…I would consider that there was a background of progressive degenerative osteoarthritis and it is possible there was a work related aggravation of the degenerative process, but this would be short term and limited.”
39 Later, the defendant gave Dr Baker the report of Mr Ng about his findings from the arthroscopy performed on 17 February 2016. He noted the various areas of osteoarthritis, apparently abandoned the possibility of aggravation, and said the degenerative change in the knee was constitutional and longstanding.
40 Mr Hodgson’s counsel criticised Dr Baker through his failure to accept there were incidents causing injury in 2004, 2012, 2015 and 2017. The criticism is unfair. He was aware of the incidents in 2004 and 2015. There was no incident in 2012. Since his last report occurred in 2016, he was not in a position to comment on the 2017 incident.
41 Mr McLean had a good understanding of the incidents in 2004, April 2015, May 2015 and February 2017 and the subsequent treatment. He saw 2004 and 2012 causing medial meniscal and chondral pathology, treated and stabilised. He saw the two incidents in 2015 causing a significant aggravation of the underlying degenerative pathology leading to the knee replacement. The effects of this aggravation had not ceased by the time of the replacement.
42 Dr Rowe had a less perfect history. He was unaware of the May 2015 incident. He was aware of the April 2015 incident and understood, after it, the pain worsened over time. He saw the injuries to the knee as a direct result of the nature of his work over time and the various specific incidents he described.
43 Mr Dooley also had an imperfect history. He did not know of the April 2015 incident but knew of the May 2015 incident. He was unaware of what happened in the 2005 arthroscopy, suspecting a partial medial meniscectomy. It seems Mr Dooley sees the nature of his work would cause temporary enlarged symptoms but revert to normal symptoms after six to eight weeks. He conceded the heightened symptomatic effect of the May 2015 incident which, in time, would have improved to return to his injury level of symptoms. He saw the knee replacement as Mr Hodgson’s solution to an impasse, namely, his employer would not take him back until he could perform full duties and in his current state he could not. However, the knee replacement did not allow a return to such duties and Mr Hodgson retired. Although Mr Dooley believes knee replacement in this case and, in cases like it, is ill-advised, the short answer is that it occurred. This is not a case of novus actus interviens.
44 Dr Ng knew of the April 2015 incident only, which aggravated Mr Hodgson’s pain. He says nothing about the duration of this aggravation.
45 Apart from Dr Baker and Mr Dooley, the other specialists see the April or May 2015 incidents or both as aggravating the underlying condition, and the effects of the aggravation had not ceased by the time of the knee replacement. Two of the specialists, Mr McLean and Dr Rowe, implicate the nature of his work as contributing to the aggravation. It is unclear whether Mr Buzzard or Mr Dooley do.
46 Dr Wong considered overuse of joints increases the risk of developing osteoarthritis. I presume she means developing symptoms, for she says the degenerative change is constitutional and longstanding. She places stress on the nature of his work, long hours of standing, walking and repetitive squatting.
47 For completeness, there is no clear statement from Mr Tang linking the condition of the knee to Mr Hodgson’s work. The fact that he wrote to the defendant does not allow me to infer that he held the view.
48 I am satisfied Mr Hodgson has sustained a compensable injury. That is, an injury to the medial meniscus and an aggravation of the pre-existing degenerative condition of his left knee. By the time of the knee replacement, the effects of the aggravation had not ceased. Following his arthroscopy in 2012, Mr Hodgson returned to work gradually. By December 2013, he was working his normal duties on a full-time basis. Thereafter, his knee remained free of pain until the incident in April 2015. After the April and May incidents, he was never free of pain up to the time of the replacement. On this point, I am not concerned with the time after the replacement. I disagree with the view the effect of the aggravation ceased before those incidents and the pain thereafter was due to underlying degenerative process. It is too much to accept that the progress of the degenerative process left the knee asymptomatic between December 2013 and April 2015 while he performed his normal duties and yet, following two incidents, the effects of the aggravation, if any, wore off, leaving the degenerative condition responsible for the ongoing symptoms. If there was no aggravation, then the knee became symptomatic for no reason other than its natural progress leaving the incidents responsible for nothing. That is unlikely. If there was an aggravation, then its effect ceased within a “short while”, leaving the progress of the condition responsible for the symptoms when before May 2015 there were none. This is also unlikely.
49 To the submission that the impairment is not permanent because of the possibility of a second operation, it must be said the knee replacement is itself an impairment and is unquestionably permanent in the sense that the organic knee has been removed and replaced by something artificial. However, the story does not end there. Mr Hodgson experiences significant problems with the replacement. He will avoid revision until the pain forces him to do otherwise. Despite some vague evidence about timing, I consider he will retain his unrevised knee replacement for the foreseeable future.
Consequences
50 Mr Hodgson has had a total knee replacement. In the chain of causes leading up to it, the incidents of April and May 2015 are the nearest. The knee replacement has not solved the question of pain. Following a bone scan, Mr Tang saw the loosening of the knee replacement as the cause of pain and the solution lying in revision of the knee replacement. He did not see resurfacing of the patella as the solution or, implicitly, a partial one. Mr Hodgson is so reluctant to undergo further surgery, one can disregard it until the pain is so bad as he demands it.
51 There is a tendency to overlook the fact of the knee replacement in this type of case. However, it is a significant consequence for Mr Hodgson. A natural part of his body has been replaced with an artificial one. The additional fact that the replacement has not succeeded in eliminating pain in the knee is another significant consequence.
52 Now, the pain comes and goes. It is not always present. At times, the pain is bad and he rests, other times it is present and he puts up with it. It is no longer just pain. As he put it, the latest development was numbness, which he attributes to sitting and standing too much. The train trip to the court caused pain while the sitting and standing left him with numbness. The knee locks. Mr Hodgson does not take pain-relieving medicine despite not having a general aversion to such medicines. He was last prescribed Codeine Phosphate and Paracetamol in May 2017. He does not see his general practitioners regularly. He last saw Dr Le in 2016 about his knee. In 2018, he saw another practitioner, Duncan Savery, in the same practice, who referred him to Mr Tang for the second opinion. In April 2019, he was referred to a physiotherapist, Caroline Johnson.
53 The knee replacement was an attempt to stay in work. It did not enable him to return to work on the defendant’s conditions. He retired. Although loss of earning capacity as a consequence is a separate head, such a loss can be seen as a pain and suffering consequence. When he injured his knee on 11 May 2015, Mr Hodgson was 67. At resignation, he was 68. By then, he had worked for the defendant for about 13½ years. Although there is no evidence of how long he would have worked uninjured, he went to some length to remain in employment. Losing employment for one employed so long is a disappointment. It is an enjoyment of life consequence and of some significance in this case.
54 Mr Hodgson cannot stand for long periods, squat, kneel or put weight on his left leg. He avoids heavy lifting. He does what he can about the house. He does not specifically exclude anything about the house. He can drive a car. Although he can use public transport, unless he is able to sit and stretch his leg, there is difficulty travelling on trains. He has travelled overseas to the United Kingdom and Europe. He no longer uses a walking stick. He goes out for dinner with his wife. He visits and receives visits from family and friends. He is not socially isolated. He has difficulties playing with his grandchildren. He has given up lawn bowls and plays nine holes of golf. The length of those nine holes is short and he reduces the amount of walking by riding in an electric vehicle to travel the course. Despite this, he has difficulty exercising, which is unfortunate given the state of his heart. He has put on weight since 2016. He believes 20 kilograms. There is a discrepancy in the material and it seems more like 12 kilograms extra weight. There is evidence of shortness of breath. Mr Hodgson attributed this to his atrial fibrillation condition, which he believed has resolved.
Conclusion
55 As McGarvie J said in Humphries v Poljak[11], the test of “serious injury” involves elements of fact, degree and value judgment. I am satisfied Mr Hodgson has suffered a “serious injury”. The pain and suffering consequence of the impairment or loss of the body function involving his left knee, is fairly described as being more than significant or marked, and as being at least very considerable.
[11] [1992] 2 VR 129 at 167.
56 I will give him leave to bring a proceeding for damages for pain and suffering and will hear the parties on the form of my orders and the question of costs.
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4
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