Hofen v Berry Street Victoria
[2014] VCC 2113
•18 December 2014
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02391
| VERONICA JEAN HOFEN | Plaintiff |
| v | |
| BERRY STREET VICTORIA | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 22 and 23 October 2014 | |
DATE OF JUDGMENT: | 18 December 2014 | |
CASE MAY BE CITED AS: | Hofen v Berry Street Victoria & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2113 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury application – left and right knee injuries – meaning of “permanent”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Peak Engineering & Anor v McKenzie [2014] VSCA 67; Larner v George Weston Foods Ltd [2014] VSCA 62; Jones v Dunkel (1959) 101 CLR 298; Stone v Jarvis; Humphries & Anor v Poljak [1992] 2 VR 129; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Dahl v Grice [1981] VR 513
Judgment: Leave granted to the plaintiff to issue proceedings at common law for pain and suffering and loss of earning capacity on account of a left knee injury suffered on or about 13 July 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Mr G Wicks | Maurice Blackburn Lawyers |
| For the Defendants | Mr P A Jewel QC with Mr A J Saunders | Minter Ellison |
HIS HONOUR:
1 This matter is a serious injury application pursuant to s134AB(16) of the Accident Compensation Act 1985 (“the Act”). The plaintiff seeks leave to bring proceedings for personal injuries arising out of or in the course of, and due to the nature of, her employment on or about 14 December 2007 and/or 13 July 2008, at or near Bairnsdale.
2 In order to succeed, she must establish that she has suffered a “serious injury” as that term is defined in s134AB(37) of the Act.
3 The plaintiff filed a Schedule of Particulars of Injury in which she alleges she has suffered permanent serious impairment or loss of function of her:
(a) Left knee; and/or
(b) Right knee; and/or
(c) Back; and/or
(d) Right foot; and/or
(e) Shoulders.
4 In addition, she claimed that she had a permanent severe mental or permanent severe behavioural disturbance or disorder.
5 In his opening, Senior Counsel for the plaintiff submitted, with respect to the two injuries, that it was only impairment to the left knee pursuant to paragraph (a) of the definition of “serious injury” which was being pursued.
6 It was also submitted by both parties that the two injuries were to be considered separately in order to assess whether either one, or both, satisfied the statutory definition.
7 Senior Counsel for the plaintiff identified the first injury as being aggravation of underlying osteoarthritis of the left knee. The consequences of the injury were said to be rendering symptomatic previously asymptomatic degenerative change which, although enabling the plaintiff to continue working, raised the risk of future knee replacement surgery on account of the discrete injury.
8 The second discrete injury was said to be further aggravation of the underlying left knee arthritic condition such that the plaintiff was compelled to stop work because of the increasing symptoms and it was those symptoms that ultimately led to her request for left knee replacement in September of 2010. It is also alleged that the left knee symptoms after the second injury altered the plaintiff’s gait, placing further stress on her right knee, which in turn exacerbated symptoms of underlying osteoarthritis in that knee. It is also alleged that as well as the arthroscopy and the subsequent left knee replacement representing consequences, degenerative changes in the plaintiff’s lumbar spine, as well as right knee, were worsened until there was eventual right knee replacement leading to abatement of symptoms in those areas of her body.
9 The defendants conceded that as a result of the left knee replacement, the plaintiff is left with consequences that are serious for the plaintiff in terms of pain and suffering and loss of earning capacity as per the Act. However, the defendants submit that the plaintiff would have come to left knee replacement surgery on account of the underlying condition, without the work-related aggravations, such that the proper assessment of the plaintiff’s impairment could not be said to be “permanent” in accordance with the jurisprudence which has developed around that definition.[1]
[1]The defendants rely on Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67
10 Further, defence counsel submits that the ultimate onus of proof is on the plaintiff to show that the consequences of the impairment are “permanent” in terms of the jurisprudence, given that the defence has introduced evidence that the left knee replacement would have been required, in any event, because of the underlying condition.[2]
[2]Exhibit 5, Letter of Mr M Thomas dated 26 July 2010
11 The plaintiff relied on three affidavits sworn 6 June 2011, 27 March 2014 and 7 October 2014.[3] She also relied on a number of medical reports from treating medical practitioners and medico‑legal experts. Also tendered in evidence were, a Certificate of Capacity dated 17 July 2008,[4] an Accident Report Form dated 24 July 2008,[5] a Worker’s Claim Form dated 22 July 2008[6] and an Employer’s Injury Claim Report dated 30 July 2008.[7]
[3]Exhibit A, Plaintiff’s Court Book (“PCB”) 12-25
[4]Exhibit M, PCB 123
[5]Exhibit N, PCB 124-126
[6]Exhibit O, PCB 127-128
[7]Exhibit P, PCB 129-131
12 The defendants tendered in evidence a number of medical reports including thirteen such reports from the treating orthopaedic surgeon, Mr M Thomas.[8] No witnesses were required for cross-examination and it was agreed that the matter was to be decided on the documentary evidence.
[8]Exhibit 4
Preliminary questions
13 It appears to me that in terms of the issues identified by the parties, two preliminary questions arise as follows:
(1)Is the left knee replacement surgery, itself, a consequence of the first and/or the second injury?
(2)Secondly, if “Yes”, to either, given that it is conceded that the consequences are at least very considerable and more than significant or marked, are they nonetheless “permanent” in terms of the evidence adduced in the case and in terms of the criteria laid down in Peak Engineering?[9]
[9]Supra
14 If the answer to both questions is “Yes”, the issues between the parties are as follows:
(a)Would the left knee replacement surgery have been necessary in any event, without the occurrence of either the first and/or the second injury?
(b)If “Yes”, is the measure of “serious consequence”, following the left knee replacement surgery, limited in time to when the underlying progressive disease would have led to left knee replacement surgery?
(c)If “Yes”, has the plaintiff proved permanent consequences?
15 Defence counsel submits that the plaintiff has failed to discharge the onus of proof. In particular, Senior Counsel submits that the plaintiff’s main witness, Mr Kudelka, does not address the question as to if, and when, the plaintiff would have required the left knee surgery, absent the occurrence of injury one or injury two, or both. Accordingly, he submits that the principle of Jones v Dunkel[10] should apply in a situation where a party fails to examine a witness in-chief on some topic indicates “as the most natural inference that the party fears to do so”.[11] He then submits that this fear is then “some evidence” that such examination-in-chief “would have exposed facts unfavourable to the party”.[12] Accordingly, counsel submits that according to the ordinary principles of Jones v Dunkel, the Court can more readily accept the evidence of Mr Thomas, who it is said, does give an opinion on this subject.
[10](1959) 101 CLR 298
[11]Larner v George Weston Foods Ltd [2014] VSCA 62 at paragraph [190]
[12]Larner v George Weston Foods Ltd (ibid)
The evidence
The first incident
16 On 14 December 2007, the plaintiff was descending a ladder after changing a smoke detector in a bedroom when she fell from the ladder on her left side, landing awkwardly and “doing the splits” such that her left leg was pinned to the floor. She felt immediate pain in the area of her left knee and there was bruising to an undefined area of the left leg. The plaintiff suffered pain in both knees but it was more severe in the left knee. She swore that the knee pain gradually subsided and she did not seek medical treatment at that time. Apparently some several months later, she had a recurrence of her left knee pain and as a result, she consulted her general practitioner, Dr Daryl Smith in Bairnsdale, on at least two occasions in June 2008, and he arranged for an x‑ray of the left knee.[13]
[13]Exhibit A, Plaintiff’s affidavit sworn 6 June 2011, paragraph 6
17 The plaintiff does not attest to continuing to suffer left knee pain until suffering a “recurrence” in June 2008. The treating general practitioner, Dr D R Smith, reported that he had been the treating doctor for the plaintiff since June 2008 when she first presented regarding her “work-related” knee injury. The plaintiff gave him a history that she first injured her left knee in December 2007 when she fell off a small ladder at work and then aggravated it further in June 2008 when she tripped over some leads at work.[14] He did not take a history that there had been ongoing symptoms between December 2007 and June 2008 and there is no evidence that the underlying condition progressed in this period or that it was in any way affected other than the production of symptoms on an ill-defined temporary basis in December 2007.
[14]Exhibit B, PCB 35
18 Given that the plaintiff’s case is placed firmly on the production of symptoms superimposed upon a pre-existing osteoarthritic condition, I am not satisfied that there has been the permanent production of symptoms between December 2007 and the occurrence of the second incident in July 2008.
The second incident
19 On 13 July 2008, the plaintiff tripped over some electrical leads at work which had been taped onto a carpet with gaffer tape. As a result of this trip, she fell to the floor, jarring both knees, but again, feeling particularly severe pain in her left knee. She stated her left foot had become tangled in the tape which had become twisted on the floor. She again consulted Dr Smith.[15] Thereafter, the plaintiff continued to suffer from severe pain in her left knee and Dr Smith referred her to orthopaedic surgeon, Mr Malcolm Thomas, who first saw her on 5 August 2008.[16] On this occasion, the plaintiff gave a retrospective history that her left knee had deteriorated since the first incident with medial knee pain, a tight feeling and restriction. She said that it was getting worse. However, she did not give a history on that occasion of the second incident. In any event, he thought, at that time, that she had “a component of arthritis and may have a degenerative medial meniscus tear”. He thought it reasonable to proceed to an arthroscopy.[17]
[15]Exhibit A, Plaintiff’s affidavit sworn 6 June 2011, PCB 14, paragraph 6
[16]Exhibit 4
[17]Exhibit 4, report of Mr Thomas dated 5 August 2008
20 The plaintiff subsequently underwent an arthroscopy on 9 November 2008. Thereafter, she said she felt better for a few weeks, but as time went by her left knee began to swell and the pain became more severe and she felt that the knee was about to collapse at various times. She underwent physiotherapy and continued to take painkilling medication and anti-inflammatories, which had been earlier prescribed.[18]
[18]Exhibit A, Plaintiff’s affidavit sworn 6 June 2011, PCB 14, paragraph 8
21 After the arthroscopy, she used crutches for support and occasionally a walking stick. Over a period of time, she commenced to develop pain in her lower back and in her right knee. She had previously sustained a lower back injury in 2003. Dr Smith considered that walking with a limp due to the left knee injury would have been a minor aggravating factor for the symptoms in her low back and her right knee.[19]
[19]Exhibit B, PCB 35-36
22 At arthroscopy, Mr Thomas found that she had quite significant arthritis in the knee with Grade 4 changes on her patella and Grade 2 and 3 in the medial compartment. He explained to the plaintiff that she was likely to remain symptomatic in the future and that she may require knee replacement surgery.[20]
[20]Exhibit 4, report dated 26 September 2008
23 In his report dated 15 January 2009, Mr Thomas opined that the arthritis in the left knee was undoubtedly pre-existing but had only become symptomatic after the two incidents at work and therefore “work was an important cause for her knee pain”.[21] Because of the ongoing symptoms, he considered that the next step was knee replacement which was “obviously a significant undertaking for a woman of fifty-four”.[22]
[21]Exhibit 4, report dated 15 January 2009
[22]Exhibit 4
24 Thereafter, Mr Thomas made a request of the WorkCover insurer for funding for the left knee reconstruction. The insurer wrote to him on 24 June 2010 with a number of questions; viz:
“1.Is there a difference in the severity of the osteoarthritis in the right and left knees?
2.The worker was diagnosed as suffering a tear to the medial meniscus in the left knee as a result of a fall at work. Is there a relationship between this injury and your request for surgery?
3.The worker currently has an accepted claim for her left knee only. Given you are proposing surgery to both knees is it reasonable to state that knee replacement surgery would be required regardless of any work related injury/aggravation? If not, can you please outline the reasons why?”[23]
[23]Exhibit 5
25 Mr Thomas replied on 26 July 2010 and answered the questions seriatim:
“1.Both knees have advanced osteoarthritis, although it is the left knee which is troubling her and more disabling than the right knee.
2.Ms. Hofen was diagnosed with a tear to the medial meniscus in her left as a result of a fall from work but she also had osteoarthritis in that knee. The relationship between her injury and her current symptoms is that she has become more disabled since her workplace accident due to her left knee pathology. Request for surgery of a total knee replacement is to address her osteoarthritic knee.
3.When I last saw Ms Hofen on 6/4/2010 I recommended to her that we proceed with a total left knee replacement as her left knee was leading to her major disability. I do not propose that we proceed with a right total knee replacement at this stage but expect that in the fullness of time this may be an option for her.
I agreed with you that it is reasonable to state that knee replacement surgery would be required regardless of any work related incident.”[24]
[24]Exhibit 5
26 It is significant, in my view, that Mr Thomas does not state when the knee replacement surgery would be required regardless of any work-related incident. I do not accept the defendants’ submission that it is implicit that the operation would have been required at the same time as it was performed, in any event. I consider that the answers to the three questions by Mr Thomas lead to the following inferences:
· First, her level of disability referred to in Answer (2) was a direct consequence of the “current symptoms” which had been significantly aggravated by the second incident and had continued unabated.
· Secondly, although one can accept that the total knee replacement was “to address her osteoarthritic knee”, I infer that it was her disability as a result of the symptoms that led her to consent to such total knee replacement at the time that it was performed.
· Thirdly, in this sense, the aggravation of the symptoms was the proximate cause for the performance of the total knee replacement at the time it was performed. The “major disability” referred to in Answer (3) subjectively experienced by the plaintiff was as a direct result of the level of symptoms which had been aggravated by the second incident.
27 Proceeding on this basis, the question becomes, based on Mr Thomas’ report, when is it likely that the relevant knee replacement surgery would have been required, “regardless of any work-related incident”? The defendants claim that this is a gap in the plaintiff’s evidence which has not been filled.
28 Before addressing this question further, it should be noted, in terms of the issues identified by both parties, that Mr Thomas reported on 29 June 2011 that the plaintiff had recovered well from the left knee replacement, “although did have ongoing pain and swelling”.[25] He left her further care to the general practitioner, Dr Smith. On review on 15 January 2009, he noted the plaintiff “remained miserable with her left knee due to pain”. She therefore underwent a left total knee replacement on 29 September 2010. On 5 October 2012, Mr Thomas reported to the general practitioner that although she had had left total knee replacement performed two years ago, she still reported posterior knee discomfort and pain at times.[26] Significantly, he also noted “her right knee is also symptomatic with arthritis and she wonders whether because she is favouring that side she is getting more symptoms on left total knee replacement side”.[27] He reviewed some plain x‑rays of the left knee and then stated:
“My assessment is that Veronica’s left knee is disappointing in that it still leads to pain and unfortunately we do see a small percentage of patients after what otherwise appears to be successful knee replacements have pain. … .”[28]
[25]Exhibit 4, report dated 29 June 2011
[26]Exhibit 4, report dated 5 October 2012
[27]Exhibit 4, report dated 5 October 2012
[28]Exhibit 4, report dated 5 October 2012
29 On 19 July 2013, Mr Thomas reported to the general practitioner that the plaintiff had recovered well following right total knee replacement “over two months ago”.[29] She also reported that she had no complications with the right knee and says that it is much better than her left knee replacement.
[29]Exhibit 4, report dated 19 July 2013
30 Dr Smith, the general practitioner, reported on 10 January 2010 that the degenerative arthritis in the plaintiff’s right knee had worsened considerably over the last few months. He considered that –
“This accelerated deterioration can be attributed to M/s Hofen having to carry more bodyweight through the right leg, due to her left knee injury.”[30]
[30]Exhibit B, report dated 10 January 2010, PCB 31
31 Further, he reported on 28 January 2011 that the plaintiff was still troubled with low back and bilateral shoulder pains which were a secondary complication of her knee injuries. He did not expect these conditions to stabilise until “she has recovered from her right total knee replacement”.[31]
[31]Exhibit B (infra) PCB 30
32 Following the right total knee replacement surgery, Dr Smith noticed a dramatic improvement in her physical health. There was a good result from the right knee surgery and there had been an improvement in her back pain. Accordingly, the consequences relied on by the plaintiff relate solely to the left knee replacement surgery and the consequential symptoms which will be suffered for the foreseeable future. These consequences are agreed between the parties to be serious, subject to the question of permanence referred to above.
33 In terms of the consequences from the first incident being serious, the plaintiff relies on the medico‑legal opinion from orthopaedic surgeon, Mr Peter Kudelka, dated 13 October 2014. In this regard, he stated:
“The effects from the first incident, inasmuch as they were incompletely relieved by analgesics resulted in limited function and a fall after the first incident, could have eventually resulted in a total knee replacement of the left knee.”[32]
[32]Exhibit K, PCB 93-95
34 In this regard, the plaintiff relies on the decision in Stone v Jarvis which was one of the decisions contained in Humphries & Anor v Poljak.[33] In that regard, Crockett and Southwell JJ stated:
“If the knee joint is now in such a condition that there is a real risk of the necessity of total replacement, it can fairly be described as very considerably damaged. … [and] … we have concluded that the long term impairment of the applicant's knee function is properly to be regarded as ‘serious’.”[34]
[33][1992] 2 VR 129 at 148
[34]Humphries & Anor v Poljak (supra) at 148
35 In that case, however, it would appear that there was no underlying arthritic condition and that the symptoms had continued unabated since the motor vehicle accident. Given the absence of a similar history in this regard, I do not consider that this opinion of Mr Kudelka carries the day for the plaintiff with respect to the first incident.
36 Mr Kudelka, however, does lend support to the proposition that the second incident produced persisting symptoms in the left knee and an uneven gait, such that the opposite right knee was aggravated also to the point where a total knee replacement was performed on the right knee. He considered that the second incident was the final injury which led to a total knee replacement and thereafter, the patient did not ever significantly recover.[35] He also considered that the right total knee replacement was also a consequence of the left knee injury presumably because it was the exacerbation of symptoms that led to the request for surgery. It should be noted, however, that the plaintiff concedes that there was a good result from the right knee replacement, such that it is not submitted that that injury is a “serious injury” in its own right.
[35]Exhibit K, PCB 94
37 I note that the plaintiff has support from occupational physician, Dr Helen Sutcliffe, in the same regard.[36]
[36]Exhibit L
38 With respect to the second injury, the defendants rely on the opinion from orthopaedic surgeon, Mr Jonathan Hooper.[37]
[37]Exhibit 3
39 In terms of the issues identified in the case, Mr Hooper stated:
“It would be my view that the aggravation of the fall aggravated and accelerated this woman’s problem, but did not cause the underlying pathology and her continued troubles are due to the underlying pathology. She would have required a knee replacement whether she fell or not in 2008.
The fall would have rendered her knee symptomatic, but it did not change the underlying pathology. … .”[38]
[38]Exhibit 3, Defendants’ Court Book (“DCB”) 20
40 As to the timing of such operations, he stated:
“… I believe that both knees would have required knee replacement at some stage whether she had fallen or not.” [39]
[39]Exhibit 3, DCB 18
41 It would appear that the opinion of Mr Michael Polke dated 8 September 2009[40] does not advance the issues any further.
[40]Exhibit 2
42 The three reports of Mr Michael Shannon[41] do not advance the issues any further, other than his opinion:
“… [I]t is certainly possible that the aggravation contributed to a meniscus tear and in my view, if there was a significant injury, it would have resulted in permanent aggravation and acceleration of degenerative change.”[42]
Analysis: permanent
[41]Exhibit 1
[42]Exhibit 1, DCB 7
43 Having found, which I do, that the nature and extent of the injury caused by the second incident includes the aggravation of the underlying osteoarthritis of the left knee by the permanent worsening of symptoms referrable thereto, the need to cease work, the symptoms producing the need for the arthroscopy and then the left knee replacement surgery, together with the other consequences referred to above, it is agreed between the parties that those consequences result in a “serious impairment” as defined.
44 The question of “permanence” was addressed by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak; St Laurence Community Services (Barwon) Inc & Ors v Gledhill; Stojanovski v Bartter Enterprises Pty Ltd & Ors; Pausak v Barwon Health & Ors,[43] wherein the Court of Appeal stated:
“In practical terms, one can scarcely proceed to consider the consequences to the plaintiff of either the injury or the impairment before one has identified precisely the nature and extent of the injury relied upon and of the consequent impairment of a body function said to have been produced. A necessary part of that task of identification will be to determine how far, if at all, the alleged impairment is permanent, in the sense of likely to last for the foreseeable future. Only then, it seems to us, can one proceed to the inquiry about the consequences for the plaintiff: are the consequences such that they satisfy the ‘very considerable’ test set forth in paragraphs (b) and (c)? Thus, in order the questions must be: first, what is the injury and what is the impairment said to be produced in consequence; secondly, is the impairment permanent, i.e., likely to last for the foreseeable future; and thirdly, are the consequences for the plaintiff such as to satisfy the ‘very considerable’ test? If the answer to the second or third of these is no, the injury is not a serious injury as defined by paragraph (a) of sub-s.(37). If the answer to both is yes, it is a serious injury, but then one has identified an impairment which is both permanent and serious (as defined) and the fact that the impairment is permanent will obviously have been a consideration when weighing the consequences; after all, they are the consequences of that impairment. It is hardly likely, if the impairment of the body function will probably last for the foreseeable future, that the consequences upon which the plaintiff relies to satisfy the ‘very considerable’ test will be otherwise.
Having given the matter much thought, we think it enough to say this: that the impairment of a body function will answer the description ‘permanent serious impairment’ if it is an impairment which, with consequences (as to economic loss or pain and suffering or both) that meet the ‘very considerable’ test, is permanent, in the sense of likely to last for the foreseeable future. That sufficiently couples both adjectives – permanent and serious (as defined) - and beyond that it seems unnecessary to go. Certainly nothing in these four appeals raised any problem in that regard.”
[43] (2005) 14 VR 622 at paragraphs [33]-[34]
45 The answer, in this case, to the first question is the elevation (aggravation) of symptoms to a level where the worker ceases work and ultimately requests a total knee replacement, with the other consequences already defined.
46 It is clear that the answer to the third question referred to above is “Yes”.
47 With respect to the second question, the test of “permanent” would appear to relate to the adjectival phrase “in the sense of likely to last for the foreseeable future”. Clearly, once the heightened symptoms have been produced by the second incident, the consequences that flow are permanent in the sense that there will be no recovery therefrom.
48 However, the issue remains that given there is no time stipulated, by any medical practitioner, as to when the unaggravated condition would have produced the need for a knee replacement, is that a fatal flaw in the plaintiff’s proofs? The defendants submit that no practitioner has even descended to state that that period is uncertain. Further, even if any practitioner had made that statement, would the proofs have been sufficient? Senior Counsel for the plaintiff submits that any such period is never able to be scientifically or medically reduced to periods of weeks, months or even years. He submits that the case turns on the production of symptoms by the second incident at least. He submits that it is the symptoms and not the existence of the underlying condition that leads the plaintiff to give consent to the relevant operation. A patient has no academic interest in an underlying condition leading to an operation unless the symptoms thereby suffered compel such a decision. I accept that this inference is open. Further, given that the symptoms and the operative relief on the left knee exacerbated the symptoms in the right knee to some extent, it was once again the production of symptoms in the right knee that led to the operation in that knee. I accept that on all the evidence, the period of the aggravation/acceleration of the condition caused by the second incident is uncertain. However, I find that the inference is open to me to find that the second incident did have a permanent effect “in the sense that it was likely to last for the foreseeable future”.[44]
[44]Barwon Spinners (supra) paragraph [34]
49 Insofar as it can be said that no medical practitioner gives the relevant opinion that fits squarely with the finding referred to above, I rely on the line of authorities which stipulate that it is the judicial decision rather than the medical opinion which ultimately determines the issue.[45]
[45]See Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Dahl v Grice [1981] VR 513
50 In all the circumstances, leave will be granted to the plaintiff to issue proceedings at common law for pain and suffering and loss of earning capacity on account of a left knee injury suffered on or about 13 July 2008.
51 I will hear the parties as to any consequential orders.
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