Huerta v Ventura Bus Lines Pty Ltd
[2010] VCC 1312
•31 August 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CRIMINAL DIVISION
DAMAGES & COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-04872
| SILVIA HUERTA | Plaintiff |
| v | |
| VENTURA BUS LINES PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 August 2010 |
| DATE OF JUDGMENT: | 31 August 2010 |
| CASE MAY BE CITED AS: | Huerta v Ventura Bus Lines Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1312 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – serious injury application under s.134AB Accident Compensation Act 1985 – serious injury claimed for serious impairment to the function of the right leg, in particular the right knee – leave granted for serious injury for loss of earning capacity and pain and suffering.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards SC with | Clark Toop & Taylor |
| Mr A D B Ingram | ||
| For the Defendant | Mr N Y Rattray | Herbert Geer |
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the defendant on 23 September 2003.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act.
4 There “serious” is defined as meaning:
“(a) permanent serious impairment or loss of body function.”
5 The body function relied upon in this application is the right leg, in particular the right knee.
6 The plaintiff relied upon two affidavits sworn 7 May 2009 and 5 July 2010. The plaintiff, Dr John Malios and Mr Kenneth Brearley were cross-examined. In addition, both parties relied on medical reports and other material which is tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.1
8 In order to succeed, the plaintiff must prove, on the balance of probabilities,
that:
(a)
“the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant on or after 20 October 1999.2
(b)
the impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.3
(c) under s.134AB(38)(b) of the Act, the term “serious” is to be: “… satisfied by reference to the consequences to the worker of
any impairment or loss of a body function … with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of
possible impairments or losses of a body function … .”
(d) under s.134AB(38)(c) of the Act: “an impairment or loss of a body function … shall not be held to be serious … unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases … fairly described as being more than significant or marked, and as being at least very considerable.”
9 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent,
by what has been retained.”4
10 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments. As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:5
“The emphasis in s 134AB (38((c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”6
S.134AB(19)(a) of the Act
S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
Barwon Spinners (op cit) at paragraph [33]
Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, at [44]
ibid
Ibid at [42]
11
The test for “serious”, as set out in paragraph (b) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”.
12 In determining the application, the Court:
(a)
must make the assessment of “serious injury” at the time the application is heard.[7]
(b)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[8]
[7] S.134AB(38)(j) of the Act
[8] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issues
13 Counsel for the defendant submitted the plaintiff’s condition was no longer related to her employment. The plaintiff has not sustained a “serious injury” as the consequences of the aggravation are not “very considerable” and are not more than “significant” or “marked”. The plaintiff has retained a capacity for suitable employment which is untested.
The Plaintiff’s Evidence
14 In her first affidavit sworn 7 May 2009, the plaintiff deposes that:
(a)
She was born on 9 September 1947 (is now aged sixty-two) and is divorced;
(b) She has a daughter and son who are independent; (c) She came to Australia from Chile in December 1974; (d)
She commenced work for the defendant as a bus driver in March 1995. She worked shifts up to 12 hours 55 minutes;
(e)
She had a previous injury in January 1998, a twisted injury to her right ankle.
(f)
In the longer term, as a result of this accident, she developed right knee pain;
(g)
She underwent arthroscopic surgery on her right knee at St Vincent’s Hospital on 22 March 2001;
(h)
She resumed her bus driving duties and built her hours up to full hours again, although she found she was subject to further symptoms in her right knee;
(i)
She saw Mr Dalzeal in March 2002 and he advised her that in the future she would require another operation.
(j)
She was taking pain-relieving medication as required and was able to continue with her usual duties;
(k)
She was working in the defendant’s depot and carrying all her equipment ready to start her next route. She came into contact with a rubber mat which, for some reason, had rolled up. She fell forward, landing on her knees. She grazed her knees. She was immediately aware of significant pain in her right knee. She was unable to complete her shift. She saw Dr Spiroulias and was referred to Mr Griffin. On 20 September 2004, Mr Griffin recommended a repeat arthroscopy. There was a delay in the surgery being approved;
(l)
Following the surgery, she was absent from work for a period of four to five weeks and thereafter resumed employment driving but working limited hours. She was able to work her way up to full hours, being shifts of up to 12 hours 55 minutes. At the end of a day’s work her right knee was again painful. Dr Malios certified she was only able to work 8-hour shifts;
(m)
In mid 2008, she was told that there was no work for her undertaking 8-hour shifts;
(n) On 29 August 2008, her position was terminated; (o) Since her termination, she has been in receipt of WorkCover payments; (p) Both her children live overseas; (q)
Working was a way of getting out of the house regularly and engaging with people;
(r) Her loss of income has restricted her activities and, in particular, travel; (s) Gardening is restricted because of the pain. 15 In her second affidavit sworn 5 July 2010, the plaintiff deposes that:
(a)
She has not returned to any type of work due to ongoing pain in her right knee;
(b)
She was seen by Mr Martin Richardson on 29 June 2009, who advised her that she required a total knee replacement;
(c) She has been placed on the waiting list for surgery; (d)
She does not believe she would be able to return to work full-time, part- time or any type of work. She believes she will be confined to working part-time light duties in the future;
(e)
She experiences constant pain which ranges from a dull ache to extremely painful. She finds it difficult to walk because her knee causes excruciating pain. Her altered gait has caused her lower back to become painful. Her sleep is affected.
The Plaintiff’s Medical Evidence
16 A report from Dr A K Freund, general practitioner, dated 25 October 2001 said that the plaintiff attended his surgery on 1 October 1998, stating she had injured her right knee at work. She was referred to Mr David Booth, orthopaedic surgeon. She subsequently had an arthroscopy in 2000 which revealed cartilage damage.
17 In February 2004, Dr John Malios, the plaintiff’s general practitioner, said that the plaintiff attended on 24 September 2003 and reported that she had tripped on a mat and fallen, injuring both knees when she was changing with another driver. On examination, there were grazes to both knees with tenderness to palpation of the right patella and limited right knee flexion. She was referred for x-rays of the right knee. The report said:
“There is a large effusion in the suprapatellar pouch. However, no
fracture or dislocation is detected. There is mild osteoarthritis in both
femoro-tibial compartments. There is normal joint alignment bilaterally.”
18 By 29 September 2003, when reviewed by Dr Malios, the knee pain and swelling had subsided. The plaintiff presented on 6 October 2003 after a fall at home on her outstretched right hand when she sustained fractures to her right distal radius. She was treated with plaster immobilisation of her right forearm. The plaintiff was seen again on 7 November 2003 and was able to return to work. The plaintiff was referred by Dr Malios to Mr Phillip Griffin, orthopaedic specialist.
19 Dr Malios considered the plaintiff had sustained soft tissue injuries to both knees with aggravation of pre-existing degenerative changes of the right knee as a result of the fall at work on 23 September 2003. Her recovery was complicated by infection to the right knee which resolved with antibiotics. It was Dr Malios’ opinion that her work was a significant contributing factor to the injuries to both knees. He said there may be a possibility that the fall at home could have been contributed to by knee instability from the knee injuries. He considered, at that time, her condition had not fully stabilised to determine any permanent impairment. He said that there was a possibility, in view of pre-existing degenerative changes, particularly in the right knee, and with a past history of arthroscopy to the right knee (2000), that a long-term aggravation of knee osteoarthritis and subsequent impairment could occur.
20 In May 2005, Dr Malios said that, in February 2005, the plaintiff underwent a right knee arthroscopy, following which she resumed her normal driving duties. On 9 March 2005, she worked for three hours. On 10 March 2005, she worked for twelve hours and on 11 March 2005, she worked for six hours, but could not finish her shift due to knee pain. On review on 12 March 2005, there was tenderness to palpation of the knee and restriction of knee flexion. On 15 March 2005, when reviewed, the knee was still swollen with an effusion, had restriction of movement and was tender to palpation. The plaintiff was certified as unfit for all work duties and referred for review to an orthopaedic specialist and for physiotherapy.
21 It was Dr Malios’ view that the plaintiff was suffering from an aggravation of degenerative disease of her right knee joint. He said her employment duties as a bus driver would significantly contribute to the aggravation of the right knee, as was demonstrated by her attempt to return to full-time employment following the most recent arthroscopic procedure in February 2005. Dr Malios said the plaintiff was currently incapacitated for her employment duties but expected that there would be a gradual improvement in her condition. He said she would require a graduated return to work or, alternatively, modified suitable duties. He considered her condition had not stabilised but that there was a likelihood of permanent impairment and that her condition affects her ability to undertake necessary daily living activities. He said she required physiotherapy treatment which was unlikely to be required on an ongoing basis.
22 In a report dated 20 August 2008, Dr Malios said that after the February 2005 right knee arthroscopy, the plaintiff was able to gradually increase her hours to full-time, continuing driving buses with a lighter accelerator.
23 In May 2008, the plaintiff presented to Dr Malios with increased right knee pain, particularly after working a 13-hour shift, driving a bus with a lighter accelerator. On examination, the knee was not swollen, but there was tenderness to palpation over the medial joint line. He recommended she work 8-hour shifts, and provided a certificate to that effect. He said that following a period off work for an unrelated gallbladder operation, she returned to work, and in July 2008, she was undertaking modified duties. By August 2008, she stated that she had been advised there were no further suitable duties available.
24 It was Dr Malios’ view that since September 2003, the plaintiff had made every attempt to return to work, including a period of full-time work, but always with modifications. She was unable to cope with the long shifts required and consequently it was recommended that her shifts be reduced to eight hours’ driving. He said that the plaintiff has sustained an injury, being an aggravation to osteoarthritis of the right knee. She has not recovered from this condition and is currently unfit for pre-injury duties. It was his opinion that her current condition is due to the injury of 2003.
25 On 16 February 2010, Dr Colin Leong, general practitioner and an associate of Dr John Malios, said that the plaintiff’s most recent x-ray of 16 June 2009 suggests:
“Moderate tri-compartmental osteoarthritis at the right knee with a joint
effusion and probable loose intra-articular bodies.”
26 Examination by Dr Leong in February 2010 revealed a valgus malalignment of her right knee with some bony swelling. She had tenderness over the medial joint line of her knee. There was significant crepitus with movement of her knee joint. It was his view that the plaintiff has had ongoing symptoms of pain of the right knee as a result of aggravation of degenerative osteoarthritis resultant from her fall in September 2003. Her pain has been ongoing since her fall, and worsened in 2009.
27 Dr Leong said the plaintiff had been assessed as requiring a total right knee joint replacement. It was his view that the fall in September 2003 has resulted in her right knee osteoarthritis to become and remain symptomatic. He said the total right knee replacement is directly as a consequence of her knee injury in September 2003. He thought that a total right knee replacement may be able to provide good pain relief and is likely to improve her level of functioning.
28 In August 2010, Dr Leong said that the plaintiff was unfit for any duties at present and that she will need to be reassessed post-surgery and post- rehabilitation as to her capacity to return to work.
29 In a report dated 24 January 2005, Mr Phillip Griffin said he had reviewed the plaintiff on 26 September 2003, at which time he advised her to continue with protected use of the knee, local massage and exercise. She returned on 20 September 2004, because of increasing pain, and a repeat arthroscopy was arranged. He said that given the plaintiff’s age, persisting symptoms and the presence of established degenerative changes in her right knee, he considered it appropriate for her to cease driving heavy buses with the strain that this imposes on her right knee. He said she would be suitable for alternative duties which do not involve heavy, repetitive or stressful use of the right leg.
30 On 21 March 2005, Mr Griffin reported that the arthroscopic procedure confirmed significant degenerative arthritis in the lateral compartment of the right knee as the major cause for the plaintiff’s ongoing symptoms. She recovered from the procedure uneventfully but predictably has had a flare-up of symptoms when she returned to work. He said that the plaintiff cannot continue with duties involving heavy, repetitive and stressful use of the right leg, and whether she has ongoing symptoms in the knee requiring more extensive surgical intervention remains to be seen.
31 In June 2008, Mr Griffin reported that the plaintiff returned to him in February 2008, at which time she reported ongoing intermittent pain in the right knee, particularly at the end of her working shifts, which were often 12 to 13-hour days. He considered the plaintiff was suffering from constitutionally based degenerative arthritis in her right knee with falls at work apparently in 2000 and 2003 being associated with a flare-up in symptoms in the right knee. He believed it could be argued that repeated falls onto the right knee and sustained use of the right leg to operate the brake and accelerator of a heavy bus during 12-hour shifts of driving constitute a contributing factor to the progression of the arthritis in the right knee. He considered that if the plaintiff was to experience ongoing high-level symptoms, joint replacement surgery may need to be considered. He did not believe that surgical intervention was indicated but considered she should seek a shorter working time or change employment which does not involve repetitive strain on her knee.
32 On 3 July 2009, Associate Professor Richardson said that he reviewed the plaintiff on 1 December 2009 and that her right knee was becoming worse. He said her recent x-rays show worsening of the osteoarthritis in her knee with increasing valgus mal-alignment secondary to severe lateral compartment osteoarthritis. There is also some medial and patello-femoral disease. He said she required a right total knee joint replacement and he wished to perform the surgery as soon as possible.
33 On 21 May 2009, Mr Kenneth Brearley, orthopaedic surgeon, saw the plaintiff at the request of her solicitor. At that time the plaintiff told Mr Brearley that she was unable to drive buses for more than 8-hour shifts; unable to walk long distances and could no longer go bushwalking; nor could she attend the gymnasium for exercise. She is limited in her gardening, and she is no longer able to dance because of a feeling of instability of the knee. It was his opinion that the plaintiff had degenerative osteoarthritis of the right knee joint involving all compartments, but particularly the lateral compartment. He considered her employment had been largely responsible for her condition. He considered the fall of September 2003 had been responsible for material aggravation of her pre-existing condition to the point where she required further surgery, namely, the arthroscopy in February 2005. He said that she would likely require a total knee joint replacement in the foreseeable future. He considered her impairment from the injuries was permanent.
34 Mr Brearley said the plaintiff was capable of bus driving again and carrying out her pre-injury employment with restrictions, however, she should avoid shifts longer than 8 hours and preferably they should be shorter than that. He said she should also avoid buses with stiff brakes or accelerators as these put increased strain on the right knee joint. He thought she could work driving a small courier vehicle. He considered the injury has aggravated the pre- existing degenerative arthritis of the joint and accelerated its development to the point where surgery will be required at an earlier stage than otherwise would be necessary. He considered the knee injury will make it difficult for her to find employment. He said she did not require retraining but requires assistance with job finding.
35 In a report of 2 June 2010, Mr Brearley said that since he last saw the plaintiff one year ago, there had been an advance in her knee condition and she now has a very obvious outward bowing deformity of the knee joint of 15 degrees. This would be clearly placing an increased strain on the knee joint and its ligamentous support. In addition, there is increased laxity of the medial collateral ligament, and the knee joint is now unstable. He agreed that she does require a total knee joint replacement and that her arthritis will increase rapidly.
36 Mr Brearley said the plaintiff was not fit to resume her former work as a bus driver. He thought she could theoretically drive a bus for 2 to 4-hour periods, five days a week, but that she would need to avoid any buses with stiff brakes or accelerators which put increased strain on her right knee joint. He thought she had no current work capacity due to her knee problems, problems she has with her right shoulder, her age and her limited English skills. He said the prognosis for her to find suitable employment is worsening as time passes and as her osteoarthritis advances. He said that she would not be able to work for six months or more after the right knee joint replacement. He did not consider she would be able to do any physical work which included bus driving, and that her disability and incapacity, whether she is operated on or not, will remain for the foreseeable future. He considered the two incidents at work in January 1998 and, in particular, on 23 September 2003, have made major contributions to the development of her degenerative arthritis.
The Defendant’s Medical Evidence
37 The plaintiff was examined by Dr Andrew Miller, an occupational health consultant, at the request of the defendant’s insurer, on 29 August 2001. He examined the plaintiff following an injury to the right knee in a fall at work on 10 January 1998. He noted that she required surgical intervention in March 2001. He said that the underlying pathology appears to have been an osteochondral injury of the right knee joint. The plaintiff had a good response to surgery and had been able to resume her normal duties. His examination revealed normal function of the right knee and no residual disability.
38 Dr Miller re-examined the plaintiff in September 2003 in respect to a back injury.
39 In November 2003, Dr Miller examined the plaintiff as a result of the injury to her knees and left foot on 23 September 2003. It was his view that the description of the circumstances of the injury on 23 September 2003 implicated her employment with the defendant as a significant contributing factor in the absence of other possible causative factors. In November 2003, his examination revealed normal function of her knees and left foot.
40 Dr Miller re-examined the plaintiff on 10 November 2004. She told Dr Miller that she returned to work in November 2003 and continued her duties and normal hours until September 2004 when she experienced increasing pain and swelling in her right knee. Dr Miller was aware that Mr Griffin had recommended surgery to the right knee. His clinical examination revealed normal movements of the right knee and no evidence of derangement. He said the underlying pathology appears to be a chronic degenerative condition of the right knee and he did not believe her employment was a significant contributing factor as there was no specific traumatic incident to account for the recent onset of right knee symptoms; there had been no alteration to her usual duties. He said she had a previous non-work related injury to her right knee which required surgery in 2001 and her normal duties do not expose her knees to injurious forces sufficient to cause a chronic significant knee injury.
41 In a report dated 20 December 2004, Dr Miller said he received a report from the plaintiff’s treating doctor, Dr John Malios, dated 1 December 2004 in which Dr Malios indicated that he believed the plaintiff’s employment with the defendant has “as a gradual process been a significant contributing factor to the aggravation and acceleration of the underlying condition of her right knee”. Dr Miller said he had previously inspected the physical requirements of bus drivers with the defendant and did not believe there was any activity in their normal work that would be likely to cause or aggravate a knee injury. His opinion expressed in his report of 10 November 2004 remains unchanged.
42 Dr Miller re-examined the plaintiff in April 2005 after she underwent surgery for the right knee in February 2005. He considered her examination revealed essentially normal functions of both knees. He thought she was capable of doing her normal duties as a bus driver and did not consider her employment as materially contributing to the claimed injury.
43 The plaintiff was examined by Mr Clive Jones, an orthopaedic surgeon, on 19 June 2008. It was his view that the plaintiff had an arthritic right knee. He said the symptoms continued to trouble her and her problems with the right knee will be ongoing. He considered she will be able to work until the normal age of retirement. He considered a need for treatment would be ongoing and he considered her knee arthritis was constitutional rather than a work-related problem. Any relationship to work would be by way of aggravation of the arthritic change rather than a direct injury. He anticipated that the plaintiff would continue to experience knee pain. He thought she may find it difficult to work in a full-time capacity as a driver. He did not consider a knee arthroplasty or similar surgery was required.
44 The plaintiff was medically examined by Mr Michael Polke, an orthopaedic surgeon, in August 2009. It was his view that the plaintiff suffered from osteoarthritis of her right knee which was aggravated by the falls at work. Her condition is likely to deteriorate and require a total knee replacement. He said that she had pre-existing degenerative changes in the right knee although the various injuries 1998, and particularly in 2003, were responsible for aggravation of these degenerative changes, rendering the right knee to become symptomatic. He considered the following jobs were options in order of priority, namely, tram driver, train driver, bus driver and transport conductor, but as her right knee deteriorates, these options become less achievable.
45 In a report dated 13 October 2009, Mr Polke considered that the plaintiff’s pre- existing condition would have resulted almost certainly in deterioration and the need for a total knee replacement even in the absence of the 23 September fall. He said that as the work-related aggravation had not subsided in the last six years, he considered it unlikely to subside in the foreseeable future.
46 In a report dated 22 June 2010, Mr Polke considered the plaintiff’s prognosis was poor without a total knee replacement. He said she would not be able to work for more than eight hours a day driving buses, although with advancing age the likelihood of being re-employed as a bus driver was fairly slim.
47 In a letter dated 13 July 2010, Mr Polke said that the injury would have accelerated the need for the arthroplasty of the plaintiff’s right knee by about six to twelve months.
Cross-Examination of Dr Malios
48 Dr Malios was asked about the fall in 1998 which resulted in an arthroscopy in March of 2001, following which the plaintiff made a full recovery with no ongoing symptoms until the fall in 2003. Dr Malios said that the plaintiff’s story was consistent:
“… in the sense that often one internal derangement to the knee improves, gets better, but then you have the second insult and that second insult was the one which then started off, as I said, could best [be] described as the cascade of aggravation of osteoarthritis and once that starts, it doesn’t stop.”
49 Dr Malios said that based on the findings of Mr Griffin, who performed the arthroscopy in 2005, the fall in 2003 began the cascade of events of which the end point is a total knee replacement. It was the aggravation of the osteoarthritis.
50 Dr Malios was asked whether, in May 2008, the plaintiff would have been able to perform work as a train driver, a light bus driver or courier driver if she did not have to do heavy work. He said:
“You have got someone who has got a rapidly deteriorating right knee. That would limit her standing/walking/bending capacity getting in and out of seats of cars and trains. That in itself is a significant incapacity and one of the other hats that I have is as an occupational health consultant, where I examine peoples’ suitability for various jobs and she certainly would not pass a work capacity test with that knee.”
51 Dr Malios was asked whether osteoarthritis is progressive. He said:
“Osteoarthritis can be stable. You can have osteoarthritis that doesn’t change much. Generally in the knee, once the knee has suffered an insult and you damage the articular cartilage, and that is the – the problem is that cracks appear in the articular cartilage. Once that process has commenced, because the knee is such an intrical part of weight bearing and in this particular case you’re using forceful movement whilst you’re working a bus, then the degeneration of the articular cartilage takes on its own momentum and it then becomes progressive and that is why it is called an aggravation and that aggravation does not cease. If there is just a temporary soft tissue injury, that will get better, but once damage has occurred to the articular cartilage as a result of, in this case, as I understand, an impact injury, followed on by ongoing gradual process injury, then the aggravation, as I said, gathers momentum and I think I predicted in an earlier report that eventually she would come to a total knee replacement.”
52 Dr Malios disagreed with the view expressed by Mr Polke, which was that in view of the plaintiff’s underlying osteoarthritis, the pre-examination condition would most certainly have resulted in a deterioration and the need for a total knee replacement, even in the absence of the fall in 2003. Dr Malios said that view was hypothetical. The plaintiff had a knee injury; she had a fall. If she did not have the fall she does not have the other factors which one would say, “yes”, she is likely to develop knee problems.
53 He was asked if work was aggravating the knee, whether once the plaintiff stopped work you would expect improvement in the knee. Dr Malios said:
“No, as I said, once the aggravation has occurred, there is an onset, a momentum, a cascade, that occurs. You know, you cause a crack, the crack starts to get bigger and bigger.”
54 Dr Malios was asked about the plaintiff’s future after the total knee replacement. He said it was difficult to predict the outcome but you would be hopeful of a good outcome. With a good outcome her pain would improve but you do not regain knee function, in that you are often restricted in the ability to bend the knee which would severely impact on any work capacity. He said sedentary employment is not often an option, because often the knee does not bend well and you have difficulty sitting. He said it was difficult to get a sixty-year-old with a knee replacement back to work.
55 He agreed that as the plaintiff was now sixty-three, had to wait one year to see a surgeon, and a further waitlist for the operation, he believed she had no realistic capacity to return to work.
Cross-Examination of Mr Brearley
56 Mr Brearley was asked whether he agreed with Mr Polke’s view that, without the injury in 2003, the plaintiff would have needed a knee replacement. He said it was hard to know that. He said it was a possibility; that is all that one could say. He also said that all cases of osteoarthritis do not end up in knee replacements. He agreed that the fall may bring forward the possibility of a knee replacement but disagreed that it would be by six to twelve months. He said that was quite erroneous. He said it had brought it forward a great deal in terms of years and he said that it was only after the 2003 incident that things got bad for this plaintiff. He said that the plaintiff would be able to work performing clerical duties for three hours, five days a week currently.
57 Mr Brearley was asked about the view expressed by Dr Miller in August 2001 where he said:
“Clinical examination revealed normal function of the right knee and no
residual disability.”
58 Mr Brearley was asked whether the plaintiff would have required knee replacement surgery. He said it was very possible she would never have required it. He considered that the plaintiff had no realistic possibility of obtaining employment after the knee replacement, that is, she had no current work capacity. This was in view of her age.
The Plaintiff’s Credit
59 The plaintiff impressed me as a truthful witness. She answered all questions in a direct manner. She conveyed a keenness to work which is borne out by her work history with the defendant. She has been described as “stoic” by a number of the doctors who examined her.
60 She made concessions in relation to the level of pain she suffers. She said when she is sitting the pain is of less intensity to when she is standing and walking. Her history of pain was consistent with the evidence given by her doctors. She agreed that after the arthroscopy in 2001, she returned to work, and when asked about where the pain was in September 2003, she said she could not recall. She was frank, in that she admitted she had not sought other employment since she had been terminated and said that she had always wanted to work even after being given the sack. She said she had driven buses for nineteen years and that she had agreed to the operation on her knee so that she could return to work. She conceded her English was not good.
Analysis of the Medical Evidence
61 As so often occurs in these applications, there is a conflict between the views expressed by the medical witnesses of the plaintiff on the one hand, and on the other, the views expressed by medical witnesses retained by the defendant. In this case, I accept the views expressed by Dr Malios, the plaintiff’s general practitioner from 2003 to 2008. He was cross-examined. Dr Malios had seen the plaintiff over five years at regular intervals. I was impressed with the evidence that he gave in court and the explanation for the plaintiff’s return to work after the first fall and the effect of the second fall in 2003 on the plaintiff’s knee. Dr Malios’ evidence was supported by Mr Brearley, an orthopaedic surgeon engaged by the plaintiff’s solicitors. Mr Brearley gave evidence in court and was cross-examined.
62 The defendant relied upon a number of reports from Dr Andrew Miller, who examined the plaintiff on behalf of the defendant on a number of occasions from 2001 to 2005 (after the second arthroscopy). Dr Miller accepted that the plaintiff’s fall in 2003 was work-related but considered that as the plaintiff was able to return to work, any complaints after that time were not work-related but due to the underlying knee condition. This is inconsistent with the view expressed by Dr Malios and the Medical Panel’s opinion.
63 The defendant also arranged for the plaintiff to be seen by Mr Clive Jones, who saw her on one occasion in June 2008.
64 Mr Polke saw the plaintiff in August 2009 at the request of the defendant. He accepted that the falls at work aggravated the plaintiff’s osteoarthritis of her right knee and that her condition was likely to deteriorate and that she would require a total knee replacement. He considered that she would have needed the total knee replacement even in the absence of the 23 September 2003 fall. Dr Malios did not agree with that, nor did Mr Brearley. I accept the reasoning of Dr Malios and Mr Brearley in respect to this comment made by Mr Polke. Mr Polke also expressed the view that the injury in 2003 would have accelerated the need for the arthroplasty of the plaintiff’s right knee by six to twelve months. Dr Malios and Mr Brearley did not agree with Mr Polke. I accept the evidence and reasoning of Dr Malios and Mr Brearley on this point.
The Defendant’s Submissions
65 The defendant contended that the plaintiff’s condition is not or is no longer related to her employment, and relied upon the view of Dr Miller. Having read reports from Mr Polke and heard from Mr Brearley and Dr Malios, I do not accept that submission. Mr Polke accepted that the plaintiff had suffered a work-related aggravation of her underlying and progressive osteoarthritis. Dr Malios accepted that her injury was caused by the fall in September 2003. He said that the plaintiff had undergone an arthroscopy in March of 2001, following which she made a full recovery with no ongoing symptoms until the fall in 2003.
66 I do not accept that the plaintiff has retained a capacity for work and could work in a variety of jobs as identified by Job Fast. The plaintiff agreed she had not sought other employment but there was evidence that she attended a rehabilitation company which is said to be helping her with job placement. She is attending English classes but her English was limited and she required the assistance of an interpreter in Court.
67 The medical evidence of Dr Malios, who said, as an occupational health consultant, he is required to examine people’s suitability for employment, said the plaintiff would not pass a work capacity with her knee. Mr Brearley said that theoretically she might be able to do some limited part-time work. She has no current work capacity in view of her age, limited English skills, and knee problems. Their evidence does not suggest the plaintiff would be able to obtain employment of the kind suggested in the Job Fast Report.
68 As to the future, that is after the knee replacement, the evidence was that by the time the operation was performed, the plaintiff would be over sixty-five years. Further, Dr Malios said with a good outcome, the plaintiff could expect her pain to improve, but she is unlikely to regain knee function, in that her ability to bend the knee would be restricted and would severely impact upon any work capacity.
69 Mr Brearley agreed she would have no work capacity after the knee replacement.
70 She can no longer return to her employment. Given her background, education skills and limited English, the disruption to her working life is, on any view, significant. For such an impairment to be permanent it must continue to affect the plaintiff into the foreseeable future. The evidence of Dr Malios and Mr Brearley satisfies me that the knee injury is permanent and will therefore affect the plaintiff into the foreseeable future.
Loss of Earning Capacity
71 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that:
(a)
at the date of hearing, she had a loss of earning capacity of 40 per cent or more – s.134AB(38)(e)(i)); and
(b)
after the date of the hearing, the relevant loss of earning capacity will continue permanently - s.134AB(38)(e)(ii).
72 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 73 The former must be calculated by reference to the six-year period specified in s.134AB(38)(f).
74 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
75 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
76 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein: see Barwon Spinners Pty Ltd & Ors v Podolak.[9]
[9] (2005) 14 VR 622 at paragraph 70
77 Counsel for the plaintiff provided a table[10] which set out the plaintiff’s earnings, which I was told was accepted as accurate:
[10] Court Book 78
Year Gross Earnings 2001 $46,310.00
2002 $39,648.00
2003 $49,814.00
2004 $46,446.00
2005 $40,742.00
2006 $42,796.00
2007 $52,944.00
2008 $50,879.00
78 I accept the submission that the plaintiff’s “without injury” earning capacity is at least $52,944.00 per annum. Sixty per cent of this is $31,766.40. On the evidence, I accept that the plaintiff is now able to earn nothing as she does not have a realistic work capacity.
79 Counsel for the plaintiff submitted that even if the plaintiff was wrong and the plaintiff had a residual capacity for work, she could only work for fifteen hours a week at $20 per hour which would give her a capacity of $300 per week. Even adopting those figures, the plaintiff would not achieve the $31,766.40 per annum.
80 I accept that, realistically, this plaintiff is not going to ever work again. I have regard to the opinions expressed by Dr Malios, Mr Brearley and, to a certain degree, Mr Polke.
81 I am also required to consider issues of re-training and rehabilitation pursuant to subsection (g).
82 In view of the plaintiff’s age and limited English, I do not consider those issues arise.
83 In view of the decision of Advanced Wire & Cable Pty Ltd v Abdulle,[11] a plain reading of s.134AB permits a plaintiff who satisfies the loss of earning capacity requirement of that section to claim damages for both loss of earning capacity and pain and suffering.
[11] [2009] VSCA 170
84 For the reasons I have previously expressed, when considered in the context of my finding that the plaintiff has suffered a loss of earning capacity which meets the financial threshold established by s.134AB(38)(e).
85 Accordingly, I propose to grant the plaintiff leave pursuant to s.134AB(16)(b) to bring proceedings in accordance with s.134AB of the Act for the recovery of damages – being both pain and suffering damages and pecuniary loss damages as therein defined.
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